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Joint liability in Quebec.
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 other
Under English law, on the other hand, each joint debtor
presentatives are not liable for any part to the creditor. If
Hoare v. Niblett  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
§ 84. (1885); Block v. Lawrance, ibid. 2 S. C. 279 (1886). Contra Beaulieu v. Demers, 5 R. L. 695 (1874).
As to number.
As to the possible effect of section 8 of the amending Act of 1891 upon this point see the notes to that section.
2. Where a note runs "I promise to pay," and is signed by two or more persons, it is deemed to be their joint and several note. Imp. Act, s. 85 (2).
This has long been recognized as law in England: March v. Ward, Peake, 130 (1792); Clark v. Blackstock, Holt N. P. 474 (1816). And in the United States: Monson v. Drakely, 40 Conn. 552 (1873); Hemmenway v. Stone, 7 Mass. 58 (1810); Partridge v. Colby, 19 Barb. (N. Y.) 248 (1855); Ely v. Clute, 19 Hun (N. Y.) 35 (1859). As also in Ontario: Creighton v. Fretz, 26 Q. C. Q. B. 627 (1867).
It remains to be seen whether the enunciation of the above rule, taken in connection with section 8 of the Act of 1891, will be held to have modified the law of Quebec, on a note which reads "we promise."
Note payable on
85. Where a note payable on demand has been demand. indorsed, it must be presented for payment within a reasonable time of the indorsement: if it is not so presented, the indorser is discharged; if however, with the assent of the indorser it has been delivered as a collateral or continuing security it need not be presented for payment so long as it is held as such security.
Reason- 2. In determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade, and the facts of the particular case: Imp. Act, s. 86 (1) (2).
The last clause of the first sub-section is not in the § 85. Imperial Act, which ends with the word "discharged." The added part, however, agrees with the law as laid down in the English cases.
A note is payable on demand which is expressed to be payable on demand, or on presentation, or in which no time for payment is expressed, or which has been indorsed when overdue: sections 10 and 88.
Section 45, s-s. 2 (b), contains similar provisions as to presenting a bill for payment. As to what is" a reasonable time" see ante, pp. 244, 256.
"A promissory note payable on demand is often intended to be a continuing security; it is quite unlike a cheque which is intended to be presented speedily": per Parke, B., in Brooks v. Mitchell, 9 M. & W. at p. 15 (1844). See also Cripps v. Davis, 12 M. & W. 165 (1843); Bartrum v. Caddy, 1 P. & D 207 (1838); Leith Banking Co. v. Walker, 14 Sess. Cas. 332 (1836); Morgan v. United States, 113 U. S. 501 (1884).
Where a demand note is payable with interest, this has been considered as an indication that an early presentment was not contemplated: Thorne v. Scovil, 4 N. B. (2 Kerr) 557 (1844); Vreeland v. Hyde, 2 Hall (N. Y.) 463 (1829); Seaver v. Lincoln, 21 Pick. (Mass.) 267 (1838); Merritt v. Todd, 23 N. Y. 28 (1861); Parker v. Stroud, 31 Hun (N.Y.) 578 (1884).
In The Chartered Mercantile Bank v. Dickson, L. R. 3 P. C. 574 (1871) it was held that where a demand note was indorsed Feb. 16th, but the payment of which was not contemplated at any immediate or specific date, but was intended as a continuing security, the indorser was not discharged by the fact that it was not presented to the payee until December 14th.
Defects without notice.
In Dandurand v. Roulier, 33 L. C. J. 167 (1889), where defendant indorsed a demand note March 28th, 1885, for the maker, a friend whom he knew to be bankrupt, and the note was not protested until August 28th, 1888, the indorser was not discharged, as he was not injured but rather benefited by the delay, $50 having been paid September, 27th, 1887, and the maker's circumstances having improved in the mean time. In this case interest was allowed only from demand.
In Merchants' Bank v. Whitfield, 2 Dorion, 157 (1881), where the directors of a joint stock company indorsed a note of the company which was given to the bank as a continuing security, and it was held for twenty-seven months before payment was demanded, it was held that the indorsers were not discharged.
3. Where a note payable on demand is negotiated, it is not deemed to be overdue, for the purpose of affecting the holder with defects of title of which he had no notice, by reason that it appears that a reasonable time for presenting it for payment has elapsed since its issue. Imp. Act, s. 86 (3).
In this respect a note differs from a bill payable on demand or a cheque: section 36, s-s. 3.
For illustrations of the rule laid down in this subsection see Brooks v. Mitchell, 9 M. & W. 15 (1841); Glasscock v. Balls, 24 Q. B. D. at p. 15 (1889); Wethey v. Andrews, 3 Hill (N. Y.) 582 (1842); Losee v. Dunkins, 7 Johns (N. Y.) 70 (1810); Herrick v. Wolverton, 41 N. Y. 581 (1870); Morey v. Wakefield, 41 Vt. 24 (1868); Rhodes v. Seymour, 36 Conn. 6 (1869). See also the cases in the last paragraph under the preceding sub-section.
A promissory note payable on demand with interest, is a present debt, and "at maturity" as soon as given. A