ber. At all events, if the contrary is not proved, the plaintiff, not having received notice, was prejudiced in the contemplation of the law. He was in the same situation, after the interview with Reader, as if the [*193 cheque had been marked "approved," which would bind a banker; Robson v. Bennett, 2 Taunt. 388. Supposing, however, that the defendants were entitled to cancel such approval, (which they were not, since Reader, when he gave it, knew the state of the funds,) they should have done so on the day they received the cheque. In Cocks v. Masterman, 9 B. & C. 908, Bayley, J. delivered the opinion that the holder of a bill is entitled to know, on the day when it becomes due, whether it is an honoured or dishonoured bill, and that, if he receive the money and is suffered to retain it during the whole of that day, the parties who paid it cannot recover it back." And in this respect a cheque is the same as a bill due.

The plaintiff, then, being entitled to recover upon these facts, the question is, whether he is precluded from so doing by the reference to counsel, and the opinion given in favour of the defendants. The opinion, to have this effect, must operate as an award; and if it is an award, it is void for want of a sufficient stamp-the case and answer together containing more than 2160 words. The opinion has the qualities of an award, for it is the decision of a person chosen by the parties as their judge, to which decision they have regularly submitted themselves, and by which they have agreed to be bound: and it is made according to the submission. [Lord DEN MAN, C. J. There was no animus arbitrandi in the referee. Can a man be an arbitrator without knowing it?] Suppose A. and B. are at variance *as to a fact, which fact would

decide whether A. owes B. a sum of money; and they agree to abide by [*194

the decision of a third person as to that fact, and he decides for A., will not his determination be an answer to an action afterwards brought by A. for the money? [Lord DENMAN, C. J. If there were a disputed title depending on a point of law, and the parties agreed to decide it by reference to a forthcoming work on conveyancing, in which the point would be discussed: it could scarcely be said in such a case that there was any award. That shews that there must be something of an award contemplated.] But the arbitrator need not know it. Here, however, it was stated in the case laid before counsel, that the parties had agreed to abide by his decision and opinion. If this was not an award, it does not bind the plaintiff : if it is, it comes within the stamp act, 55 G. 3, c. 184., sched. part 1, tit. Award. (a) The case submitted was a "matter annexed to" the opinion. [PATTESON J. If this is an award, the opinion constitutes the award; you cannot say that the case is part of it.] It is as much so as the submission to arbitration, where the arbitrator writes below, "Now, I, the said arbitrator, having taken upon myself the said reference, according to the above submission," &c. in which case the submission is considered as part of the award for the purpose of stamping. So it would be if the arbitrator recited the evidence, and said, "Upon *this evidence, I find," &c. And here, the opinion begins, "Upon the facts here stated," &c.

[*195 But further, the opinion, as an award, is not binding on the plaintiff, because it would not have been binding on the defendants if given against them. None of the firm of Emmerson & Co. signed the agreement of reference to counsel, except Hodgson. A partner has no implied authority to submit to arbitration on behalf of his partners, more than to bind them by guarantee. There must be express proof of authority in each case: the power does not arise out of the

(a) 55 G. 3, c. 184. Sched. Part 1, tit. Award. "Award in England

£1 15 0

"And where the same, together with any schedule, or other matter, put or indorsed thereon, or annexed thereto, shall contain 2160 words or upwards, then for every entire quantity of 1080 words contained therein, over and above the first 1080 words, a further progressive duty of £1 5 0."

107 partnership relation; Strangford v. Green, 2 Mod. 228; Stead v. Salt, 3 Bing. 101.

F. Pollock, contrà. As to the first point, the plaintiff is not warranted in saying that the presentment of this cheque was tantamount to asking for payment, and obtaining a promise to pay. The cheque was delivered in the usual way in which a customer sends in securities to his banker to be placed to his account. The plaintiff's carrying it in person made no difference. If he had sent it by the post, nothing more would have been necessary than that the bankers should take due time to see whether they would honour it or not; and if not, should give due notice. If the plaintiff had at the same time handed in other cheques and bills upon other bankers, can it be said that a different rule would have prevailed as to these and the cheque now in question? The general rule, according to the practice in London is, that a banker has time, after a cheque is presented, to determine whether he will pay it or not; Fernandey v. Glynn, 1 Camp. 426, note; which is consistent with Robson v. Ben2 Taunt. 388; and that must be so equally, whether a party

nett,

*196] carries the cheque himself to his own banker, it being drawn upon him,

or sends one to any other banker on whom it may be drawn. The plaintiff, if he wished a different understanding to prevail here, should have said expressly, "I come to have this cheque paid; if you will pay it let it be cancelled accordingly."

