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4

I i

BILLS OF EXCHANGE, CHEQUES

AND

PROMISSORY NOTES.

T^IE

BILLS OF EEHMGEACTjSaO,

BEING AN ACT RELATING TO

BILLS OF EXCHANGE, CHEQUES AND
PROMISSOKY NOTES

(53 Victoria, Chapter di of the Acts of the Parliament of Canada^

TOGETHER WITH AN

INTRODUCTION, EXPLANATOEY NOTES

ROPBRT STANLEY WEIR, B.O.L.

uft-ID'^OC^SuT'E,

Author of ''An Insolvency Manual," &c.

MONTREAL

A. RKRIARD, I^aw Publisher.

23, ST. JAMES STREET.

1891

A: I

Entered according to Act of Parliament in the year
1890, by RoiJEHT Stanley Weik, B. C. L., and
A. pEKiAFii), in the office of the Minister of Agri-
culture, Ottawa.

INTRODUCTION.

The Bills of Exchange Act, 1890 (53 Vict., ch. 33)
which forms the text of this hand-book, is a reproduction
with some modifications, of the Imperial Statute, 45 and
46 Vict., ch. 61, entitled '' An Act to codify the law
relating to Bills of Exchange, Cheques and Promissory
N-Qtes"— short title, — ^' The Bills of Exchange Act,
1882."

The Canadian Act was introduced in the House of
Commons by Sir John Thompson, Minister of Justice,
early in the session of 1889, but after considerable
progress had been made in committee, it was withdrawn
owing to press of other public business. It was again
introduced by Sir John Thompson in the session of
1890 and after revision by Commons and Senate, was
assented to, on the 16th May, 1890. By special provision,
however, the Act only comes into force on the 1st
September, 1890, and is not retroactive.

A perusal of the debates of both Houses, shows that a
general desire was manifested by honorable members
and senators, to deviate as little as possible from the text
of the English Act, so that we might have in Canada,
the obvious advantages in respect of the important
subjects with which the Act deals, of uniform legislation

INTRODUCTION.

through Canada and the mother country, and the
application of whatever jurisprudence might grow up
around the law in both lands.

The differences between the English and Canadian
Acts include some slight vt rbal changes ; other changes
in respect of presentments, protests and forged bills ; ai d,
also the result of the incorporation of already existing
enactments of our Parliament of proved utility and
advantage. These differences have been as far as
possible, indicated in the text by brackets [ ] , so that
the practitioner or student in referring to English
jurisprudence may readily perceive its applicability.
The effect of this Act being to alter the law in a number
of more or less important particulars, the changes in
the law and the positive declarations upon points that
have hitherto been uncertain, have been indicated by
the simple devices of italics, with the exception of the
sections relating to crossed cheques, which are all new.

By the British North America Act 1867 (30-31 Vict.,
ch. 3, sec, 91, sub-sec. 18) Bills of Exchange and
Promissory Notes are placed amongst those subjects
which are reserved for the exclusive legislative authority
of the Parliament of Canada. This power has now been
exercised for the first time and accordingly all previous
enactments hitherto in force in the provinces, have been
repealed, as will be seen on reference to the second
schedule forming part of the Act. An exception to this
general repeal exists however, as regards the Province
of Quebec, where two articles of the Civil Code under the
title of Bills of Exchange have been retained. These
articles 2341 and 2342, relate to evidence and enact that
in matters doubtful and unprovided for, recourse must

INTRODUCTION.

be had to the laws of England in force on the 30th
May, 1849.

The English Statute which, as has been stated, forms
the basis of the Canadian Statute, was drafted by the
Hon. Judge Chalmers, who had previously prepared and
published a Digest or Codification of the English law on
bills of exchange. In the House of Commons the Bill had
the great advantage of being in charge of Sir Farrer
Herschell (now Lord Herschell) while Lord Bramwell
piloted it through the House of Lords. Besides, in the
House of Commons after the second reading, it was
referred to a Select Committee composed of leading
merchants, bankers and lawyers who tested and revised
it w^ith great care. It is not surprising therefore, that
English merchants and bankers have found the Statute
of great practical service.

A similar result may be fairly predicted for the
Canadian Act. Sir John Thompson, in our Commons,
and the Hon. Mr. Abbott, ip the Senate, have both, like
their English compeers and as Hansard well discloses,
devoted great powers of elucidation and commendable
energy and ability in conducting the Bill through
Parliament. In this task they received valuable aid (if it
be not invidious to mention some names) , from Messrs.
Weldon, Mills, Davies, Mitchell, Patterson, in the
Commons, and the Hon. Messrs. Power, Drummond,
Scott, Kaulbach and Ogilvy in the Senate.

In view of the fact that Judge Chalmers' admirable
work (1) is replete with all essential annotation and
comment, it has not seemed necessary to swell the pro-

(1) A digest of the law of Bills of Exchange, London,

1887.

VI 11

INTRODUCTION.

portions of the present work beyond the requirements of
a brief Manual or Hand-book. Such comments and
references only as seemed desirable for the better elu-
cidation of occasional sections have been made. Those
who desire a more intimate acquaintance with the
jurisprudence which illustrates the text cannot do better
than consult Judge Chalmers' book, to which, as will be
seen, I have frequently referred.

It was the compiler's intention to collate Canadian
jurisprudence with the text, but a desire to keep the
book within modest limits and to supply the immediate
demand for the text of the law in a form convenient for
ready reference, has led him to postpone such an under-
taking for the present.

The changes in the law which this Act effects are not
very numerous, but some of them are important and may
be briefly stated.

Heretofore a bill payable to the holder of an office for
the time being, e.g. a Secretary, Treasurer or President,
was considered invalid by reason of uncertainty. By
sec. 7 such bills are now valid.

A bill payable e.g. to " John Smith " without the words
" or order" has been hitherto held to be non-negotiable.
Under sec. 9 such a bill is now negotiable.

The Act also contains provisions for inserting in a bill
the true date of issue or acceptance by any holder when
such date has been omitted. (Sec. 12.)

Formerly, under article 2290 of the Civil Code for
Lower Canada, it was obligatory to resort to the referee
in case of need. Such resort is now optional, but a bill
must be protested for non-payment before it can be
legally presented to the referee in case of need. (sec. 66.)

•^«

INTRODUCTION',

A corporation can now issue a bill or note under its
seal without signature, altliough its seal is not necessary
if there be a correct signature, (sec. 91.) Under sec.
22, a corporation can legally make a bill if the power to
do so has been conferred upon it by its charter. It is,
however, ultra vires of the Provincial Legislatures to
confer such power. (B. N. A. Act, sec. 91, sub-sec. 18.)

The first paragraph of section 24 gives effect to the
well established principle that a forged or unauthorized
signature is wholly inoperative, and so far, it is an exact
reproduction of the corresponding section of the English
Act. Under the English Act, however, iijuikers who
may pay demand drafts held under forged indorsements
are protected. This feature of the Eup'ish Act hn^ not
not been reproduced in the Canadip.n Act, but section
24 has been amended so that the drawer uf a cheque
shall have no right of action against a drawee who has
charged the drawer with a cheque paid under a forged
or unauthorized signature unless notice of such forgery
be given in writing to the drawee within a year after
the knowledge of the forgery is acquired.

