—— Part
III.
Business of Banking.
615
^ect. 8. amount to the true owner in conversion or for money Payment of had and received {ii). Bills The banker must, if the bill be ostensibly in order, pay or refuse to pay at once. He is not entitled to time in which to verify the accepted indorsements (o) Where, however, presentment is made through payable at
liable for the
.
an^er the clearing house, the banker is entitled to the time allowed by ^ the rules of that establishment for deciding whether to pay or not, Time of payment. i.e., up to three minutes to 5 p.m. of the same day.
Sect.
s.
Forged or Altered Cheques.
9.
1246. A document in cheque form to which the customer's name Forgery of as drawer is forged is not a cheque, but a mere nullity (p). Unless drawer's the banker can establish adoption or estoppel, he cannot debit the signature, customer with any payment made on such document (q). Whether a material alteration of a cheque precludes the banker from debiting his customer with the whole or part of the cheque appears to depend on the character and effect of the alteraIf, despite the alteration, the customer's mandate has been tion {)). substantially complied with, it is submitted that the banker can If the alteration is in the amount, it charge the customer (s). Smith V. Union Bank of London (1875), L. R. 10 Q. B. at p. 295 ; affirmed, Q. B. D. 31, at p. 35 (a case of a cheque, but the same principle applies, only there is no protection). Qucere, however, whether the banker could not escape this liability by returning the bill, if still in his possession, to the true owner, the cancellation of the acceptance being treated as made under a mistake (Bills of Exchange Act, 1882 (45 & 4G Vict. c. 61), s. 63 (3)). See Castriquev. ImHe (1870), L. R. 4 H. L. 414, at p. 435, per Blackburn", J., referring to Novelli v. Rossi (1831), 2 B. & Ad. 757. This course seems suggested by Charles y. Blachwell [1877 ), The acceptor would still be liable to the true owner, the bill not 2 C. P. D. 151. being discharged by the payuient to the person wrongfully in possession of it. (o) Bank of England v. Vagliano, [1891] A. C. 101, per Lord Magna ghten, at p. 157, dissenting from dictum of Maule, J., in Roharts v. Tucker (1851), 16 Q. B. 560, at pp. 577, 578. Imperial Bank of Canada v. Bank of Hamilton, [1903] A. C. 49. ( p) {q) The disability is frequently referred to a supposed obligation on the part of the iDanker to know his customer's signature and detect an imitation {e.g., Smith The real ground, however, is that of having paid V. Mercer (1815), 6 Taunt. 76). away money without the authority of the customer. See London and River Plate Bank v. Bank of Liverpool, [1896] 1 Q. B. 7. (r) The cases are somewhat contradictory. Simmons v. Taylor (1857), 2 C. B. affirmed (1858), 4 C. B. (n. s.) 463, implies that any (N. s.) 528, at pp. 539, 541 material alteration would absolutely debar the banker from debiting, for the cheque must be the customer's cheque in all respects. Hall v. Fuller (1826), Young v. Grote (1827), 4 Bing. 253 5 B. & C. 750 (date and amount altered) (amount altered) Halifax Union v. Wheelwright (1875), L. R. 10 Exch. 183 ; (n)
1
Imperial Bank of Canada v. Bank of Hamilton, supra (amount altered), point the other way, as only the excess amount seems to have been treated as disputable. In the last-mentioned case the cheque is referred to as good for the original amount.
The banker, not being a holder, cannot avail himself of the proviso to 64 of the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61). It is submitted that that section only avoids the bill as between the parties. Compare the limitation of the common law rule by Brett, J., in Suffell v. Bank of England (1882), 9 Q. B. D. 555, at p. 568, to a party suing on the bill or setting it up as a direct This is not the banker's position. He sets it up as an authority, not a defence. bill. The ground alleged for the rule, viz., that the bill must have been altered with the privity or by the neglect of the holder (see Davidson v. Cooper (1843), 11 (s)
sect.
M. & W. a cheque
Alteration of the date of 778, at p. 799), is inapplicable to the banker. is a material alteration (Bills of Exchange Act, 1882 (45 & 46 Viet.
Forgery by fraudulent
