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simple I. 0. U. and contains no promise to pay it, is a mere § 82. acknowledgment of debt, and is not negotiable: Gould v. Coombs, 1 C. B. 543 (1845); Fessenmayer v. Adcock, 16 M. & W. 449 (1847); Byles, p. 33. If, however, it contains a promise to pay it is a note, and the following was held to be sufficient: "11th Oct., 1831, I. 0. U. £20, to be paid on the 22nd inst. W. B.” Brooks v. Elkins, 2 M. & W. 74 (1836).
In Canada the decisions have not been uniform. In Palmer v. McLennan, 22 U. C. C. P. 565 (1873), the following was held not to be a note: “Good to Mr. Palmer for $850 on demand." In Gray v. Worden, 29 U.C.Q. B. 535 (1870), “Due J. G. or bearer $482, payable in 14 days," was held to be a sufficient promise to make it a note.
In Quebec a simple bon, " Good on demand,” has been recognized as a negotiable note: Hall v. Bradbury, 1 Rev. de Leg. 180 (1815); Beaudry v. Laflamme, 6 L. C. J. 307 (1862); Cridiford v. Bulmer, M. L. R. 4 Q. B. 293 (1886); but not a mere certificate of indebtedness: Dasylva v. Dufour, 16 L. C. R. 294 (1866).
In France and in most of the United States these instruments are recognized as negotiable, and the introduction of such words as "payable," "good to," "order," "bearer," "demand," or a due date, have been accepted as sufficient evidence of a promise to pay, or that the instrument should be negotiable. See Sackett v. Spencer, 29 Barb. (N. Y.) 180 (1859); Hussey v. Winslow, 59 Me. 170 (1870); Franklin v. March, 6 N. H. 364 (1833); Kimball v. Huntington, 10 Wend. (N. Y.) 675 (1933).
It is probable that the change in the law of Canada, by by which notes payable to a person, without "order" or “bearer," are made negotiable will lead to more general recognition of these bons as negotiable instruments.
2. An instrument in the form of a note payable to maker's order is not a note within the meaning of this section, unless and until it is indorsed by the maker. Imp. Act, s. 83 (2).
When such a note is indorsed in blank it becomes a note payable to bearer : Burns v. Harper, 6 U. C. Q. B. 509 (1849); Wallace v. Henderson, 7 U. C. Q. B. 88 (1849); Ennis v. Hastings, 9 N. B. (4 Allen) 482 (1860); Hooper v. Williams, 2 Ex. 13 (1848); Brown v. De Winton, 6 C. B. 336 (1848); Masters v. Baretto, 8 C. B. 433 (1849). If indorsed specially it becomes a note payable to the indorsee: Gay v. Lander, 6 C. B. 936 (1848).
Collateral pledge ir. note.
3. A note is not invalid by reason only that it contains also a pledge of collateral security with authority to sell or dispose thereof. Imp. Act, s.
This sub-section is a modification of the rule in section 3, that an instrument which orders anything to be done in addition to the payment of money, is not a bill. See Wise v. Charlton, 4 A. & E. 786 (1836); Fancourt v. Thorne, 9 Q. B. 312 (1846).
When a note on its face contains a statement that it is given as collateral security, it is not a promissory note: Hall v. Merrick, 40 U. C. Q. B. 566 (1877); Sutherland v. Patterson, 4 0. R. 565 (1884).
The right to such securities would go with the note: Central Bank v. Garland, 20 O. R. 142 (1890). See Cochrane v. Boucher, 3 O. R. at p. 472 (1883). This is the law in France : Nouguier, $ 715.
The creditor has a right to hold the securities even after the remedy on the note is barred by the Statute of Limitations : Wiley v. Ledyard, 10 Ont. P. R. 182 (1883).
4. A note which is, or on the face of it purports to $ 82. be, both made and payable within Canada, is an Inland and inland note: any other note is a foreign note: Imp. Act, s. 83 (4).
The Imperial Act uses the words “ British Islands."
If dated abroad and payable in Canada, a note would still be an inland note if actually made or issued in Canada. On the other hand, if dated in Canada and payable there, it would be an inland note although actually issued abroad. The distinction is of consequence for the purposes of pro
An inland note need not be protested except in Quebec, notice of dishonor being sufficient to bind indorsers in the other provinces : sections 51, 88.
