CHEQUE AS DONATIO INTER VIVOS.

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his wife, which she negotiated before his death, he held that there had been a good donatio mortis causâ. (Cf. Bouts v. Ellis, supra.)

88.-There can be a valid donatio mortis causâ of a cheque drawn by another and payable to bearer or to the donor or order, even though in such latter case the donor die without indorsing such cheque.

(Veal v. Veal, 27 Beav. 303, 29 L. J. Ch. 321; In re Mead, 15 Ch. D. 65; Clement v. Cheesman, 27 Ch. D. 631.)

89.-There can be no valid donatio inter vivos of a cheque, drawn by the donor, not paid, negotiated or presented in the donor's lifetime.

(Tate v. Hilbert, 2 Ves. Jun. 111, 4 Bro. C. C. 286; Jones v. Lock, 35 L. J. Ch. 117; Rolls v. Pearce, 5 Ch. D. 730.) In Bromley v. Brunton, L. R. 6 Eq. 275, the cheque was presented in the donor's lifetime but not paid, owing to the bank doubting the signature. It was held that, as the gift was as complete as the donor and donee could make it, it was good as a gift inter vivos (a).

In all cases there must be a delivery of the cheque in the lifetime of the donor (Bromage v. Lloyd, 1 Exch. 32), and no reservation of disposition over it. (Cf. Riddell v. Dobree, 10 Simons, 244.)

(a) Distinguished in In re Beaumont (1902), 1 Ch. 889, where there was the additional fact that the drawer's account was overdrawn, and there was held to be no valid donatio mortis causâ.

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CHAPTER XI.

LIMITATION OF ACTIONS ON CHEQUES.

90.-No action can be maintained upon a cheque after six years from the date of such cheque, unless the defendant has within six years before action acknowledged in writing signed by him or his authorized agent (a) his indebtedness upon such cheque or has paid any part of such debt or any interest thereon. (21 Jac. I. c. 16, 9 Geo. IV. c. 14, 19 & 20 Vict. c. 97.)

There are several points to be noted.

(1) Time runs from the date of the cheque or the date of delivery if later, and not from the date when it was presented for payment. (Cf. Christie v. Fonsick, Sel. N. P., 9th edition, p. 351, and Megginson v. Harper, 2 C. & M. 322) (b).

(2) But where a cheque is retained for a time either as security for advances to be made or

(a) A joint debtor is not as such an agent.

(b) Garden v. Bruce, L. R. 3 C. P. 300, is a different case. There a loan was made by cheque. In an action to recover the loan it was held that the time ran from when the cheque was cashed, not from when it was dated. The action was not on the cheque, which was, of course, paid and cancelled.

POINTS AS TO LIMITATION.

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because there are no funds to meet it, and the drawer has so informed the holder, the time will not run in favour of the drawer until the advances are made or the duty or right to retain the cheque is otherwise put an end to. (See Ex parte Boyse, 33 Ch. D. 612; and In re Bethell, 34 Ch. D. 561. The facts of the latter case are shortly stated in the notes to § 66.)

(3) If the Statute of Limitations is relied upon, it must be specially pleaded in the defence.

(4) The acknowledgment must not be inconsistent with a promise to pay. A repudiation of an admitted liability or a letter written "without prejudice" will not suffice. If the acknowledgment be conditional, the plaintiff must prove the fulfilment of the condition. (Tanner v. Smart, 6 B. & C. 603; A'Court v. Cross, 3 Bing. 328; Meyerhoff v. Froehlich, 4 C. P. D. 63, etc.)

(5) As against an indorser time would not run in his favour until the cheque has been dishonoured on presentment for payment, for until then there would be no recourse against an indorser. (See Hewitt's Statute of Limitations, pp. 14 and 15, and cases there cited.) It will be remembered that failure to give an indorser due notice of dishonour discharges him. (Ss. 45 and 48.)

(6) Payment or acknowledgment to be effectual must be to the plaintiff or his authorized agent.

(Stamford Banking Co. v. Smith, 1892, 1 Q. B. 765, etc.)

91.-If the person entitled to bring an action upon a cheque is an infant when the cause of action accrues, such person will, after attaining twenty-one years, have six years allowed within which to bring his action. (21 Jac. I. c. 16, s. 7.)

There was also a provision in the above-cited section of 21 Jac. I. c. 16, whereby a woman had six years wherein to sue after becoming "discovert." But it appears to us that with regard to simple contract debts, this provision has already become obsolete by the effect of the Married Women's Property Act, 1882. (See Lowe v. Fox, 15 Q. B. D. 667, 676.)

92.-If a person entitled to bring an action upon a cheque is of unsound mind when the cause of action arises, such person will after becoming sane have six years within which to bring his action. (21 Jac. I. c. 16, s. 7.)

93.-Where a person entitled to sue upon a cheque is under the disability of infancy or unsoundness of mind and so continues until his death, his personal representative has six years within which to bring an action.

(See Townsend v. Deacon, 3 Ex. 706, and cf. Wych v. E. I. Co., 3 P. W. 309.)

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94. Where two or more persons are jointly entitled to sue upon a cheque, time will run against all of them, notwithstanding that one or some, but not all, are under a disability; but where such persons have a joint and several cause of action, time will not run against any under a disability, until such disability be removed.

(Hewitt, p. 58, citing Roe d. Langdon v. Rowlston, 2 Taunt. 441.)

95.-Where a person liable to an action upon a cheque is beyond the seas when the cause of action accrues, the party entitled to sue has six years after the return of such person from beyond the seas within which to sue. (4 Anne, c. 16, s. 19.)

96.-Where one or more, but not all, of several persons jointly liable upon a cheque is or are beyond the seas at the time the cause of action accrues, time nevertheless runs in favour of such as are not beyond the seas, but judgment against such as are not beyond the seas does not bar the right of action against such as are beyond the seas, when they return.

(19 & 20 Vict. c. 97, s. 11, the last part dispensing with the general rule as to release of joint debtors by judgment against one of them.)

97.-Where a person entitled to sue upon a cheque is under a disability, and before the cesser of such