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§ 59. bill, so that section 60 of our Act is section 61 of the Imperial Act, and this difference is continued in the numbering of the succeeding sections.
Discharge by payment.
Payment in due course.
59. A bill is discharged by payment in due course by or on behalf of the drawee or acceptor: Payment in due course" means payment made at or after the maturity of the bill to the holder thereof in good faith and without notice that his title to the bill is defective; Imp. Act. s. 59 (1).
Payment.-Payment is not defined in the Act. A bill is for a sum certain in money, but it may be satisfied at or after maturity, in any way in which any other contract to pay money may be satisfied, and, as provided by section 61, in a manner which would not be sufficient in the case of ordinary contracts. "By payment is meant the discharge of a contract to pay money, by giving to the party entitled to receive it, the amount agreed to be paid by one of the parties who entered into the agreement. Whether the transaction is a purchase or a payment, is a question to be resolved according to the intention of the parties, and looking to the substance of the matter rather than its form. Credit given by the drawee of a bill or by a party to a bill or note, who is liable for its payment to the holder at his request, is equivalent to payment. Payment of a debt is not necessarily a payment of money; but that is payment which the parties contract shall be accepted as payment, or which the law recognizes as such": 2 Daniel, § 1221.
Payment in due course.-If the drawee or acceptor pays a bill before maturity, it is not thereby discharged; he may negotiate it. If the bill is payable to bearer or in
dorsed in blank, he may pay to the bearer; if indorsed in § 59. full he may pay to the indorsee or to his order. Payment is in good faith if made honestly; mere negligence is not enough to vitiate it: section 89. As to what may render the title of the holder of a bill defective, see section 29.
Payment by bill or note.-When a renewal bill is taken the original one is not discharged, unless there is a special agreement to that effect. It is a mere conditional payment. So where the bill of a third party is taken. The remedy on the original bill is suspended until the maturity of the new one; if that is paid or discharged, so is the original. If the new one is dishonored, the original liability revives, except as to parties, who are merely sureties, and who may have been discharged by the delay granted to the principal debtor.
In either of the foregoing cases the renewal or new bill will operate as a discharge, if the parties have so agreed. If the holder has retained the old bill, the presumption will be, that such was not the intention of the parties.
Merger. A bill may also be discharged by being merged in a security of a higher nature, such as a bond, mortgage, or the like. So a judgment recovered on a bill, operates as an extinguishment of the original debt, the bill being merged in the judgment.
Novation. Article 1169 of the Civil Code provides that "Novation is effected (1) when the debtor contracts towards his creditor a new debt, which is substituted for the ancient one, and the latter is extinguished; (2) when a new debtor is substituted for a former one who is discharged by the creditor; (3) when by the effect of a new contract, a new creditor is substituted for a former one, towards whom the debtor is discharged." Such a discharge has been considered in part under payment by bill and merger.
For discharge by "compensation" or "set-off," see post p. 338.
The provisions of this section regarding a drawee or acceptor, apply to the maker of a promissory note section 88.
1. Notes were given for the purchase money of personal property, and were not to be paid if the property was given up. The property was returned and sold for less than the first sale. Held, that the notes were satisfied by the return of the property as agreed Smith v. Judson, 4 U. C. O. S. 134 (1835).
2. The following are examples of the discharge of the bill or note by merger in the mortgage or other security taken, although the holders may not have so intended: Matthewson v. Brouse, 1 U. C. Q. B. 272 (1843); Bank of B. N. A. v. Jones, 8 U. C. Q. B. 86 (1850); Parker v. McCrea, 7 U. C. C. P. 124 (1857); Fairman v. Maybee, ibid. 467 (1858); Fraser v. Armstrong, 10 ibid. 506 (1860); McLeod v. McKay, 20 U. C. Q. B. 258 (1860); Adams v. Nelson, 22 ibid. 199 (1862).
3. Where a mortgage or other security is taken as collateral to a bill or note, there is no merger, and the bill or note is not discharged, but may be sued if not paid, although the mortgage is not due; Murray v. Miller, 1 U. C. Q. B. 353 (1844); Bank of U. C. v. Sherwood, 8 ibid. 116 (1850); Ross v. Winans, 5 U. C. C. P. 185 (1855); Shaw v. Crawford, 16 U. C. Q. B. 101 (1857); Commercial Bank v. Cuvillier, 18 ibid. 378 (1859); Bank of U. C. v. Bartlett, 12 U. C. C. P. 238 (1862); Gore Bank v. McWhirter, 18 ibid. 293 (1868); Gore Bank v. Eaton, 27 U. C. Q. B. 332 (1868); Molsons Bank v. McDonald, 2 Ont. A. R. 102 (1877).
