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The Bankers' Drafts Act.
anywhere. A cheque properly so called payable to bearer is transferred by mere delivery; a draft on a banker payable to order is only transferred by the indorsement of the payee, but once indorsed in blank it becomes in all respects a cheque. In other respects the law is the same as to both instruments.
The cheque then being drawn in compliance with the seven requisites, is, in legal effect, a bill drawn on a banker. But it is a bill which requires no acceptance.
The drawee of an ordinary bill of exchange incurs no liability until he has accepted. But a banker is by the custom of merchants bound to pay a cheque within a reasonable time after money has come to his hands. He is, in short, bound to pay it on presentment if he has funds of the drawer, The law on this subject is fully stated in Marzetti v. Williams, 1 B. and Ad. 415. That was an action of tort for the banker's breach of duty in dishonouring a cheque, having funds to meet it, in which the plaintiff recovered nominal damages. But it has since been held that in an action by a trader against his banker for dishonouring his cheque, having funds to meet it, substantial damages may be recovered without proof of any actual damage (Rollin v. Steward, 14 C. B. 595).
The Lecturer, after expounding the law relating to the prompt presentation of a banker's cheque, came to the consideration of the nature of a negotiable security, and the right of a bona fide holder to recover payment, although it had previously been obtained by fraud or larceny. Several cases were cited, particularly Miller v. Race, 1 Burr. 452; Grant v. Vaughan, 3 Burr. 1516; the conclusion to be drawn from which was that
A negotiable instrument (and of course a cheque or draft) is one which is transferable by any person holding it, so as by delivery thereof to give a good title to any person honestly acquiring it.
This is the
definition of Chief Justice Abbott in Gorgier v. Mieville, 3 B. and C. 45. Whenever, therefore, an instrument is such that the legal right to the property secured thereby passes from one man to another by the delivery thereof, it is, properly speaking, a negotiable instrument, and the title to it will vest in any person taking it bonâ fide and for value, whatever be the defects in the title of the person transferring it. An instrument, consequently, which by the custom of trade is transferrable like cash, by delivery, and is also capable of being sued upon by the holder, is entitled to be called a negotiable instrument. Bills and notes, cheques and drafts, payable to bearer, or payable to order, and indorsed in blunk, are therefore negotiable instruments-they pass like money, and may be sued on by the holder.
It follows that when an instrument is made payable to bearer, or being originally made payable to order, has been indorsed in blank by the payee, no subsequent special indorsement can restrain its negotiability (Smith v. Clarke, Peake N. P. 225; Walker v. Macdonald, 2 Ex. 527).
The recent case of Bellamy v. Majoribanks, 7 Exch. 389, was next noticed, and Mr. Kerr observed
The result of this case is, that if any man gets a cheque crossed to any one banker, he may strike out that banker's name, and put in the name of his own banker, for the sole effect of the crossing is to make
the banker on whom it is drawn pay the contents through A BANKER. The crossing in no way restrained the NEGOTIABILITY OF THE CHEQUE, and therefore any person taking it bonâ fide for value, acquires a right to the contents just as Miller, who took the stolen bank note honestly, was held entitled to the contents in Miller v. Race,, and as Grant, who gave cash for the lost cheque, was held entitled to enforce payment of it in Grant v. Vaughan.
Then the decision of the Queen's Bench in Carlon v. Ireland, 5 El. and Bl. 765, is precisely the same as the decision of the same court nearly a century ago in the same circumstances.
The Lecturer then read the recent statute, and asked whether this enactment has done anything to restrain the negotiability of the cheque. It provides that the effect of the crossing is to make it payable only to a banker. Is that to prevent any one from bonâ fide taking a crossed cheque in payment of his bill. If it is to do so, then a cheque can no longer be a "negotiable instrument." The crossing (in the language of Lord Campbell) cannot in the nature of things at once leaving it payable to bearer and also make it not payable to the bearer, and the effect of the statute would seem, therefore, simply to give a legislative sanction to what was previously the "custom of merchants," and it may be added, the law of England.
