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consequence of the crossing being made a material part of the cheque. A banker paying across the counter a cheque from which the crossing has been deleted, would have been liable to his customer for the amount so paid, as the payment would have been made on a forged instrument. Accordingly by the 4th section it was provided that a banker was not to be responsible for paying a cheque which did not plainly appear to have been altered. Such were the alterations made

in 1858, and among them it is noticeable that there was not included any provision by which a banker paying a cheque in disregard of the crossing should be liable to the true owner of the cheque, not being the drawer. The drawer, of course, could object to being debited with a cheque paid contrary to his instructions, but if he had delivered the cheque to the payee, he had no further interest in objecting to the mode in which it was presented. So far as the drawer was concerned the crossing was only important in protecting the cheque until it reached the hands of the payee. His obligation to the payee was thereby discharged, and it was of no importance to him whether the cheque was presented for payment by the true owner or not. If, the banker upon whom a cheque payable to bearer was drawn disregarded the crossing, and paid it to one who was not the true owner, either across the counter or through a banker, who was not the banker named in the crossing, the banker so paying was not liable to pay the amount to the true owner, unless he was the drawer. By a true owner is meant one who is a holder in due coursei.e., any one who has taken the cheque for value, even though from a thief or finder, provided that he has no notice, and is not aware of the want of title in the person who transfers the cheque to him. As has already been pointed out, a holder of a cheque payable to order, the indorsement upon which has been forged, acquires no title to the cheque, and cannot be the true owner of it; he cannot sue the drawer, and he is liable to the true owner. It followed, as a matter of course, that the banker making the payment was also liable, if such a holder obtained payment from the drawee, otherwise than through the banker named in the case of a

§ 75.

§ 75.

special crossing, or through a banker in the case of a general crossing. The Act 16 & 17 Vict. c. 59, § 19, indeed provides that a banker paying on a forged indorsement shall not be liable if he pays in bonâ fide, but his freedom from liability depends upon his obeying the direction of the cheque, of which the crossing is a material part. Consequently if he pays a crossed cheque through a wrong channel, he deprives himself of the statutory protection, and renders himself liable to the true owner, Justice Blackburn in Smith v. Union Bank, L. R. 10, Q. B. 291. In this case the judgment of the Court of Queen's Bench was affirmed in the Court of Appeal, 1 Q. B., Div. 31, and led to the passing of the Act 39 & 40 Vict. c. 81. The plaintiff was the payee of a cheque drawn upon the Union Bank of London and payable to his order, and handed to him in payment of an account. He then indorsed the cheque, crossed it with the name of his bankers, the London and County Banking Company, and sent his servant with it to his bankers. On the way the cheque was stolen from the servant, and after passing through one or two hands, came to the hands of a customer of the London and Westminster Bank. This customer, who gave full value for it, and had no notice of the theft, paid it into his own bankers, by whom it was presented to the Union Bank and paid in disregard of the special crossing. The plaintiff claimed payment on two grounds—viz. (first), that the defendants had wrongfully paid the money to another and not to him, who was the owner of the cheque; and (second), that they had infringed the provision of the Act to his loss. The Court held that he could not recover, because the statutes had not restrained the negotiability of crossed cheques, which consequently became the property of any lawful holder, even though the cheque came to him through a thief. They also held that he could not avail himself of the infringement of the statute, because though an action lies by the person injured where the provisions of a statute have been infringed, yet that is only so when those provisions are for his direct benefit, and he has sustained loss by their infringement. Here the prohibition of payment, except to a banker, is for the direct benefit of the drawer, indirectly only for the

benefit of any holder of the cheque. This case has finally
settled the question of the negotiability of crossed cheques,
and it is in the light of this and the preceding decisions that
S$ 76-82 of this Act are to be read.

$ 75.

76. (1.) Where a cheque (a) bears across its face General and an addition of—

(a.) The words " and company" or any abbreviation

thereof between two parallel transverse lines,
either with or without the words "not negoti-
able" (b); or

(b.) Two parallel transverse lines simply (c), either

with or without the words "not negotiable " (d); that addition constitutes a crossing, and the cheque is crossed generally.

(2.) Where a cheque bears across its face an addition of the name of a banker (e), either with or without the words "not negotiable," that addition constitutes a crossing, and the cheque is crossed specially and to that banker.

(a.) Vide § 73.

The provisions of § 76-82 apply to dividend warrants, § 95. This and the following sections re-enact in slightly modified language the provision of 39 & 40 Vict. c. 81.

(b.) Vide $$ 8, 31, 38.

(c.) This provision is apparently not designed to encourage the careless practice of crossing without filling in the words. "and company" or "& Co.," but is intended to prevent a banker who has paid otherwise than through a banker, a generally crossed cheque from which these words have been deleted, from pleading the benefit of the provision in § 79, which frees him from responsibility, where the cheque on presentment does not appear to be crossed.

special crossings defined.

[blocks in formation]

(e.) Vide § 2. Where the name of a banker is written on the face of a cheque, it is not necessary to draw two transverse lines.

Crossing by drawer or

after issue.

77. (1.) A cheque may be crossed generally or specially (a) by the drawer.

(2.) Where a cheque is uncrossed, the holder (b) may cross it generally or specially.

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

(4.) Where a cheque is crossed generally or specially, the holder may add the words "not negotiable" (c).

(5.) Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker for collection (d).

(6.) Where an uncrossed cheque, or a cheque crossed generally, is sent to a banker for collection, he may cross it specially to himself.

(a.) Vide § 76.

(b.) Vide § 2. No one can be a holder of a cheque payable to a person named or order, except the payee, or some one deriving right from him through a genuine indorsement, but if the cheque be either originally or by indorsement, payable to bearer, the person in possession of it is the holder, even though he be a thief or a finder. The Act 39 & 40 Vict. c. 81, § 5, limited the right of crossing to a lawful holder.

(c.) Vide $$ 78 and 81.

(d.) It is sufficient that the specially crossed cheque be sent to another banker that he may present for payment, and he need not be his agent for collection, as was provided by 39

& 40 Vict. c. 81, § 5. He cannot present through a merchant § 77. or any person not a banker.

material part

78. A crossing (a) authorised by this Act is a Crossing a material part (b) of the cheque; it shall not be lawful of cheque. for any person to obliterate or, except as authorised by this Act, to add to or alter the crossing (c).

(a.) A crossing includes the words, "not negotiable," and not as in the Act 39 & 40 Vict. c. 81, merely a general or special crossing.

(b.) Vide § 64. An alteration of a crossing without consent of the drawer and of any indorser will avoid the bill, but probably an alteration made after issue with consent of all parties will not be held to lay the cheque open to objection under the Stamp Act as a new contract, and unstamped.

(c.) Vide § 77.

bankers as

cheques.

79. (1.) Where a cheque is crossed specially to more Duties of than one banker except when crossed to an agent for to crossed collection being a banker, the banker on whom it is drawn shall refuse payment thereof (a).

(2.) Where the banker on whom a cheque is drawn which is so crossed nevertheless pays the same, or pays a cheque crossed generally otherwise than to a banker, or if crossed specially otherwise than to the banker to whom it is crossed, or his agent for collection being a banker, he is liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid (b).

Provided that where a cheque is presented for payment which does not at the time of presentment appear to be crossed, or to have had a crossing which

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