note. Promissory and 4th paragraphs of the statement of defence, the said indenture was executed prior to the making of the said promissory note and the agreement mentioned in the 7th paragraph of the statement of defence, even if made (which the plaintiff denies), was contemporaneous with the making of the note, and was not in writing. Payee against maker. Reply. Indorsee against maker. 3. If any parol arrangement made at the time of the making of the said promissory note can be gone into in this action, the plaintiff will contend that such arrangement was not as stated in the defence, but that the £500 secured by and the consideration for the said note was advanced by the plaintiff to the defendants on the arrangement that the defendants or the said company should cover over a yard comprised in the said indenture with an iron or glass roof, and that the said note for £500 should only be treated as subject to the covenants and provisions of the said mortgage indenture in case the said roof should be completely constructed within twelve months from the date of the said promissory note. 4. The said roof was not completed within the said time, and has not yet been commenced. Indorsee against Maker for Non-payment of two Notes, and for 1. The defendant, by his promissory note made and dated the 2nd of August, 1875, promised to pay to one A. B. or his order the sum of £50 on demand. 2. The said A. B. indorsed the said note to the plaintiff. 3. The defendant, by his promissory note made and dated the 10th of August, 1875, promised to pay to one M. N. or his order the sum of £95 one month after date. 4. The said M. N. indorsed the said note to the plaintiff. 5. The note mentioned in the 1st paragraph and also the note mentioned in the 3rd paragraph fell due on the 14th of September, 1875, but the defendant has not paid either of the said notes. 6. Between the month of February, 1875, and the month of August, 1875, the plaintiff lent to the defendant, at the defendant's request, sums of money amounting in the whole to £750. Particulars of the amounts lent and dates have been delivered to the defendant. 7. Prior to and at the time of the plaintiff lending to the notes. defendant any of the sums of money mentioned in the last Promissory paragraph, it was agreed by and between the plaintiff and the Indorsee defendant that the defendant should pay to the plaintiff in- against terest at the rate of 20 per cent. per annum upon all sums so lent maker, and and advanced, and there is now due and owing to the plaintiff in respect of the said interest the sum of £71 28. Particulars and interof such interest have been delivered to the defendant. The plaintiff claims : (1.) £145, the amount of the two promissory notes mentioned in the 1st and 3rd paragraphs, and interest thereon. (2.) The respective sums of £750 and £71 28. claim for money lent est on it. Bankers' Cheques (a). Payee of Cheque against Drawer for Non-payment of Cheque. 1. The defendant on the day of 1876, by his cheque Bankers' or order for the payment of money directed to Messrs. C. cheques. Co., bankers, required them to pay to the plaintiff or order against & Payee drawer. (a) Cheques on bankers resemble bills and notes thus far, that they Difference are negotiable, so as to entitle the holder to sue the drawer or indorser; between but no acceptance is necessary, nor are there days of grace, and the cheques drawer is the principal debtor, as the maker of a note, and not a surety and bills. for the acceptor as in the case of bills. The holder of the cheque cannot compel the bankers on whom the cheque is drawn to pay it to him, Holder because in the absence of any express undertaking on their part, there is cannot no privity of contract between the parties; but if the bankers refuse to pay, the holder's remedy is against the drawer of the cheque, and the indorsers, if there are any such. If the bankers have improperly refused to honour the drawer's cheque, they having assets of his in hand, they are liable in an action to him. (See ante, p. 146.) compel the bankers to pay it. As between holder and drawer, mere delay in presenting the cheque Effect of for payment short of six years, is no answer unless the defendant has been delay in prejudiced by the delay; as by the failure of the bank after the drawing presenting of the cheque. (Robinson v. Hawksford, 9 Q. B. 52; Laws v. Rand, L. J. 27 the cheque. C. P. 76.) * If in consequence of such delay the cheque becomes valueless by the failure of the bank, the drawer is released from liability; and in order to avoid this risk, the bearer must present it either himself or through his banker on the day following the day of receipt. (Alexander v. Burchfield, 7 M. & Gr. 1061.) But if the holder of the cheque does not live in the same place with the drawer, he may send it to his banker or other agent by the post of the next day after he receives it. However, as between holder and indorser the plaintiff is bound to show greater diligence in endeavouring to obtain payment. (3 Kent, Com. 88, 104; Moule v. Brown, 4 N. C. 266.) The cheque having been presented and dishonoured, it is the holder's duty, if he intends suing either the drawer or the indorser on the dishonoured cheque, to give due notice of dishonour; and notice of dis Duty of the holder upon dis Cheques. Payee against drawer. the sum of £50, and he delivered the said cheque to the plaintiff. 2. The plaintiff duly presented the same for payment, but it was dishonoured. 3. Due notice of the dishonour of the said cheque was given to the defendant. 4. The said cheque still remains unpaid. The plaintiff claims, &c. Indorsee of Cheque against Indorser for Non-payment. Indorsee against indorser. 1. Messrs. Y. & Co., on the Defence. honour of day of 1877, by their cheque or order for the payment of money directed to Messrs. bankers, required them to pay to the defendant or order the sum of £70. 2. The defendant indorsed the same to the plaintiff. 3. The said cheque was duly presented for payment, and was dishonoured. 4. Due notice of the dishonour of the said cheque was given to the defendant, but he has not paid the same. The plaintiff claims : Statement of Defence. 