As to the question, whether or not the opinion of Sir James Scarlett was an award, the Court has already given a sufficient answer. It has none of the characters of an award: there is nothing in it like the act of an arbitrator, who is a judge substituted by the parties for a Court, to decide a question, generally turning upon matters of fact. It is true, counsel was informed that the parties meant to abide by his decision, but that makes no difference. [TAUNTON, J. Many of us have given opinions on cases where parties have said they meant to abide by the answer given, and we have never thought that a stamp would be necessary. Lord DENMAN, C. J. The greatest difficulty on this part of the case is, as to the binding power of a single partner.] At all events, the opinion would be the only part of the document which could require stamping. If there is any award, this, and no other, is the awarding part. Suppose a bond of submission, properly stamped, were laid before an arbitrator, and he wrote his award upon it, beginning, "In pursuance of the within bond, &c. ;" would a stamp be requisite in respect of the words of such bond? The object of the clause in question in the Stamp Act is this; an arbitrator might, by his award, direct many things to be done, going into much detail with respect to each; and he might throw many of those details into papers annexed to the award, and referred to in it, *which, but for this enactment, might be con*197] sidered no part of the award, and the duty thus evaded. With regard to the last point (which may be considered as res integra), it is true that one partner cannot bind another in a matter of arbitration, where the submission is by deed: because, in general, he cannot bind his partner by any deed; Harrison v. Jackson, 7 T. R. 207. But it does not follow that one of several persons who are general partners cannot in any way bind the rest by a submission to arbitration, upon a specific matter of partnership right. One partner may bring, or settle, an action on behalf of the rest (see Furnival v. Weston, 7 B. Moore, 356; Harwood and Others v. Edwards, MSS., cited in Gow on Partnership, p. 65, note (g), 3d ed.); why may he not enter into an agreement to refer the subject-matter? And if so, why may not one agree, on behalf of the rest, to be governed by an opinion in which both they and the opposite party may confide? In Strangford v. Green, 2 Mod. 228, the submission appears to have been by arbitration bond, and therefore the partner could not be bound. In Stead v. Salt, 3 Bing. 101, the parties were not partners generally, but only in the dealings to which the award related: the matter was twice referred: in the first instance four partners signed the agreement of reference; the arbitration

went off, and the new agreement was signed by three only. In the absence of any explanation, it was reasonable to suppose, that if both agreements were signed by the authority of all the partners, the second would have been executed by the same number as the first. The passage cited in that case from Com. Dig. *Arbitrament (D. 2), from which it was implied that a part[*198 ner cannot bind his co-partner, probably refers to submissions by deed. There is no ground in reason for saying that, in the case of a general partnership in a banking firm, one partner cannot submit, on behalf of all, to such a mode of settling a dispute upon a partnership concern, as was adopted here. Suppose the question had been a practical one, as to something to be done in the course of business, might not a partner have agreed to take the judgment of an experienced person, as a custom-house officer, a dock-master, or an eminent merchant? And if so, why not the opinion of counsel in a case like the present? To hold that the opinion could not be so taken, would throw great impediments in the way of a very common, useful, and economical mode of settling such disputes.