The i^rotest for better security against the drawer and
indorsers (sec. 51) when an acceptor becomes insolvent
or suspends payment, is new to our law, but is quite
consistent with article 1092 of the Civil Code of Lower
Canada, which enacts that the debtor cannot claim the
benefit of the term (or unexpired delay) when he has
become insolvent. In Germany when the acceptor fails
during the currency of a bill, the holder can demand
security from the drawer and indorsers, and in France
he can at once cause the bill to be protested for non-
payment. The effect of this section will be that a bill

INTRODUCTION.

protested for better security may be accepted supra
protest for honor, see sec. 65.

The provisions of Act 2296 of the Civil Code as
to acceptance for honor after protest for non-payment
are not to h^ found in the Act, and the acceptance
for honor can only be offered after protest for non-
acceptance or for better security, and before maturity.
(sec. 65.)

Where the drawee is dead, presentment for acceptance
may now be made to his personal representative or it
may be treated as dishonored by non-acceptance, (sec. 41.)

A presentment through the post-olfice is sufficient
where authorized by agreement or usage, (sec. 45.) This
gives effect to a well established custom in England and
the United States.

Three days are now given for the acceptance of a bill,
viz: the day of actual presentment and two days there-
after. If not then accepted it must be treated for non-
acceptance. (Sec. 17.)

The English Act treats an acceptance to pay at a
particular place as a qualified acceptance which, by sec^
44, the holder may refuse to take, but the Canadian
Act has not reproduced this provision.

If a bill be payable at n particular place, it must be
presented for payment at that place, else the holder may
be obliged to pay the costs of any suit that may have
been taken, if the party liable shows that money had
been provided for the payment of the bill. (sec. 86.)

Art. 2285 Civil Code provided that the words ^' value
received" created a presumption, that the amount
mentioned in the bill had been received thereon, but
now such presumption will exist without such words.

The acceptance must now be written on the bill itself,

INTBODUCTION

but the simple signature of the acceptor without other
words denoting acceptance is sufficient.

A bill payable on demand must be protested within
a reasonable time or the indorser will be discharged,
but not if with the assent of the indorser the bill has
been delivered as a collateral or continuing security,
(sec. 85). A person signing a bill otherwise than as
a drawer or acceptor, e. g. as an indorser pour aval, is
entitled to be protested.

In the Province of Quebec the right to serve notice of
protest at any time within three days next after the day
on which the bill is protested, is now abrogated, and must
be exercised not later than the next following juridical
day. (Sec. 49.) The protest or noting for non-payment
must be made after three o'clock in the afternoon of the
lastday of grace. (Sec. 51.)

The i-rovisions of the English Act as to crossed cheques
have al o been incorporated in the Canadian Act.
Crossed cneques are but little if at all used in this
country, but the growth of commerce and finance will
undoubtedly lead to a widespread use of these convenient
instruments. The practice appears to have originated
in the Clearing House, and was afterwards adopted out-
side. A crossed cheque operates as a caution to a
banker or other holder, and as a general rule bankers
refuse to pay it to any one except a bunker. In this way
the person for whose use the money is received may be
easily traced. The reason crossed cheques are not more
in vogue in this country probably is, that banks exercise
greater caution in paying cheques here than in England,
where the presumptions of law are not so stringent
against bank and bankers.

■ •

Xll

INTEODUCTION.

The foregoing summary embraces the more prominent
changes enacted by the Act. A perusal of the Act wiU
disclose .thers which do not call for special comment a«

EOBT. STAN^LEY WEIR,

:No. 186 St. James Street.

Montreal, June 23rd, 1890.

inenfc

will

Qt as

ntel-

CONTENTS.

PAGES

Introduction v

PART I.

Definitions 1

PART II.

Bills of Exchange. 2

Form and Interpretation 2

Capacity and Authority of Parties 15

The consideration for a Bill 19

Negotiation of Bills 22

General Duties of the Holder 28

Liabilities of Parties 43

Discharge of Bill 46

Acceptance and payment for Honour 48

Lost Instruments 51

Bill in a Set 51

Conflict of Laws 52

PART III.

Cheques on a Bank. 54

Crossed Cheques 55

PART IV.

Promissory Notes. 69
PART V.

Supplementary. 63

First Schedule 67

Second Schedule 78

Index 79

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THE

BILLS OF EXCHANGE ACT, 1890.

PAET I.

PRELIMINARY.

1. This Act may be cited as " The Bills o/shorttitie
Exchange Act, 1890." -^ ^''°"^^"«'

require^'s,-" '^'*' '"'^''' ^^^ «<>^text otherwise interpretation

(«.) The expression ^^ Acceptance " means -Acceptance "
an acceptance completed by delivery or notifi-
cation ;

(5.) The expression '^ Action " includes "Action "
counter claim and set off ;

(c.) The expression ^' Bank " means an "Bank.-
incorporated bank or savings bank carrying on
business in Canada j ^ s ""

Ac^'^f Ls^ed ^?}£^^i^^ '^^*- "Pon which the present
Act IS based, the expression " Banker " incaudes a
body of persons, whether incorporated or not who
carry on the business of banking. ^'^^ *^^ ^o^^ who

r^Stl^^^ expression '^Bearer" means the " Bearer.-
person in possession of a bill or note which is
payable to bearer ;

(e) The expression '' BilP' means bill of "Bin-
note'^''^''' a^id - Note " means promissory " ^°''^"

(/.) The expression ^^ Delivery '^ means <• Delivery. ■-

The Bills of Exchange Act, 1890.

"Holder.'

" Indorse-
ment."

" Issue. "

'• Value.

" Defence.

transfer of possession, actual or constructive,
from one person to another ;

A person has constructive possession when the
Bill is in the possession of his clerk or agent in that
person's behalf.

{g.) The expression '' Holder ' means the
payee or indorsee of a bill or note who is in
possession of it, or the bearer thereof ;

(/i.) The expression ''Indorsement" means
an indorsement completed by delivery ;

(i.) The expression '' Issue " means the first
delivery of a bill or note, complete in form, to
a person who takes it as a holder ;

(j.) The expression '' Value " means valu-
able consideration ;

(A;.) The expression '' Defence " includes
counter-claim. — (45-46 Vict. ch. 61, sec. 2. Stat-
utes of Great Britain.)

This Act deals only with Bills of Excl ange,
Cheques and Promissory Notes. It does not apply
to other negotiable instruments such as negotiable
Bonds or Scrip.

Following the general rule of law applicable to
Statutes, this Act is not retroactive or retrospective.

PAET II.

BILLS OF EXCHANGE.

Form and Interpretation.

Bill of ex-
change
defined.

3* A bill of exchange is an unconditioi:''.!
order in writing, addressed by one pers; : :
another, signed by the person giving it, re' -.i' r
ing the person to whom it is addressed to v ,
on demand or at a fixed or determinable future
time, a sum certain in money to or to the
order of a specified person, or to bearer :

The Bills of Exchange Act, 1890. 3

Exact definitions are proverbially rare, and
the foregoing definition is conspicuously inexact.
A Bill of Exchange is defined as an unconditional
order in writing, and yet no fewer than five condi-
tions are appended as requisite to complete it ! Fur-
ther by a curious contradiction in terms, it is de-
clared (vide sub-sec. 2) that an instrument which
does not comply with these conditions, is not a Bill
of Exchange ! The meaning intended is, of course,
not, that the whole instrument must be uncondi-
tional ; but that the order to pay must be uncondi-
tional.

