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1862.

HARRISON

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.

0.

CANT.

the traverse should be demurrable
the defendant may, at his option,
strike it out and demur, where, as
in the present case, there could only
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

WALTON v. BURTON. Assizes. A stamp ob TION on a covenant for good title-that a certain jection may be avoided before estate was not encumbered. the document is actually put

Breach : that it was encumbered by a lease to one Piny agreeing ner, under which he was entitled to compensation when he to state it in a special case. 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.

1862.

WALTON

BURTON.

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, B., 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 (6).

(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 with out putting in the lease or agreement, the terms 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 see
Webber v. Mowbruy, Vol. II., p.
311, as to documents being taken
as put in, which would require a
stamp; as to which, quære. And
see per KEATING, J., Oliver v.
Mortimer, Vol. II., p. 127.

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KEY v. MATHIAS.

Essex Summer

Assizes. THIS was an action on a cheque for 1001. on the Bank an action

nd ho maintained on of London, given by the defendant to one Lacy, and by me him to the plaintiff.

dated. Sed 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.

1862.

KEY

MATHIAS.

The case for the plaintiff was, that on the 30th of December, 1861, Lacy had borrowed of him 1001., 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 (6).

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. & post-dated cheque was made inadE. 114, as to this objection under missible in evidence, and a penalty the old law.

was also imposed. The 16 & 17 (6) Burtlett v. Smith, 11 M. & Vict. c. 59, repealed the former W. 483; Dunsford v. Curlewis, 1 duties on drafts or orders, but not F. & F. 703, where so held by the Stamp Acts; and on the conHill, J., in a similar case under the trary, all the provisions, regulations present statutes.

and penalties imposed by any for(c) Vide Eyre v. Waller, 29 L.J., mer act, are expressly retained and Exch. 246, citing and following applied to the new duties (s. 2). Rochfort v. Daniel, 1 F. & F. 602. And by that act a penny duty is

(d) By 31 Geo. 3, c. 25, s. 19, a imposed on a draft or order " pay

1862.

KEY

MATHIAS.

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 1001. payable a day after date (6). Otherwise a cheque might be dated two months after it was given.

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 ex. pressly retains all existing provisions 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.

(a) Semble, it is, vide supra.

(b) 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 be 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 ( Beeman 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 amend-
ment but for the stamp law, this
resolves itself into the same ques-
tion 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. Bethell, 12
C. B. 778); but this is only a pre-
sumption, 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

1862.

KEY

MATHIAS,

BRAMWELL, B.—No doubt that is so, and that weighs upon my mind. And my brother Byles, 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 (6). has never been otherwise held than until the date. And that suggests that the real date is material, at all another mode of testing or putting events, when payable after date. Is the question-would the cheque the effect, then, of the instrument, be deemed dishonoured by an “at any time after this is issued, pay answer of " no effects" before the on demand," or, " at any time after date? That, however, is perhaps the date, pay on demand?” As only another way of putting the between the drawer and payee, an question. By the ancient laws understanding or agreement not to of deeds, the day on which the present it until its date would cer- deed is delivered is the true date; tainly not contradict the terms of but the present question, it is the instrument, so that it might conceived, depends on the custom possibly be a defence to an action of bankers, which, like the cuscommenced before the date. But tom of merchants, is part of the that would be inter se ; and, as re- general law of the land (Brandao v. gards the banker, who is bound by Burnett, 12 Cl. & F.787; 3 C. B. the legal effect of the instrument on Rep. 319). And it is believed, as the face of it, is only one step to a matter of fact, that bankers do rewards a solution of the question ; quire a date to a cheque, and deem unless, indeed, the very fact of the it material, as, for many reasons, it cheque being post-dated is to be really is. It is also believed that taken as notice to the banker not they would not pay a cheque beto pay until the date, or as evidence fore its date; but as that might and notice of an agreement with arise from its illegality, under the the holder to that effect. There old statute, (not repealed,) it permight be, and, it is believed, often haps does not conclude the question is, a real reason for post-dating the as to the custom, apart from the cheque, well understood by all statute. parties, viz., that the drawer will (a) 1854, s. 31. not have funds to meet the cheque (6) 25 L. J., C. P. 2.

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