Sec. 82. A promise in writing, made in Quebec, to pay £250 on a day certain to A. B. or order, with an engagement to pay in cash or in goods if the holder should choose to demand the latter, is a promissory note; for the engagement is no more than a power given to the holder to convert a promissory note into an order for merchandize if he see fit to do so: McDonell v. Holgate, 2 Rev. Leg. 29 (1818). Where the promissory note is made payable to bearer, the maker must be held to have agreed to pay in the currency of the place where the bearer resides, and, consequently, that a tender of payment in U. S. greenbacks, was insufficient: McCoy v. Dineen, 8 L. C. J. 339. An instrument by which the maker promises "to be accountable to J. S. or order" for a sum of money, is a note. It would be an odd construction of such an instrument, to expound the word accountable as "to give an account: " Morris v. Lee, 2 Ld. Raym. 1396. A note made payable to a person or his order, or to the order of a person, means the same thing: Meyers v. Wilkins, 6 U. C. Q. B 421. "Six months after date, we promise to pay to J. B., or order, $400. The above note is to paid in merchantable lumber, to be delivered in Toronto at cash price, and an additional quantity of lumber sufficient to pay the freight is to be sent in. If not so paid within the time, then the same is to be paid in cash.' This memorandum was written on the face of the note when it was signed ;-Held, not a note: Boulton v. Jones, 19 U. C. Q. B. 517. Bank notes are in point of law promissory notes, and notice of dishonor is necessary: Camidge v. Allenby, 6 B. & C. 373. See Leeds Bank v. Walker, 12 Q. B. D. at p. 88. A promissory note given for a gambling debt is void, although transfered to a third party in good faith before maturity: Biroleau v. Derouin, 7 L. C. J. 128. The holder of a promissory note which has been transfered to him in good faith before maturity for value received, may recover the amount, even where the note has been given for an immoral consideration: Dorais v. Chalifoux, 6 Rev. Leg. 325. 2 There must be at least two parties to every contract; and until there is another party designated in a document purporting to be a promissory note, either by name, or as bearer, there can be no contract. A note drawn payable to the maker's own order is not a promissory note, for in such notes there must be a promissor and a promisee; but such maker, by indorsing in blank a note so made, may give it the effect of a note payable to bearer, and give a right of action on it to a holder for value. The person to whom the money is to be paid ought, at least, to appear by implication: Brown v. De Winton, 6 C. B. 336; 12 Jur. 678. See further ss. 5-7, pp. 43-50. ILLUSTRATIONS. An instrument in these words: "19 April, 1877, I acknowledge to have received from you the sum £400 stg., which I am to pay back with bank interest at Martimas, 1878," is indefinite, and not a promissory note: Tennant v. Crawford, 5 Sess. Cas. 4 Ser. 433. An instrument in these words: "Two months after date I promise to pay to my own order £150, value received" and signed by the maker, is not a promissory note: Hooper v. Williams, 2 Ex. 13. No man can make a contract with himself; there ought to be two par- Sec. 82. ties to a contract: Champion v. Plummer, 5 Esp. 240; s. p. Brown v. De Winton, 6 C. B. 356. A note made payable to the maker becomes a promissory note, after it is indorsed by him: Muldrow v. Caldwell, 7 Mo. 563. 3 Banks and others may take collateral securities for any loan made to a customer. The Bank Act (s. 60) authorizes banks to acquire and hold as collateral security for any advance made by the bank, or for any credit or liability of any person, Dominion, Provincial, British, or Foreign, public securities, or the stock, bonds or debentures of municipal or other corporations, except the stock of its own, or other banking corporations ; and may sell and dispose of the same to pay the debt. But the bank is entitled to a lien on the shares of a shareholder who is a borrower from it, and may realize on such shares when held by the bank as security for any pre-existing or maturing debt (s. 45). See further notes to s. 27, p. 116. ILLUSTRATIONS. An instrument in the following words, "On demand, I promise to pay H., or order, £500, for value received, with interest; and I have lodged with H. the counterpart leases, signed by D., for ground let by me to him, as collateral security for the £500 and interest," was held to be a note: Fancourt v. Thorne, 9 Q. B. 312; 10 Jur. 639. Where it was stated on the margin of a note: "Given as collateral security with