In the words of the discarded article 2279 of our
Civil Code (which is Chancellor Kent's definition
approved by Judge Story) " a Bill of Exchange is a
written order by one person to another for the pay-
ment of money absolutely and at all events,"

There must in point of form, be three parties to a
Bill of Exchange in its origin, and two of these at
least, must be dififerent persons. They are:

1. The Drawer.

2. The Drawer, who becomes the Acceptor, by
signing his assent to the Bill.

3. The Payee.

The Drawer and Payee may be the same person
or firm, ie. a Bill may be d^ xwn payable to the
drawer or his order.

2. An instrument which does not comply When instru-
with these conditions, or which orders any^chVmf°^
act to be done in addition to the payment of
money, is not, except as hereinafter provided,

a bill of exchange :

3. An order to pay out of a particular fund Unconditional
is not unconditional within the meaning of °'''^®'' '^®^''^'^'
this section ; but an unqualified order to pay,
coupled with (a) an indication of a particular

fund out of which the drawee is to re-imburse
himself, or a particular account to be debited
with the amount, or (6) a statement of the
transaction which gives rise to the bill, is
unconditional :

ILLUSTRATIONS.—!. Pay C. or order $500 out
of the money in your hands belonging to the X.
company. Held, invalid as a Bill of Exchange.

The Bills of Exchange Act, 1890.

Bill is not in-
valid for rea-
sons specified.

2. Pay C. or order $500 out of the money in due
form X. as soon as you receive it. Held, invalid as
a Bill of Exchange.

3. Pay C. or order $500 as my quarterly half pay
due 1st February by advance. Held, valid as a Bill
of Exchange.

4. Pay C. or order |500 against credit No. 20 and
place it to account, as advised per X & Co. Held,
valid as a Bill of Exchange.

For English and American authorities collected
and reviewed see Hunger and Shannon (1870) 61 N.
Y. R. 251 ; and Corbett v. Clark (1878) 30 Amer. R.
763.

4. A Mil is not invalid by reason —
(a.) That it is not dated ;

As to filling in the date in the case of an undated
Bill or Acceptance, see sec. 12 and 20 post. The
alteration of the date is a material alteration, sec.

64 (2).

(b.) That it does not specify the value given, or
that any value has been given therefor ;

Whether a Bill expresses that value has been
given or not,extrinsic evidence is admissiblebetween
immediate parties and those in privity with them,
to impeach the oonsideration, and show its absence,
failure, or illegality. {Abrey v. Crux, L. R.5 C. P. 37.)

(c.) That it does not specify the place
where it is drawn or the place where it is
payable. (Ibid. sec. 3.)

Inland and
foreign bills.

If not noted as
foreign.

4. An inland bill is a bill which is, or on
the face of it purports to be, (a) both drawn
and payable within Canada, or (b) drawn
within Canada upon some person resident
therein. Any other bill is a foreign bill :

2. Unless the contrary appears on the face of the
bill, the holder may treat it as an inland bill :
(Ibid. sec. 4.)

The Bills of Exchange Act, 1890.

•

5« A bill may be drawn payable to, or to if different
the order of, the drawer ; or it may be drawn Sro the same
payable to, or to the order of, the drawee : person.

A bill is sometimes drawn in the form, " Pay
to your own order," when the drawee acts in two
different capacities, e. g. if he be in business on his
own account, and also agent for some other person
interested in the bill. Pardesaus 2339.

2. Where in a bill drawer and drawee are Optional
the same i^erson, (5) or where the drawee is a gpecffled^. °^^°
fictitious person, or a person not having capacity
to contract, the holder may treat the instru-
ment, at his option, either as a bill of exchange
or as a promissory note. {Ibid. sec. 5.)

As when a person does business in two cities,
and draws from one on the other.

<»• The drawee must be named or otherwise Drawee to be
indicated in a bill with reasonable certainty : "*™®^-

2. A bill may be addressed to two or more if there are
drawees, whether they are partners or not ^n^ore than one.
but an order addressed to two drawees in the
alternative, or to two or more drawees in suc-
cession is not a bill of exchange. {Ibid. sec. 6.)

By sec. 19 (d) the acceptance of some one or
more of the drawees, but not of all is a qualified ac-
ceptance.

This section does not conflict with sec. 15 which
provides as to a referee or drawee in case of need.

T. Where a bill is not payable to bearer, certainty re-
the payee must be named or otherwise indicated q«ired as to
therein with reasonable certainty : payee.

2. A bill may be made payable to two or if payable to

Eayees, or to
old

Ider of

more payees jointly, or it may be made pay- *^^° °'* ™°^^
able in the alternative to one of two, or one ^^
or some of several payees. A bill may also be
made payable to the holder of an office for the
time being :

The Bills of Exchange Act, 1890,

If payee is
non-existing.

Certain bills
valid but not
negotiable.

Payable to
order or
bearer.

To bearer.

To order.

Option of
payee.

Heretofore a bill payable e. g. to the Treasurer
or other official of a society was considered invalid
as a Billjbv reason of uncertainty . This section makes
the law clear, and such Bills are now valid.

3. Where the payee is a fictitious or non-exist-
ing yerson, the bill may be treated as payable to
bearer. (Ibid.)

This is supplemented by sec. 54, which provides
that the acceptor is precluded from denying to a
holder in due course, the existence of the payee and
his then capacity to indorse ; and by sec. 55 which
enacts that the drawer is precluded from denying
to a holder in due course the existence of the payee
and his then capacity to indorse, and that the
indorser is precluded from denying to a holder in
due course the genuineness and regularity of all
previous indorsements. Vide sees. 54 and 55 post.

Hm When a bill contains words prohibiting
transfer, or indicating an intention that it should
not be transferable, it is valid as between the par-
ties thereto, but it is not negotiable :

2. A negotiable bill may be payable either
to order or to bearer :

3. A bill is payable to bearer which is express-
ed to be so payable, or on which the only or last
indorsement is an indorsement in blank :

4. A bill is payable to order which is expressed
to be so payable, or which is expressed to be pay-
able to a particular person, and does not contain
words prohibithig transfer or indicating an intent-
ion that it should not be transferable :

A bill payable e. g. to " John Smith " without the
words " or order " has been hitherto held to be
non-negotiable. Under the Act such a Bill is now
negotiable.

5. Where a bill, either originally or by
indorsement, is expressed to be payable to the
order of a specified person, and not to him or

The Bills of Exchange Act, 1890. 7

his order, it is nevertheless p.ayable to him or
his order, at his option. (Ibid.)

9. The sum payable by a bill is a sum certain sum payable,
within the meaning of this Act, although it
is required to be paid —

(a.) With interest ;

The legal rate of interest at present is 6 per
cent, and is the rate presumed, m default of any
other rate being specially mentioiied. (R. S. 0. ch.
127, sec. 2.

(6.) By stated instalments :

(c.) By stated instalments, with a provision
that upon default in payment of any instal-
ment the whole shall become due ;

(tZ.) According to an indicated rate of ex-
change, or according to a rate of exchange to
be ascertained as directed by the bill :

2. Where the sum payable is expressed in Discrepancy
words and also in figures, and there is a dis- Sguresand
crepancy between the two, the sum denoted ^^ords.

by the words is the amount payable.

