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This course was accordingly taken, and, on the summons being taken out and not attended, the issue was amended, and the cause tried as undefended.

Verdict for the plaintiff.

the traverse should be demurrable
the defendant may, at his option,
strike it out and demur, where, as
in the present case, there could on/y
be issue taken, so that a demurrer
would be idle; it should seem that
the Judge might amend (as surely
he might amend a mere clerical
error) without a summons to show
cause, because it is manifest that
no cause could possibly be shown.
The plaintiff of course could, and it
is to be assumed would, have had a

summons to amend before the commission day, if he had observed the oversight, and it perhaps is to be presumed that the defendant would have done so, as he ought to have done so, if he had noticed it, for he had no right to rely on a mere clerical error and be in wait to take advantage of it, and if he did not observe it, he is as much in fault as the plaintiff, and, in either case, really loses no advantage to which he is fairly entitled.

Essex Summer
Assizes.

A stamp ob-
jection may be
avoided before
the document
is actually put
in by agreeing
to state it in a
special case.

WALTON v. BURTON.

ACTION on a covenant for good title—that a certain estate was not encumbered.

Breach: that it was encumbered by a lease to one Pinner, under which he was entitled to compensation when he left, for fruit trees planted.

Shee, Serjt., for the plaintiff.

Lush and Philbrick for the defendant.

The point was, whether Pinner's lease, which was merely in writing, not under seal (a), bound the land in the hands of an assignee. A question was raised whether Pinner's lease ought not to be put in on the part of the plaintiff, and as it was not stamped, and the plaintiff hesitated to incur the expense of paying the penalty,

Lush thereupon consulting with Shee, Serjt, the latter

(a) As to which, vide Standen v. Chrismas, 10 Q. B. Rep. 135.

consented to admit that the lease was by parol, which would raise the point of law it was desired to have determined—viz., whether, as there was no covenant running with the land, as against the defendant or the plaintiff, as assignee of the reversion, there was any real encumbrance within the covenant; and, as it was also necessary to have the terms, ultimately it was settled that the case should be reserved for the Court on the point of law, by special case, not by motion (a), so as to get rid of the necessity of putting in the document, and paying the penalty.

Bramwell, 6., observed, that, as he was not called upon to take a note of the terms of the lease, he did not think that he could raise any objection to the course which was taken (b).

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(a) If the terms of the lease were to be before the Court, it could only be by special case, for though the fact of tenancy can be taken without putting in the lease or agreement, the termt cannot.

(6) It has been laid down in the Court of Exchequer more than once, in the reporter's hearing, that

a subject has a right to evade a
stamp duty if he can. And sec
Webber v. Mowbray, Vol. II., p.
311, as to documents being taken
as put in, which would require a
stamp; as to which, aturre. And
see per Keating, J., Oliver v.
Mortimer, Vol II., p. 127.

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dated. Sed quare.

KEY V. MATHIAS. Euex Summer

f-r\ Auixet.

J. HIS was an action on a cheque for 100/. on the Bank An action of London, given by the defendant to one Lacy, and by "cheque'pos" him to the plaintiff.

The defendant denied the making of the cheque, and also pleaded that it was made for the accommodation of Lacy, and without consideration, and by him passed to the plaintiff in the same way.

Shee, Serjt., and Barnard for the plaintiff.

Parry, Serjt., and Hannen for the defendant.

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The case for the plaintiff was, that on the 30th of December, 1861, Lacy had borrowed of him 100/., and given him the cheque in question for the money. The plaintiff gave his cheque (payable to "cash"), dated the 30th of December, 1861, to Lacy, and the latter gave the defendant's cheque in return, dated the 31st of December.

It was objected, for the defendant, that the cheque sued upon was post-dated, and so not admissible in evidence (a).

The learned Baron said that raised first a collateral question of fact for him to decide, whether or not the cheque was post-dated, for if so it could not be put in evidence (b).

Evidence was then given to show that the defendant gave his cheque on the same day on which the plaintiff gave his—viz., the 30th of December, though it was dated on the 31st.

The learned Baron said he felt bound to decide that the cheque was made and issued on the 30th of December, 1861.

Parry, Serjt., then submitted that it was not admissible; a cheque was a bill of exchange (c).

Bramwell, B.—That is so, no doubt, and has been so held, and on that ground cheques have been held to be within the Bills of Exchange Act (d).

(a) See Field v. Wood, 7 A. &

E. 114, as to this objection under the old law. .

(6) Burtlett v. Smith, 11 M. & W. 483; Dunsford v. Curlewis, I

F. & F. 703, where so held by Hill, J., in a similar case under the present statutes.

(c) Vide Eyre v. Waller, 29 L. J., Exch. 246, citing and following Rochfort v. Daniel, 1 F. & F. 602.

