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4. B. & Co. make a note payable to C. and Co. or order. X. is a § 83. partner in both firms. C. & Co., perhaps, cannot sue B. & Co. on this note. But if C. & Co. indorse the note, the indorsee could sue.
See sect. 61, ante, p. 210, as to coincidence of right and liability at maturity. “An action,” says Sir F. Pollock, “ between a partner and the firm, or between two firms having a common member, was impossible at common law, and it has not yet been decided that it is possible since the Judicature Acts, but Lord Justice Lindley's opinion is in favour of such actions being now maintainable, and in the former case probably in the firm name.” 2
(3) A note is not invalid by reason only that it Note contain: contains also a pledge of collateral security with collateral
security. authority to sell or dispose thereof.
Would the right to the security pass with the instrument? The question has been touched upon, but not decided. In France the security follows the instrument: Nouguier, $ 715. The Belgian Code de Commerce, $ 26, expressly enacts the same as to bills.
(4) A note which is, or on the face of it purports to be, both made and payable within the British Islands is an inland note. Any other note is a foreign note.
This reproduces with a modification the effect of the repealed 19 & 20 Vict. c. 97, § 7. See sect. 4, ante, p. 15, and note thereto, where the term “ British Islands is defined and the subject is discussed. By sect. 89 (4), post, p. 271, when a foreign note is dishonoured protest thereof is unnecessary. 84. A promissory note is inchoate and in- Delivery
· Lindley, 3rd ed. p. 219; cf. Neale v. Turton (1827), 4 Bing. 149. ? Pollock on Partnership, 5th ed., p. 21, citing Lindley, 5th ed. pp. 265, 267. In Scotland a firm is recognised as an artificial person.
3 Wise v. Charlton (1836), 4 A. & E. 786 : cf. Towne v. Rice (1877), 122 Massachus. R. 67.
4 Storm v. Stirling (1854), 3 E. & B. 832.
complete until delivery thereof to the payee or bearer.
By sect. 2, delivery means transfer of possession, actual or constructive, from one person to another. As to the conditions of a valid delivery, see sect. 21, ante, p. 52.
Joint and several notes.
85. (1) A. promissory note may be made by two or more makers, and they may be liable thereon jointly, or jointly and severally according to its tenour.2
The acceptors of a bill can only be liable jointly, not jointly and severally. A new maker cannot be added to a joint and several note after its issue, and there cannot be a series of makers liable severally, and not jointly and severally. Nor can two makers be liable in the alternative.
A partner, as such, cannot bind his co-partners severally, but by a joint and several note he may bind the firm jointly 5 and himself severally. 6
Judgment, without satisfaction, against one of the makers of a joint note is a bar to proceedings against the other maker ;7 not so if the note be joint and several.8 Payment or satisfaction by one of the makers of a joint and several note discharges it, but where partners are jointly and severally liable on a note a composition in bankruptcy as regards the joint estate does not get rid of the several liability.10
(2) Where a note runs “I promise to pay" and
1 Chapman v. Cottrell (1865), 3 H. & C. 857 ; 34 L. J. Ex. 186.
9 Nicholson v. Revill (1836), 4 A. & E. 675; Beaumont v. Greathead (1846), 2 C. B. 494 ; Thorne v. Smith (1851), 20 L. J. C. P. 71.
10 Simpson v. Henning (1875), L. R. 10 Q. B. 406.
is signed by two or more persons it is deemed to
§ 85. be their joint and several note.?
Conversely a note which runs, “We promise to pay,” and is signed by two or more persons, is deemed to be a joint note only.
In a case where B., X., and Y. were partners, and B. made a note running, “I promise to pay,” but signed it “ for X. and Y.-J.B.," it was held that this was the joint note of the firm. 3
Perhaps if a note runs, “I, John Brown, promise to pay,” and it is signed by Smith as well as Brown, Smith would only be liable as an indorser under sect. 56, and not as a co-maker. 86. (1) Where a note payable on demand has Note payable
on demand. been indorsed, it must be presented for payment within a reasonable time of the indorsement. If it be not so presented the indorser is discharged.*
By sect. 10, read with sect. 89, a note is payable on demand which is expressed to be payable on demand, or at sight, or on presentation, or in which no time for payment is expressed.