3. Where a bill is ex j)ressed to be payable interest.
with interest, unless the instrument otherwise
provides, interest runs from the date of the

bill, and if the bill is undated, from the issue
thereof. (Ibid.)

lO. A bill IS payable on demand — Riii payable

^ \ Tirx.- 1- • 3 J. 1 1.1 on demand.

(a.) Which IS expressed to be payable on
demand, or on presentation ; or —

(6.) In which no time for payment is ex-
pressed :

2. Where a bill is accepted or indorsed Acceptance,
when it is overdue, it shall, as regards the overdue!"
acceptor who so accepts, or any indorser who
so indorses it, be deemed a bill payable on
demand. {Ibid.)

The Bills of Exchange Act, 1800.

tii

v;i

Bill payable
at a future
time.

As to contin-
guncics.

!!• A bill is payable at a determinable
future time, within the meaning of this Act,
which is expressed to be payable —

(a.) At a fixed period after date or sight :

(&.) On or at a fixed period after the occur-
rence of a '^^)ecified event which is certain to
happen, though the time of happening is uncer-
tain :

2. An instrument expressed to be payable
on a contingency is not a bill, and the hap-
pening of the event does not cure the defect.
{Ihid.)

Omission of 13* Where (i hill expressed to he 2^o?/ahle at a

payaWe^aftcr J^-^^d pcrlod after date is issued undated, or where

date. the acceptance of a hill pay ahle at a fixed period

after sight is undated, any holder may insert

therein the true date of issue or acceptance, and

the hill shall he payahle accordingly,

This section throws any possible inconvenience
that may arise from the omission to date the bill on
the negligent party who omitted to date the bill.
Chalmers, 29.

Provided that (a) where the holder in good
faith and by mistake inserts a wrong date, and
(h) in every case where a wrong date is inserted,
if the bill subsequently comes into tne hands
of a holder in due course, the bill shall not be
voided thereby, but shall operate and be pay-
able as if the date so inserted had been the
true date. (Ihid.)

As to wrong
date.

,«

Date pWmd l^* Where a bill or an acceptance, or any

/acie evidence. iii(jorsement ou a bill, is dated, the date shall,

unless the contrary is proved, be deemed to

be the true date of the drawing, acceptance,

or indorsement, as the case may be :

Certain dat- 2. A bill is not invalid by reason only that

vSidate.°^" it is antedated or postdated, or that it bears

The mih of Exchange Act, 1S90. 9

date on a Suiitlay [or other uoii -juridical day.]

{Ibid.)

14. Where a bill is not payable on demand, computation
the day on which it falls due is determined aspaymeiu.
follows : —

(rt.) Three days, called days of j^race, are, i>ay3 of grace,
in every case where the bil' itself does not
otherwise provide, added to the time of pay-
ment as tixed by the bill, and the bill is due
and payable on the last day of grace : Provided
that —

(1.) Whenever the last day of grace falls on Non-juridical
a legal holiday or non-juridical day in the^***^'
Province where any such bill is payable, then
the day next following, not being a legal holi-
day or non-juridical day in such Province,
shall l)e the last day of grace :

Under the Imperial Act, when the last day of
grace falls on Sunday, Christmas Day, Good Friday,
or a day appointed by Royal Proclamation as a
public fast or thanksgiving day, the bill is due pay-
able on the preceding business day ; except when
the last day of grace is a bank holiday other than
the holidays just mentioned, or when the last day
of grace is a Sunday, and the second day of grace
is a Bank Holiday, the bill is due and payable on
the succeeding business day.

2. In all nuitters relating to bills of exchange ^^'^at shall be

SUCil

the following and no other shall be observed
as legal holidays or non-juridical days, that is
to say :

(a.) In all the Provinces of Canada, except ?" a^i Prov-

, , ^ T» . n r^ \ ' inces except

the Province of Quebec — Quebec.

Sundays ;
New Year's Day ;

Good Friday ; (a movable festival.)
Easter Monday ; (a movable festival.)
Christmas Day ;
The birthday (or the day fixed by proclama-

10 The Bills of Exchange Act, 1890.

In Quebec.

! .= 1

In every
Province.

Days to be
computed
when time
begins to run.

When time
begins to run.

tion for the celebration of the birthday) of the
reigning Sovereign j and if such birthday is a
Sunday, then the following day ;

The first day of July (Dominion Day), and
if that day is a Sunday, then the second day of
July as the same holiday ;

Any day appointed by proclamation for a
public holiday, or for a general fast, or a gene-
ral thanksgiving throughout Canada ; and the
day next following New Year's Day and Christ-
mas Day when those days respectively fall on
Sunday ;

(6.) And in the Province of Quebec the said
days, and also —

The Epiphany ;

Epiphany {le jour dea Roia) is observed on the
6th of January.

The Annunciation ; (25th of March.)
The Ascension ; (a movable festival.)
Corpus Christi ; (a movable festival.)
St. Peter and St. Paul's day; (24th of June.)
All Saints' Day ; (1st November.)
Conception Day ; (8th December.)
(c.) And also, in any one of the Provinces of
Canada, any day appointed by proclamation of
the Lieutonant Governor of such Province for
a public holiday, or for a fast or thanksgiving
within the same, or being a non-juridical day by
virtue of a statute of such Province :

3. Where a bill is payable at sight, or at a
fixed period after date, after sight, or after the
happening of a specified event, the time of
payment is determined by excluding the day
from which the time is to begin to run and by
including the day of payment : {Ibid. sec. 14,
suh-aee. 2.)

4. Where a bill is payable at sight or a fixed
period after sight, the time begins to run

of the
ly is a

), and
day of

for a
gene-
ad the
hrist-
fall on

le said

on the

rune.)

ices of
3ion of
ice for
giving
layby

r at a
er the
lie of
e day
ad by
c. 14,

fixed
• run

The Bills of Eocchange Act, 1890. 11

from the date of the acceptance if the bill is
accepted, and from the date of noting or pro-
test if the bill is noted or protested for non-
acceptance, or for non-delivery : {Ibid, sub-
sec. 3.)

5. 'ine term ^^ Month " in a bill means the "Months. "
calendar month : (Ibid, sub-sec. 4.)

[6. Every bill which is made payable at a Reckoning of
month or months after date becomes due on
the same numbered day of the month in which
it is made payable as the day on which it is
dated — unless there is no such day in the
month in which it is made payable, in which
case it becomes due on the last day of that month
— with the addition, in all cases, of the days
of grace.] (Revised Statutes of Canada, ch.
123. sec. 1.)

15. The drawer of a bill and any indorser Case of need,
may insert therein the name of a x^erson to
whom the holder, may resort in case of need,
that is to say, in case the bill is dishonored
by non-acceptance or non-payment. Such
person is called the referee in case of need. It
is in the ojytion of the holder to resort to the re-
feree in case of need or not, as he thinks fit. (Ibid.)

Under the law of ^^e Province of Quebec hith-
erto, it was obligatory, not optional, to resort to
the Referee. See Civil Code 2290.

lO. The drawer of a bill, and any indorser, Optional
may insert therein an express stipulation — ^''drawer'or

(a.) Negativing or limiting his own liability indorser.
to the holder ;

Illustration.—" Pay D, or order without re-
course to me."

(b.) Waiving, as regards himself, some or
all of the holder's duties. (Ibid.)

12 The Bills of Exchange Act, 1890.

Illustration. — C. endorses to D., adding '' Pro-
test waived." No subsequent holder is obliged to
give notice of protest to C.