These instruments have long been given in payment of a debt or other demand, for a cheque, unless dishonoured, is considered payment (Pearce v. Davis, 1 M. and R. 365). But the mere production of a cheque drawn by the debtor in favour of the creditor and appearing to have been paid by the banker is no evidence of payment (Egg v. Barnett, 3 Esp. 196). If it were, we might all draw cheques in favour of our creditors and then plead payment after we had ourselves drawn the money. It is therefore necessary to shew that the cheque passed through the creditor's hands (Aubert v. Walsh, 4 Taunt. 293); and if the cheque be dishonoured, or the banker fails, the creditor may resort to his original right of action (Everett v. Collins, 2 Camp. N. P. 515), just as the owner of goods for which a bill has been given may sue for the price of the goods if the bill is not paid at maturity (Tapley v. Martens, 8 T. R. 451).
A cheque is payment, but yet it is not evidence of a debt due from the drawer; as money lent, for instance (Pearce v. Davis, 1 Mood. and Rob. 365). Nor is it evidence of the money having been advanced by the banker to the customer (Fletcher v. Manning, 12 M. and W. 571). It is, on the other hand, prima facie evidence of repayment by the banker, and in the case of a private person of payment of a previous claim, and if it is prima facie evidence of one state of circumstances, it cannot of course be evidence of the converse.
A cheque is an authority to the banker of the drawer to pay the amount of it. The drawer's death before payment is a countermand of that authority, but still the payment is good if made before notice of the death (Tate v. Hilbert, 2 Ves. Jun. 118). It is an authority to pay the amount for which it is drawn. If, therefore, the cheque be fraudulently altered and increased in amount the banker must bear the loss (Hall v. Fuller, 5 B. and C. 750); unless the drawer so carelessly and negligently fill up the cheque as to invite the forgery (Young v. Grote, 4 Bing. 253).
Being an authority countermanded by death a cheque cannot be the subject of a gift by a will (Tate v. Hilbert, 2 Ves. Jun. 111). It must be
New Statutes effecting Alterations in the Law.
delivered, and cannot, it would appear, be delivered by the executor, so as to transfer the property (Bromage v. Lloyd, Ex. 32); but a payment by the banker before notice of the death, equity will hold to be good.
It may be observed, however, that the new act settles the question that a crossed cheque must be paid through some banker, and that the crossing cannot be altogether struck out and the amount received by any other person.
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
INCOME AND LAND TAXES.
(19 & 20 Vic. c. 80).
1. Relief from income tax to landlords in Scotland in respect of public burdens not paid by landlords in England.
2. Allowances to clerks to Income Tax Commissioners under recited acts repealed, and other allowances granted in lieu thereof.
3. Section 2 of 16 & 17 Vict. c. 117, relating to redemption of land tax repealed.
4. Parishes or places may be united for the more convenient execution of the acts relating to the land tax, &c.
The following are the title, preamble, and sections of the act:
An Act to grant Relief in assessing the Income Tax on Lands in Scotland in respect of certain Public Burdens charged thereon; to alter and regulate the Allowances to Clerks to the Commissioners of Income Tax; and to amend the Laws relating to the Land, Assessed, and Income Taxes, and the Redemption and Purchase of the Land Tax.
[29th July, 1856].
