court. of Appeal, }        F1ill Court.
. Wellington.        { July 17. 1901.

POLLOCK v. THE BANK OF NEW

            ZEALAND.

Cheque.......PoBt-dated-..:Banker paying bej(11':e date-Comequent'

duhcmour oj other cheques-Right to u·accept" cheque. ~

BiU of Exchange-Liability to customer-Bills of Exchange

Act, 1888.

Apost-da.ted cheque is a bill of exchange payable on demand

on or after the day it bears date, and a banker who pays a

post-dated cheque before its date, and thus reduces or exhausts

the funds in his hands belonging to the maker, is liable for

I damages for dishonouring a cheque presented before. the date

of the post-dated cheque, which would, but for the wrongful

payment of such post-dated cheque, have been duly honoured.

SPECaL CASE stated for the opinion of the Court :~  .

The plaintiff issued a post~dated cheque, and it was pre--

sented before its due date to the defendant bank, and paid.

,< After issuing such post-dated cheque, and before the day it
                                               GAZETTE LAW REPORTS.                  VOL. IIl.J

Igor     bOre da.te' the plaintift gave a eheque in the o~dinary course of FINDLAY, for defendant Bank.-As between
         baBiness, but on present&tion it was dishonoured, owing to the banker and customer, a different rule applies as to

POLLOCK funciBto the credit of the pl&intiff's account with the defendant  post-dated cheques, from that applied as between
                                                                           maker and payee to whom the instrument has been
v.       bank h&ving been reduced, through the paying ?f the               delivered not as negotiable, but on a con~ition that

BANK OF N'.Z'. post,da.ted cheque.

_._:- .  . Questions: (1) Whether the payment by the bank of the

"i etmr! 14 pptal post-dated cheque was wrongful, and (2) whether the plaintiff it should not be used before its due date~ "Chalmers

         was,entitled to damages, answered in favour of the plaintiff. "on Bill of Exchange," p. 2; ," The Bills of

         Held. that such post-dated cheque was delivered subject to "Exchange Act 1883," Sections 10, 12 and 13 ;

         ihe condition tha.t it should not be presented before a certa.in "American and English Encyclopredia of Law,"

         a date, and that all holders, including the b8tnk, had notice of            If

         the fact on the fa.ce of the eheque, and that sueh &w .d 4,... must be Vol. 5, p. 1032 ; "Grant on Banking," p. 20.

         taken to be the true date. Proof of the date' 01 the manual post-dated cheque is a bill of exchange payable at

         operation of drawing had no effeot.                               a future date then the Bank is entitled to accept it,

         [McGill, v. 7'he Bank of North Queelllla'lld (1895, Q.L.J., and if so may pay it: "Byles on Bills," p 211.

         26-2), considered but not followed.]                              I rely on McGill v. The Bank of North Queensland,

         Mr. BELL appeared for· the Plaintiff, and Mr. w.hich is directly in point.

         SKERRETT for the,Defendant.<                                      BELL in reply.-Under "The BiHs of Exchange

         BELL for the plaintiff. - The question is wkether a "Act 1883," Sections I 3 and 73, a bill of exchange

         bank·can pay a post-datetl cheque before its date, or cheque may be post-dated. As to whether a

         and,; incidentally,. .whether the bank can treat the banker could accept a post-dated cheque as a bill

         cheque· as a bill of '. exeha,nge; which they may of exchange, in England he isAorbidden to do so:

         aecept before the due date., " The Bills of Exchange "Grant 011 Banking," p. 335,' 7 and 8 Vict. c.,. 32,

         "lActI883," Sections 13 and 73 : " Chalmers on Section II. As to the banker not being obliged to

         Bills," 5th Ed., p. 33 and 34; Foster". Maekreth look at the date: Hinchcliffe v. Ballarat Banking Co.,

         (L.R. 2 ,Ex.; 163);; ,BuU!v. O'Sullivan (L.R,., 6Q. Ex parte Richdale. As to the Stamp Acts: BuU v.