I :,

I. I]!

Definition of
acceptance.

Requisites of
acceptance.

Where name
misspelt.

IT. The acceptance of a bill is the significa-
tion by the drawee of his assent to the order
of the drawer :

2. An acceptance is invalid unless it com-
plies with the following conditions, namely: —

(a.) It must be written on the bill and be
signed by the drawee. The mere signature of the
drawee without additional words is sufficient ;

(&.) It must not express that the drawee
will perform his ijromise by any other means
than the payment of money : (Ibid.)

[3. Where in a bill the drawee is wrongly
designated or his name is misspelt, he may
accept the bill as therein described, adding, if
he thinks fit, his proper signature, or he may
accept by his proper signature.]

Time for ac-
ceptance.

Date, in case
of acceptance
after dis-
honor.

is. A bill may be accepted —

{a.) Before it has been signed by the drawer,
or while otherwise incomplete j

(6.) When it is overdue, or after it lias been
dishonored by a previous refusal to accept, or
by non-payment :

In such a case the Bill would be payable on de-
mand.

2. When a hill payable after sight is dishon-
ored hy non-acceptance^ and the drawee subse-
quently accepts ity the holder, in the absence of
any different agreement, is entitled to have the
bill accepted as of the date of first presentment to
the drawee for acceptance. {Ihid.)

This provision is intended to put the holder
in the same position, as far as possible, as that
which he would have held, if the bill had not been
dishonored by non-acceptance.

The Bills of Exchange Act, 1890. 13

19. An acceptance is either (a) general, or General and
(6) qualified : a general acceptance assents SJptances**'
without qualification to the order of the drawer ;

a qualified acceptance in express terms varies
the effect of the bill as drawn :

2. In particular, an acceptance is qualified Qualified ac-
which is- ^^P'*"^^-

(fl.) Conditional, that is to say, which makes
payment by the acceptor dependent on the
fulfilment of a condition therein stated, but
an acceptance to pay at a particular spe-
cified place is not conditional or qualified ;

The following is a conditional acceptance. —
" Accepted— payable on giving up bills of lading for
clover, per ship " Amazon." Smith v. Vertue (1860)
40 L. J. C. P. 56.

Under the Imperial Act an acceptance to pay at
a particular place is a qualified acceptance. The
Canadian Act differs in this respect.

(6.) Partial, that is to say, an acceptance to
pay part only of the amount for which the bill
is drawn ;

As where A draws on B. for $500, and B accepts
for |250.

(c.) Qualified as to time ;

As where A draws on B for $500, payable two
months after date and B accepts payable six months
after date.

(fZ.) The acceptance of some one or more of
the drawees, but not of all. {Ibid.)

20. Where a simple signature on a blank inchoate in-
paper is delivered by the signer in order that ^'''"™^"'^^'
it may be converted into a bill, it operates as

a prima facie authority to fill it up as a com-
plete bill for any amount, using the signature
for that of the drawer, or the acceptor, or an

When to be
filled up.

As to subse-
quent holder.

14 The Bills of Exchange Act, 1890.

indorser ; and, in like manner, when a bill is
wanting in any material particular, the person
in possession of it has di prima facie authority to
fill up the omission in any way he thinks fit :

2. In order that any such instrument when
completed may be enforceable against any
person who became a party thereto prior to
its completion, it must be filled up within a
reasonable time, and strictly in accordance
with the authority given ; reasonable time for
this purpose is a question of fact :

Provided, that if any such instrument, after
completion, is negotiated to a holder in due
course, it shall be valid and eflfci'tual for all
purposes in his hands, and he may enforce it
as if it had been filled up within a reasonable
time and strictly in accordance with the au-
thority given. (Ibid.)

Illustrations.— (1) Bill drawn payable to— or
order. Any holder for value may write his own or
name in the blank, and sue on the bill, (Cruchly v.
Mann, F. Taunt. 529.)

(2) B gives C a blank acceptance to accommo-
date him, and without receiving value. After B's
death it is filled up and discounted with D,who sees
it filled up. D cannot recover the amount from B's
estate (Hatch v. Searles 24 L. J. Oh. 22.)

3. A blank acceptance by B is stolen and then
filled up. Even a holder in due course cannot
recover from B. The instrument was inchoate and
was never delivered. Boxendale v. Bennet, 3 Q. B.
D. 525, 0. A.

,'•

Contract not 31. Every contract on a bill, whether it is
deuve?y? ^^^^^ the drawer's, the acceptor's or an indorser's,
is incomplete and revocable, until delivery of
the instrument in order to give effect there-
to :

Vide sec. 2 (/) ante for definition of " delivery."
Illustration.-B owes C |500 and makes a note for
the amount payable to C. B dies, and the note is

The Bills of Exchamje Act, 1890. 15

it is

Requisites as
to delivery.

afterwards found amon^ his papers. C has no
right to this note, and if it be given to him he
cannot recover. Cox v. Troy. 1822 5B. and Aid. 474.
" In order to make the property in bills pass, it
" is not sufficient to indorse them. They must be
" delivered to the indorsee, or the agent of the in-
" dorsee. If the indorsee delivers them to his own
" agent he can recover them ; if to the agent of the
" indorsee he cannot recover them." Ex parte G6t6
(1873) L. R. 9. Ch. 27.

Piovided, fchat where an acceptance is writ- Exception
ten on a bill, and the drawee gives notice to,
or according to the directions of, the person
entitled to the bill that he has accepted it, the
uoeoptance then becomes complete and irre-
vocable :

2. As between immediate parties, and as
regards a remote party, other than a holder
in due course, the delivery —

(a.) In order to be '^^ actual must be made By whom,
either by or under the authority of the party
drawing, accepting or indorsing, as the case
may be ;

(6.) 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;

But if the bill is in the hands of a holder in
due course, a valid delivery of the bill by all
parties prior to him, so as to make them liable
to him, is conclusively presumed :

3. Where a bill is no longer in the posses-
sion of a party who has signed it as drawer, ac-
ceptor or indorser, a valid and unconditional
delivery by him is pres ^med until the contrary
is proved. {Ibid.)

Conditional
delivery.

When valid

delivery
presumed.

Capacity and Authority of Parties.

22- Capacity to incur liability as a party to a Capacity of
a bill is co-extensive with capacity to contract, p*^^^®^*

Tli,e Bills of Exchange Act, 1890.

As to Corpora-
tions.

Drawing or
indorsing by
person not
competent.

Signature
essential to
liability.

Exceptions.

Provided, that nothing in this section shall
enable a corporation to make itself liable
as drawer, acceptor or indorser of a bill, unless
it is competent to it so to do under the law for
the time being in force relating to such corpo-
ration :

This provision will enable a corporation to
make a Bill if the power to do so has been conferred
upon it by its charter.

It is ultra vires of the Provincial Legislatures to
confer such power.

A corporation which is not empowered by its
charter to make or indorse Bills of Exchange or
Promissory Notes, cannot validly do so.

In the Province of Quebec (Civil Code 1301), a wife
cannot bind herself with or for her husband, other-
wise than as being common as to property; any
such obligation contracted by her in any|other qual-
ity is void and of no effect.

2. Where a bill is drawn or indorsed by an
infant, minor, or corporation having no capa-
city or power to incur liability on a bill, the
drawing or indorsement entitles the holder to
receive payment of the bill, and to enforce it
against any other party thereto. {Ibid.)