WHEREAS it is expedient to grant relief in assessing the income tax on lands in Scotland in respect of certain public burdens charged thereon, and to alter and regulate the allowances to clerks to the Commissioners of Income Tax, and also to amend the laws relating to the redemption and purchase of the land tax: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. Whereas the rules contained in the act passed in the Fifth and sixth years of her Majesty's reign, chapter thirty-five, for estimating the annual value of properties described in schedules A. and B. of the acts relating to the income tax, in order to the assessing and charging of the same under the said acts, direct that where any landlord shall be subject to any covenant or agreement to pay or satisfy out of the rent reserved parochial rates, taxes, and assessments which by law are a charge on the occupiers of lands, the annual value of such lands shall be estimated for the purpose aforesaid, exclusive of such rates, taxes, and assessments: And whereas certain public rates and taxes which in England are by law a charge on the occupiers of lands are in Scotland charged on the landlords, and other public burdens, the like whereof do not exist in England, are also
charged on the landlords in Scotland; and it is expedient to afford relief to landlords in Scotland with respect to the charge of the income tax upon them in regard to all such cases as aforesaid: Be it enacted, that where it shall be made to appear to the satisfaction of the Commissioners of Inland Revenue that the landlord of lands in Scotland is by law charged with any public rates, taxes, or assessments which in England are by law a charge on the occupiers of lands, or that such landlord is by law charged with any public rates or taxes or other public burdens the like whereof are not chargeable on lands in England, the said commissioners shall cause such relief to be given to the said landlords in Scotland as shall be just and reasonable in regard to the charge of the income tax on them in respect of an annual value exceeding by the amount of such rates, taxes, assessments, and public burdens the charge of the said tax on landlords in England, and such relief shall be given either by abatement from the assessment, or by repayment of the tax, and under such rules, regulations, and directions as the said commissioners shall think fit to make or give in that behalf.
2. And whereas by section one hundred and eighty-three of the said recited act certain allowances were directed to be granted to the clerks of the respective commissioners of income tax for the due performance by the said clerks of the duties of their offices respectively, and by an act passed in the sixteenth and seventeenth years of her Majesty's reign, chapter thirty-four, section fifty-seven, certain other allowances were directed to be granted to the said clerks in lieu of the said former allowances: Be it enacted, that the said allowances directed to be granted by the said recited acts, or either of them, to the clerks of the respective commissioners of income tax shall be and the same are hereby repealed as to all assessments made or to be made for any year commencing from or after the fifth day of April one thousand eight hundred and fifty-six, and in lieu thereof there shall be granted the following allowances; that is to say, the clerk of the respective commissioners who shall duly perform the duties of his office within the respective times limited by law in that behalf, and shall have borne and sustained the incidental expenses mentioned in the said firstrecited act, shall, by warrant under the hands of the said commissioners, have and receive from the respective officers for receipt twopence in the pound on so much of the net amount of the sums assessed and charged in the duplicates of assessment for any year commencing as aforesaid, after all appeals heard and determined, and all just reductions, abatements, and discharges made from such assessments and duplicates respectively, as will give to such clerk an allowance not exceeding five hundred pounds for any one year, and at the rate of one penny in the pound on the remainder (if any) of the said net amount: Provided always, that it shall be lawful for the Commissioners of her Majesty's Treasury, in any case in which they shall see fit, to cause such further allowance to be made to any such clerk as aforesaid of any sum not exceeding one penny in the pound on the amount of such part of the gross assessment as shall have been discharged on occasion of claims for exemption or abatement made or allowed on the ground of income being below one hundred and fifty pounds and one hundred pounds a year respectively as the said last-mentioned commissioners shall, on consideration of the extent and population of the district, and the number of such claims, think proper to direct; and the certi
New Statutes effecting Alterations in the Law.
ficate of the Commissioners of Inland Revenue shall be an authority to the officers for receipt respectively to pay such further allowance as last mentioned.
3. And whereas by an act passed in the sixteenth and seventeenth years of her Majesty's reign, chapter one hundred and seventeen, section two, it is enacted, that upon the completion of any contract entered into after the passing of the said last-mentioned act for the redemption of land tax, and upon the transfer or payment of the consideration for the same, the messuages, lands, tenements, or hereditaments comprised in such contract shall be wholly freed and exonerated from the land tax charged thereon, and from all further assessments thereof, and from any yearly term, rent, or rentcharge in respect of any consideration for such contract: Be it enacted, that the said last-recited enactment, so far as regards any such contract as aforesaid to be entered into at any time after the passing of this act, shall be and the same is hereby repealed.
