Page:Halsbury Laws of England v1 1907.pdf/835

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Part

III.

613

Business of Banking.

appears to have no alternative but to pay it. If payment be refused on the ground of the crossing or otherwise, the holder could sue the bank either as drawer of a bill or maker of a promissory note

(s).

1243. Drafts drawn by one bank on another are merely cheques, and may in all respects be dealt with as such.

Sect.

7.

Protection

Bankers paying Cheques.

to

Drafts by one

bank on another

Sfb-Sect.

5.

Payvient of Orders xvith Receipt attached.

1244. Documents made payable conditionally on a specific Orders with attached receipt being signed by the payee are not cheques ij). In receipt attached. paying them tiie banker is not protected by any of the legislation directly affecting cheques, nor, unless they are crossed, does the banker appear to be otherwise protected in case the signature of the receipt is a forgery {u). If the receipt is not signed by the payee the banker has paid away his customer's money without authority, and cannot debit him. Similarly, where documents are made payable conditionally on presentation within a limited time, the banker is not protected if he pays them on a forged indorsement {x). Subject to the slight doubt alrealy expressed (a), these documents are, however, capable of being effectively crossed (6), and the banker paying in good faith and without negligence, and in accordance with the crossing, would be protected.

(s)

Bills of

Bank

Exchange Act, 1882 (45

&

46 Vict.

c.

61),

s.

5 (2)



Gapitcd

and

Gordon, [1903] A. C. 240, per Lord Lindley, at p. 250. Apparently no stamp objection could be raised, though a promissory note on demand requires an ad valorem stamp. The provisions of any Stamp Act in force for the time being are recognised by sect. 97 (3) of the Bills of Exchange Act, 1882, but that cannot take away the express right to sue as on a promissory Possibly the explanation is that stamp objections only note given by sect. 5 (2). apply to the document as it appears on its face (see Royal Bank of Scotland v. Tottenham, [1894] 2 Q. B. 715), and the document purports to be a bill. In any case, the holder could sue the bank as drawer of a bill. {t) Bavins, junr. and Sims v. London and South Western Bank, [1900] 1 Q. B. 270 Capital and Counties Bank v, Gordon, supra, per Lord Lindley, at p. 252. For forms of such documents see Encyclopaedia of Forms, Vol. XL, pp. 517, 518. {u) They are not within the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 60, because they are not bills, nor are they apparently within the Stamp Act, 1853 (16 & 17 Vict. c. 59), s. 19, even if ostensibly payable to order and indorsed, since they are not payable " on demand "; a further condition being attached, viz., the signing of a specific receipt. Further, the last cited section would appear from its terms to apply only to negotiable instruments, which these are not. See Kevenue Act, 1883 (46 & 47 Vict. c. 55), s. 17 Gordon v. Capital and Counties Bank, [1902] 1 K. B. 242, -per Collins, M.R., at p. 275. In tlia.t case, on appeal. Lord Lindley says ([1903] A. C. at pp. 250, 251) that sect. 19 of the Stamp Act, 1853 (16 & 17 Vict. c. 59), applies to documents which are not bills or cheques, and (at p. 252), " Nor do they {i.e., orders wath receipts attached) come within sect. 19 of the Stamp Act of 1853, which, as I have already observed, applies only to It is submitted that this does not amount to a banks which are drawees." decision that such documents entitle the banker on whom they are drawn to the protecti<m of this section. {x) They are not payable on demand because of the limitation attaehed, and for the same reason are not negotiable. Hence the reasoning in note (u), supra^ Counties

v.





applies. {a)

See pp. 599, 600, ante.

(h)

Revenue Act, 1883 (46 & 47

Vict.

c.

55),

s.

17.