23. ^o person is liable as drawer, indorser,
or acceptor of a bill who has not signed it as
such : Provided that —

(a.) Where a person signs a bill in a trade
or assumed name, he is liable thereon as if
he had signed it in his own name ;

(b.) The signature of the name of a firm is
equivalent to the signature by the person so
signing of the names of all persons liable as
partners in that firm. {Ibid.)

In the Province of Quebec, it is sufficient in
actions upon Bills of Exchange or Promissory Notes
to give the initials of the Christian or first names of
the defendant, as written upon such bills, notes or
instrument. (Art. 49 Code of Civil Procedure.)

mmi

The Bills of Exchange Act, 1890 17

24. Subject to the provisions of this Act, Forged or un-
where a signature on a bill is forged or placed s/gnaTure.
thereon without the authority of the person
whose signature it purports to be, the forged
or unauthorized signature is wholly inopera-
tive, and no right to retain the bill or to give a
discharge therefor or to enforce payment there-
of against any party thereto can be acquired
through or under tliat signature, unless the
party against whom it is sought to retain or
enforce payment of the bill is precluded from
setting up the forgery or want of authority :

For the Province of Quebec Article 145 of the
Code of Civil Procedure provides as follows : "Every
" denial of signature to a Bill of Exchange, Prom-
" issory Note, or other private writing or document
" upon which any claim is founded, must be accom-
" panied with an affidavit of the party making the
" denial, or of some person acting as his agent or
" clerk, and cognizant of the facts in such capacity,
'• that such instrument or some material part there-
" of is not genuine, or that his signature or some
" other on the document is forged, or, in the case of
" a Promissory Note or Bill of Exchange, that the
" necessary protest, notice and service have not
been regularly made, stating in what the irregu-
larity consists; without prejudice however to the
recourse of such party by improbation."
The word " precluded " was inserted in the Im-
perial Act in lieu of the word " estopped " in defer-
ence to the law of Scotland which does not make
use of the English expression. A forgery cannot be
ratified, yet a person whose signature has been
forged may by his conduct be estopped from deny-
ing its genuineness to an innocent holder, as where
he declares a forgery of his signature to be genuine.
Brook V. Hook (1871) L. R. 6 Ex. 100, cited by Chal-
mers at p. 66.

Provided that nothing in this section shall proviso.
affect the ratification of an unauthorized sig-
nature not amounting to a forgery : (Ibid.)
[And provided aho, that if a cheque, payahle to
order, is paid by the drawee upon a forged indorse-

((

*K,

18 The Bills of Exchange Act, 1890.

ment out of the funds of the drawer^ or is so paid
and charged to his accountj the drawer shall have
no right of action against the drawee for the re-
covery hack of the amount so paid, or no defence
to any claim made by the drawee for the amount
so paid, as the case may be, unless he gives notice
in writing of such forgery to the drawee within
„ . ^ one year after he has acquired notice of such

X roviso ' 8.3 to *^ v -*- t/

payment on forgery ', and in case of failure by the drawer to
dSlement. ^^^^ ***^'^ notice within the said period, such cheque
shall be held to have been paid in due course as
respects every other party thereto or named there-
in, who has 7iot previously instituted proceedings
for the protection of his rights.']

I
i

Procuration
signatures.

Person sign-
ing as agent
or in repre-
sentative ca-
pacity.

25. A signature by procuration operates as
notice that the agent has but a limited author-
ity to sign, and the principal is bound by such
signature only if the agent in so signing was
acting within the actual limits of his autho-
rity. (Ibid.)

20. Where a person signs a bill as drawer, in-
dorser or acceptor, and adds words to this signa-
ture indicating that he signs for or on behalf of a
principal, or in a representative character, he is
not personally liable thereon ; but the mere addi-
tion to his signature of words describing him as
an agent, or as filling a representative character,
does not exempt him from personal liability :

He who desires to avoid personal liability, should
sign the name of his principal to the bill and then
add words showing that he is merely an agent ;
but if he signs his own name first he will be person-
ally liable, notwithstanding any words added there-
to, which declare him an agent. Unless he says
plainly, " I am the mere scribe," he is liable.

Rule for de- 2. In determining whether a signature on a
sfgnature.^'^ ° bill is that of the principal or that of the agent

The Bills of Exchange Act, 1890, 19

by whose hand it is written, the construction
most favorable to the validity of the instru-
ment shall be adopted. (Ibid.)

The Consideration for a Bill.

should
then
igent ;
erson-
there-
e says

on a
agent

JJT. Valuable consideration for a bill may valuable

I, i • J. i. J 1 considoration :

be constituted by — how constitut-

(a.) Any consideration sufficient to support*''^*
a simple contract ;

(&.) An antecedent debt or liability ; such
a debt or liability is deemed valuable consid-
eration, whether the bill is payable on demand
or at a future time :

2. Where value has at any time been given When holder
for a bill, the holder is deemed to be a holder vaiue^'''' ^''''
for value as regards the acceptor and all parties

to the bill who became parties prior to such
time :

3. Where the holder of a bill has a lien on As to iien.
it, arising either from contract or by impli-
cation of law, he is deemed to be a holder for
value to the extent of the sum for which he

has a lien. (Ibid.)

A Bill is primd facie presumed to have been ne-
gotiated to the holder for value, and not to have
been pledged or deposited as collateral security.

The " discount " of a bill must be distinguished
from the pledge or deposit of a bill as security. A
discounter is a holder for full value. The holder of
a bill as security must use due diligence with refer-
ence to it. He must not part with it ; he must, if he
can, collect it at maturity ; if he cannot he should
protest the parties to it. Peacock v. Purcell (1863)
32 L. J. C. P. 266.

A banker has, in the absence of an agreement to
the contrary, a lien on all bills received from a
customer in the ordinary course of banking business
in respect of any balance that may be due from sucL
customer. Chalmers, 77.

Accommoda-
tion party to a
bill.

HiH liability,

; i

Holdci" in duo
course.

i! t

Title defec-
tive in cases
specitiod.

20 The Bills of Exchange Act, 1890.

S8. An accommodation party to a bill is a
person who has sij^ned a bill as drawer, accep-
tor, or indorser, without receiving value there-
for, and for the purpose of lending his name
to some other person :

2. An accommodation party is liable on the
bill to a holder for value j and it is immaterial
whether, when such holder took the bill, he
knew such party to be an accommodation party
or not. (Ibid.)

2!>. A holder in due course is a holder who
has taken a bill, complete and regular on the
face of it, under the following conditions,
namely —

{a. ) That he became the holder of it before
it was overdue and without notice that it had
been jjreviously dishonored, if such was the
fact ;

(b.) That he took the bill in good faith and
for value, and that at the time the bill was
negotiated to him he had no notice of any
defect in the title of the person who negotiated
it:

Notice means actual knowledge, not necessar-
ily formal notification.

2. In particular, the title of a person who
negotiates a bill is defective within the mean-
ing of this Act when he obtained the bill, or
the acceptance thereof, by fraud, duress, or
force and fear, or other unlawful means, or for
an illegal consideration, or when he negotiates
it in breach of faith, or under such circum-
stances as amount to a fraud :

The Civil Code of Lower Canada provides that
error, fraud, violence or fear give a right of action
or exception to annul or rescind contracts. Arts.
991, 1000.

