« السابقةمتابعة »
the rigor of the common law rule. At common law the mere omission to present a cheque for payment did not discharge the drawer, until, at any rate, six years had elapsed, and in this respect the common law appears to be unaltered. But if a cheque was not presented within a reasonable time, as defined by the cases, and the drawer suffered actual damage by the delay, e.g., by the failure of the bank, the drawer was absolutely discharged, even though ultimately the bank might pay (say) fifteen shillings in the pound." The section is substantially the law of Quebec before the Act, the Code placing the indorsers in the same position :-"If the cheque be not presented for payment within a reasonable time, and the bank fail between the delivery of the cheque and such presentment, the drawer or indorser will be discharged to the extent of the loss he suffers thereby": Art. 2352. See also re Oulton, 15 N. B. (2 Pugs.) 333 (1874).
When the drawer or other person is thus discharged, the holder is a creditor of the bank to the extent of such discharge clause (c).
(b) In determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade and of banks, and the facts of the particular case. Imp. Act, s. 74 (2).
The following are said to embody the rules as to what is a reasonable time for the presentment of cheques in England:
1. If the person who receives a cheque and the banker on whom it is drawn are in the same place, the cheque must, in the absence of special circumstances, be presented for payment on the day after it is received: Alexander v. Burchfield, 7 M. & Gr. 1061 (1842); Firth v. Brooks, 4 L. T. N. S. 467 (1861).
2. If the person who receives a cheque and the banker on § 73. whom it is drawn are in different places, the cheque must, in the absence of special circumstances, be forwarded for presentment on the day after it is received, and the agent to whom it is forwarded must, in like manner, present it or forward it on the day after he receives it: Hare v. Henty, 10 C. B. N. S. 65 (1861); Prideaux v. Criddle, L. R. 4 Q. B. 455 (1859); Heywood v. Pickering, L. R. 9 Q. B. 428 (1874).
3. In computing time, non-business days must be excluded; and when a cheque is crossed, any delay caused by presenting the cheque pursuant to the crossing is excused: section 91.
These rules are substantially those that have been recognized in Canada. See Redpath v. Kolfage, 16 U. C. Q. B. 433 (1858); Owens v. Quebec Bank, 30 ibid. 382 (1870); Boyd v. Nasmith, 17 O. R. 40 (1888); Blackley v. McCabe, 16 Ont. A. R. 295 (1889); Sawyer v. Thomas, 18 Ont. A. R. 129 (1890); Marter v. Stewart, 2 Stephens' Que. Dig. 111 (1878).
(c) The holder of such cheque, as to which such Holder a drawer or person is discharged, shall be a creditor, the bank. in lieu of such drawer or person, of such bank to the extent of such discharge, and entitled to recover the amount from it. Imp. Act, s. 74 (2) (3).
This is, to a certain extent, a modification of the rule in section 53. England it introduced partially the Scotch principle of sub-section 2 of that section, and in Canada it recognizes in this particular case the principle laid down in Quebec in Marler v. Molsons Bank, 23 L. C. J. 293 (1879). These countries adopted it from the civil law.
74. The duty and authority of a bank to pay Revocation a cheque drawn on it by its customer are terminated authority. by
paying cheques. bills, etc.
(a) Countermand of payment;
(b) Notice of the customer's death. Imp. Act. s. 75.
A bank having sufficient funds of the drawer of a cheque in its hands is bound to pay it, and in case of refusal is liable to an action of damages: Marzetti v. Williams, 1 B. & A. 415 (1830); Foley v. Hill, 2 H. L. Cas. 28 (1848); Rolin v. Stewart, 14 C. B. 595 (1854). It may also, without special instructions, pay any bills or notes, of which the customer is acceptor or maker, and which are payable at the bank: Jones v. Bank of Montreal, 29 U. C. Q. B. 448 (1869); Kymer v. Laurie, 18 L. J. Q. B. 218 (1849); Robarts v. Tucker, 16 Q. B. 560 (1851); Vagliano v. Bank of England,  A. C. 107.
Cheques are payable in the order in which they are presented, irrespective of their dates, provided the date is not subsequent to the presentment: Kilsby v. Williams, 5 B. & A. 819 (1822).