4. Where a note overdue has been retired and settled by a renewal note, it is cancelled and cannot be put in circulation again even by the payee, who has taken up the renewal note out of his own funds Cuvillier v. Fraser, 5 U. C. Q. B. 152 (1848).
5. In an action by the indorsee against the acceptor of a bill, a plea of payment by the drawer is no defence, unless made
on the acceptor's account and adopted by him; Bank of Montreal $ 59. v. Armour, 9 U. C. C. P. 401 (1859).
6. Payment by the maker to the original holder after transfer would be at his own risk, and be no discharge though the note was overdue at the time of the transfer; Ferguson v. Stewart, 2 U. C. L. J. 116 (1866); Banque du Peuple v. Viau, 4 L. N. 133 (1880); Hawley v. Beverley, 6 M. & Gr. 221 (1843).
7. Taking the note of a new firm for goods sold to the old firm may operate as a release to the latter: Watts v. Robinson, 32 U. C. Q. B. 362 (1872).
8. A creditor took the note of a partner for a partnership debt, sued on it and took judgment. Failing to recover, he is not precluded from claiming against the partnership: Carruthers v. Ardagh, 20 Grant, 579 (1873).
9. Where a bank held for collection a note made by one customer in favor of the other, and on the day it matured, charged it to the maker and credited it to the payee in their books, and in his pass-book, it was held to be a payment, and irrevocable: Nightingale v. City Bank, 26 U. C. C. P. 74 (1876); Cleveland v. Exchange Bank, 31 L. C. J. 126 (1887).
10. The firm of H. & M. were in the habit of buying goods from D. & C. and giving them notes for the price. They dissolved in 1876, M. carrying on the business and dealing with B. & Co., who took his notes for the running account. He failed in 1880. His payments to B. & Co. were sufficient to pay off the notes of H. & M. if so applied. Held, reversing 7 Ont. A. R. 33, that from the blending of the accounts and the course of dealing, the paper of H. & M. was fully paid: Birkett v. McGuire, Cassels' S. C. Digest, 332 (1883).
11. A note was given for goods. Before maturity the vendor who held the note agreed, on account of partial failure of consideration, to reduce it by $500. After maturity he indorsed it to M."without recourse." Held, that M. must credit this $500 on the note: McGregor v. Bishop, 14 O. R. 7 (1887).
12. In order to vitiate the payment by the maker of a note indorsed in blank, bad faith must be shewn: Ferrie v. Wardens of the House of Industry, 1 Rev. de Leg. 27 (1845).
13. The acceptance of a promissory note is not payment or novation unless there be an evident intention that it shall have that effect Beaudoin v. Dalmasse, 7 L. C. R. 47 (1857); Brown v. Mailloux, 9 ibid. 252 (1859); Noad v. Bouchard, 10 ibid. 476 (1860); Noad v. Lampson, 11 ibid. 29 (1860); Rogers v. Morris, 13 L. C. J. 20 (1869); Richard v. Boisvert, 3 R. L 7 (1871); Mercier v. Bousquet, 5 R. L. 352 (1874);-even when there is an indorser: Landry v. Beauchamp, 18 L. N. 169 (1890).
14. Proof of the payment of a promissory note in Lower Canada is governed by the law of England, and may be made by parol Carden v. Finlay, 8 L. C. J. 139 (1860).
15. Possession of a note by the maker after maturity, is a presumption of payment, but it may be rebutted by parol: Grenier v. Pothier, 3 Q. L. R. 377 (1877); Frizzell v. McKenzie, Ramsay A. C. 77 (1874).
16. Where an insolvent has secretly agreed to pay a creditor a sum in excess of the composition note, the indorser is not discharged, but the sum so paid must go in partial discharge of the note: Martin v. Poulin, 4 L. N. 20 (1880).
17. Charging a bill in the books of the bank to the account of the drawer who had got it discounted, is not payment, nor can the acceptor, when sued by the bank, set up in compensation claims he may have against the drawer: Goodall v. Exchange Bank, M. L. R. 3 Q. B. 430 (1887).
18. The receipt of a cheque which is subsequently dishonored, is not payment, and is not a novation of the original debt Corporation of Kingsey Falls v. Quesnel, 18 R. L. 470 (1888).
19. The fact that plaintiffs did not return a note sent them by defendant, but handed it to their attorneys with the claim, is not conclusive that it was accepted even as conditional payment: