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WHAT AMOUNTS TO ESTOPPEL.
repeated alleged forgeries by his clerk. The pass book, containing in its pocket the alleged forged cheques, had been sent weekly to the plaintiff, who failed to notify the bank of any irregularity, whereby it was induced to go on paying the cheque with the alleged forged signatures. The jury, however, found that the signatures were not forgeries, and though they also found that plaintiff's conduct contributed to the loss, judgment must have been for the defendants in any case on the first finding.
Negligence to amount to an estoppel must be in the transaction itself and be the proximate cause of leading the party astray, who seeks to set up the estoppel. It must be a neglect of some duty owing to such party or to the general public. (Arnold v. Cheque Bank; Arnold v. City Bank, 45 L. J. C. P. 562.) Negligence in the custody of a cheque or in its transmission by post will not estop the true owner from recovering its proceeds from one who has wrongfully obtained possession of it (same cases and Patent Safety Gun Cotton Co. v. Wilson, 49 L. J. C. P. 713), for such negligence is not in the transaction itself, but collateral to it.
Where a customer, whose account was debited with forged cheques, refrained from informing the bank, in reliance on the statement of its agent that his silence would be in the bank's interest, it was
WHAT AMOUNTS TO ESTOPPEL.
held he was not estopped from afterwards setting up the forgeries. M'Kenzie's case was distinguished. There only the party sought to be estopped knew of the forgery: here the bank's agent had prior knowledge; M'Kenzie's seems an à fortiori case. (Ogilvie v. West Australian, etc., Corp., Ltd., 1896, A. C. 257, P. C.)
OVERDUE CHEQUES —STALE CHEQUES-POST - DATED
CHEQUES - CHEQUES NOT DATED-PRESENTMENT
NOTICE OF DISHONOUR IS NECESSARY-WHEN A
BANKER MUST DISHONOUR À CHEQUE-CHEQUES
WITH NO EFFECTS
- WHEN PROPERTY
PASSES IN CONSIDERATION OF SUCH CHEQUES-
61.- A cheque is overdue when it appears on the face of it to have been in circulation for an unreasonable length of time.
What is an unreasonable length of time for this purpose is a question of fact. (S. 36 (3), S. 73.)
There are no decisions on overdue cheques since the Act.
In Down v. Halling, 4 B. & C. 330, Bayley, J., at p. 333, points out that cheques being intended for immediate payment and not for circulation ought to be presented on the same or the following day. Here six days had elapsed.
" This is therefore, just like the case of a bill taken after
CONFLICTING CASES ON STALE CHEQUES.
it is due, and the party taking it has no better title than the person from whom he took it.”
Holroyd, J., delivered a similar judgment.
In Rothschild v. Corney, 9 B. & C. 388, a cheque six days old was held not to be taken subject to equities, as no fixed rule could be laid down, and the direction of Tenterden, C.J., to the jury that they ought to consider whether the defendants took the cheques under circumstances that ought to have excited the suspicions of prudent men was approved.
It was held that the rule applicable to bills could not be applied to cheques. (See Littledale, J., at p. 391.)
In Serrell v. Derbyshire Railway Co., 9 C. B. 811, Maule, J., was inclined to think that & stale cheque (two months old) was on the same footing as an overdue bill, but it was not necessary to decide this point.
In London and County Bank v. Groome, 8 Q. B. D. 288, the previous decisions are reviewed by Field, J., who points out that bills, payable at a future date, are negotiated before maturity, unlike cheques payable on demand. The negotiation of a bill after maturity is therefore in itself a circumstance to excite suspicion. He regards Down v. Halling (supra) as laying down no general rule, and he thinks the question for the jury is—"Was
HAS THE ACT AFFECTED THE LAW ?
the cheque taken under such circumstances as ought to have excited suspicion?” and he therefore held that the plaintiff, who took a cheque eight days after date took free from defects of title affecting the transferor and could recover.
In Ex parte Hughes, 43 L. T. N. S. 577, the Chief Judge does not discriminate between the two views.
In Boehm v. Sterling, 7 T. R. 423, the decision went on the ground that the cheque was issued nine months after its apparent date. It was not as if the cheque had been issued when dated. Kenyon, C.J., decides on this ground, and he thinks, on further consideration, that there is no difference between bills and cheques as regards the effect of their being overdue. The case is also reported in 2 Esp. 575, in a manner worthy of that reporter.
If, therefore, the question were still one of case law merely, there would be considerable difficulty in overcoming the view that the question for the jury ought to be, as was suggested in Rothschild v. Corney, and London and County Bank v. Groome, “Was the cheque taken under such circumstances as ought to have excited suspicion ?" But looking at the very plain provisions of ss. 36 (2) and (3), and 73, it is difficult to resist the conclusion that the Act has placed cheques on the same footing as