Where a customer keeps his account at one branch of a bank, other branches are not bound to honor his cheques : Woodland v. Fear, 7 E. & B. 519 (1857). But if he has accounts in two or more branches the bank may combine them against him, provided they are all in the same right: Garnett v. McKewan, L. R. 8 Ex. 10 (1872); Prince v. Oriental Bank, 3 App. Cas. 325 (1878).
Entries made in a customer's pass book are prima facie evidence against the bank: Commercial Bank v. Rhind, 1 Macq. H. L. 643 (1860); Cowper's Trustees v. National Bank of Scotland, 16 Sess. Cas. 412 (1889).
Countermand.-A customer may stop payment of a cheque before it is accepted, but not after: Cohen v. Hale, 3 Q. B. D. 371 (1878); McLean v. Clydesdale Bank, 9 App. Cas. 95 (1883).
It has also been held that a bank is not bound to honor 74. a customer's cheques after a garnishee order is served on it, even although the balance exceed the judgment: Rogers v. Whitely, 23 Q. B. D. at p. 238 (1889).
Death of customer.-Payment after the death but before notice is valid: Rogerson v. Ladbroke, 1 Bing. 93 (1822). It has been held in England that after the death of a partner, the surviving partner may draw cheques upon the partnership account: Backhouse v. Charlton, 8 Ch. D. 444 (1878). In Quebec the death of a partner terminates the partnership, and also the right of the survivors to act for the firm, in the absence of a special agreement to the contrary C. C. 1892, 1897.
A cheque given as a donatio mortis causa must be presented or negotiated before notice of the death of the donor in order to charge his estate: Hewitt v. Kaye, L. R. 6 Eq. 198 (1868); Beak v. Beak, L. R. 13 Eq. 489 (1872); Rolls v. Pearce, 5 Ch. D. 730 (1877). But see Colville v. Flanagan, 8 L. C. J. 225 (1864); and Clement v. Cheeseman, 27 Ch. D. 631 (1884).
Sections 75 to 81, inclusive, treat of crossed cheques. They are copied from the Imperial Act, with the substitution of "bank" for "banker," as private bankers are not recognized by the Canadian Act. The practice of crossing cheques did not prevail in Canada before the Act, and it is not likely to be generally adopted now, as the drawer can protect himself by making a cheque payable to order, since our Parliament refused to adopt section 60 of the Imperial Act, which relieves a bank from responsibility for the genuineness or authorization of the indorsement on cheques drawn upon it.
The practice is a comparatively modern one in England, and is another illustration of the elasticity of the law merchant by which a custom obtains for itself judicial sanction or legislative recognition. From the report of Stewart v. Lee, 1 M. & M. at p. 161 (1828), it would appear that the effect of crossing was not then fully settled. It is described in Boddington v. Schlenker, 4 B. & Ad. 752 (1833); and in Bellamy v. Marjoribanks, 7 Ex. at p. 402 (1852). Baron Parke there gives a history of its origin and growth.
The practice originated at the London clearing house, the clerks of the different bankers who did business there having been accustomed to write across the cheques the names of their employers, so as to enable the clearinghouse clerks to make up the accounts. It afterwards became a common practice to cross cheques which were not intended to go through the clearing house at all. Baron Parke held that this had nothing to do with the restriction of negotiability, and formed no part of the cheque, and in no way altered its effect; but was a protection and safeguard to the owner, as, if a banker paid it otherwise than through another banker, the circumstance of his so paying would be strong evidence of negligence in an action against him. See also Carlon v. Ireland, 5 E. & B. 765 (1856).
The first Imperial Statute recognizing crossings was passed in 1856. In Simmonds v. Taylor, 2 C. B. N. S. 528 (1857), it was held that the crossing was not a material part of the cheque and a holder might erase it. The Act of 1858 was passed to overcome the effect of this decision. In Smith v. Union Bank of London, 1 Q. B. D. 31 (1875) a cheque crossed to a certain bank was stolen, and coming into the hands of a bona fide holder, he got it cashed through his own bank. The Court held that the Act of 1858 did not affect the negotiability of the cheque which had been indorsed by the payee. In Bobbett v. Pinkett, 1 Ex. D.