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36

DELIVERY WITHOUT NEGOTIATION.

cheques to the order of G. B., a fictitious person, represented by his clerk to be the plaintiff's creditor. He gave them to the clerk to pay to G. B. It was held that he could not set up against a holder in due course that there had been no “first delivery of the cheques to any person who took them as holder.

S. 2 (3) may be illustrated by Marston v. Allen, 8 M. & W. 494. It was there held that a party sued on a bill may show that the indorser never delivered it so as to negotiate it, for there must be delivery and indorsement of a bill payable to order (s. 31 (3)). “A valid and unconditional delivery is presumed until the contrary is proved ” (s. 21 (3)). When the contrary is proved, the burden of proving himself a holder in due course is shifted to the person relying on the instrument. It was held that evidence ought to have been admitted that there was no delivery of the bill in question so as to negotiate it, and that the plaintiff was aware of it, for on such evidence the jury would have found for the defendant. A jury inay infer a delivery by A. to B. where A. has delivered a cheque to C. to get it discounted, and C. has not disclosed B.'s identity to A. (Samuel v. Green, 10 Q. B. 262.)

S. 69 AND CHEQUES.

37

LOST CHEQUES.

8. 69 of the Act provides as follows :

“Where a bill has been lost before it is overdue, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer if required to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again.

“If the drawer, on request as aforesaid, refuses to give such duplicate bill (d), he may be compelled to do so."

The words “ before it is overdue "must, we think, be taken not to apply to cheques. S. 74 provides what is the position of the drawer when a cheque is overdue. He is not discharged, like the drawer of a bill, but only to the extent to which he is a creditor of the bank to a larger amount than he would have been had the cheque been presented within a reasonable time (see s. 45 (2)).

8. 69 gives no power to obtain an indorsement over again, or, in the case of a bill, the acceptance.

S. 70 of the Act provides that,

“In any action or proceeding upon a bill, the Court or a judge may order that the loss of the

(d) See Rhodes v. Morse, 14 Jur. 800; Taylor v. Scrivens, 1 Beav. 571.

38

LOSS OF CHEQUE IN POST.

instrument shall not be set up, provided an indemnity be given to the satisfaction of the Court or judge against the claims of any other person upon the instrument in question."

In Pennington v. Crossley & Sons, Ltd., 13 T. L. R. 573, plaintiff sued for 5091. as the price of wool sold and delivered to defendant. Defendant gave evidence that for twenty years he had always sent cheques per post to the plaintiff.

On this occasion he had sent a cheque with a blank receipt form to be filled up by the plaintiff. The cheque, which was crossed, was stolen in the post, the thief forging plaintiff's indorsement and getting the cheque collected. The defendant contended that the course of business showed that payment was to be made by posting cheques, and that posting was equivalent to payment. The Court of Appeal, overruling Grantham, J., declined to take this view. Judgment for plaintiff.

Where A. delivered a cheque to B., and it was lost in transmission to C.'s agent, and A. promised to give C. another, it was held C. could not enforce the promise for want of consideration, and had no right to demand another cheque in the absence of sufficient proof that B. was his agent. (Johns v. Mason, 20 L. J. Ch. 305.)

CHAPTER IV.

CONSIDERATION-ANTECEDENT DEBT OR LIABILITY

A HOLDER DEEMED TO BE FOR VALUE-BURDEN

OF PROOF-FRAUD, ILLEGALITY AND DURESS-
SUING ON THE CONSIDERATION.

38.—Valuable consideration for a cheque may be constituted by (a) any consideration sufficient to support a simple contract; (b) an antecedent debt or liability. (S. 27 (1).)

Currie v. Misa, L. R. 10 Ex. 153—Ex. Ch.; McLean v. Clydesdale Bank, 9 A. C. 95.

39.—Where value has at any time been given for a cheque, the holder is to be deemed to be a holder for value as regards all parties to the cheque who became parties prior to such time (a). (S. 27 (2).)

40.- Where the holder of a cheque has a lien on it, arising either from contract or by implication of law,

(a) I.e., it lies on any prior parties who may be sued to show the holder was not a holder for value, nor a transferee from one. Both averments must be proved. See Bosanquet v. Corser, 8 M. & W. 142, at p. 144 ; Watson v. Russell, 5 B. &. S. 968.

40

WHEN A BANKER IS HOLDER FOR VALUE.

he is deemed to be a holder for value to the extent of the sum for which he has a lien. (S. 27 (3).)

41.-Every party whose signature appears on a cheque is primâ facie deemed to have become a party thereto for value. (S. 30 (1).)

42.-A banker becomes a holder for value of a cheque by placing the amount of the cheque, before it is cleared, to the credit of a customer, who has handed him such cheque to be placed to his credit, whether the cheque be payable to "order" or to “bearer,” and whether the said customer's account be overdrawn at the time of such placing to his credit

or not.

This is the effect of Ex parte Richdale, 19 Ch. D. 409, confirmed by Royal Bank of Scotland v. Tottenham, 1894, 2 Q. B. 715, and other cases; but in Gaden v. Newfoundland Savings Bank, 1899, A. C. 281, the Privy Council held that when the account was not overdrawn the bank took a bearer cheque as agent for collection only. But the proposition of law contained in § 42 is hardly open to question, in view of the stream of authorities supporting it.

The matter will be recurred to in treating of s. 82 of the Act, in Chapter V.

43.—Every holder of a cheque is primâ facie deemed to be a holder in due course, but if, in an action on a

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