To bind the indorsers of a foreign note protest is necessary in any part of Canada : section 88, S-S. 4.
A note dated in Halifax, N.S., and payable there is an inland note although made in France: Merchants' Bank v. Stirling, 13 N. S. (1 R. & G.) 439 (1880).
83. A promissory note is inchoate and incom- Delivery plete until delivery thereof to the payee or bearer. Imp. Act, s. 84.
It becomes a note on delivery to the second party to it. Delivery is the transfer of possession, actual or constructive, from one person to another : section 2 (f). The nature of the delivery necessary to give effect to a note is set out in section 21.
See Chapman v. Cottrell, 3 H. & C. 857 (1865).
84. A promissory note may be made by two Joint and or more makers, and they may be liable thereon notes, jointly, or jointly and severally, according to its tenor. Imp. Act, s. 85 (1).
Joint liability in Quebec.
$ 84. This section is likely to bring up some interesting
questions on account of the difference between the law of Quebec and that of the other provinces as to the nature of a joint contract, or joint liability as distinguished from that which is joint and several.
Under the French law, in force in Quebec, where several persons are jointly liable for a debt, each of them is liable for an equal fractional part to the creditor, whatever may be their respective rights as against each other. Thus if two are jointly bound, each is liable for one-half; if there are three, each is liable for one-third, and so on; and no one of them by the death of his co-debtor or otherwise becomes liable for more. The advantage to a creditor in having a joint contract instead of so many separate contracts is that he may sue all in one action, obtaining a separate condemnation of each for his equal share. See Pothier on Obligations, No. 165; 17 Laurent, Nos. 274, 280.
An obligation is presumed to be joint, unless expressly declared to be joint and several. This rule does not apply to commercial transactions, where the presumption is in favor of the liability being joint and several: C. C.
Art. 1105. In the Under English law, on the other hand, each joint debtor Provinces. is liable to the creditor for the whole. If one dies, his re
presentatives are not liable for any part to the creditor. If the creditor does not sue all who are alive and in the country, those who are sued, might under a plea in abatement, under the old system of pleading, or by a motion under the Judicature Act, have proceedings stayed, until the living joint debtors who are in the country are made parties. A judgment taken against some of the joint debtors frees the others from all liability: King v. Hoare, 13 M. & W. 494 (1844): Kendall v. Hamilton, 4 App. Cas. 504 (1879); Hammond v. Schofield (1891] 1 Q. B. 453 ;
Hoare v. Niblett (1891] 1 Q. B. 781 ; Toronto v. Maclaren, $ 84. 14 Ont. P. R. 93 (1890; Leake on Contracts, p. 940.
If a note is on its face "joint,” and not joint and several, the law would differ as above, according to whether it is a Quebec note or not. The note would be interpreted according to the law of the place where it was made: section 71 (b); that is, where it was delivered to the payee or bearer : section 83.
Under English law, a note signed by several makers, Joint note. not partners, which reads “we promise,” is joint: Byles, p. 8; Chalmers, p. 266 ; 1 Daniel, $ 94; Randolph, § 149 ; Barnett v. Juday, 38 Ind. 86 (1871). In Quebec, since the abolition of the distinction between traders and nontraders with regard to negotiable notes, it was generally considered that every negotiable note is a commercial transaction ; but in Malhiot v. Tessier, 2 R. L. 625 (1870), it was held that where two farmers signed such a note they were liable jointly, and not jointly and severally. The report of the case is so meagre that it does not appear whether it was a negotiable note, but the probability is that it was. In Perrault v. Bergevin, 14 R. L. 604 (1886), the liability on such a note was held to be joint and several.
A "joint and several ” liability is substantially the Joint and same in English and French law. Each of the debtors is liability, liable for the full amount, and on his death his liability descends to his representatives. Payment by one discharges the liability of the others to the creditor. The debtor who has paid may have his right of contribution against his co-debtors. A judgment against one maker is no bar to proceeding against the others: re Davison, 13 Q. B. D. at p. 53 (1884).
If one or more are sued but not all, those who are sued have no right to delay the plaintiff by having the others called in: Durocher v. Lapalme, M. L. R. 1 S. C. 494