In Curlice v. London City and Midland Bank (1907, reported as to the proceedings in the Divisional Court at 23 T.L.R. 594, and in the Court of Appeal at 1908, 1 N.B. 293), the plaintiff sent a telegram to the Bank requesting them not to pay a certain cheque. The telegram was sent after hours and was put in the bank letter box. The telegram was overlooked when clearing the letter box next morning, and was not actually received till the following morning. In the meantime the cheque had been pail. The County Court judge held that a banker receiving a telegram purporting to stop a cheque disregarded it at his peril. He fouml that the cheque was countermanded and gave judgment for plaintiff. Th' defendants appealed to the Divisional Court, and Mr. Justice Darling said that a telegram directing the bank not to pay a cheque, which in fact came from a customer of the bank, was a sufficient countermand of pay ment, and that, on the other hand, if it did not come from a customer it was not an order at all. He therefore held that a tele gram might be a sufficient countermand of payment, and he was strengthened in that opinion because a witness from Hoare's bank said that a large proportion of the countermanding of payment of cheques was done by telegrams. Mr. Justice A. T. Law rence thought that merely sending or re ceiving a telegram, without the reading of it, was not sufficient. Until the telegram was read it was not in fact a countermand of payment. Mr. Justice Lawrence withdrew his opinion, and the appeal was dismissed. The defendants appealed to the Court of Appeal, and the Master of the Rolls said : " The question in this appeal is whether a cheque drawn by the plaintiff upon his bankers, the defendants, was countermanded within the meaning of Section 75 of the Bills of Exchange Act, 1SS2, by reason of a telegram despatched by the plaintiff to the bank. . . Countermand is really a question
of fact. It means much more than a change of purpose on the part of the customer. It means, in addition, the notification of that change of purpose to the bank. There is no such thing as a constructive countermand in a commercial transaction of this kind. In my opinion. on the admitted facts of this case, the cheque was not countermanded in fact, although it may well be that it was due to the negligence of the bank that they did not receive notice of the customer's desire to stop the cheque. For such negligence the bank might be liable, but the measure of damage would be by no means the same as in an action for money had and received. I agree with the judgment of Mr. Justice Lawrence on this point, and that is sufficient to dispose of the appeal. But as we have had an argument addressed to us as to the effect upon the duty of a bank of the mere receipt of a telegram, I wish to add a few words. A telegram may reasonably and in the ordinary course of business be acted upon by the bank, at least to the extent of postponing the honouring of the cheque until further inquiry can be made. But I am not satisfied that the bank is bound as a matter of law to accept an unauthenticated telegram as sufficient authority for the serious step of refusing to pay a cheque. The appeal must be allowed." (See BILL OF EXCHANGE, CHEQUE, COLLECTING BANKER, PAYING BANKER, PAYMENT OF BILL.)