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as a bill or note remains in the hands of the drawer or maker it is a nullity. And even though it be placed by the drawer or maker in the hands of his agent for delivery, it is still undelivered so long as it remains in his hands, and may be recalled ": 1 Daniel, § 63.


1. Where the secretary of a company, intending to give a renewal note of the company, signed his name with the word "per" before it, leaving a space before his signature for the stamp of the company and sent it to the manager who signed the note but omitted to insert the company's name, and delivered it to the creditor, it was held, that the instrument never was perfected or delivered as a promissory note and the secretary was not liable as maker: Brown v. Howland, 15 Ont. A. R. 750 (1887).

2. Where a drawee has written his acceptance on the bill, but cancels it and returns it to the holder, who has it noted for non-acceptance, the drawer is not liable as an acceptor: Bentinck v. Dorrien, 6 East 199 (1805).

3. Where a drawee, after writing his acceptance on the bill, changes his mind, and instead of notifying the holder or delivering the bill, erases his acceptance, he is not liable as an acceptor : Cox v. Troy, 5 B. & A. 474 (1822).

4. A debtor made a promissory note in favor of his creditor for the amount of his claim, but died before delivering it. If given to the creditor subsequently it is not a valid note: Bromage v. Lloyd, 1 Ex. 32 (1847).

5. A partner, who is also agent for a creditor of the firm, indorses the firm's name on a bill, and places it among some other papers of the creditor which he has. This is a valid indorsement by the firm and a delivery to the creditor: Lysaght v. Bryant, 9 C. B. 46 (1850).

6. The drawee writes an acceptance on a bill left with him. The holder calls for it next day and is told it is mislaid. The

drawer hears that the drawee has failed and erases his acceptance. § 21. The following day he delivers the dishonored bill to the holder. This is not an acceptance: Bank of Van Diemen's Land v. Bank of Victoria, L. R. 3 P. C. 526 (1871).

7. By the delivery of a note to the trustee under a composition deed, the creditor, who is the payee, acquires no property in it: Latter v. White, L.-R. 5 H. L. 578 (1872).

8. A letter when posted becomes the property of the party to whom it is addressed. If it contains a bill this is a delivery: ex parte Coté, L. R. 9 Ch. 27 (1873).

9. A bill is specially indorsed and inclosed in a letter addressed to the indorsee. It is placed in the office letter box of the indorser, but before posting or delivery is stolen by a clerk who forges an indorsement and negotiates it. The property in the bill remains in the indorser: Arnold v. Cheque Bank, 1 C. P. D. 584 (1876).

2. As between immediate parties, and as regards Requisites a remote party, other than a holder in due course, the delivery

as to delivery.

(a.) In order to be effectual must be made either by or under the authority of the party drawing, accepting or indorsing, as the case may be;

(b.) May be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the bill;


But if the bill is in the hands of a holder in due when valid course, a valid delivery of the bill by all parties presumed. prior to him, so as to make them liable to him, is conclusively presumed :


3. Where a bill is no longer in the possession Prima fac of a party who has signed it as drawer, acceptor or

§ 21. indorser, a valid and unconditional delivery by him is presumed until the contrary is proved. Imp. Act, s. 21 (2), (3).

"Immediate parties" are those who have direct dealings with each other in relation to a bill, such as drawer and acceptor, drawer and payee, indorser and next indorsee. A "remote party" taking a bill incomplete or irregular on its face, or after maturity, or with notice of a defect, or without giving value is in no better position. For the definition of a "holder in due course," see section 29.

Where a bill has been delivered conditionally or for a special purpose only, and the person who has so received it violates his trust, the owner may recover the bill or its amount from such person or any one who has taken it with notice: Goggerley v. Cuthbert, 5 B. & P. 170 (1806); Alsager v. Close, 10 M. & W. 576 (1842); Muttyloll Seal v. Dent, 8 Moore P. C. 319 (1853); Arnold v. Cheque Bank, 1 C. P. D. 585 (1876); Burson v. Huntington, 21 Mich. 415 (1870).