(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.
Reasonable time appears to be a mixed question of law and fact. Regard must be had to the nature of the instrument as a continuing security, e.g., ten months may not be an unreasonable time.5
(3) Where a note payable on demand is nego
| Monson v. Drakeley (1873), 16 Amer. R. 74 ; cf. Ridd v. Moggridge (1857), 2 H. & N. 568, dub. Pollock, C.B.
Parsons on Bills, vol. 1, p. 247. 3 Ex parte Buckley (1845), 14 M. & W. 469. * Chartered Bank v. Dickson (1871), L. R. 3 P. C. 574 ; see at p. 579. • Ibid., see at pp. 579 and 584.
tiated, 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.
This sub-section negatives the application of sect. 36 (3), ante, p. 119, to promissory notes payable on demand which are in the nature of continuing securities. In the United States it appears to be settled that a note on demand is deemed overdue after the lapse of a reasonable time from its issue, regard being had to its nature as a continuing security, e.g., it has been held that where a note on demand was indorsed eight months after its date, the indorsee took it subject to all equities attaching to it. It is to be noted that all parties resided in the same place.?
87. (1) Where a promissory note is in the body of it made payable at a particular place, it must be presented for payment at that place in order to render the maker liable. In any other case, presentment for payment is not necessary in order to render the maker liable. 4
Presentment of note for payment to charge maker.
ILLUSTRATIONS. 1. A note is made payable to C. or order on demand. The holder can fue the maker without proving any presentment or demand.5
2. B. makes a note payable to his own order and signs it. Below his rignature are the words “Payable at the Union Bank, London."
See Brooks v. Mitchell (1841), 9 M. & W. 15; Glasscock v. Balls (1889), 24 Q. B. D. 13, C. A.
· Herrick v. Woolverton (1870), 41 New York R. 581.
3 Spindler v. Grellett (1847), 1 Exch. 384 (non-negotiable note); Sands v. Clarke (1849), 8 C. B. 751 ; Vander Donckt v. Thellusson (1849), 8 C. B. 812; Randall v. Thorn & Co., W. N. 1878, p. 150, C. A.
* Price v. Mitchell (1815), 4 Camp. 200 ; E.con v. Russell (1816), 4 M. & S. 507 ; Williams v. Waring (1829), 10 B. & C. 2 (place of payment indi. cated by way of memorandum).
5 Cf. Walton v. Masrall (1844), 13 M. & W. at pp. 455, 458 ; see, too, Norton v. Ellam (1837), 2 M. & W. at p. 464 ; and Maltby v. Murrels (1860), 5 H. & N. at p. 823.
He then indorses the note in blank. The holder can sue the maker,
Compare sect. 52 (1) as to presentment to charge the acceptor of a bill. By virtue of sect. 52 (2), read with sect. 89, where a note is payable on a day certain, the maker will not be discharged, because the note is not presented on that day. In the case of a note payable on demand the Statute of Limitations runs in favour of the maker from the date of the note.3
(2) Presentment for payment is necessary in To charge order to render the indorser of a note liable.4
(3) Where a note is in the body of it made payable at a particular place, presentment at that place is necessary in order to render an indorser liable ;5 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.?
By virtue of sect. 89 presentment for payment will be governed by the same rules as apply to bills, as to which see sect. 45, ante, p. 141. As to excuses for non-presentment and delay, see sect. 46, ante, p. 148. 88. The maker of a promissory note by making Liability of
maker. it (1) Engages that he will pay it according to
1 Masters v. Baretto (1849), 8 C. B. 433.
See also Ramchurn Muũick v. Luchmeechund Radakissen (1854), 9 Moore, P. C. at p. 70.
* Norton v. Ellam (1837), 2 M. & W. 464.
4 Cf. Gibb v. Mather (1832), 2 Cr. & J. at pp. 262, 263 ; Britt v. Lawson (1878), 22 Hun. R. 123, New York, joint and several note.
Roche v. Campbell (1812), 3 Camp. 247. 6 Saunderson v. Judge (1795), 2 H. Bl. 510. 7 Ibid. ; and see Masters v. Baretto (1849), 8 C. B. 433. 8 Story on Notes, $ 118; Walton v. Mascall (1844), 13 M. & W. at p. 458.