words across it, the nature of the instrument is altered, and the authority abridged?] Precisely so. The statute in effect makes the crossing a part of the check,-though it is unnecessary for the present purpose to carry the argument so far. The relation of banker and customer is thus treated by Lord Langdale, M. R., in Watts v. Christie, 11 Beavan, 543, 551,-“In the ordinary relation between banker and customer, the customer is a mere common creditor of the banker. A debt is owing to the customer, which he may at any time call on the banker to pay, and which it is the duty of the banker to pay upon his order or check. The customer may order it to be paid to himself or anybody *else, or he may order it to be carried over or transferred from his own account to the account of any other person, as he pleases. [*537 He may do so by a written instrument; and I know nothing to prevent his doing so by a verbal direction, except this,-that the bank may require some written evidence of this order to transfer: and I believe there is no necessity for giving a written instrument, except for the purpose of evidence." A debt due from a banker to his customer is barred by the statute of limitations: Pott v. Clegg, 16 M. & W. 321.† The effect of the crossing of a check was considered in a case of Stewart v. Lee, M. & M. 158 (E. C. L. R. vol. 22). There, C. drew a check on his bankers payable to A. and B., assignees of E., or bearer, and wrote the names of their bankers across it. B., who had another (private) account with the bankers, paid the check in to that account: and it was held that the bankers were justified in applying it to that account; the drawer's writing the names of the bankers of the payees of the check across it not being, according to the custom of trade, information to the bankers that the money was that of the payees. Further, it is submitted that the effect of the erasure of the crossing, was to make the check an entirely new instrument: the check which the bank paid, was not the check which the plaintiff drew. Any unauthorized alteration of a bill or a check after acceptance or issuing, is a forgery: Master v. Miller, 4 T. R. 320; Hall v. Fuller, 5 B. & C. 750 (E. C. L. R. vol. 11), 8 D. & R. 464 (E. C. L. R. vol. 16); Young v. Grote, 4 Bingh. 253 (E. C. L. R. vol. 13), 12 J. B. Moore, 484 (E. C. L. R. vol. 22); and a banker cannot debit his customer with a payment made to one who claims through a forged instrument: Robarts v. Tucker, 16 Q. B. 560 (E. C. L. R. vol. 71).

Cur. adv. vult.

CRESSWELL, J., now delivered the joint opinion of Williams, J., Willes, J., and himself:

*This case depends upon the effect to be given to the statute [*538 19 & 20 Vict. c. 25, an act to amend the law relating to drafts on bankers. Before the statute was passed, a customer of a banker, by drawing a check and writing across it the name of another banker, did not limit the authority of the drawee to paying the party or firm whose

name was so written across it. It did not amount to a direction to the drawee, but had the effect of calling for vigilance on his part; and, where a banker had paid otherwise than to the party so designated, it was held that the question was, not whether he had acted contrary to orders, but whether he had been guilty of negligence. It formed no part of the instrument itself, and in no way altered its effect: see the judgment of Parke, B., in Bellamy v. Marjoribanks, 7 Exch. 403.†

This statute was passed for the purpose of making such matter written across a check, whether written by the drawer or payee, operate as a direction to the banker to pay in that mode, and to render the check payable in that mode only. The words of the statute are, Whereas doubts have arisen as to the obligations of bankers with respect to cross-written drafts: and whereas it would conduce to the ease of commerce, the security of property, and the prevention of crime, if drawers or holders of drafts on bankers payable to bearer or to order on demand, were enabled effectually to direct the payment of the same to be made only to or through some banker:" be it therefore enacted, that, "in every case where a draft on any banker made payable to bearer or to order on demand bears across its face an addition, in written or stamped letters, of the name of any banker, or of the words and company,' in full or abbreviated, either of such additions shall have the force of a direction to the bankers upon whom such draft is made, that the same *is to be paid only to or through some banker, and the same shall be payable only to or through some

*539]

banker."