agreement," it was held that such a memorandum made the note non-negotiable: Costelo v. Crowell, 127 Mass. 293. An agreement that certain shares are held as collateral securities for a bill, proves that any sum received by the holder therefor should be satisfaction pro tanto: Malpas v. Clements, 19 L. J. Q. B. 435. A mortgage given with a proviso for payment according to the tenor of certain notes is collateral: Murray v. Miller, 1 U. C. Q. B. 353. And such mortgage is not a merger: Gore Bank v. Exton, 27 U. C. Q. B. 332. first part of the definition of an This is similar in effect to the inland bill of exchange given in s. 4. would be inapplicable to a promissory note. See further s. 4 and the notes thereto, pp. 41-43. 83. A promissory note is inchoate and incomplete until Note delivery thereof to the payee or bearer. 1 inchoate 1 The meaning intended by the terms "inchoate and incomplete" is Ind Act,s 20. that the promissory note is not a valid contract, or a negotiable security, until delivery. By s. 2, delivery of a note means a transfer of possession, actual or constructive, from one person to another. See note 8, p. 29. The conditions of a valid delivery are prescribed in s. 21 and the notes thereto pp. 80-86. Sec. 84. Joint and 84. A promissory note may be made by two or more makers, and they may be liable thereon jointly, or jointly Imp. Act,8.85 and severally, according to its tenor: 1 several note. "I promise," 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 signed by several. several note. 2 1 Unless the note is expressed to be a joint and several promise to pay, the makers will only be liable jointly; and a judgment against one joint maker will be a bar to an action against the other: King v. Hoare, 13 M. & W. 494. A joint and several note, although it contains two promises in the alternative, is one contract and one instrument; Gardiner v. Walsh, 5 E. & B. 83. Where the note is the note of a partnership, the signature of the firm's name by one partner operates as the signature of the firm, for each partner represents the firm of which he is a member in such contract. But it is otherwise in the case of joint makers. Each of them must sign the note; and if the agreement between the parties intending to be joint makers, is that each is to sign the contract, the neglect to obtain, or the refusal of, the signature of one of the parties so agreeing, will render the contract incomplete, and therefore not binding, so that the payee cannot recover against those who have signed the note on the faith of such agreement: Leaf v. Gibbs, 4 C. & P. 466. And the addition of a new joint maker to a joint and several note after it has been issued, is a material alteration, and operates as a discharge to the original makers : Gardner v. Walsh, 5 E. & B. 83. In giving judgment, Lord Campbell, C. J., said: “It was argued that although the two contracts, one joint and one several, were written on the one piece of paper, and expressed in the same sentence, they might be treated as if they had been written on separate pieces of paper respectively, and signed by the defendant, and that the separate contract is not affected by the signature which made another person a party to the joint contract. But we must consider that a joint and several promissory note, although it contains two promises in the alternative, is one contract and one instrument, and that if it is designedly altered in any part by the payee, so as to alter the liability of the makers, it is entirely vitiated.” ILLUSTRATIONS. 66 The directors of an unincorporated company made and issued a promissory note in these words: We, directors of the R. Bank of N. for ourselves and the other shareholders of the said company, jointly and severally promise to pay," &c. ;-Held, sufficient to bind the partnership jointly, and that the shareholders were not bound severally: Maclae v. Sutherland, 3 E. & B. 1. A judgment recovered against one of two joint debtors is a bar to an action against the other; but not when the debt is joint and several : King v. Hoare, 13 M. & W. 494. When a note was in these words; "I, J. C., promise to pay A. F. the Sec. 84. sum of £50 with interest on the same, or his order at six months," and was signed “J. C. or else H. B. ;”—Held, not a note of H. B. It operates differently as to the two parties. It is an absolute undertaking on the part of J. C. to pay, and it is conditional only on the part of H. B., for he undertakes to pay only in the event of J. C. not paying: Ferris v. Bond, 4 B. & Ald. 679. A note apparently intended to be joint and several, binds the maker who puts it in circulation