116

BANKERS' BOOK EVIDENCE ACT.

acting upon them as correct has estopped the banker from denying the truth of them.

(Commercial Bank of Scotland v. Rhind, 1 Macq., H. L. 643; Gaden v. Newfoundland Bank, 1899, A. C. at p. 286.)

Subject to the provisions of the Bankers' Book Evidence Act (42 & 43 Vict. c. 11), a copy of an entry in a banker's book, which term includes ledgers, day-books, cash books, account books, and all other books used in the ordinary business of the bank, is in all legal proceedings, civil or criminal, including arbitrations, and for or against anyone, to be received as primâ facie evidence of such entry and of the matters, transactions, and accounts recorded therein, provided that proof be given that the book was at the time of making the entry, one of the ordinary books of the bank, and is in the custody or control of the bank, and that the entry was made in the ordinary course of business. (42 & 43 Vict. c. 11, ss. 3, 4 and 10.)

By s. 5 it must be proved that the copy has been examined with the original.

S. 9 defines what is a "bank " and a "banker " within the Act.

By s. 6 the bank is not compellable to produce the original books, in proceedings to which it is not a party, without an order of the Court.

BURDEN OF PROOF.

117

An order to inspect and take copies of entries in the bank books may be obtained, but the bank is to be served three clear days before such order is to be obeyed. (S. 7.)

We cite these provisions because cases may occur in which the cancelled cheques are not available, having been lost or destroyed, and it may therefore be necessary to have recourse to the entry in the bank books. If for example the defendant A. B. swears he paid X. Y. a cheque for 107. for a bill for hire of horses and cannot produce the cancelled cheque, proof that, on or about the day when he swears he drew it, a cheque for 10l. payable to X. Y. was placed on the debit side of A. B.'s account, throws on X. Y. the burden of proving that it was a cheque given in respect of some other transaction. It has been regretted by Judges that bankers do not credit cheques to customers, except as "cash" or "cheque"; there is generally nothing to identify the drawer. In X. Y.'s pass book the entry would merely be 107. to his credit, and there would be nothing to show that it was really A. B.'s cheque for 107.

84.-A cheque is not legal tender, but if the creditor objects to receive it on some other ground, as that it is for the wrong amount, he is to be taken to have waived the objection to the cheque as tender in point of form.

(Jones v. Arthur, 8 Dowl. Points of Practice, 442; 4 Jurist, 859.)

There is a note on p. 187 of Tidd's Practice, 9th edition, that in Willy v. Warren, 1787, Buller, J., held that a draft on a bank was good tender, if not objected to on the ground of form.

The case is also mentioned in Roscoe, Ev. p. 349, 9th edition.

85. The acceptance of a cheque in payment for a larger sum due (subject to an inference of fact that it was not accepted in full satisfaction) amounts to an "accord and satisfaction," and the creditor accepting

ACCORD AND SATISFACTION.

119

such cheque cannot sue for the balance of the debt originally due.

(Goddard v. O'Brien, 9 Q. B. D. 37.)

The doctrine of "Accord and Satisfaction" is this: The acceptance of a smaller sum of money in satisfaction of a larger debt does not amount to an "accord and satisfaction," nor preclude the creditor suing for the balance, but the acceptance of a thing, not being money, of smaller value than the debt due does amount to an accord and satisfaction, and precludes the creditor from suing for the difference in value. A cheque is a negotiable instrument and is not cash, and hence the acceptance of it may amount to "accord and satisfaction."

86.-Where a cheque is tendered in full payment of a debt, it may be retained by the payee as a payment on account of a larger debt. The mere retention of the cheque is not conclusive evidence of an accord and satisfaction. It is question of fact in any case, whether such a cheque has been retained by the creditor as a payment on account or as an accord and satisfaction.

(Day v. McLea, 22 Q. B. D. 610; Ackroyd v. Smithers, 54 L. T. 130.)

87.-There can be no valid donatio mortis causâ of a cheque drawn by the donor unless it be paid or negotiated in his lifetime.

120

CHEQUE AS DONATIO MORTIS CAUSÂ.

(Cf. Tate v. Hilbert, 2 Ves. Jun. 120, 4 Bro. C. C. 286; Rolls v. Pearce, 5 Ch. D. 730; Veal v. Veal, 29 L. J. Ch. 321; Bouts v. Ellis, 22 L. J. Ch. 716, 4 D. M. & G. 249; Williams v. Davis, 33 L. J. Prob. 127; In re Mead, 15 Ch. Div. 651; Hewitt v. Kaye, L. R. 6 Eq. 198.)

We have seen that by s. 75 of the Act, the banker's authority to pay a cheque is revoked by notice of drawer's death or by countermand of payment. A donatio mortis causâ is one made in the anticipation of death from some particular malady or adventure. It is conditional on death taking place. It is revocable in the lifetime of the donor. It is liable to fail, on an insufficiency of assets, on the donor's death. It is liable to legacy duty. The reader is referred to Snell's Equity, or to any work on equity, for the distinctions between a donatio mortis causâ and a donatio inter vivos.

In Tate v. Hilbert (supra), it is clearly laid down that there can be no valid donatio mortis causâ of the donor's cheque, which is intended as an immediate gift, unless it is cashed or negotiated in the lifetime of the donor. (See 2 Ves. Jun. at p. 118.)

In Rolls v. Pearce (supra), Malins, V.-C., held that a negotiation by the donee in the donor's lifetime saves a gift of a cheque from failing. Thus where a man in extremis gave two cheques to