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in the sense, explained below, in which lawyers understand it. The source of the confusion appears to be that in defining “negotiation " the learned draftsman had not in his mind the technical meaning of “negotiable," and by s. 31 (1) "negotiation' is made to include transfer to a mere holder, as distinct from a holder in due course.

A result of this definition is that a bill or cheque can be “negotiated" although “not negotiable," for one can always transfer a transferable, although it be not a negotiable, bill or cheque so as to make the transferee the mere holder as defined in 8. 2. So that a “negotiable” bill or cheque properly means far more than one able to be “negotiated" within the meaning of the Act; it means “one able to be negotiated free from defects of title ; thus “negotiation" as defined by the Act has nothing to do with “negotiability" as understood by lawyers !

The second point of difficulty is whether by the joint operation of ss. 36 (3) and 73 overdue cheques are now on the same footing as overdue bills.

The previous authorities are confusing. Down V. Halling, 4 B. & C. 330, seems a clear authority that an overdue cheque is like an overdue bill. In addition to the passage cited from his judgment on p. 80 of this book Bayley, J., says at p. 333 : “If a bill, note, or cheque be taken after it is due, the


party taking it can have no better title to it than the party from whom he takes it, and therefore cannot recover upon it if it turns out that it has been previously lost or stolen.”

Holroyd, J., says on the same page: “This cheque must be considered in the same light as a bill taken after it is due." His judgment thus concludes on p. 334: "I think that when the defendants took the cheque more than a reasonable time for presenting it for payment had elapsed, and therefore they took it at their peril."

It is true he also said: “Now in this case the cheque had been due five days at the time when it was taken by the defendants. That was & circumstance which ought to have excited their suspicion."

But this one observation, made obiter, can hardly be said to justify Field, J.'s, view of this case, expressed in 8 Q. B. D. at pp. 294, 295, that it decided that the question was whether a stale cheque was taken under circumstances that ought to have excited suspicion, and not merely whether the cheque was taken after a reasonable time had elapsed since issue.

In Rothschild v. Corney, 9 B. & C. 388, it was clearly held that a cheque is not like a bill in this respect, but Lord Tenterden's remark on p. 390, " that it cannot be laid down as a matter of law,

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that a party taking a cheque after any fixed time from its date does so at his peril,” seems no answer to the contention that it is a question of fact in each case whether a cheque has been in circulation for more than a reasonable length of time. Down v. Halling, though cited at the bar, is overlooked in the judgments, although both the Chief Justice and Bayley, J., were also parties to that decision.

In Ex parte Hughes, 43 L. T. 577, the Chief Judge seems to fluctuate between the two views. Both Down v. Halling and Rothschild v. Corney were cited before him, but he does not notice their discrepancy, and he proceeds to say, inter alia : “ Unless I can persuade myself that William Hughes wrote the cheques bonâ fide, having made such enquiries as a prudent man would make, a case of common law rights must necessarily arise as to whether the equities which exist with respect to overdue bills are intended in these cases to be applicable for actual overdue cheques or not."

But “the equities, which exist with respect to overdue bills,” are that when a bill is overdue-and the test of this is, in the case of a demand draft, whether it has been in circulation for an unreason. able length of time—it is not negotiable, and the taker takes it subject to the transferor's defects of title.

If, therefore, this rule applies to cheques, it was

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needless to enquire whether W. Hughes took with or without enquiry. If it does not, then considering whether W. Hughes took with or without enquiry could not be a preliminary to considering whether “the equities, which exist with respect to overdue bills,” are applicable to cheques.

In London and County Bank v. Groome, 8 Q. B. D. 288, Field, J., tries to reconcile Down v. Halling with Rothschild v. Corney, and he takes the view that the cheque is not like the bill in respect of equities attaching to it when overdue.

But considering the language of ss. 36 (3) and 73, and that the only bills payable on demand in this country, that are in extensive use, are cheques, I think the better view is to regard the Act as placing overdue cheques on the same footing as bills, and overruling London and County Bank v. Groome.

The next difficulty arises on s. 79 (2). S. 79 re-enacts provisions of the Crossed Cheques Act of 1876. That Act was passed soon after Smith v. Union Bank, 1 Q. B. D. 31, was decided, and was passed to remedy the supposed consequences of that decision. The present Act is one to codify the law, and not, according to the title, to amend it.

8. 79 (2) gives the “true owner of a cheque a remedy against a banker, who pays a cheque in contravention of the crossing.

In Smith v. Union Bank the plaintiff had lost

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& cheque of which he was payee. The thief negotiated it to a holder in due course, who obtained payment from the bank, in disregard of the crossing. One answer to the plaintiff's action was that he no longer had any property in the cheque.

Could that answer be made to-day ? Could a bank rely in such a case on the words “true owner," and contend that not the plaintiff, whether payee or drawer, but the holder in due course was the "true owner" within s. 79 (2) ?

Chalmers, p. 258, appears to think that the section would give a remedy in such a case-to whom he does not say—but he is discussing Bobbett v. Pinkett, 1 Ex. Div. 368, and he says that, but for the forged indorsement, the only remedy would have been against the drawer's bank under this section. Yet had the cheque there been payable to bearer, as in the hypothetical case he puts, the person who obtained payment from the drawer's bank and not the payee or the drawer, would have been the “ true owner.”

Unless a man can be a true owner within s. 79 who has no longer any rights to or upon the instrument, of which he claims such ownership, I do not see how a person, who has lost property in a cheque, is enabled to maintain an action on 8. 79 (2) against the drawee bank.

What the Crossed Cheques Act did do to remedy

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