Page:Halsbury Laws of England v1 1907.pdf/825

 — Part

III.

Business of Banking.

603

a cheque dated on a Sunday is presented on the previous Saturday, should be returned with the answer ''Post-dated " (s). A postdated cheque, however, if presented at or after its ostensible date, should be paid though the banker knows it to be post-dated, and even if it has been presented before date and refused payment {t). A banker must not pay an unstamped cheque, but he may affix and cancel an adhesive penny stamp and pay the cheque, deducting the penny from the amount or charging it against the drawer (z^). If a cheque is presented for payment with an adhesive stamp affixed, but not cancelled, the banker must refuse payment and return the cheque, unless satisfied and prepared to prove that the stamp was affixed by the drawer (a). A banker is justified in refusing payment of a cheque which is ambiguous in form or irregular in execution (b). It is submitted that a banker should not pay a cheque to a payee he knows to be an undischarged bankrupt (c). The validity of payment to an infant payee has never been questioned (d). Bankers habitually refuse payment of "stale" cheques, i.e., cheques which have been outstanding for a period varying from six months in some banks to twelve in others but the practice has never received judicial sanction (e). if

Sect.

it

Payment



A

cheque dated on Sunday is not invalid (Bills of Exchange Act, 1882 46 Vict. c. 61), s. 13 (2)). Sect. 14 of the Act only applies to bills not payable on demand. (t) In Emanuel v. Robarts (1868), 9 B. & S. 121, the bankers were held justified under a custom of London bankers in refusing payment of a post-dated cheque so re-presented. The ground of decision was the then existing doubt as to (s)

(45

&

the legality of post-dated cheques. That legality is now established, as shown above, and the custom could not obtain at the present day. Possibly the person drawing and issuing a post-dated cheque is liable to a penalty under sect. 5 of the Stamp Act, 1891 (54 & 55 Vict. c. 39). {u) Stamp Act, 1891 (54 & 55 Vict. c. 39), s. 38 (2). (a) Sect. 38 (2), ihid., only empowers the banker to "affix and cancel" the stamp where the cheque is presented " unstamped." Where a cheque is drawn in the United Kingdom, and an adhesive stamp is used, the drawer must cancel it before he delivers it out of his hands (ibid., s. 34), under a penalty of £10 {ibid., s. 8 No intermediate holder can affix or cancel the stamp {Hobbs v. (3) ). Cathie (1890), 6 T. L. E. 292). cheque with an adhesive stamp is not "duly stamped" unless the stamp is cancelled by the drawer, or unless it is otherwise proved that the stamp was affixed at the proper time {ibid., s. 8 (I) ). Any person paying a bill not duly stamped incurs a fine of ^10 {ibid., s. 38). Sect. 35 only applies to bills drawn out of the United Kingdom. (b) His only responsibility is to his customer. He is not bound to decide legal questions, or to run unusual risks. Compare Emanuel v. Robarts, supra ; Bank of England v. Vagliano, [1891] A. C. 107. (c) This question has been much discussed, and there is no direct authority on the point. It is the banker's duty, as far as possible, to obtain a good discharge for his customer. This prima facie the bankrupt cannot give. The banker cannot possibly know whether or not the cheque represents after-acquired property, and, even if it does, payment of it is not a privileged transaction or dealing with the bankrupt. See Gohen v. Mitchell (1890), 25 Q. B. D. 262 Re Clark, Ex parte Beardmore, [1891] 2 Q. B. 393 Re Bennett, Ex parte the Official Receiver, [1907]

A





See, further, title Bankruptcy and Insolvency. the extent of disability of infancy, p. 587, ante. (e) Save in case of damage by non-presentation within a reasonable time, the drawer remains liable until discharged by the Statute of Limitations {Robinson v. Hawksford (1846), 15 L. J. (q.b.) 377 ; Laios v. Rand (1857), 3 C. B. (n. s.) 442). 1

K. B. 149.

(d) See, as to

See

title

Limitation of Actions.

In the notes

to Serle v.

Norton (1841), 2

6.

of

Cheques.

Unstamped cheque.

Irregular

cheque.

Payee bankrupt or infant, " Stale "

cheques.