         B., 209 and 212) ::Emtlnuelv. Roberls (9 B. and S., O'Sullivan.

         421); Whistler v. Forster (32 L.R., C.P., 161); Stout, C.J.-This case raises thequestioD whether

         approwd inlGatty v. Fry (2 Ex. Div~, 265); Royal "Tbe Bills of Exchange Act, 1883" has made any

         Ba'tt"·v. Scotlltnd' (1894, 2 Q. B., 7I~); ,Ex parte alteration ,in the Jaw. in' reference to' ,post-dated
         RichtWe (~9.ch. Div., 416). By,,- what right can chequelli. Hefore tbatstatute a post-d~ted cheque

         the bankers take a~ay ,£romusthe power to stop was deemed not to be payable.beforeth~ date it

         the~heque].· The ,cheque may.have.been,givenin. hore: Da SilfJ4' v,' Fulle" quoted in U Chitty on

         anticipation, 'of services' to ,be' rendered···.and·;not H Bills of Exchange," pp. 189 .and 279; also by

         afterwar, Is rende'red:' Da Silva v. Ffiller, cited in Baron Parke in·MOYlev v. Cul'f'enflell (7M; and W.,

         " Chitty.on Bills," p~ge i88 and 279, referred to in 178);· Hinckclijfe v. Ballilrat Banking no. (1 V. R. t L.,

         Morley v.Culve,'/iJeti (7, M. and W., :J78) ; HinchtlifJe 229); "Grant .on Banking," p. 14 (5th Ed.; 1897).

         v~ Ballllia,:Bankt-.g Co;, (r, Viet.. Rep~ (L) 229); The case'of McGill- v. Bank of No,th Queensland

         "Grant on <Banking;'; P.·I4 ~ Clurmpion v. Gordon (1895, Queensland Law Journal, p. 262) has; how~

         (r3 Amer.' Rep-, 68:t)~: Way v~ T9wle, (r3 Amer., ever, decided that under a statute similar in terms

         State Rep., 552). The only authority Hgainst the to ours, apost~dated cheque can be paid by a hanker

         plaintiff is McGill v. The Batik of North Queenslantl before its date. In coming to that decision the

         (Q¥eensland .Law JQurnal, 1895, p. ,.262.) This majority of the Court examined the statute, and

         case is errQneous. and the plamtiff is entitled to interpreted it without reference to what the law was

         recover, damages'.                    . j before it. was passed, following the course suggested
VOL. III.  GAZETTE LAW REPORTS.

by Lord Herschell in Bank of England v. Vaghani ing to thelaw.rnerchantan express direction not to

jJrothe,s (L.R., 1891, A.C., pp. 144-14.5). Thelaw pay it until the date it bears arrives. And there

mt=rchant (see Section 98 of our statute) continues must be some authority found in the statute Pott..OCK

to apply to cheques unless the express provisions expressly providing that such date can.. be treated B ' oV: N Z
                                                                                                          . ANK (I  · ·
of the Act are inconsistent with it. Now what are as non-existent and another. date inserted.
                                                                                               There

the express provisions relied on by the learned is no such express provision. -Mr. Justice ,Harding-oOH'l't of AppL1al

judge who decided the Queensland case? The based his'decision on the ground that a post-dated

argument may be thus summarised. A cheque is cheque is in the nature of a bill of exchange, that

a bill of exchange drawn on a banker payable on the banker was entitled to accept ,this bill, and

demand (Section 73), and the provisions of the Act having paid it before its date the fund in his hands

relating to bills of exchange apply to cheques. A belonging to the owner could be held by the banker

bill is payable on demand under Section 10 if it is, till the due date as against his acceptance. if thi13

so . expressed to be payable, or if no time is ex- defence was available for the banker's action in

press~~ for payment. A bill is payable (Section that case it was available before the statute, for a

