The Sun.
London, England, 1855-12-24 00:00:00

wanted 501. 2s. 3d., and by her order Worcester, one of
Young's clerks, filled it up accordingly, and showed it to
her, and she directed him to get it cashed by Grote. In
filling up the cheque, Worcester wrote the word "fifty"
with a small initial, and left sufficient space oa the left
side for introducing any additional word, and he wrote
the figures so as to leave space on the left side for any
additional figure, and before presenting it Worcester put
" three hundred and" before the word fifty, and " 3"
_ _ _ _ _ _ .

before the 5, so as to make it a cheque for 3501. 23. 3d.
Grote paid as such. Young would not allow that pay-
ment, and sued for his balance. Here it was found that
gross negligence was committed in suffering Worcester
to have possession of the draft, and Young therefore lost
the amount. And now we have arrived at the payment of
cheques, and to the practice of writing the banker's name
across it, and to consider its effects. The practice of
crossing cheques appears to have originated at the clear-
inghouse, the clerks of the different bankers who did busi-
ness there having been accustomed to write across the
cheques the names of their employers, so as to enable
the clearing-house clerks to make up their accounts.
Originally, therefore, the crossing had nothing to do
with the restriction of negotiability, for at the time
when this was done the cheques were in the course
of payment or presentation for payment, and all their
negotiability was at an end. Afterwards it became a
common practice to cross cheques which were not in-
tended to go through the clearing-house at all with the
name of a banker, or with the words "and Co." A
custom was thus introduced that where a cheque is
crossed bankers generally refuse to pay it to any one ex-
cept a banker, and if they do pay it to a person not a
banker, they do pay it at their peril in the event of the
party to whom the payment is made not being entitled
to receive it. The object of this is to secure the payment
not to any particular banker, but to a banker, in order
that it may be easily traced for whose use the money was
received. It was not intended thereby to at all restrict
the circulation or negotiability of the cheque, but merely
to compel the holder to present it through a quarter
of known respectability and credit. The crossing is
therefore a mere memorandum on the face of the cheque,
and forms no part of the instrument itself, and in no way
alters its effects. But it is altered where the name of a
banker or the specific use for which it is intended to be
appropriated is introduced, instead of the generic words
" and Co. V' This was the case which created so much
interest in 1852. The case was ai follows :—A certain
Bellamy was trustee of a gentleman named Frank, who
died a lunatic, and he had opened an account with
Messrs. Coutts and Co. for the purposes of the trust.
At the time a suit was pending in Chancery with
reference to the trust, in which a Mr. Triston acted
as the solicitor for Bellamy. The other parties to the
suit were the next of kin of Mr. Frank, and a Mr.
Geary acted as solicitor for them. In June, 1845,
Mr. Geary brought to Mr. Triston a cheque upon
Messrs. Coutte, written out by him for 2,5961. 175.,
to be signed by Bellamy. It was when delivered
to Mr. Triston in the common form. Mr. Triston
sent the cheque to Mr. Bellamy at Brighton, who re-
turned it signed, with the following addition of his own
handwriting, namely, at the end of the body of the cheque
the words, " General unpaid costs account ;" and crossed
as follows :—" Bank of England, for account of Accoun-
tant-General." Mr. Triston then sent it to the other
trustee, Mr. Foster, to be signed by him, and having
received it back, delivered it to Geary. Upon the day
on which Geary received the cheque he struck out the
crossing made by Mr. Bellamy, by running a pen through
it, leaving it, however, perfectly legible, and crossed the
cheque a second time with the name of Messrs. Gosling
and Co. his own bankers, and paid it into their bank to
the credit of their own account. Upon the following day
the clerk of Messrs. Gosling presented it for payment at
Messrs. Coutts' and Co., who paid it, and charged it to
the debit of Mr. Bellamy's account. The money was placed
by Messrs. Gosling to the credit of Geary in his account
with them. He never paid the money to the Accoun twit-
General, and Bellamy was obliged to make it good.
Bellamy brought an action against Coutts for the amount,
and the question was whether the payment made
by Coutts to Geary's banker was valid. Did, or did not,
the first crossing to the Bank of England " for account
of the Accountant-General" impos,e a duty on Coutts not
to pay the cheque except to the Bank of England ?
Could such a restriction be imposed at all ? The crossing
of a cheque cannot operate as an indorsement to the
banker whose name is used, because it is not written
with any intent to transfer the property in the cheque
to him, and it wants the essential part of the indorsement,
the delivery of the instrument to the indorsee. The cross-
ing in the name of a banker is not, then, equivalent to a
direction by the holder or drawer to the drawee not to
pay to the bearer, but to a particular person only, for
then the cheque would be altered in a manner which
would take it out of the exception of the Stamp Act,
which applies to cheques payable to bearer only. There-
fore the crossing of a cheque with the name of a
hanker cannot have the effect of restricting its nego-
tiability to such banker alone. If it was so, the in-
strument would be no longer a cheque. It was then
decided in that case that the payment by Coutts was
good. Thee matters stood until lately, when a decision
by Lord Campbell, in a case of a cheque of 481.175. 11d.,
revived the whole question. In this case it appears that
a solicitor in St. James's-street intrusted one of their
clerks to pay a number of cheques to their account with
Dixon and Co., the whole of them being crossed with
the name of that firm, though as regards the ch,que in
question it is doubtful, whether the name of Dixon was
at all in the cheque. The clerk retained one for 481.