Escrow. A bill or note may be delivered conditionally, and upon the happening of the event or fulfilment of the condition, no further delivery is necessary. What was before a mere paper writing becomes a valid bill. In the case of a deed the custodian must be a third party. In Bell v. Ingestre, 12 Q. B. 317 (1848), Lord Denman held that the same principle applied to indorsees who received bills as trustees. The death of the parties liable does not prevent the bill taking effect: Belden v. Carter, 4 Day 66 (1809); Giddings v. Giddings, 51 Vt. 227 (1878). "There is this distinction between negotiable and sealed instruments: If the custodian of the former betrays his trust, and passes off the negotiable instrument to a bona fide holder before maturity, and without notice, all parties

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are bound; but if the instrument be sealed, the rule is $ 21. otherwise ": 1 Daniel, § 68. A bill, complete in form, put into the hands of a third party as an escrow is not a valid bill, but a mere paper writing until the happening of the condition Chandler v. Beckwith, 2 N. B. (Berton) 423



1. The payee of a promissory note, after a writ of attachment had issued against him, for value indorsed it to a bona fide holder, before its maturity. Held, that the indorsee had no title, as it had vested in the assignee before its indorsement or delivery: Jenks v. Doran, 5 Ont. A. R. 558 (1880). (But would not the indorsee as a holder in due course, now be within the provisions of the last clause of sub-section 2?)

2. The payee of a note which was delivered to him conditionally sues upon it. The maker may show that the condition was not complied with: Jefferies v. Austin, 1 Stra. 674 (1725).

3. A bill was delivered by the acceptor to the drawer for a purpose for which it became unnecessary. The drawer indorsed it for value to a person who was aware he had no right to do so. The property in the bill remained in the acceptor: Evans v. Kymer, 1 B. & A. 528 (1830).

4. The payee of a bill gave it to a friend to get it discounted. The latter had to indorse it to get it discounted, and only received a part of the proceeds. The person who discounted it was aware of the facts. The payee could show the nature of the delivery and recover the balance of the proceeds: Bastable v. Poole, 1 C. M. & R. 410 (1835).


The last clause of sub-section 2 and sub-section 3 afford Presumpexamples of the two kinds of presumptions of law, namely, conclusive and disputable as they are designated in the language of English law; or legal presumptions and presumptions juris et de jure, as they are called in the language of the civil law. "Conclusive presumptions of law are rules

§ 21. determining the quantity of evidence requisite for the support of any particular averment which is not permitted to be overcome by any proof that the fact is otherwise.

Capacity of parties.

As to corporations.

Provincial subject.

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They have been adopted by common consent, from motives
of public policy, for the sake of greater certainty, and the
promotion of peace and quiet in the community; and there-
fore it is, that all corroborating evidence is dispensed with,
and all opposing evidence is forbidden": 1 Taylor, § 71. In
disputable presumptions, the law "defines the nature and
amount of the evidence which is sufficient to establish a
prima facie case, and to throw the burden of proof on the
other party; and if no opposing evidence is offered, the jury
are bound to find in favor of the presumption. A contrary
verdict might be set aside as being against evidence": 1
Taylor, § 109. "Legal presumptions are those which are
specially attached by law to certain facts. They exempt
from making other proof those in whose favor they exist;
certain of them may be contradicted by other proof; others
are presumptions juris et de jure and cannot be contra-
dicted": C. C. Art. 1239.


22. Capacity to incur liability as a party to a bill is co-extensive with capacity to contract:

Provided, that nothing in this section shall enable a corporation to make itself liable as drawer, acceptor or indorser of a bill, unless it is competent to it so to do under the law for the time being in force relating to such corporation: Imp. Act, s. 22 (1).

Under the British North America Act, s. 92, s-s. 13, the local legislatures have the exclusive right under the

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