Now, this, I apprehend, does not apply to the time when the check is issued; for, the preamble contemplates the crossing of a check, not by the drawer only, but also by the holder, whoever he may be. Nor can it be construed as if the words had been "If a check, &c., at any time bears;" for, if, after it is issued uncrossed, a holder may have the benefit of the enactment by crossing it, why should not another holder have a right to erase that, and restore it to the condition in which it was issued? Considering this and also the difficulty of holding that anything can operate as a direction to the banker which is not exhibited to him, I think the statute must mean that the check is to bear the crossing when presented. If so, the check in question did not bear it, and the banker was not prohibited from paying it otherwise than to or through a banker.

But it is further to be considered whether the crossing was part of the check, so that the erasure of it would amount to a forgery of another and different check from that which the plaintiff drew; for, if it had that effect, the plaintiff never drew the check that was paid, and the banker cannot claim credit for it.

In the first place, it does not appear that the legislature contemplated making the crossing a part of the check. The statute says that it

shall have the force of a direction, not that it shall alter the instrument. If it were to have that effect, it would be a strange thing to give to the payee or any subsequent holder power to alter a check without avoiding it, and would have the effect of creating a new sort of instrument, hitherto unknown to the law, viz., a check payable to bearer, or conditionally, that is, if presented by or through a banker. Again, it seems strange to enact that one *holder may cross a check, and [*540 a subsequent holder may not erase that crossing, and restore it to the condition in which it was issued. If he may, then, at all events, the crossing can only be part of the check as long as it remains upon it.

Another reason for holding it not to be a part of the check, so as to make the erasure operate as a forgery of a new check, is this, that, in such case, if a check once crossed with a banker's name, afterwards erased, were presented by or through a banker, and paid (which is all that is required in the case of a check bearing the crossing when presented), the banker could not claim credit for the payment so made,—a result which the legislature does not appear to have contemplated or intended.

COCKBURN, C. J.—I think it right to say that it is not until after considerable hesitation that I have brought myself to concur in the view taken by the rest of the court in this case: not that I entertain any doubt that the direct and immediate operation of the act of parliament was to make bankers responsible for the payment of checks when crossed in the manner which the act of parliament has pointed out, only where a check, when presented, has a crossing upon the face of it: but it occurred to me, on the view I at first took of this case, that, although the legislature had not contemplated making the banker responsible in a case like the present, yet such would nevertheless be the indirect effect of the statute, inasmuch as, the legislature having now made this crossing of the check equivalent to a direction contained in the check to the banker not to pay except the check be presented through another banker, any alteration of the check when once so made by the drawer would be a forgery, and therefore the payment by the banker of the instrument,-it having now *become a forged [*541 instrument, would not be available to him to credit himself against the drawer. Upon more mature deliberation, however, I am led to think there is a fallacy in this view, and that my learned Brothers are right in holding that the crossing of the check is not any part of the check itself: and, although it is true that while, before the statute, the crossing merely had the effect of making it incumbent on the banker to use greater caution in the payment of the check, it now operates as a positive and peremptory direction to him not to pay except under given circumstances; and, therefore, it might perhaps be said that the crossing is to be taken as though the drawer had drawn the check in this form,"Pay to A. B. or bearer, provided the bearer be a banker, or the check

is presented through a banker." Although that might appear, at first sight, to be the effect of the enactment in the statute, still it is, after all, only an addition, in the shape of a direction in the check, having no greater operation than a separate written direction would have, if, after having drawn the check, the drawer had written to the banker desiring him not to pay, except the check were presented through a banker. I think, therefore, that it is the more correct view to hold that the crossing is a direction made in addition to the check,—which is the language also of the statute;—that it is not an integral portion of the check (as I was originally inclined to think), but an addition to the check, and independent of the check, and, consequently, that any alteration in that respect would not amount to a forgery, and that it cannot, therefore, be said that the banker is still liable as having paid a forged check. I think, therefore, after a good deal of hesitation and doubt, that my learned Brothers are right in the view they take; and I concur in their judgment. Rule discharged.

*542]

*DIMMACK and Another v. BOWLEY and Another.
June 5.

The 137th section of the 12 & 13 Vict. c. 106, enacts that every judge's order made by consent given by a trader defendant, authorizing the plaintiff to sign judgment and issue execution, shall be filed with the clerk of the dockets and judgments in the Court of Queen's Bench within twenty-one days, otherwise the order, and any judgment or execution thereon, shall be null and void to all intents and purposes whatever.

