§38 Meaning of place. When accept ance omission to present the bill for payment on the day that it matures, but if he is sued before presentation the costs are in the discretion of the Court: sec. 109. A difficulty may possibly arise if the drawee should, by his acceptance, make the bill payable in another town. This would literally be within the words of the Act as an acceptance to pay at a particular specified place," and being a general acceptance the holder could not refuse it, or protest the bill for non-acceptance. It might be very inconvenient for the holder of a bill drawn upon a person in Toronto, if the latter could accept it payable at New York, Chicago, or Winnipeg, and require the holder to present it there in order to bind the drawer and indorsers. The Courts may possibly restrict the word "place" to a bank or other place in the town or locality which is given in the bill as the address of the drawee, and treat an acceptance to pay in another town as a qualified acceptance. There appears, however, to be nothing in the context or in the Act to require such a construction, and "place of payment" in section 88 (b), and in section 93, is distinguished from the address of the drawee as given in the bill. A few words limiting it to the town or locality where the drawee is addressed, or within a certain limited distance, would have removed all uncertainty. It was held in the State of New York that where a bill addressed to "E. C. H., of New York," was "accepted payable at the American Exchange Bank, Clayville Mills," which was in another county, it was a qualified acceptance: Walker v. Bank of N. Y., 13 Barb. 636 (1852); so also where a bill addressed A. Y. & Co., at Cobourg, Upper Canada, and accepted "payable at the Bank Bank of Upper Canada, Port Hope"; Niagara District Bank v. Fairman, 31 Barb. 403 (1860). If the bill as drawn specifies a particular place of payment, and the acceptance names a different one, this would be such a variance as would make the acceptance a qualified one: Rowe v. Young, 2 B. & B. 165 (1820). 39. Every contract on a bill, whether it is the drawer's, the acceptor's or an endorser's, is incomplete. complete and revocable, until delivery of the instrument in order to give effect thereto : Pro vided, that where an acceptance is written on a § 39 bill, and the drawee gives notice to, or according Proviso. to the directions of, the person entitled to the bill that he has accepted it, the acceptance then becomes complete and irrevocable. 53 V., c. 33, s. 21 (1). Imp. Act, ibid. Delivery has been defined in section 2 as the transfer Delivery of possession, actual or constructive, from one person to an- or notice other; and it is here used in that sense. The acceptance must be in writing, but the notification may be either written or verbal. Delivery is necessary also to render the contract of the maker or endorser of a promissory note complete and irrevocable. "Delivery is the final step necessary to perfect the existence of any written contract; and, therefore, as long 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. As to the requisites of an effective delivery and the presumptions regarding the same: see section 40. ILLUSTRATIONS. 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, 9 O. R. 48 (1885); affirmed, 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 nonacceptance, 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. & Ald. 474 (1822). § 39 Delivery. Reiqusites 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. Loyd, 1 Ex. 32 (1847). 5. A partner who is also agent for a creditor of the firm, indoses 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 drawee hears that the drawer has failed and erases his acceptance. 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 composi tion 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. 2 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). 10. The defendant left two blank forms of promissory notes with his agent, with instructions to keep them until defendant gave instructions regarding them. The agent fraudulently filled them up and plaintiff bona fide gave value for them. Held, that as the agent received them as custodian only, and as defendant never delivered them and they never became negotiable notes, he was not liable: Smith v. Prosser, [1907] 2 K. B. 735. Delivery. 40. As between immediate parties, and as regards a remote party, other than a holder in due course, the delivery, Authority. (a) in order to be effectual must be made either by or under the authority of the party drawing, accepting or endorsing, as the case may be; Conditional. (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. 53 V., c. 33, s. 21 (2). Imp. Act, ibid. In the Act of 1890 this section with sections 39 and 41 $40 together formed section 21. Although they have been separated by the revisers they should still be read together. "Immediate parties" are those who have direct dealings with each other in relation to a bill, such as drawer and acceptor, drawer and payee, endorser and next endorsee. 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 56. The present subsection has no application to a holder in due course; delivery as it affects him is dealt with in s-s. 2. 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 anyone 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). Where a promissory note was indorsed on the understanding that it should be available only on the happening of a certain condition, it is not binding where the condition has not been fulfilled. Plaintiff's agent took the note with knowledge of the condition. This was notice to the bank as it was not shown that the agent was a party to a fraud upon it, and it was not enough to show that he had an interest in deceiving the bank: Commercial Bank of Windsor v. Morrison, 32 S. C. R. 98 (1902). The maker of a promissory note alleged on his examination that he made and delivered the note to a company for a purpose other than that for which the company deposited it with the plaintiff, the payee of the note. He did not allege that plaintiff had notice of this, or allege fraud, but merely that plaintiff took the note withont consideration. Held, no defence: Ontario Bank v. Young, 2 O. L. R. 761 (1901). Delivery of bill. Escrow. A bill or note may be delivered conditionally, Escrow. and upon the happening of the event or fulfilment of the condition, no further delivery is necessary. a mere paper writing becomes a valid bill. What was before $ 40 Escrow. Delivery. 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 are bound; but if the instrument be sealed, the rule is 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 (1838). ILLUSTRATIONS. 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: Jeffries 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. & Ad. 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 (1834). 5. Defendant drew on one who was a debtor of himself and plaintiff jointly. The debtor accepted and defendant indorsed and delivered the bill to plaintiff to collect. It was dishonored, and plaintiff sued defendant as indorsee. Held, that this was not an indorsement and delivery that would pass the property: Denton v. Peters, L. R. 5 Q. B. 475 (1870). 6. Where a bill was indorsed and handed to a banker for discount on February 22nd, but was not actually discounted until the |