Question 147.— A cheque on a distant point is cashed for a customer, and is subsequently lost in the mails. The drawer of the cheque dies and the legal representatives refuse to give a duplicate cheque. There were funds to pay the cheque when drawn. What is the position of the parties ?

Answer.—The matter may be regarded in this way: the delay in presenting the lost cheque has not discharged the drawer or endorser (see sections 46 and 50, Bills of Exchange Act), but the death of the drawer has countermanded the order to pay, and the drawee bank could therefore not pay the cheque if it should now be presented. Section 68, respecting the right to demand a bill of the same tenor, would not apply, as the cheque of the executors would not be the same thing as the cheque of the drawer himself, for if the estate were not solvent the giving of such a cheque would create a preference. This they cannot properly do, and besides if the bank did not pay it the executors would be personally responsible—a liability they are not obliged to undertake.

It is quite clear that the rights of the parties still subsist notwithstanding the disappearance of the cheque, and we think that the holder could make a claim upon the estate for the amount of the cheque. On proof of the facts, and on suitable indemnity being given, such a claim should succeed, under section 69 of the Act.