65. A Credit in account or Deposit, if taken instead of money, is good payment. Gillard v. Wise, 5 B. & C., 134. 66. 1. If a customer leaves a deposit or balance on his account without operating on it for six years, the Statute of Limitations applies, and the banker is not liable (a). But if the banker enters up interest to the credit of his customer, that will save the statute (b). (a) Pott v. Clegg, 16 M. & W., 321. Foley v. Hill, 2 H. L. Ca., 39. (b) 9 Geo. 4 (1828), c. 14, s. 1. Bamfield v. Tupper, 7 Ex., 27. Bealy v. Greenslade, 2 C. & J., 61. 67. A Deposit or balance on a banking account passes by will under the words "all his ready money" (a); "all debts due to him" (b); but not under "all his stock in trade" (c). (a) Vaisey v. Reynolds, 5 Russ., 12. Taylor v. Taylor, 1 Jur., 401. Parker v. Marchant, 1 Phil., 356. Gif., 292. (b) Carr v. Carr, 1 Mer., 561n. Manning v. Purcell, 2 Sm. & (c) Stuart v. Marquis of Bute, 11 Ves., 666. 68. By the General Stamp Act (a) drafts or orders for the payment of money to bearer on demand were exempted from stamp duty, provided that 1. They were drawn upon a banker or a person acting as a banker. 2. The place where they were drawn did not exceed 15 (b) miles from the banker's place of residence. 3. The place where they were drawn was truly stated on them. 4. They were issued on the day or the day after they were dated. 5. The payment was directed to be made in money, and not in bills or notes. (a) 55 Geo. 3 (1815), c. 184, sched. (b) 9 Geo. 4 (1828), c. 49, s. 15. 69. The stamp duty on any draft for the payment of money to bearer or to order on demand, or at sight or presentation is one penny. 33 & 34 Vict. (1870), c. 97, s. 50. 70. Every person who makes or issues an unstamped draft violating any one of the previous conditions, is liable to a penalty of £100; every one knowingly taking it to a penalty of £20; any banker knowingly paying it to a penalty of £100, and he is not allowed it in account against the persons by whom or for whom it was drawn, or any person claiming under them. 55 Geo. 3 (1815), c. 184, s. 13. 71. 1. If any person remits an unstamped draft payable to bearer on demand, drawn upon a banker, to any place more than 15 miles distant from the place where such draft is payable, or circulate, negotiate, or receive in payment such a draft in such a place, he shall forfeit £50 (a). 2. But if it be duly stamped it may be remitted to or circulated and negotiated in such a place (b). (a) 17 & 18 Vict. (1854), c. 83, s. 7. (b) 17 & 18 Vict. (1854), c. 83, s. 8. 72. 1. The penny stamp on such a draft may be either impressed on the paper or adhesive: and may either be a draft or a receipt stamp (a). 2. If the stamp used be adhesive, the person who signs the draft must, before he issues it, cancel or obliterate the stamp by writing his name or initials over it, under a penalty of £10. (a) 17 & 18 Vict. (1854), c. 83, s. 10. (b) 33 & 34 Vict. (1870), c. 97, s. 24, § 2. 73. The penalty for issuing an unstamped cheque on a banker is the same as for issuing an unstamped bill of exchange. 21 & 22 Vict. (1858), c. 20, s. 2. 74. 1. If any draft or order subject to the penny stamp duty comes unstamped into the hands of a banker, he may affix the stamp and cancel it, and pay the draft and charge the duty against the person liable, or deduct it from the sum payable. 2. The draft is then good and valid, so far as it relates to the stamp duty, but it does not relieve the person who issued it unstamped from the penalty. 33 & 34 Vict. (1870), c. 97, s. 54, § 3. 75. A draft or order for payment sent or delivered by the drawer or maker to the banker or person acting as such, by, or through, whom the payment is to be made, and not delivered to the person to whom the payment is to be made, or to any person on his behalf, requires a penny stamp and may be post dated. 33 & 34 Vict. (1870), c. 97, s. 48, § 3. 76. If a draft or order be duly stamped previously to issue, whether it be payable to bearer or order on demand, it may be drawn at or remitted to any distance from the place of payment; 502 THEORY AND PRACTICE I it may be drawn upon any pers a und rege upon it. 77. If it be issued, stamped, and ps subsequent to its issue 16 & 17 Vict. (1853), e. 59, scied 1.