1. The said cheque was not duly presented for payment. On the contrary, the plaintiff kept the said cheque in his possession without presenting it for payment an unreasonable time, viz., one month. 2. At the time the defendant indorsed the cheque to the plaintiff, Messrs. Y. & Co., the drawers thereof, had a considerable balance at their bankers on which the said cheque was drawn, and they remained in good credit with their said bankers for three weeks after that time. 3. If the plaintiff had presented the cheque for payment at any time within three weeks after the defendant indorsed the same to him, he would have received payment thereof. 4. At the end of the aforesaid three weeks Messrs. Y. & Co. were adjudicated bankrupt, and the defendant says that it was altogether due to the unreasonable delay and laches of the honour is only dispensed with in the case of the drawer where the the cheque. drawer had no effects in the hand of the banker, and had no reasonable expectation that the cheque would be paid. (Sec Carew v. Duckworth, L. R. 4 Ex. 313.) plaintiff in not presenting the cheque as already set out, that Cheques. the same was not paid. Indorsee indorser. 5. The defendant did not receive due notice of the dishonour against of the said cheque. Defence setting out Want of Consideration, Failure of Consideration, Fraud, &c., to action upon a Cheque, where Plaintiff proceeded by a specially indorsed Writ, and delivered a Notice in lieu of a Statement of Claim. 1. This action is brought by the plaintiffs as executors of the said W. W., to recover the sum of £300 and interest thereon, being the amount of a cheque alleged by the plaintiffs to have been drawn by the defendants on the 17th of November, 1875, on their bankers, the London and Westminster Bank, Southwark Branch, in favour of A. W., the brother of the said W. W., or order, and to have been indorsed by the said A. W. to the said W. W. (a). 2. The defendants do not admit that they made or drew the said cheque. 3. The defendants deny that the said A. W. indorsed the said cheque to the said W. W.; and they say that the plaintiffs are not executors of the said W. W., or the lawful holders of the said cheque. 4. In case the plaintiffs should prove that the said cheque was drawn and indorsed as alleged by them, then the defendants say that the same was drawn by the defendants for a consideration which wholly failed as between them and the said A. W., and the same was indorsed to the said W. W., and he and the plaintiffs always held the same without any value or consideration. 5. They further say that the said cheque was drawn by the defendants in consideration and on the condition that the said A. W. would forthwith consign and deliver to the defendants 296 quarters of malt to be sold by them for the said A. W. for (a) This mode of commencing the defence may seem objectionable, and open to the charge of prolixity; but it is necessitated by the fact that a specially endorsed writ does not disclose who are the parties to the action in the same full way that a statement of claim would do, and as will be readily seen it is in this case essential to the appreciation of the effect of the subsequent paragraphs that the position of the various parties to the cheque should be defined. Cheque. reward to the defendants, and upon the terms that the defendDefence of ants should be at liberty to pay themselves the amount of the said cheque out of the proceeds of the sale of the said goods; tion, fraud, and the defendants were always ready and willing to receive want of considera &c. Bearer of crossed cheque against drawer. What amounts to a crossing of a cheque. Crossing generally. Crossing specially. Bankers liable if they pay a crossed cheque except as directed by the Act. Defence on bill, &c. Loss of bill. and sell the said goods for the purpose and on the terms aforesaid; but the said A. W. did not consign or deliver to the defendants the said goods as aforesaid, or any of them. 6. The said W. W. had notice of the premises when the said cheque was indorsed to him, and the same was indorsed to him, and he and the plaintiffs always held the same without any value or consideration, and, except as aforesaid, there never was any value or consideration for the drawing or payment of the said cheque by the defendants. 7. The defendants further say that they were induced to draw the said cheque by the fraud of the said A. W., and the said W. W. had notice thereof when the said cheque was indorsed to him. Bearer of a Crossed Cheque against Drawer for Non-payment (a). 1. The defendant, on the 1st day of July, 1873, by his cheque or order for the payment of money directed to Messrs. H. & F., bankers, required them to pay to J. O. or bearer £20. (a) The law on the subject of crossed cheques is now regulated by the statute 39 & 40 Vict. c. 81. By sect. 4 where a cheque bears across its face an addition of the words "And Company," or any abbreviation thereof, between two parallel transverse lines or of two parallel transverse lines simply, and either with or without the words "not negotiable," that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally; and where a cheque bears across its face an addition of the name of a banker either with or without the words "not negotiable," that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed specially, and to that banker. Sect. 7 declares that where a cheque is crossed generally, the banker shall not pay it otherwise than to a banker; but where it is crossed specially, it must not be paid except to the banker to whom it is crossed or his agent for collection. Sect. 8 says, "Where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof." Lawful holders of uncrossed cheques are authorized to cross them, and holders of cheques crossed generally are authorized to cross them specially (sect. 5). The bankers on whom the cheque is drawn are liable to their customer if they pay a crossed cheque except as directed by the Act. GENERAL DEFENCES TO ACTIONS ON BILLS, NOTES, AND CHEQUES. The loss of the bill, &c.]—It is a good defence to an action on a bill or note or cheque in a negotiable state, that the same has been lost or cannot be produced by the plaintiff. The principle of this defence is that the holder of a negotiable security is only entitled to payment ou |