17s. 11d., drawn on Masterman, and got it cashed by a
tavern keeper, whose house he frequented. Out of the
proceeds be deposited 151. 4s. ld. to his employer's ac-
count, and then absconded. The solicitor brought an
action against the tavern keeper for the balance, because
the cheque having been crossed with the name of Dixon
and Co., the tavern keeper ought to have refused to cash
it. The defence was that full value had been given, and
that the tavern keeper had reason to believe the clerk to be
a respectable man. Two points were at issue—first, whe-
ther the hotel keeper could cash the cheque through bis
own banker whilst it had been crossed Dixon and Co. ;
secondly, was the hotel keeper guilty of negligence in
taking such a cheque ? As to the first, although some
d-subt has been expressed as to the existence at all of the
name of Dixon in the cheque, Lord Campbell ruled that
crossing the cheque with the name of a banker did not,
in point of law, affect the negotiability of the cheque.
In this respect Baron Parke's decision in 1812 was fully
confirmed ; and it is still law that a cheque crossed with
the name of a banker, or with the words "and C 0.,"
does not import a restriction of negotiability to any spe-
cific bank or account, but that the cheque shall be paid
through a banker. The real ground of such crossing is
this : cheques are in their essential character payable to
bearer ; they are in many respects treated as bank notes,
for which :of late years they have been largely substi-
tuted ; but like all other things they are liable to be mis-
laid, or lost, or stolen, and may get into the hands of
persons who are not entitltd to receive payment of them.
It is therefore a great protection to the real owner that
there should exist the means of tracing and ascertaining
for whose use the money paid on a cheque is received,
and to whom the money actually goes. The payment
through a banker secures this object. For instance, let
us suppose the !customer of a banker to draw and to
cross a cheque, intending to pay it to a person to whom
he was indebted, and that afterwards, and before hand-
ing it over ito his creditor, he either lost it, or it was
stolen from him ; if this cheque was presented otherwise
than through a banker, then, according to the custom or
usage, it would not be paid, but if presented by a banker
it would. The mere circumstance of the necessity of
placing the cheque in the hands of a banker would of
itself oppose some impediments to a fraudulent holder
in dealing with the cheque, and making it avail-
able, and the fact that it could at once be traced
and ascertained for whose use the proceeds were
received would give considerable aid in enabling
the drawer to recover bank the money, in the event of
a ,behep hisevidence
presenting
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individual,grueni
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presented
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custom, and
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lehron
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cedoee,
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npeagyomtiaentito,nanodf
timenoth
cheque. This is the other point which has arisen ouththaoi
wasthe lastreq required of
evfizt.h,
ewhhoatteltethepeearminournseteoivfincg rch cheque
at whicheqn e
at all. Lord Campbell said that the mere want of caution
would not be sufficient to disentitle a party where he had
bona fide and for a valuable consideration become the
holder of the cheque. This has long been held by the
court. Gross negligence only would not be a sufficient
answer where the party has given consideration for
the bill. Gross negligence may be the evidence of
mcda fides, but is not the same thing. The ' saying
of Lord Campbell, " We have changed all that," re-
ferred to the old doctrine laid down by Lord Tenterden,
that proper caution should be exercised in discounting a
bill for a man whose name and residence was unknown,
the new rule being that no caution need to be proved
provided the transaction was bona fide. Where, then, is
the great fault of the present system which Parlia-
ment is immediately called upon to legislate ? What
law shall we have which, whilst preserving the negotia-
bility and circulation of a cheque, and its distinctive
feature as payable to bearer, and therefore not subject
to stamp duties, shall at the same time he free from
the danger attending like documents ? We fear the
possibility of attaining these two desiderata simul-
taneously. The law as it stands is distinctly under-
stood. The crossing only prescribes a certain method
to secure caution in the ultimate payment of the
cheque by causing it to be paid through bankers, who
are generally persons of great respectability, and in-
capable of lending themselves to any concealment or
suppression of the truth in order to promote or assist
fraud. It has been proposed to obtain a law by which,
whenever a cheque is crossed with the name of a
banker, or the payment of which is appropriated to a
specific purpose, the banker on whom the cheque is so
drawn shall pay it only through the banker, or on ac-
count only of the object so designated. We need not
as as yptahyaatbin e
tson cbheacraesre,
wouldt he essentialh e
a laltogether
g characterether altered
but f
it be thought so deeirable, the provision, doubtless, is
very and might easily be reduced into a legisla-
tivesimp
enactment.le And now as to the effect of payment. It
is usual to cause the
payee, or holder of the cheque, to
write his name across the cheque, or to endorse it. The
death of the drawer of the cheque is a countermand of
the banker's authority to pay it ; but if the person to
whom it is given receives it before the banker has notice
of the death of the drawer it cannot be recalled. Cheques
on bankers need not be protected. We had occasion
to notice that cheques cannot be received in payment
of hills or notes. It was indeed the usage in Lon-
don, when the drawee was a respectable person in
trade, to give up the bill and receive his draft, and it
was decided in two cases that the banker was not guilty
of negligence by so doing, although such cheques be
afterwards dishonoured. But a different rule prevails,
and both the drawers and indorsers would be discharged