(

The Bills of Exchange Act, 1S90. 21

8. A holder, whether for value or not, who Hi(?ht of sub-
derives his title to a bill thronjih a holder in Her/
due course, and who is not himself a party to
any fraud or illegality affecting it, has all the
rights of that holder in due course as reganls
the acceptor and all parties to the bill prior to
that holder. (Ibid.)

S50. Every party whose signature appears
on a bill is prima facie deemed to have become
a party thereto for value :

2. xVnd every holder of a bill is prima facie
deemed to be a holder in due course ; but if,
in an action on a bill, it is admitted or proved
that the acceptance, issue or subsequent nego-
tiation of the bill is aifected with fraud, duress,
or force jind fear, or illegality, the burden of
proof that he is such holder in due course
shall be on him, unless and until he proves that,
subsequent to the alleged fraud or illegality,
value has in good faith been given for the bill
[by some other holder in due course :] {Ibid.)

I'rosuinption
of value and
good faith.

On whom bur-
den of proof
li(,'s.

See Chalmers pp. 84-91 for illustration and ex-
position of this section.

[3. No bill, although given for a usurious
consideration or upon a usurious contract, is
void in the hands of a holder, unless such
holder had at the time of its transfer to him
actual knowledge that it was originally given
for a usurious consideration, or upon a usurious
contract :] (R. S. C. ch. 123, sec. 17.)

[4. Every bill or note the consideration of
which consists, in whole or in part, of the
purchase money of a patent right, or of a
partial interest, limited geographically or
otherwise, in a patent right, shall have written
or printed prominently and legibly across the
face thereof, before the same is issued, the

Usurious con
sidoration.

Consideration
consisting of
purchase
money of
patent right.

Liability of
transferee.

Penalty.

Negotiation of
bUIs.

22 The Bills of Exchange Act, 1890.

words '^ given for a patent right : " and without
such words thereon such instrument and any
renewal thereof shall be void, except in the
hands of a holder in due course without notice
of such consideration :] (R. S. C. ch. 123, sec.
12.)

[5. The indorsee or other transferee of any
such instrument having the words aforesaid
so printed or written thereon, shall take the
same subject to any defence or set-off in respect
of the whole or any part thereof which would
have existed between the original parties :]
(R. S. C. ch. 123, sec. 13.)

[6. Every one who issues, sells or transfers,
by indorsement or delivery, any such instru-
ment not having the words ^' given for a patent
right " printed or written in manner aforesaid
across the face thereof, knowing the consider-
ation of such instrument to have consisted, in
whole or in part, of the purchase money of a
patent right, or a partial interest, limited geo-
graphically or otherwise, in a patent right, is
guilty of a misdemeanor, and liable to impri-
sonment for any term not exceeding one year,
or to such fine, not exceeding two hundred
dollars, as the court thinks fit.] (R. S. C. ch.
123, sec. 14.)

Sub-sections 3, 4, ^ and 6 are not to be found in the
Imperial Act but as they already formed part of our
law, they were incorporated in this act by Parlia-
ment, for greater convenience.

Negotiation of Bills.

31. A bill is negotiated when it is trans-
ferred from one person to another in such a
manner as to constitute the transferee the
holder of the bill :

" Holder " defined by sec. 2, (y) ante.

The mils of Krchnvf/r A rf, JSOO. 21)

2. A bill pjiyablo to boiirer is iicj^otiiitedToboaror.
by delivery :

" Bearer " and '' delivery " delinedby Bec.2,{d)(f).

3. A bill payable to order is ne<;()tiate<l byToorcUr.
the indorseiiient of the holder eoiiipleted by
deliveiy :

4. Where the holder of a bill pavable to his ^^'»tiio"t »"-
order Iraiislers it tor value williout indorsing

it, the transfer j^ives the transferee sueh title
as the transferrer had in the bill, and the
transferee in addition acquires the ri;;ht to
have the inchnseinent of the tiansferrer :

5. Where any person is undrr oblii;aliou to|V,T«o""'i i'(^-

. , 111- i . • i 1 I'llity maybe

indorse a bill in a representat iv(i ('a[)aeity, hCavoidod.

may indorse the bill in sueh terms as to

negative personal liability. (45-40 Vict. ch.

Gl, sec. 31, Imp. Act.)

See sec. 16, (a) ante as to such indorsements.

S2. An indorsement in order to operate as iiequisites of

a negotiation must comply with thv.' i"ollo\ving!J^L'[ncnt.^"**°'^"
conditions, namely : —

(«.) It mnst be written on the bill itself and
be signed by the indorser. The simi)le sig-
nature of the indorser on the bill, without
additional words, is sulhcit^nt 5

An indorsement on the face of a Bill is valid.
Young v. Glover (1857) 2 Jur. N. S. Q. K. 637.
Indorsement is only completed by delivery.

An indorsement written on an allonge, or Allonge,
on a ^' copy "of a bill issued or negotiated
in a country where '' copies " are recognized,
is deemed to be written on the bill itself;

Allonge. A paper annexed to a Bill of Ex-
change or a Promissory Note, on which indorse-
ments for which there was not space on the instru-
ment, are written. Story, B. of E. sec. 204, 218.

2 4 The Bills of E.^ichange Act. 1890.

Misspelling.

: B

(6.) It must be an indorsement oi tti'^ entire
bill. A partial indorsement, that is to say,
an indorsement which purports to transfer to
the indorsee a part only of the amount payal)le,
or which purports to transfer the bill to two
or more indorsees severally, does not operate
as a negotiation of the bill ;

(c.) Where a bill is payable to the order of
two or more payees or indorsees who are not
partners, all must indorse, unless the one
indorsing has authority to indorse for the
others ;

2. Where, in a bill payable to order, the
payee or indorsee is wrongly designated, or
his name is misspelt, he may indorse tlie bill
as therein described, adding his proper sig-
nature ; or he may endorse by his own proper
signature :

Order of in-
dorsement.

Special in-
dorsement.

A question sometimes arises as to how a bill pay-
able (say) to " Mrs. John Jones " should be indors-
ed. The proper form appears to be " Ellen Jones,
wife of John Jones " although many bankers insist
upon ipsissima verba et literse.

3. Where there are two or more indorsements
on a bill, each indorsement is deemed to have
been made in the order in which it api)ears on
the bill, until the contrary is proved :

4. An indorsement may be made in blank or
special. It may also contain terms making it
restrictive. (Ibid. sec. 32.)

Conditional
indorsement.

SSS. Where a bill purpor*fi to be indorsed con-
ditionally^ the condition may be disregarded by the
payer ^ and payment to the indorsee is valid., whether
the condition has been fulfilled or not, {Ibid. sec.
33.)

This section alters the law. It was formerly held
that if a bill was indorsed conditionally, the ac-

The Bills of Exchange Act, 1890.

or
it

Indoraeinent
in blank.

Special in-
(lor.sement.

Application
of Act to in-
dorsee.

Coil version of
blank indor-
sement.

ceptor paid it at his peril if the condition was not
fulfilled. Even although it might be imposible for
him to ascertain whether the condition was fulfill-
ed or not. Robertson v Kensington (4 Taanton 35.)