4. And for the more convenient execution of the acts relating respectively to the land tax, the assessed taxes, and the income tax, be it enacted, that it shall be lawful for the commissioners acting in the execution of the acts relating to the land tax for any division, at any meeting of such commissioners convened for that purpose, if and as they shall see fit (subject as herein provided), to unite any two or more parishes, townships, tithings, hamlets, or places (extra parochial or otherwise), for the purpose of the more convenient execution of the said several acts relating to the said taxes respectively, and to certify such union to the Commissioners of Inland Revenue, for the approbation of the Commissioners of her Majesty's Treasury; and if the said last-mentioned commissioners shall approve of such union, such approbation shall be certified by the Commissioners of Inland
Revenue to the respective commissioners acting in the execution of the several acts relating to the several taxes aforesaid respectively; and thereupon, and from and after such time as shall be fixed by such last-mentioned certificate, such united parishes, townships, tithings, hamlets, or places shall, for all the purposes of the said several acts and taxes respectively, be considered as one parish or place only, and the said respective commissioners shall execute the said acts with respect to such united parishes, townships, tithings, hamlets, or places as if the same were one parish or place only: Provided always, that nothing herein contained shall extend to authorise any alteration of the quota of land tax now chargeable by law on any parish or place.
COMMONS INCLOSURE (No. 2).
(19 & 20 Vict. c. 106).
1. Inclosures mentioned in the schedule may be proceeded with.
2. Short title.
An Act to authorise the Inclosure of certain Lands in pursuance of a Special Report of the Inclosure Commissioners for England and Wales.
[29th July, 1856.] WHEREAS the Inclosure Commissioners for England and Wales have, in pursuance of "The Acts for the Inclosure, Exchange, and Improvement of Land,” issued their provisional orders for and concerning the proposed inclosures mentioned in the schedule to this act, and the requisite consents thereto have been given since the date of their Eleventh Annual General
Report: And whereas the said commissioners have by a special report certified their opinion that such proposed inclosures would be expedient; but the same cannot be proceeded with without the previous authority of Parliament: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. That the said several proposed inclosures mentioned in the schedule to this act be proceeded with.
2. In citing this act in other acts of Parliament and in legal instruments it shall be sufficient to use either the expression "The Second Annual Inclosure Act, 1856," or "The Acts for the Inclosure, Exchange, and Improvement of Land."
SCHEDULE to which this act refers:
Leases and Sales of Settled Estates Act.
WHEREAS the levying of charges upon real estate through the medium of receivers appointed by the Court of Chancery in Ireland is productive of injury and inconvenience, and is often attended with expense wholly disproportionate to any benefits derived therefrom; and it is expedient to diminish the necessity for appointing receivers by giving to the court increased facilities for the sale of real estate, and that the court should in all cases of applications to appoint receivers have a discretion to refuse or postpone the appointment as hereinafter is provided: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. The expression "the court," when used in this act, shall mean "the Court of Chancery in Ireland," and shall include the Chancellor, Master of the Rolls, and each of the Masters in Ordinary acting within their respective jurisdictions; "suit" shall include " cause," "petition," and "matter."
2. When by the law or practice of the court, or by any act of Parliament, the court is or shall be empowered to appoint a receiver over real estate for payment of any charge thereon, the court in exercising such jurisdiction may have regard to the amount of the charge and of the rental of the estate, and also to the other remedies and securities (if any) possessed by the person entitled to the charge, and to the other circumstances of the case; and if the court shall be of opinion that the appointment of a receiver is unnecessary or inexpedient, or would not be productive of substantial benefit to the person entitled to the charge, it shall be lawful for the court to decline or postpone appointing a receiver, and the costs of any application for the appointment of a receiver shall be in the discretion of the court.
3. No receiver shall be appointed in respect of judgment or judgment mortgage where the sum due on foot of such judgment shall not exceed one hundred and fifty pounds, nor where the rental of the estate over which the receiver is sought to be appointed shall not exceed one hundred pounds per annum; provided, that nothing in this section contained shall prevent the making of any order to extend to a receiver already appointed.
4. Nothing in this act contained shall extend to affect the jurisdiction of the court to appoint receivers for the payment of tithes or tithe rentcharge, but such receivers shall be appointed by the court as if this act had not passed.
