A FINE BANKING POINT.
CLAIM FOR PAYMENT BY CHEQUE
At Friday’s sitting of the Foxton S.M. Court, before Mr J. L. Stout, S.M., the National Bank of New Zearland (Mr Cooke) proceeded against John Golder (Mr Bergin) for the recovery of the 'amount of a cheque, £23, and interest to date, drawn in favour of “Joe Avery or order,” crossed “bank” and subsequently paid by Avery into his current account at the National Bank of New Zealand at Auckland. The evidence for the National Bank was taken at Auckland on the list inst., and set out that the cheque was paid into Avery’s account on the BtJ Dec,ember. 1922. It was then, endorsed “J. J. Avery.” It was returned from the Bank of New Zealand, at Foxton (defendant’s hank) on December 13, marked “Payment stopped, endorsement irregular.” On the 14th December Avery interviewed the manager of the National Bank Auckland and the cheque wa,s then further endorsed “Joe Avery.” It, was again returned from the defendant’s bank, gf Foxton. with the answer “payment stopped.” The National Bank admitted that although the cheque was payable to “.Toe Avery or order” it was endorsed “J. J. Avery” and credited to the account of “T. J. Avery” in their booksOn the 11th. December, before the cheque was first returned from defend ant’s bank, the plaintiff allowed Avery to draw cheques on them to the extent of £9' 10s 9d against Golder’s cheque. Avery denied to his bankers that there was any reason to justify Golder stopping payment. The plaintiff wrote to Golder asking him to release payment of the cheque, which had not been rlone. Counsel on behalf of plaintiff bank submitted that the plaintiff was ! a holder for value and a “holder in due course” and as such, had an absolute right, to recover against Golder. the drawer of the cheque as they had not received notice of any defect in Avery’s title to the cheque When thev took h and advanced against it. He quoted from the “Bills of Exchange Act,” in suinport of his contention.
■ Mr Bergin., for the defendant, submitted that there were two points in his favour, first that as the cheque was crossed generally and payable to “Too Averv or order” and the plaint l '^ took it and endorsed only “J. .T. and credited -to the. account of “,T. ,T. Avery,”'and there being no evidence before the Court to show that “.Toe Avery” and “J. J. Avery” were the same .person, the defendant was entitled to a non-suit. Secondly, to be a holder in due course, the Act pro . vibes, that the holder must take ihe cheque ‘complete and regular on the face of it,” and as the cheque in question was improperly endor-ed when the plaintiff took “it, they were not “holders in due course,” therefore they could he met with any defence which the defendant, could have set up against Avery..The be fen baht gave evidence relating to the transactions between himself and “Joe Avery” whom he knew by no other name. An agreement to mortgage was executed by them and Goldefwais to advance Avery certain moneys when Avery forwarded certain documents. These documents never came but Avery wrote stating that the arrangements did not, suit him. Golder received that letter on December 4 and immediately wired Averv that he, was stopping payment of the cheque, On the st.h December, he stopped payment of the cheque and telegraphed Avery to that effect. He wrote Avery bn the 6th December but he had neither seen nor heard from Avery since. About a fortnight later ue received a. letter from the National Bank asking him to release payment, which he refused to do. ' Counsel for plaintiff submitted an English authority to show that when Ihe name of a pciyee of cl cheque was ’•"is-spelt, ii, was correctly endorsed by tlm pavee signing his correct name. The F*.M. reserved decision. ,
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Shannon News, 26 June 1923, Page 3
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652A FINE BANKING POINT. Shannon News, 26 June 1923, Page 3
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