with only his own signature: Dickerson v. Burk, 25 Ga. 225; s. p. Holmes v. Sinclair, 19 Ill. 71. "Due W. D. B. in six months," and signed by two persons, is a joint note: Bacon v. Bicknell, 17 Wis. 523. A promissory note, purporting from the words "we promise," &c., to be the note of more than one person, was signed with the name of a single individual, and under his signature were written the initials of the defendant's name, in his own hand-writing ;-Held, that the defendant was presumptively a joint maker; and also, that such presumption was not impaired by proof that the first signature was likewise in the defendant's hand-writing: Palmer v. Stephens, 1 Den. (N. Y.) 471. Though a note is made in the singular number, one who signs after the maker, adding the word "surety" after his name, is thereby bound as a joint and several principal maker : Dart v. Sherwood, 7 Wis. 523; s. p. Sayles v. Sim, 73 N. Y. 551. The payee of a joint and several note, made by two, can only be placed in the situation of treating one as a surety for the other, upon his express consent to do so at the time of taking the note: Ball v. Gilson, 7 U. C. C. P. 531. An alteration of a note by the insertion of the words "jointly and severally;"-Held, that the note was not avoided, but might be sued upon in its original condition: Waterous v. McLean, 2 Man. Ř. 276. "For value received, we jointly and severally promise to pay to W. P. O. or bearer, the sum of £50 cy.," &c. "As witness our hands and seals. this 29th day of April, 1856.-M. M. B.-[L. S.] E. H. G.-[L. S.] Signed, sealed, and delivered, in presence of R. S;"-Held, not a note, but a speciality: Wilson v. Gates, 16 U. C. Q. B. 278. 66 An instrument in the following words: We, the undersigned, do hereby severally promise and agree to pay to F. W. T., Esq., (the plaintiff), agent of the bank of Montreal in Goderich, the sums set opposite our respective names, for the purpose of building an Episcopal Church and Rectory in the town of Goderich ;"-Held, that the instrument was the several promissory note of each subscriber: Thomas v. Grace, 15 U. C. C. P. 462. 2 The rule, where several persons sign a note as makers, is that, in the absence of anything contrary on the face of the note, such persons will be presumed to be joint makers, such as "we promise to pay," &c.: Byles on Bills, 6. But a note reading "I promise to pay," and signed by more than one person, has always been held to be a joint and several note of the parties signing: Clerk v. Blackstock, Holt, 474. The reason apparently is that each person signing such a note adopts the singular number indicated on the note, and therefore makes his contract a separate one to pay the whole amount of the note. Sec. 84. Demand note must be presented. Imp. Act.s.86 ILLUSTRATIONS. "I promise to pay," signed by two, is joint and several: Creighton v. Fretz, 26 U. C. Q. B. 627. A party who signs for a firm makes but one promise, and two promises cannot be made out of one: Ex parte Buckley, 14 M. & W. 469. "I owe Mrs. G., £6, which is to be paid by instalments for rent," is invalid as not specifying dates or amount of instalments: Moffatt v. Edwards, Car. & M. 16. 85. Where a note payable on demand has been indorsed, it must be presented for payment within a reasonable time Ind. Act,s.74. 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: 2 Reasonable time. Not overdue in certain cases. 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: 3 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. 4 1 This clause may be read with the provisions of s. 45, sub-s. 2, (b), which require a bill payable on demand to be presented within a reasonable time after its issue. Under this clause a promissory note payable on demand, after it has been indorsed, must also be presented within a reasonable time. As illustrated in note 1 to s. 82, the payee of a note by indorsing it, stands in the same relation to the note as the drawer stands in relation to a bill. Where there is an indorser, the rules as to presentment for payment of bills, are, in some respects, applicable to notes. the notes to ss. 45 and 86. See 2 This latter part of the clause is new, and is not in the English Act. The rule it lays down is in harmony with the judgment of the Judicial Com. mittee of the Privy Council in the case of the Bank of Van Dieman's Land v. Bank of Victoria, L. R. 3 P. C. 526; see also Chartered Mercantile Bank of India v. Dickson, Ibid., 574. In the latter case it was held that the law with regard to time for the presentment of a note, payable on demand, requires that the presentment for payment should be made with |