« السابقةمتابعة »
8. When a note is made payable at a particular place, pre- $ 86. sentment at that place is necessary to render the maker liable : Spindler v. Grellett, 1 Ex. 384 (1847); Sands v. Clarke, 8 C. B. 751 (1849); Vander Donct v. Thelluson, 8 C. B. 812 (1849).
9. If the maker had funds at the place of payment on the day of maturity, and they were left there and finally lost through the neglect of the holder to present the note as, for instance, by the failure of a bank, the maker wonld be discharged, at least to the extent of the loss.
10. The last clause would appear not to give the Court any discretion as to costs if the note was payable generally; but the courts have, as a rule, a discretion as to costs in general.
11. In presenting a note for payment it should be produced and exhibted; but if it is held at the place of payment on the day it matures, no formal presentment is necessary. See ante p. 309; also Fullerton v. Bank of U. S., 1 Peters (U.S.) 604 (1828); Bank of U. S. v. Carneal, 2 ibid. 543 (1829); Chicopee Bank v. Philadelphia Bank, 8 Wall. (U.S.) 641 (1869); Woodbridge v. Brigham, 13 Mass. 556 (1816); Bank of Syracuse v. Hollister, 17 N. Y. 45 (1858).
2. Presentment for payment is necessary in order Liability to render the indorser of a note liable : Imp. Act, s. 87 (2).
For the rules as to presentment for payment, see section 45, which applies to promissory notes with the modifications specified in section 88. The provisions of section 46 as to excuses for the delay in making presentment, or presentment being dispensed with entirely, as well as those relating to notice of dishonor, also apply to notes with the necessary modifications.
See the notes and illustrations under these sections. Also Siddall v. Gibson, 17 U. C. Q. B. 98 (1859); Saunderson v. Judge, 2 H. Bl. 510 (1795); Roche v. Campbell, 3 Camp. 247 (1812); Britt v. Lawson, 22 Hun (N.Y.) 123 (1878).
3. Where a note is in the body of it made payable Place for at a particular place, presentment at that place is
necessary in order to render an indorser liable: but when a place of payment is indicated by way of memorandum only, presentment at that place is sufficient to render the indorser liable, but a presentment to the maker elsewhere, if sufficient in other respects, shall also suffice. Imp. Act, s. 87 (3).
Where the place of payment is in the body of the pote it is part of the contract: O'Brien v. Stevenson, 15 L. C. R. 265 (1865); Howes v. Bowes, 16 East 112 (1812). Where it is merely indicated in a footnote or some other part of the note, it has been a disputed point whether it is part of the contract. The affirmative has been held both in England and the United States. See Trecothick v. Edwin, 1 Stark. 468 (1816); Jones v. Fales, 4 Mass. 244 (1808) ; Platt v. Smith, 14 Johns. (N.Y.) 368 (1817); Woodworth v. Bank of America, 19 Johns. 391 (1822); Dewey v. Reed, 40 Barb. (N.Y.) 17 (1863). Contra, Cunard v. Tozer, 4 N. B. (2 Kerr) 365 (1844); Price v. Mitchell, 4 Camp. 200 (1815); Exon v. Russell, 4 M. & S. 505 (1816); Masters v. Barretts, 8 C. B. 433 (1849); Hill v. Cooley, 46 Penn. St. 259 (1863).
The Act recognizes such a memorandum, but apparently not as part of the contract, as presentment at the place indicated is marle optional.
Liability of maker.
87. The maker of a promissory note, by mak
(a) Engages that he will pay it according to its tenor;
(6) Is precluded from denying to a holder in § 87. due course the existence of the payee and his then Estoppel capacity to indorse : Imp. Act, s. 88 (1) (2).
The position of the maker of a note is similar in most respects to that of the unconditional acceptor of a bill : ' section 88, 8-s. 2. He is the primary debtor ; the indorsers being only secondarily liable, until after dishonor and notice, unless the latter is waived or dispensed with. For the liabilities of an acceptor see sections 54 and 57.
It is frequently a disputed question whether the maker of a note is personally liable, or whether he is a mere agent or officer, and the note is that of some principal or corporation. It is impossible to reconcile the conflicting decisions on this point, as regards the acceptors of bills and the makers of notes. It may be said generally that the maker of a note bas sometimes been liable on an acceptance expressed in words which, if in a note, would not have bound him personally. See section 17 and the notes and illustrations thereunder. Also Kerr v. Parsons, 11 U. C. C. P. 513 (1861); Corporation of Toronto Township v. McBride, 29 U. C. Q. B. 13 (1869); Archibald v. Brown, 3 L. N. 43 (1879).
(b) See the similar rule as to the acceptor of a bill: section 54, s.c. 3.
A “holder in due course has been defined in section 29. The reason for this estoppel is that the maker by issuing a note in this form has in effect made these representations to the person who becomes such a holder, and after it is acted upon cannot be allowed to claim the contrary. See Perkins v. Beckett, 29 U. C. C. P. 395 (1878); Taylor v. Croker 4 Esp. 187 (1803); Drayton v. Dale, 2 B. & C. 293 (1823); Smith v. Marsack, 6 C. B. 486 (1848) ; Lane v. Krekle, 23 Iowa, 404 (1867); Wolke v. Kuhne, 109 Ind. 313 (1886).
tion of Part II. to notes.
$ 88. 88. Subject to the provisions in this part, and Applica- 'except as by this section provided, the provisions of this Act relating to bills of exchange apply,
, with the necessary modifications, to promissory notes:
2. In applying those provisions the maker of a note shall be deemed to correspond with the acceptor of a bill, and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to the drawer's order:
3. The following provisions as to bills do not not apply apply to notes, namely, provisions relating to
(a) Presentment for acceptance;
The following sections in Part II. of the Act do not apply to promissory notes :-3, 4, 5, 6, 15, 17, 18, 19, 36 6-s. 3, 39, 40, 41, 42, 43, 44, 53, 54 s-s. (1) (2), 64, 65, 66, 67 and 70.
What provisions do
As to foreign notes.
4. Where a foreign note is dishonored, protest thereof is unnecessary, except for the preservation of the liabilities of indorsers. Imp. Act, s. 89 (4).
The exception in this sub-section is not in the Imperial Act. Its effect is to place foreign notes on the same footing as foreign bills : section 51, 8-8. 2.
89. A thing is deemed to be done in good Good faith faith within the meaning of this Act, where it is in fact done honestly whether it is done negligently or not. Imp. Act, s. 90.
The expression “in good faith " is used in section 29 with reference to a holder in due course acquiring a bill; in section 59, with reference to payment in due course; and in sections 78 and 81, with reference to the payment of a crossed cheque.
The rule of the civil law is that “good faith is always presumed; he who alleges bad faith must prove it”: C. C. Art. 2202. See section 30 as to the shifting of the onus of proof once fraud is proved.
This section was considered in England recently in the origin of case of Tatam v. Haslar, 23 Q. B. D. 345 (1889). Denman, J., there says that it is obviously founded upon the distinction which is pointed by Lord Blackburn in Jones v. Gordon, 2 App. Cas. at p. 629 (1877), between honest blundering or carelessness and a dishonest refraining from inquiry. The following is the substance of the remarks referred to :If value has been given for a bill, it is not enough to shew that there was carelessness, negligence or foolishness in not suspecting that the bill was wrong when there were