The

The Attorney-General, in reply. A case is put, with reference to the first point, of a cheque sent by a letter; but there, there would be no opportunity to object but by the course of post. Here, there was no opportunity on the personal interview, and Reader did not avail himself of it. The only question is, whether that which passed then did not amount to a promise to pay the amount of the cheque. If it had been sent by a servant, the question would have been the same. In Fernandey v. Glynn, I Camp. 426, note, the bankers had till five o'clock to receive or return the cheque, and they sent it back in time; the case turned on that point, and is in favour of the present plaintiff. As to the question, whether the opinion be an award, it is true that counsel do not *inquire whether or not an opinion should be stamped; but the question is, what should be done, when it is produced in evidence to bind parties [*199 in a cause? That the stamp duty is not confined to what strictly constitutes the award, is evident from the words, "where the same" (award), "together with any schedule, or other matter, put or indorsed thereon, or annexed thereto, shall contain," &c. If an arbitrator, upon an ordinary submission, set out the evidence, and said, "Upon this evidence I find," &c., the evidence would be part of the award for the purpose of stamping. [Lord DENMAN, C. J. question here is not between Boyd and Hodgson, but between Boyd and Hodgson and his partners.] Strangford v. Green, 2 Mod. 228, applies to that point; and it does not appear by the report, that the decision in that case, as to the partner's liability, turned upon the submission being by bond. If a partner has power to bring or release an action on behalf of his co-partners and himself, it does not follow that he can bind his co-partners by a submission to arbitration. Lord DENMAN, C. J. It is not necessary to give any judgment on the points which have been raised as to the effect of this opinion as an award; because, upon the facts presented to us in the case, and from which we are to draw our conclusion, I think the statements in the declaration, that in consideration of the cheque being delivered up to the defendants, they promised to pay the amount, or to allow the plaintiff credit for it, are not proved. If they did so promise, undoubtedly they became holders to his immediate use; but I think that what passed at the time of the presentment was, at the very [*200 least, equivocal. The plaintiff came with the cheque to the banking-house, and gave directions to Reader to provide for a bill coming due the following month. While Reader was writing down the particulars of that request, the plaintiff laid the cheque upon the counter, saying, "Place this to my account." No intimation was given to him that the request would or would not be complied with; or that Matson had overdrawn his account. If, in delivering the cheque, he had said at once, "Cash me this cheque," or "Give me credit for it," he must have drawn from Reader a distinct answer; but by merely saying, "Place it to my account," he leaves it upon the usual terms, and subject to the contingen

cies to which bills or cheques so paid in are liable; and if he received notice of dishonour in proper time, it was sufficient. He did receive it on Tuesday, the 20th of November, on which day it was ascertained that the cheque could not be paid: I think it would have been sufficient if he had received it on the Wednesday. It has been held, that the relation of customer and banker makes no difference in the rule as to notice of dishonour; (see Crosse v. Smith, 1 M. & S. 545.) In Kilsby v. Williams, 5 B. & Ald. 815, much was said, which may appear favourable to the present plaintiffs; but Bayley, J. puts the case upon a ground which is decisive against them. He says, "On the morning of the 13th of November, the cheque was paid in by the plaintiff, and from that moment the defendants became his agents to receive the money upon it. If the defend*201] ants had not been the plaintiff's bankers, he would have immediately demanded the *money due upon the cheque, and then they must have either paid him, or, if they had refused payment, he might have had immediate recourse to Robertson," the drawer of the cheque. Now, in the present case, I think the plaintiff, when he presented the cheque, should have given distinct notice whether he presented it as a cheque to be paid, or to be merely placed to his account like other securities. In the absence of such statement by him, I draw the inference that the cheque was received in the latter character; and I therefore think the defendants are entitled to our judgment.

TAUNTON, J. I am of the same opinion. There is no proof here of an express promise to the effect stated in the declaration; nor are there circumstances from which it can be implied. And the notice of dishonour was given as early as the defendants were bound to give, or could give it. Hodgson, the managing partner,(a) was absent when the cheque was presented, but returned that day. On the following morning, a clerk was despatched to Wingham, where the drawer of the cheque resided, to ascertain whether there would be funds to meet it. Hodgson was to determine by the result, whether or not the bank should pay the amount of the cheque. The information received determined him not to pay it; and he then sent the earliest possible notice to the plaintiff. The cheque was paid in on the 19th; and on the 20th, at seven o'clock in the evening, notice of dishonour was given to the plaintiff. There was not then, in this case, such a laches as entitles the plaintiff to say that the defendants have made the cheque their own. *On the other points argued it is unnecessary to give an opinion.