-If the cheque be payable to bearer- (3.) If a banker pays such an instrument with a (4.) It may be used in evidence to prove a frand (a) 31 Geo. 3 (1791), c. 25, s. 19. Dunsford v. Üres (b) Williams v. Jarrett, 5 B. & Ad., 32. (c) Watson v. Poulson, 15 Jur., 1,111. Austin v. Bus” (1.) It is a valid instrument and may be received in eviden (a); and should be paid by a banker at its date, even though h know it to be post dated (b). (2.) But the issuer is liable to a penalty for issuing a bill no duly stamped (c). (a) Key v. Mathias, 3 F. & F., 279. Whistler v. Forster, 14 C. B., N. S., 248. (b) Emanuel v. Robarts, 17 L. T., N. S., 646. 78. A post dated cheque drawn by a member of a firm who to bearer or to order. accept Foster v. Mackreth, L. R., 2 Eq,, 163. 79. No banker who has not the right of issuing notes may AW OF CREDIT, BILLS, AND NOTES. 503 nker who accepts or engages to pay a cheque must a cheques in the return of his issue of notes. & 8 Vict. (1844), c. 32, s. 11. 7 & 18 Vict. (1854) c. 83, s. 11. By the custom of bankers, the contract between a nd his customer having an ordinary drawing or current with him, is to pay on demand, either to him or to any to whom his customer may assign them, whatever funds have at his customer's credit, within a reasonable time has received them, and to accept his customer's bills amount (a). e By the custom of bankers possession of funds is equivalent eptance, and admission of funds is a legal acceptance of a e drawn by a customer (b). A verbal promise to pay, or a collateral writing promising ay, or any mark such as initials placed on a cheque, the well Perstood meaning of which is a promise to pay, is a legal acY&tance by a banker having funds of his customer. B. & mer, 24. The Acts, 1 & 2 Geo. 4 (1821), c. 78, s. 2, and 19 & 20 ict. (1856), c. 97, s. 6, requiring the acceptance of a bill to be in riting on the bill, do not apply to the promise of a banker to pay cheque, having funds of his customer. Foley v. Hill, 2 H. L. Ca., 28. (a) Marzetti v. Williams, 1 B. & Ad., 415. Swan v. Bank of Ardern v. Rowney, 5 Esp., 254. Kilsby v. Williams, 5 B. & Ald., (b) Stevens v. Hill, 5 Esp., 247. Robson v. Bennett, 2 Taunt., 388. 816. George v. Surrey, 1 M. & M., 516. Boyd v. Emerson, A. & E., 184. Marzetti v. Williams, 1 B. & Ald., 415. Robarts v. Tucker, 16 Q. B., 570. 81. 1. A cheque is payment unless dishonoured, and tender of payment by cheque is good, unless objected to on that account. 2. A cheque, to be good tender, must be unconditional; and if the creditor refuses it as being conditional, he may commence an action against the debtor before he returns the cheque (b). 3. But the fact of a cheque being drawn in favour of any one is no proof of payment, as it may be drawn in any one's name: there must be evidence that the money came into the creditor's hands, as by his indorsement (c). 4. A cheque is not evidence per se of a loan from the drawer to the payee (1): nor to establish a set-off (2): nor of a loan from it may be drawn upon any person and requires no place nor date upon it. 16 & 17 Vict. (1853), c. 59, sched. 77. If it be issued, stamped, and post dated, or dated on a day subsequent to its issue 1.-If the cheque be payable to bearer (1.) It is wholly void in the hands of all parties cognisant of the facts; it cannot be given in evidence in any proceeding in law or equity to establish a valid contract between them (a). (2.) But it is valid in the hands of an innocent indorsee for value who was not aware of the facts (b). (3.) If a banker pays such an instrument without knowing the facts, the payment is good (c). (4.) It may be used in evidence to prove a fraud (d); or in any criminal proceeding (d). (a) 31 Geo. (1791), c. 25, s. 19. Whitwell v. Bennett, 3 B. & P., 559. Allen v. Keeves, 1 East., 435. 610. Serle v. Norton, 9 M. & W., 309. (b) Williams v. Jarrett, 5 B. & Ad., 32. Austin v. Bunyard, 6 B. & S., 687. (c) Watson v. Poulson, 15 Jur., 1,111. (d) Watson v. Poulson, 15 Jur., 1,111. (e) 17 & 18 Vict. (1854), c. 83, s. 27. 2.-If the cheque be payable to order (1.) It is a valid instrument and may be received in evidence (a); and should be paid by a banker at its date, even though he knew it to be post dated (b). (2.) But the issuer is liable to a penalty for issuing a bill not duly stamped (c). (a) Key v. Mathias, 3 F. & F., 279. Whistler v. Forster, 14 C. B., N. S., 248. (b) Emanuel v. Robarts, 17 L. T., N. S., 646. (c) 55 Geo. 3 (1815), c. 184, s. 11. 21 & 22 Vict. (1858), c. 20, s. 2. 78. A post dated cheque drawn by a member of a firm who has no power to bind his partner by bill is absolutely void in the hands of a person cognisant of the fact, whether it be payable to bearer or to order. Foster v. Mackreth, L. R., 2 Eq,, 163. 79. No banker who has not the right of issuing notes may accept or engage to pay a cheque. |