5. The Act of the Parliament of Ireland passed in the eleventh and twelfth years of the reign of his Majesty King George the Third, intituled "An Act for rendering Securities by Mortgage more effectual," is hereby repealed, save as to any proceeding in any court of justice instituted prior to the passing of this act, and any such proceeding may be continued and prosecuted as if this act had not passed.
6. It shall be lawful for the court in any suit pending or to be instituted therein in relation to any real estate, if it shall appear to the court that it will be necessary or expedient that the said real estate, or any part thereof, should be sold for the purposes of such suit, to direct the same to be sold at any time after the institution of such suit, and such sale shall be as valid to all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such suit, or at any other stage of the proceedings therein, and shall be carried out according to the course and practice of the court, and ac
cording to such general orders as may from time to time be made by the court for regulating such sales and securing the title of the purchasers thereunder; and any party to the suit in possession of such estate, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser or such other person as the court shall direct.
JOINT STOCK BANKS. 19 & 20 Vict. c. 100.
1. Retiring directors in banking companies eligible for re-election.
2. Provision for existing banking companies established under recited act.
The following are the title, preamble, and sections of the act:
An Act to amend the Law with respect to the Election of Directors of Joint Stock Banks in England. [29th July, 1856.] WHEREAS by the act of the seventh and eighth years of the Queen, chapter one hundred and thirteen, it is enacted, that the deed of partnership of every banking company to be established under that act shall contain a specific provision for the retirement of at least one-fourth of the directors yearly, and for preventing the re-election of the retiring directors for
at least twelve calendar months: and whereas it is expedient that so much of the said enactment as relates to the re-lection of such retiring directors should be repealed: be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows; that is to say
1. It shall not be necessary in the deed of partnership of any banking company established after the passing of this act to insert any provision for preventing the re-election of retiring directors, either absolutely or for any limited period.
2. In every banking company already established under the provisions of the said recited act, and whose deed of partnership or settlement contains a provision in accordance with the enactment hereinbefore repealed, the directors retiring at any general meeting after the passing of this act shall and may, if duly qualified in other respects, be immediately eligible for re-election, anything in the deed of partnership of such company contained to the contrary notwithstanding.
LEASES AND SALES OF SETTLED ESTATES ACT.
NEW ORDERS IN CHANCERY.
15th November, 1856.
THE Right Honourable Robert Monsey Baron Cranworth, Lord High Chancellor of Great Britain, with the advice and assistance of the Right Honourable Sir John Romilly, Master of the Rolls, the Right Honourable Sir James Lewis Knight Bruce, and the Right Honourable Sir George James Turner, the Lords Justices of the Court of Appeal in Chancery, the Honourable the Vice-Chancellor Sir Richard Torin Kindersley, the Honourable the ViceChancellor Sir John Stuart, and the Honourable the Vice-Chancellor Sir William Page Wood: Doth hereby, in pursuance of the Act of Parliament of the
Leases and Sales of Settled Estates Act-New Orders in Chancery.
19th and 20th years of her present Majesty, chapter 120, intituled "An Act to facilitate Leases and Sales of Settled Estates," and in pursuance and execution of all other powers enabling him in that behalf, order and direct in manner following, that is to say:
1. Every petition under the act, and every public and private notice required by the act must set forth the name, address, and description of the petitioner, and also a place in London, Westminster, or the borough of Southwark, or within two miles of Lincoln's Inn Hall, where he may be served with any order of the court or notice relating to the subject of the petition.
2. All petitions and notices, and also all affidavits and other proceedings under the act are to be entitled, In the matter of the act, and In the matter of the property in question, mentioning the county and parish or place in which it is situate, and describing it by general terms, and every such petition shall be marked with the words Master of the Rolls, or with the title of the Vice-Chancellor before whom it is intended to be heard.
3. After any such petition has been presented, application may be made exparte and in chambers to the judge before whom it is intended to be heard for directions in what newspapers the notices required by the act are to be inserted.
4. Motions under the twentieth section of the act may be made exparte within seven clear days after the publication of the advertisement which may be last inserted in the newspaper, but not later (except by special leave of the court), and every order made on any such motion must be served on the petitioner within four days after the making thereof.