*202]

PATTESON, J. As to the first point, the fallacy in the plaintiff's mode of putting the case is with respect to the character in which he says the cheque was received. If the bankers received it as his agents, they stood in the same situation as any other agents, and were only bound to use due diligence in getting it paid. If they received it as the agents of Matson, the drawer, the person presenting it, if he had asked whether it would be paid or not, would have had a right to an immediate answer; and if Reader had said "Yes," no doubt the present declaration would have been supported. But what passes is only this: the plaintiff, while Reader is writing down his directions on another subject, lays the cheque on the counter, and says, "Place this to my account:" nothing more is said, and the cheque is left. The inference is, that the plaintiff paid it in to Reader as his agent, to deal with it in the same manner as if it had been a cheque drawn on any other banker. Kilsby v. Williams, 5 B. & Ald. 815, is in some respects like this case. Abbott, C. J., there says, "At the outset of this cause, I thought that it was the duty of bankers under such circumstances, immediately to tell the person presenting a cheque for payment, that they had no sufficient funds to honour it. But it was urged by Mr. Scarlett, and I thought there was great weight in the argument, that this might be

(a) In the case submitted to counsel, he was stated to have the sole management of the business.

[*203

productive of serious inconvenience, inasmuch as it is often impossible to ascertain till the close of the day at the clearing-house, *what sums of money may be paid in to each particular account, and what are the drafts upon it. I think, therefore, that the defendants might, in this case, receive the cheque in question, subject to its being honoured, or not, according to the course of Robertson's dealing with them in that day."- "And if the balance, instead of being 2377., had exceeded 2507." (the amount of the cheque paid in by the plaintiff), "I should have had no doubt that the defendants were bound to appropriate it to the payment of the plaintiff. For when they received the cheque from him, they became his agents to receive the money upon it as early as possible; and if they could be allowed to appropriate the money received by them to the payment of subsequent cheques, it would be doing great injustice and injury to their own customer." These observations are strictly applicable to the present case, and shew that the defendants here must be taken to have received the cheque as agents of the plaintiff. It is therefore unnecessary say any thing as to the other points.

WILLIAMS, J. It appears to me that this cheque was presented in the ordinary way in which a party pays in a bill to his banker; and there was nothing to prevent the banker from having time to make inquiries respecting it, as in the general case of bills so paid in. Having taken time for inquiry, and not being able to find that Matson would meet the cheque by a payment at Glynn's, or otherwise, the defendants gave notice to the plaintiff; and it appears that that notice could not have been given earlier. The defendants, therefore, are entitled to our judgment on this ground. On the other points it is not necessary to give any decision. Nonsuit to be entered.

*SANDALL against BENNETT. Tuesday, Nov. 18.

[*204

Where one party has omitted to leave demurrer-books with the Judges, and the other has delivered them on his default, and objects to his being heard till he shall have paid the costs of such delivery, pursuant to Reg. Gen. Hil. 4 W. 4, s. 7, notice must be given to such party before the objection is made in Court. It will not be entertained on an ex parte application.

Defendant, in an action of debt for work and labour, pleaded that the debt, if any, did not amount to 40s.; that defendant, at the time of action brought, resided in the county of Middlesex, and was liable to be summoned in the County Court, &c., within the true intent and meaning of the statutes in such case, &c. The plea did not deny that freehold, or title to land, or an act of bankruptcy, was principally in question; and it was, therefore, held, at all events, defective as a plea under stat. 23 G. 2, c. 33, s. 19, (Middlesex County Court Act), and bad on general demurrer; but,

Semble, that the matter alleged was not pleadable in bar, either by stat. 6 Edw. 1, c. c. 8, (Gloucester) or 23 G. 2, c. 33, s. 19.

DEBT for 1207. for work, labour, materials, &c. Pleas, 1. nil debet. 2. That the debt in the declaration mentioned, if any such there be, does not amount to the sum of 40s. ; that the defendant long before, and at the time of the commencement of this suit, resided, and still doth reside, (a) within the county of Middlesex; and that he always, from the time of the accruing of the said supposed debt, hath been, and still is, liable to be summoned and warned in the county court of Middlesex, within the true intent and meaning of the statute in such case, &c. General demurrer and joinder.

Steer, for the plaintiff, took a preliminary objection on an affidavit stating that the plaintiff's attorney had, on the 23d of May last, delivered copies of the demurrer-book in this cause at the chambers of the lord chief justice, and of

(a) As to this last averment, in an affidavit, see Mansfield v. Brearey, 1 A. & E. 351. And as to the words "if any," see Gould v. Lasbury, 1 C. M. & R. 254, 4 Tyrwh. 863.