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It has also been held that a bank is not bound to honor 74. a customer's cheques after a garnishee order is served on it, even although the balance exceed the judgment: Rogers v. Whitely, 23 Q. B. D. at p. 238 (1889).

:

Death of customer.-Payment after the death but before notice is valid Rogerson v. Ladbroke, 1 Bing. 93 (1822). It has been held in England that after the death of a partner, the surviving partner may draw cheques upon the partnership account: Backhouse v. Charlton, 8 Ch. D. 444 (1878). In Quebec the death of a partner terminates the partnership, and also the right of the survivors to act for the firm, in the absence of a special agreement to the contrary C. C. 1892, 1897.

A cheque given as a donatio mortis causa must be presented or negotiated before notice of the death of the donor in order to charge his estate: Hewitt v. Kaye, L. R. 6 Eq. 198 (1868); Beak v. Beak, L. R. 13 Eq. 489 (1872); Rolls v. Pearce, 5 Ch. D. 730 (1877). But see Colville v. Flanagan, 8 L. C. J. 225 (1864); and Clement v. Cheeseman, 27 Ch. D. 631 (1884).

CROSSED CHEQUES.

Sections 75 to 81, inclusive, treat of crossed cheques. They are copied from the Imperial Act, with the substitution. of "bank" for "banker," as private bankers are not recognized by the Canadian Act. The practice of crossing cheques did not prevail in Canada before the Act, and it is not likely to be generally adopted now, as the drawer can protect himself by making a cheque payable to order, since our Parliament refused to adopt section 60 of the Imperial Act, which relieves a bank from responsibility for the genuineness or authorization of the indorsement on cheques drawn upon it.

$ 75.

The practice is a comparatively modern one in England, and is another illustration of the elasticity of the law merchant by which a custom obtains for itself judicial sanction or legislative recognition. From the report of Stewart v. Lee, 1 M. & M. at p. 161 (1828), it would appear that the effect of crossing was not then fully settled. It is described in Boddington v. Schlenker, 4 B. & Ad. 752 (1833); and in Bellamy v. Marjoribanks, 7 Ex. at p. 402 (1852). Baron Parke there gives a history of its origin and growth.

The practice originated at the London clearing house, the clerks of the different bankers who did business there having been accustomed to write across the cheques the names of their employers, so as to enable the clearinghouse clerks to make up the accounts. It afterwards became a common practice to cross cheques which were not intended to go through the clearing house at all. Baron Parke held that this had nothing to do with the restriction of negotiability, and formed no part of the cheque, and in no way altered its effect; but was a protection and safeguard to the owner, as, if a banker paid it otherwise than through another banker, the circumstance of his so paying would be strong evidence of negligence in an action against him. See also Carlon v. Ireland, 5 E. & B. 765 (1856).

The first Imperial Statute recognizing crossings was passed in 1856. In Simmonds v. Taylor, 2 C. B. N. S. 528 (1857), it was held that the crossing was not a material part of the cheque and a holder might erase it. The Act of 1858 was passed to overcome the effect of this decision. In Smith v. Union Bank of London, 1 Q. B. D. 31 (1875) a cheque crossed to a certain bank was stolen, and coming into the hands of a bona fide holder, he got it cashed through his own bank. The Court held that the Act of 1858 did not affect the negotiability of the cheque which had been indorsed by the payee. In Bobbett v. Pinkett, 1 Ex. D.

368 (1876), where the indorsement of the payee was forged, § 75. the banker was held liable for paying it otherwise than through the banker to whom it was specially indorsed. Then came the Act of 1876, which introduced the "not negotiable" crossing, which has been substantially reproduced in the Act of 1882 and the present Act.

Although the crossing of cheques was not recognized in practice or in legislation in Canada, yet the Imperial Act making the obliteration or alteration of the crossing a felony was copied into our Forgery Act of 1869, and is now section 31 of R. S. C. c. 165. Even the words "and company" and "banker," are retained.

The practice of crossing cheques has not been adopted in the United States.

75. Where a cheque bears across its face an General addition of

(a) The word "bank" between two parallel transverse lines, either with or without the words "not negotiable; " or—

(b) Two parallel transverse lines simply, either with or without the words "not negotiable;"

That addition constitutes a crossing, and the cheque is crossed generally:

crossing defined.

crossing.

2. Where a cheque bears across its face an Special addition of the name of a bank, either with or without the words "not negotiable," that addition constitutes a crossing, and the cheque is crossed specially and to that bank: Imp. Act, s. 76.

As already stated, this part of the Act does not apply to cheques on private bankers, nor can a cheque on an

§ 75. incorporated bank be crossed in favor of a private banker, or if crossed generally, be presented through him. See ante, pp. 25, 26.

Crossing by drawer.

special.

Where the drawer of a cheque made it payable to the order of M., and crossed it "Account of M., National Bank" and gave it to M. who indorsed it to the National Bank, it was held that the bank could recover from the drawer, for these words, even assuming that section 8 applies to cheques, do not prohibit transfer or indicate an intention that it should not be transferred; and that probably the only way to make a cheque not transferable would be to comply with the provisions of this section: National Bank v. Silke, 1891] 1 Q. B. 435.

76. A cheque may be crossed generally or specially by the drawer:

General or 2. Where a cheque is uncrossed, the holder may cross it generally or specially :

May be varied.

be added.

3. Where a cheque is crossed generally, the holder may cross it specially:

Words may 4. Where a cheque is crossed generally or specially, the holder may add the words "not negotiable:"

Re-crossing

for collection.

Crossing by bank.

5. Where a cheque is crossed specially the bank to which it is crossed may again cross it specially, to another bank for collection:

6. Where an uncrossed cheque, or a cheque crossed generally, is sent to a bank for collection, it may cross it specially to itself: Imp. Act, s. 77.

For a definition of "holder," see ante pp. 27-29: and of "bank," pp. 25, 26.

7. A crossed cheque may be reopened or un- § 76. crossed by the drawer writing between the trans- Unerossing verse lines, and initialling the same, the words cheque. pay cash."

This is not in the Imperial Act, but is in accordance with English custom : Chalmers, p. 256. It is the drawer alone who can obliterate the crossing. See the next section.

crossed

a material

77. A crossing authorized by this Act is a Crossing material part of the cheque; it shall not be lawful cheque. for any person to obliterate or, except as authorized by this Act, to add to or alter the crossing. Imp. Act, s. 78.

A material alteration voids a cheque except as to a party who has made, authorized or assented to it, and except as to indorsers subsequent to the alteration: section 63.

In England an unauthorized obliteration or alteration is forgery: 24-25 Vict. c. 98, ss. 25, 39. This has been copied into our Canadian criminal law, and is now in R. S. C. c. 165, s. 31, but it is the English crossing that is there referred to, and declared to be a felony. That section is not applicable to the crossing authorized by the Canadian Act.

bank as to

crossed

78. Where a cheque is crossed specially to Duties of more than one bank, except when crossed to cheques. another bank as agent for collection, the bank on which it is drawn shall refuse payment thereof:

for impro

per pay

2. Where the bank on which a cheque so crossed Liability is drawn, nevertheless pays the same, or pays a ment cheque crossed generally otherwise than to a bank,

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