II) at a determinable future time which is expressed post-dated cheque was called a bill of exchange:

to be payable (I) at a fixed period after date at Foster v. M.ac,.eth (L.R., 2 Ex., p. 166); Ex parte

sight; (2) on or at.a fixed period after the OCCUf- Richdale, in re Palmer (19 Ch. Div.,408). I do not

rence of a specified event. If a bill is issued think the post-dated cheque is_ a bill to be,presented

undated, any holder may insert the true date of to the banker for acceptance. It is a bill to be paid

issue. Section 13 says the date on a bill is deemed by the banker on demand at its date. It is not

to be the true date unless the contrary is proved. like a 'case of a cheque certified to be correct. The

It is said tliat keeping in view these provisions of bank paid it,- and therefore neither on the "round

the statute the holder of a post-dated cheque may mentioned by his Honour the' Chief Justice' of

prove its true date, being the date of issue, and the Queensland, nor that ot Mr. Justice Harding, can

banker can pay it as .if the true date had been so a post-dated cheque be paid by a banker .hefore\the

inserted. I cannot yield to this argument. The date it bears. I am of opinion, therefore, that the

date in the cheque was not meant to be the date of . paymellt of the cheque was wrongful, and that the

issue. Post-dated cheques were before the Act, plaintiff is entitled to damages for dishonour of'ihe

an~ are now well known mercantile instruments, cheque mentioned. By ~o holding the Court will

and they are not invalid (Section 13) by reason determine'that the law a~ to ,post~dated cbeques

only that they are post-dated. A post-dated cheque has not been altered by our Bills of Exchange Act,

is a direction to a banker to pay the cheque on the  Williams, J.-I am of the same opinion. To
date it bears, and there is in' my opinion no

"express proVIsion" that d~lares that· this date arri ve at a different conclusion it would be necessary

can be alteced to the date of issue. Were such a to decide that a post-dated cheque was pa.yable on

provision to be spelled out of the Act there could a demand made by tht:! holder at any time before

not have been since the statute any post-dated the date and that the holder cuuld sue upon it it

cheques. -It was said in the Queensland case that not then paid. This is entirely contrary to mer~

the d~te on the cheque not being· the date of its cantile custom. A person who gives. a post-dated

issue had no mare effect than a direction toa cheque gives it with the intention that it shall not
banker 110t to h~nour a ~heque bearing the true be presented before the date, and the' persoll who

date of issue would have had. This does not seem receives the cheque from the drawet kllows that· it

to me to.,be so. The post-dated cheque is accord- is given with such an intdntion. Every qne to
                                  GAZETTE                   LAW  REPORTS.  VOL. III.

      - --- -- ...-.,------
      ----_ ...__._-----     -----.--------.--.------~----

1901  whose hands the,cheque comes -before -the date of dated cheque on the defendant bank bearing date

      it, :.including the banker upon whom it is drawn, the 15th December, 1900. On the 13th December,

   POLLOCK has, by the fact ofthe date on thecheque, notice 1900, he gave _to the Wellington -Meat Export

BANK ~~_ N~Z.of the intention -with which it was given by the Company a cheque Jor £38 llS on the defendant

                   _drawer and received. by the original holder. The bank bearing that date. On' the 12th December,

Gourt 0/ Appeal 13th Section of the Bills of Exchange ,Act provides the cheque given to Messrs. Bunny and Rawson

      that the date of-a bill is Jo be deemed the true date was presented for payment, and although it was

      unless ,the contrary be proved. It ,does not prove dated 15th December,- 1900, was paid by the bank.

      the contrary to show that the .f.\lere manual opera- The effect of such payment was to reduce the

      tion of drawing took place at an earlier date un- plaintiff's balance to an amount below the sum of

      -less jt be also shown that it was the intention of .£38 lIS, and when, therefore, the cheque, given to

      the parties that the bill should have currency as the Meat Export Compa.ny, was presented, there

      from that date.                                       were not sufficient funds- to meet it and it was