5. If the person or body corporate obtaining such order shall require a copy of the petition, such person or corporation shall at the time of serving such order make a written application to the petitioner for such copy, with an undertaking to pay all proper charges for the same.
6. Within two clear days after such application a copy of the petition shall be ready to be delivered, and shall be delivered on demand, and on payment for the same after the rate of fourpence per folio.
7. No petition under the act shall be set down for hearing until after the expiration of twenty-one days from the publication of the last of the advertise
8. Upon every application under the act the court must be satisfied by sufficient evidence that no such previous application to Parliament as is mentioned in the twenty-first section of the act has been made and rejected or reported against.
9. On every application under the act for authority to sell, the court must be satisfied by sufficient evidence who are the parties interested in the estate, whose consent is required by the act, and what are the circumstances which render the proposed sale proper and expedient.
10. In all cases in which under the provisions of the thirty-sixth section of the act it shall be necessary to obtain the several directions of the court for any application to the court or any consent to such application, such special directions may be obtained exparte by summons at the chambers of the judge to whose court the application may be intended to be made or may have been made.
thinks fit, require that such document or documents so endorsed shall be produced in court for his inspection, and in case of any such order relating to lands in a register county or district, the court may order a duplicate or a memorial of the same to be registered.
12. The fees and allowances to all officers and solicitors of the court in respect of the matters under the act shall be such fees and allowances as by the present practice of the court they are entitled to take and charge for business of a similar nature.
NEW ORDERS IN CHANCERY.
BUSINESS AT THE JUDGES' CHAMBERS.
Wednesday, 12th November, 1856. THE Right Honourable Robert Monsey, Lord Cranworth, Lord High Chancellor of Great Britain, with the advice and assistance of the Right Honourable Sir John Romilly, Master of the Rolls, and the Honourable the Vice-Chancellor Sir Richard Torin Kindersley, the Honourable the Vice-Chancellor Sir John Stuart, and the Honourable the Vice-Chancellor Sir William Page Wood, doth hereby, in pursuance of the act passed in the session of Parliament, holden in the 15th and 16th years of the reign of her present majesty, intituled "An Act to abolish the Office of Master in Ordinary of the High Court of Chancery, and to make Provision for the more speedy and efficient Dispatch of Business in the said Court," and of the act passed in the session of Parliament holden in the 18th and 19th years of the reign of her present Majesty, intituled "An Act to make further Provision for the more speedy and efficient Dispatch of Business in the High Court of Chancery, and to vest in the Lord Chancellor the Ground and Buildings of the said Court, situate in Southampton-buildings, Chancery-lane, with Power of leasing and sale thereof;" and in pursuance and execution of all other powers enabling him in that behalf, order and direct as follows:
The business to be disposed of by the Master of the Rolls and the Vice-Chancellors respectively while sitting at Chambers shall comprise the following matters, that is to say:
1. Applications for payment to any person or persons of the dividends or interest of any stocks or funds standing on the credit of any cause or matter depending in the Court of Chancery to the separate account of such person or persons.
2. Applications under the 32nd section of the act of Parliament passed in the 36th year of the reign of King George the Third, chapter 52, in all cases where the sum paid into the Bank of England, or the stock transferred into the name of the Accountant-General under such section, does not exceed three hundred pounds cash, or three hundred pounds stock, as the case may be.
3. Applications under the act passed in the session of Parliament holden in the 10th and 11th years of the reign of Her present Majesty, chapter 96, intituled "An Act for better securing Trust Funds, and for the Relief of Trustees," and the act passed in the session of Parliament holden in the 12th and 13th years of the reign of her present Majesty, intituled "An Act for the further Relief of Trustees," in all cases where the trust fund does not exceed three hundred pounds cash, or three hundred pounds stock, as the case may
11. Every order of the court made in pursuance of the powers conferred on it by the act shall specify in what document or documents (if any), the notice referred to by the twenty-second section of the act 4. Applications under "The Trustee Act, 1850," shall be placed or endorsed, and the judge may, if he and the act of Parliament passed in the session of