Sec 953

The reception of a cheque in payment of a debt suspends the remedy on the debt until the cheque has been pre-

Joint deposit in bank can only be drawn by joint order, sented and dishonored;1 but if the cheque is presented and dishonored, the creditor is left free to pursue his original claim.2 The receipt of a cheque duly acknowledged is prima facie proof of payment.3 The holder of a cheque is bound to use due diligence in its collection; and if through his negligence the cheque is lost, or its presentment is so delayed that it is not paid, in consequence of the bank's failure, or for other reasons, the loss is imputable to him.4 A cheque should be presented, according to the English rule, within a day after its receipt, when payable at the same place. If payable at a distance, the time for trans-

Purchase by stranger may be to take assignment of debt.

Kelsall, 7 M. & W. 264; Jones V. Yates, 9 B. & C. 532; Heilbut V. Nevill, L. R. 5 C. P. 478; Halsey V. Whitney, 4 Mason, 206; Wiggin V. Tudor, 23 Pick. 444; Bruen V. Marquand, 17 Johns. 58; Napier V. McLeod, 9 Wend. 120; Morrow V. Starke, 4 J. J. Marsh. 367; Henry V. Mt. Pleasant Tp., 70 Mo. 500; Clark V. Cable, 21 Mo. 225. That one joint promisee can release, see supra, sec 821.

1 Piercey V. Fynney, L. R. 12 Eq. 69; supra, sec 946; infra, sec 1028; see Raw-storne V. Gandell, 15 M. & W. 304.

And a collusive receipt is inoperative. Barker V. Richardson, 1 Y. & J. 362; Hickey V. Burt, 7 Taunt. 48.

2 Leake, 2d ed. 905; Innes V. Stephenson, 1 M. & Rob. 145. See Husband V. Davis, 10 C. B. 645.

3 Supra, sec 526, 836; Leake, 2d ed. 914; M'Intyre V. Miller, 13 M. & W. 725; Lucas V. Wilkinson, 1 H. & N. 420.

4 Graves V. Key, 3 B. & Ad. 313; Phillips V. Warren, 14 M. & W. 379.

5 Supra, sec 836 et seq.

6 Supra, sec 840.

7 Supra, sec 842 et seq.

Receipt of cheque prima facie proof of payment mission by post should be taken into account.1 But a cheque need not, according to the prevalent view in this country, be presented on the day of its reception.2 If the cheque be not presented within reasonable time,. it operates as payment.3 - Where a cheque, given to pay a debt due the drawee, was not presented at the bank for payment, but was lodged by the drawee in the hands of the drawer's clerk, this was held to be no payment.4 - Where the cheque is not paid, the payee (there being no laches on his part) may fall back on the original cause of action.5 Nor need the cheque be presented, if the drawer had no funds, and the cheque would have been dishonored.6 In a case in Michigan, in 1880, the evidence was that D., being indebted to C., gave him an order on T. in payment. The order was held by C. for three days, after which time, on being presented for payment to T., payment was refused; and ten days afterwards T. became insolvent. Notice was not given of non-payment until four days after refusal. It was held that C. might recover the original debt from D., there having been under the circumstances no unreasonable delay on C.'s part in realizing the draft, and no proof of any injury to D.' The case, it should be remembered, occurred in a country district, not subject to any prevalent mercantile custom requiring immediate presentation. - "Where part payment of purchase money was made by a post-dated cheque, and before the date of payment the purchasers had notice that the vendor was adjudicated bankrupt, but they did not stop payment of the cheque, it was held that they would have to pay the money over again to the trustee.8

1 Supra, sec 504; infra, sec 1003; Leake, 2d ed. 898; Benj. on Sales, 3d Am. ed. sec 710, 716, 731; Puckford V. Maxwell, 6 T. R. 52; Caine V. Coulton, 1 H. & C. 764; Charles V. Blackwell, L. R. 2 C. P. D. 151; Weddigen V. Elastic Co., 100 Mass. 422; Cromwell V. Lovett, 1 Hall, 56; People V. Baker, 20 Wend. 602; Sweet V. Titns, 67 Barb. 327; Blair V. Wilson, 28 Grat. 165.

2 Everett V. Collins, 2 Camp. 515; Bridges V. Garrett, L. R. 5 C. P. 458; Hough V. May, 4 Ad. & El. 954; Small V. Mining Co., 99 Mass. 277; Hodgson V. Barrett, 33 Oh. St. 63; Phillips V. Bollard, 58 Ga. 256; Mordis V. Kennedy, 23 Kan. 408.

3 Carmarthen R. R. V. Manchester R. R., L. R. 8 C. P. 685. As to cheques of third parties see Guild V. Butler, 127 Mass. 386, cited supra, sec 1003.

In a Massachusetts case, in 1880, the evidence was that D. in good faith borrowed money from a bank, whose officers believed him to be solvent, delivering as collateral a certificate of stock in a corporation. Upon the loan becoming due, D. paid the interest, and offered, in payment of the principal, a cheque on a third person with whom he had no funds, he being insolvent at the time, and with no reasons to expect that the cheque would be paid.

The bank accepted the cheque, and delivered to D. the collateral, and D.'s memorandum, marked "paid." On the same day, at a later hour, D. returned to the bank the certificate of stock, but not the memorandum. It was held that the loan was not paid, and that the bank was entitled to retain the certificate of stock as security for the loan. Holmes V. Fall River Bank, 126 Mass. 353. In London Bank V. Groom, L. R. 8 Q. B. D. 288, it was held that while cheques are primarily intended for speedy payment, there is no fixed rule of law that the holder of a "stale" cheque takes it at his peril, and so is affected with any equities attaching to the instrument, as is the case with overdue bills of exchange and promissory notes. It was, however, ruled that where an action is brought on a" stale" cheque, it is not enough for the holder to prove that he came by it bona fide, gave value for it, and had no notice of any equities attaching to it, but he must prove that he did not take the cheque under such circumstances as ought to have excited suspicion in the mind of a reasonable and prudent person.

4 Robinson V. Hawksford, 9 Q. B. 52; Merchant's Bank V. Spicer, 6 Wend. 443; Cromwell V. Lovett, 1 Hall, 56.

1 Leake, 2d ed. 879; Boddington V. Schlencker, 4 B. & Ad. 752; Alexander V. Burchfield, 7 M. & G. 1061; Prideaux V. Criddle, L. R. 4 Q. B. 455.

2 Foster V. Paulk, 41 Me. 425; Merchant's Bank V. Spicer, 6 Wend. 443; Gough V. Staats, 13 Wend. 549.

3 Byles on Bills, 9th ed. 19; Hopkins V. Ware, L. R. 4 Ex. 268; Smith V. Miller, 43 N. Y. 171.

4 Dennie V. Hart, 2 Pick. 204.

5 Cromwell V. Lovett, 1 Hall, 56.

6 Ibid.; Cushing V. Gore, 15 Mass. 74; Eichelberger V. Finley, 7 Har. & J. 38, and other cases cited 2 Ch. on Con. 11th Am. ed. 1106, and see supra, sec 606.

7 Briggs V. Parsons, 39 Mich. 400.

8 Armstead ex parte, 45 L. T. N. S. 557.