A., a trader, gave B. a judge's order for payment of a certain debt and costs to be taxed: the costs were duly taxed, and the amount of debt and costs paid; and afterwards, and within twenty-one days from the date of the order, B. caused it to be filed:-Held, that he had a right to do so.

Held, also, that, whether the statute made the filing of the order under the circumstances imperative or not, no action would lie against B. for filing it, inasmuch as it could not be said to have been done without reasonable or probable cause.

If the filing had been an unauthorized act,-semble (per Williams, J.), that the declaration would be sufficient without an allegation of want of reasonable or probable cause.

THE declaration stated, that, before the committing of the grievances thereinafter mentioned, and after the commencement of The Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), by a certain order called a judge's order, dated the 2d of January, 1857, made by consent, given by the now plaintiffs, then being traders and iron manufacturers, in a certain personal action then pending in the Court of Exchequer of Pleas at Westminster, wherein the now defendant Samuel Bowley was plaintiff, and the now plaintiffs were defendants, by the Right Hon. Sir F. Pollock, the Chief Baron of the said court, the said Chief Baron did order that all further proceedings in that case should be stayed, on payment of 671. 68. 3d. the debt, and costs to be taxed, and that, in default of payment of the said debt and costs, or any part thereof respectively, as aforesaid, the now defendant Samuel Bowley

should be at liberty to sign final judgment and issue execution for the whole amount remaining unpaid at the time of such default, with the costs of judgment and execution, sheriff's poundage, officers' fees, and all other incidental expenses, whether by fi. fa. or ca. sa., or both; which said costs of the said cause due to the now defendant Samuel Bowley were afterwards duly taxed by one of the masters of the said court at the sum of 107. 14s. 6d. ; which sum was thereupon inserted and written by the said master in and upon the said judge's order as the amount of the said costs: that thereupon the now plaintiffs afterwards, [*543 to wit, on the 5th of January aforesaid, paid the said two sums of 671. 68. 3d., and 107. 148. 6d., mentioned in the said judge's order as the amounts of the said debt and costs respectively, to the now defendant Samuel Bowley, in one sum of 781. 0s. 9d., who then accepted and received the said last-mentioned sum of the now plaintiff in payment and full satisfaction and discharge of the said debt and costs in the said judge's order mentioned and ordered to be paid as aforesaid; yet the now defendants, although they and each of them, before and at the time of the committing of the grievances thereinafter, mentioned, had notice of the said judge's order, and of the amounts of the said debt and costs therein mentioned, and of the said payment and acceptance of the said sum of 781. 08. 9d. in full satisfaction and discharge of the said debt and costs in the said judge's order mentioned, but intending to injure the now plaintiffs in their credit and trade as ironmasters, notwithstanding the said payment of the said debt and costs in the said judge's order mentioned, and to cause it to appear that the said judge's order still remained unsatisfied, and that the said debt and costs therein mentioned and ordered to be paid as aforesaid still remained wholly unpaid, and that the estate and property of the now plaintiffs was charged the amount thereof, and in order to put the now plaintiffs to costs, inconvenience, and expense, after the said payment of the said debt and costs, and after the said notice to the now defendant of the payment thereof as aforesaid, and within twenty-one days after the said making of the said judge's order, to wit, on the 19th of January aforesaid, wrongfully, unjustly, and maliciously, under colour and pretence of the Bankrupt Law Consolidation Act, 1849," filed a true copy of the said judge's order, together with an affidavit of the time of the consent *being given by the now plaintiffs to the said [*544 judge's order, and a description of the residence and occupation of the now plaintiffs, with the officer then acting as clerk of the dockets and judgments in the Court of Queen's Bench, without informing the said officer, or giving him any notice whatever, that the said debt and costs in the said judge's order mentioned, or either of them, or any part thereof, had been paid, or that the said judge's order had been in any wise satisfied; whereby the said officer of the Court of Queen's Bench was induced to and did forthwith cause the said copy of the said