      Denniston, 1., concurred.                             dishonoured. The questions stated for the opinion
                                                            of the Court are:- (I) Whether the payment by

                                                            the defendant b~of the said post-dated cheque

      Conolly, J.-,-I am of opinion that the payment by On the said 12th day of December, 1900, was

      the defend~nt Bank, on the -I2tb.'dayof December wrongful or not? (2) Whether the plaintiff is

      , ofthe post-d.ated cheque bearing date the -15th day entitled to damages from the defendant bank in

      of December, was wrongful, and therefore, that the consequence of the dishonour by the defendant

      plaintiff is entitled to recover. damages for the dis- bank of the cheque for £38 lIS on the said 13th

      honol,lr of his cheque drawn and dated the 13th of day of December, 1900. In my opinion both

      Decemb~r and presented for payment the same these questions must be answered in the affirmative.

      day; since _but for the .wrongful act of the, plaintiff Dr. Findlay substantially based his argument in

      there ,would have. been sufficient funds of the plain- support of the defendant Bank upon a decision of

      tiff.in .theBankJomeet it. A cheque is an order the Supreme Court of Queens)and, in the case

      to the Bank to pay the sum ,indicated out..of the of McGiU v. Blink . / North Queensland (Queensland

      amount standing to the maker's credit at or after L.J. 1895). In:that case Griffith, C.J. and Real,

      its date. .The Jactofa cheque being post- J., held that a bank hacl a right toignor~ the date

      dated indicates that there' are not sufficient .funds upon a post~dated cheque and to pay it before the

      to meet it ,on the d;ty that it is drawn, and that .its actual date upon the ground that the real date was

      payment on demand is only to take place at or the date of issue ,and not t~e da.te appearing on the

      ;after the date indicated.                            cheque, and Harding, J.heldthat _a post-dated

                                                            cheque was equivalent to a draft drawn on· the

      Edwards,·1., concurred.                               bank, payable on the date appearing on the chequ,6,

                                                            but which if presented for acceptance before that

       . Gooper, J.-The facts in this case are shortly date the bank were justified in either ,accepting or

      a these': The plaintift, butcher in Wellington, was paying and holding, if accepted, sufficient funds

      on .the 13th December, 1900, or for some time prior then to the credit of the customer to, cover tbe

      to that 4ate a customer of the defendant bank, and amount ofthe cheque; aqd therefore was entitled

      kept a banking account with the defendant bank. to debit the _amount to the customer's account if

      On the .6th December, 1900, he gave to Messrs. paid before the, actual date. 1 am quite unable to

      ,Bunny and R-awson, solicitors, Wellington, a post- adopt the reasoning of the learned Judges deciding
VOL. III.    GAZETTE LAW REPORTS.

that case. They have, in effect, declined totollow of Queen's Bench, in Emanuel v.Robarts tln~ others

the decisions in England, which have in my opinion, (9 B. and S., 12I), held that a banker was justified

settled definitely the nature and eftect of a post~ in refusing payment of a post-dated cheque before POLLOCK

dated cheque, and Griffith, C J. has based his its due date, and that the custom of bankers to do B 11. N Z
                                                                                                                                                                                                                       ANK OF ··

judgment on the statement that Forste.. v. Ma&kretk so was a part ot the contract between banker and
(L.R. 2 E~. 163), is not now law, the p~inciple customer. In Bull v. O'Sullivan (L.R. 6, Q.B., COIH't ~f Appeal

decided in that case having, he says, been destroyed 209), the Court held that a post-dated cheque, pay-

by the .pr'ovisions of the Queensland Bills of able toortUr was an instrument payable to order
Exchange Act, a statute which appears~o be on aemand, on its date, and was therefore 'properly

similar to the English Act of 18~2 and our ,own stamped with a penny stamp, and this had also

statute of 1883. In my opinion the Bills of previously been determined in Whistler v. Forster

E~change Act bas on this poi~t made no alteration (32 L.J., C.P., 161); and later, in 1877, in Gatly v.