(<0 By 31 Geo. 3, c. 25, s. 19, a

post-dated cheque was made inadmissible in evidence, and a penalty was also imposed. The 16 & 17 Vict. c. 59, repealed the former duties on drafts or orders, but not the Stamp Acts; and on the contrary, all the provisions, regulations and penalties imposed by any former act, arc expressly retained and applied to the new duties (s. 2). And by that act a penny duty is imposed on a draft or order "pay able on demand." And the 17 & 18 Vict. c. 83, imposing new duties on bills, &c. payable otherwise than on demand, in like manner does not repeal any former act, and expressly retains all existing provision! and penalties. It should seem, therefore, that the old law is in force on the subject. Even if not, however, the question would remain, whether a cheque postdated is payable on demand.

Parry, Serjt., then argued that a cheque post-dated was in effect a bill payable a certain time after date, and so required a bill stamp.

Bramwell, B., said he thought the question depended on the express enactments on the subject. There had been formerly a penalty imposed on making a cheque post-dated, so that, even if properly stamped as a bill, it would be illegal. But was that so now ? (a)

Parry, Serjt., submitted that under the new Act, 17 & 18 Vict. c. 83, a post-dated cheque was still illegal; but that, at all events, the cheque required a shilling stamp as a bill for 100Z. payable a day after date (b). Otherwise a cheque might be dated two months after it was given.

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(<i) Semhle, it is, vide supra.

(6) It has been held, in error, that a bill or note must be taken as set out, according to its legal effect; and of course its legal effect must he drawn from its terms, on the face of the instrument; Halstead v. Skelton, 5 Q. B. 86: whence of course it follows, that a bill or note should be set forth according to its legal effect (lieeman v. Duck, 11 M. & W. 251); and that, if it is not, that is a ground of nonsuit; so that, in a case like the present, if the draft is not in legal effect payable on demand, then, apart from

any express enactment, the plaintiff could not recover. As, however, of course there would be an amendment but for the stamp law, this resolves itself into the same question as the stamp objection, and is only another way of putting it, in order the better to sift it. Now, whether a post-dated cheque is really, in legal effect, payable on demand, of course resolves itself into this—whether the holder could recover on it as against the banker on the day on which it is issued; in other words, whether the banker would be bound to pay it on that day? Now, it is well established that bills, &c. are to be considered prima facie as having been issued on the day when they bear date (Roberts v. Bethetl, 12 C. B. 778); but this is only a presumption, and is rebutted by the actual fact, apparent and manifest, that it was drawn and issued before the day on which it is dated. And although it has been always held that the date laid is not material, it

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Bramwell, B.—No doubt that is so, and that weighs upon my mind. And my brother Bylbs, in his work on Bills, says,—" It should seem that a cheque may now be post-dated, but the point is doubtful; for a cheque postdated is not really payable on demand." The point appears one of great doubt and difficulty, but, on the whole, I think the cheque is admissible.

Parry, Serjt., offered to tender a bill of exceptions; but

The learned Judge thought that, under the Common

Law Procedure Act (a), a bill of exceptions could not be

tendered; the ruling was that the document had the proper

stamp (i).

has never been otherwise held than that the real date is material, at all events, when payable after date. Is the effect, then, of the instrument, "at any time after this is issued, pay on demand," or, " at any time after the date, pay on demand?" As between the drawer and payee, an understanding or agreement not to present it until its date would certainly not contradict the terms of the instrument, so that it might possibly be a defence to an action commenced before the date. But that would be inter te; and, as regards the banker, who is bound by the legal effect of the instrument on the/ace of it, is only one step towards a solution of the question; unless, indeed, the very fact of the cheque being post-dated is to be taken as notice to the banker not to pay until the date, or as evidence and notice of an agreement with the holder to that effect. There might be, and, it is believed, often is, a real reason for post-dating the cheque, well understood by all parties, viz., that the drawer will not have funds to meet the cheque

until the date. And that suggests another mode of testing or putting the question—would the cheque be deemed dishonoured by an answer of " no effects" before the date? That, however, is perhaps only another way of putting the question. By the ancient laws of deeds, the day on which the deed is delivered is the true date; but the present question, it is conceived, depends on the custom of bankers, which, like the custom of merchants, is part of the general law of the land ( Brandao v. Burnett, 12 CI. & F. 787; 3 C. B. Rep. 319). And it is believed, as a matter of fact, that bankers do require a dale to a cheque, and deem it material, as, for many reasons, it really is. It is also believed that they would not pay a cheque before its date; but as that might arise from its illegality, under the old statute, (not repealed,) it perhaps does not conclude the question as to the custom, apart from the statute.

(«) 1854, s. 31.

(6) 25 L. J., C. P. 2.

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