        ~    It has simply codified the rules of Fry (L.R. 2, Ex. Div., 265), the Court held that ~

in the law.

Common Law and the law merchant so far at any post-dated cheque, payable to bearer, was sufficiently

rate as cheques are concerned, and this was, in. stamped with a penny stamp. In that case,

fact, admitted by Dr. Findlay. A post.dated Cleasby, C.B., says that a post-dated cheque is

cheque is in effect an authority from a customer to not payable on the day it is issued, but on the day

a hanker to pay on, or (according to the custom of of its date. In Ex parle Richdale,In re Palmer (L.R.

baqkers), within a reasonable, time after, its date 19, Ch. Div., 409), has been decided by the Court

the amount named, and to charge that amount of Appeal, and in that case the Court held that a

to the customer's account. It differs from a post~dated cheque was equivalent to a bill of

cheque bearing the date of issue, in this re~pect . exchange, payable on a future date, namely, the

only, that the demand upon the banker to pay and date of the cheque, and that there was no obliga-

. the direction to and authority of the banker to pay tion on the. part of the drawer to stop payment of

cannot be made nor .arise until the arrival of the the cheque when th~ bankruptcy of the person to

actual date of the cheque. As expressed by Kelly, whom it was given intervened between the date of

C.B., "in Forster v. Mackretk; it is "a bill of ex- the issue of the cheque and its actual date. All

"change at so many days' date as intervene these cases were decided before the law was codified

"between the day of delivering the cheque and the in England by "The Bills of Exchange Act,

" date marked upon the cheque." By Section 13 of "1882." Since that Act came into operation, the

U The Bills of Exchange Act, 1883 " the post-dating Court of Appeal ill England has, in The Royal Bank

of a bill of exchange does not invalidate the instru- oj Scotland v. Tottenham (1894, L.R., 2 Q.B., 715),

ment. A post-dated cheque is, therefore, in effect, followed these cases, and has expressly approved

a bill of exchange, payable on demand, with a of Gatty v. Fry and Ex parte Rickdale. In Victoria,

post-date upon which the demand is to be made, and in Hin&h&liffe v. The Ballarat Banking CO. (I V.R.,

it is an instrument well known and frequently L., 229), the Court determined the exact point in

issued in this colony. As far back as 1776, and question, in the present case against the bank,

rs while the law merchant was then in process of holding that a post-dated cheque a bill of

formation,it was held, in Da Si/vtI v. Fuller (ScI. exchange, payable at a future date, and that a

Ca., 236), referred to" in "Chitty on Bills" (nth banker may render himself liable to an action bv

I Ed., .p. 188), that a banker was not justified in the customer for negligence if he pays such cheque

paying a post-dated cheque before its actual date. before the day it bears date. The case of Morley

In 1868; nearly one hundred years later, the Court v. ·Julvet'fIJell (7 M. and W., 174), disposes of the
        GAZETTE LA

1901    contention that a banker may, although the cheque

        is not due, pay it before 'its due date, and appro-

REX     priatehis customer's funds ~ a security for the

fJ.     banker's protection against such payment. Parkes,

MABIN.

        B., referring to lJa Silva v. Fuller, says: U It has

Court ofAppeal" been so held in the case ~f a banker's cheque,

        " payable to bearer. If a banker pays it before it

        "is due he is not protected.'· There is 110 authority

        to support tbe view taken by the Queensland

        Court, and there is ample authority tb~ other way.

        As, theIefore,the Airst question must be answered

        in the affirmative, hO must the second question.

        The Bank, by paying the post-dated cheque before

        its actual date, wrongfully debited its amount

        against the plaintiff's account. But for that debit

        there would have been sufficient funds to meet the

        cheque for £38 !IS.; a cheque which the Bank

        ought to have paid, but which they, in breach of

        their duty to the plaintift, dishonoured. The

        plaintift is, therefore, entitled to damages for the

        . wrongful dishonour of this cheque.