1^4. An indorsement in blank spe -ifies no
indorsee, and a bill so indorsed becomes pay-
able to bearer :

2. A special indorsement specifies the person
to whom, or to whose order, the bill is to be
payable :

3. The provisions of this Act relating to a
payee apply, with the necessary modifications,
to an indorsee under a special indorsement :

4. Where a bill has been indorsed in blank,
anv holder mav convert the blank indorsement
into a special indorsement by writing" above
the indorser's signature a direction to pay the
bill to or to the order of himself or some other
person. (Thid. sec. 34.)

The holder may at any time, strike out any in-
dorsement which is not necessary to his title. The
indorser whose signature is intentionally struck out
and all indorsers subsequent to him, are discharged
from liability. Otherwise, if the signature is struck
out by mistake. Chalmers. 101.

im. An indorsement is restrictive which Restrictive
prohibits the further negotiation of tlie bill,™^'"'"^'''"''"^
or which expresses that it is a mere authority
to deal with the lull as thereby directed, and
not a transfer of the ownership thereof, as, for
example, if a bill is indorsed " Pay D only,"
or ^' Pay D for the account of X," or '' Pay D,
or order, for collection : "

2. A restrictive indorsement gives tlieindor- Right of in-
see the right to receive payment of the billunS!
and to sue any party thereto that his indorser
could have sued, but gives liim no power to
transfer his rights as indorsee unless it ex-
pressly authorizes him to do so :

If further
transfer is
authorized.

26 The Bills of Exchange Act, 1890.

3. Where a restrictive indorsement author-
izes further transfer, all subsequent indorsees
take the bill with the same rights and subject
to the same liabilities as the first indorsee
under the restrictive indorsement. {Ibid. sec.
35.)

Negotiation
of overdue
bill.

whennepo- jjfj. Where a bill is negotiable in its origin,
ceases to be so. it coutiuues to be negotiable until it has been

(a) restrictively indorsed, or (6) discharged

by payment or otherwise :

2. Where an overdue bill is negotiated, it
can be negotiated only subject to any defect of
title affecting it at its maturity, and thence-
forward no person who takes it can acquire or
give a better title than that which had the
person from whom he took it :

3. A bill payable on demand is deemed to
be overdue within the meaning and for the
purposes of this section, when it appears on
the face of it to have been in circulation for
an unreasonable length of time ; what is an
unreasonable length of time for this^purpose
is a question of fact :

By sec. 85, notes payable on demand are exempt-
ed from this section, but by sec. 72, this provision
applies to cheques.

When bill
deemed over
due.

Presumption
as to negotia-
tion.

Taking bill
subsequent to
dishonor.

4. Except where an indorsement bears date
after the maturity of the bill, every negotiation
is prima facie deemed to have been effected
before the bill was overdue :

5. Where a bill which is not overdue has
been dishonored, any person who takes it with
notice of the dishonor takes it subject to any
defect of title attaching thereto at the time of
dishonor ; but nothing in this sub-section shall
affect the rights of a holder in due course.
{Ibid. sec. 36.)

The Bills of Exchange Act, 1890. 27

The expreBsion " defect of title " corresponds to
the equivalent '* liabilities and objections " men-
tioned in article 2287 of the Civil Code, and to the
phrase " equity attaching to the bill " known to
English law.

In the province of Quebec actions upon inland
Bills of Exchange and Promissory Notes, are pres-
cribed by five years. Civil Code Art. 2260.

No indorsement or memorandum of any payment
upon a Promissory Note, Bill of Exchange or other
writing, made by or on behalf of the party to whom
such payment is made, is received in proof of such
payment so as to take the debt out of the operation
of the law respecting the limitation of actions. Civil
Code Art. 1229.

S7. Where a bill is negotiated back to the Negotiation of
drawer, or to a prior indorser, or to the accep- aireadnfa&o
tor, such party may, subject to the provisions thereon,
of this Act, re-issue and further negotiate the
bill, but he is not entitled to enforce the
payment of the bill against any intervening
party to whom he was previously liable. {Ibid,
sec. 37.)

38. The rights and powers of the holder of Rights of the
a bill are as follows : — holder.

(a.) He may sue on the bill in his own
name;

(b.) Where he is a holder in due course, he
holds the bill free from any defect of title of
prior parties, as well as from mere personal
defences available to prior parties among them-
selves, and may enforce payment against all
parties liable on the bill ;

(c.) Where his title is defective, (1) if he
negotiates the bill to a holder in due course,
that holder obtains a good and complete title
to the bill, and (2) if he obtains payment of
the bill the person who pays him in due course
gets a valid discharge for the bill. (Ibid. sec.
38.)

28 The Bills of Exchange Act, 1890.

l! '

The Hon. Judge Chalmers has suggested the
following rules of law as to the holder's rights of
action. Rule 1. The holder of a bill is entitled to
maintain an action thereon in his own name against
all or any of the parties liable thereon, unless it is
shown that he holds the bill adversely to the true
owner.

It is immaterial that the holder never had any
interest in the bill, or that he has parted with his
interest therein.

When the holder of a bill sues as agent for an-
other person or when he sues wholly or in part for
the benefit of another person, any defence or set
off available against that person is available pro
tanto against the holder.

Rule 2. When a bill is payable to a particular
person or persons or to his or their order, an action
thereon must be brought in the name of such per-
son or persons.

Rule 3. Subject to Rule 1. When a bill is payable
to bearer, an action thereon may be brought in the
name of any person who has either the actual or
the constructive possession thereof; and construct-
iv^e possession jointly with others, is sufficient to
entitle the possessor to sue alone.

General Duties of the Holder.

When pre-
Bcntment for
acceptance is
necessary.

Express stipu
lation as to
presentment.

No present-
ment in any
other case.

Necessary de-
lay in pre-
sentment.

i t !

JiO. Where a bill is payable at sight or after
sight, presentment for acceptance is necessary
in order to fix the maturity of the instrument.

2. Where a bill expressly stipulates that it
shall be presented for acceptance, or where a bill
is drawn payable elsewhere than at the resid-
ence or place of business of the drawee, it
must be presented for acceptance before it can
be presented for payment :

3. In no other case is presentment for accept-
tance necessary in order to render liable any
Ijarty to the bill :

4. Where the holder of a hill drawn payable
eUewhere than at the place of business or residence
of the draivee, has not time, unth the exercise of

The Bills of Exchange Act, 1890. 29

reasonable diligence, to present the hill for accept-
ance before presenting it for payment on the day
that it falls due, the delay caused by presenting the
hill for acceptance before presenting it for pay-
ment is excused, and does not discharge the drawer
and indorsers. {Ibid. sec. 39.

This settles a moot point.

A Bill drawn in America on England reaches En-
land on the very day of maturity. It may be pay-
able in London although received at Liverpool.
This section relieves the holder in such a case.

40« Subject to the provisions of this Act, Time for pre-
when a bill payable after sight is negotiated, p^,"',Jbfo after
the holder must either present it for accep- sight,
tance or negotiate it within a reasonable time :

2. If he does not do so, the drawer and alH* not prcscn-

tod

indorsf rs prior to that holder are discharged :

3. In determining what is a reasonable time As to reason-
within the meaning of this section, regard shall '"^^^^ ^^"^^"•
be had to the nature of the bill, the usage of

trade with respect to similar bills, and the
facts of the particular case. {Ibid. sec. 40.)

Reasonable time is a mixed question of law and
factj and in determining it regard must be had to
the mterests of the holder as well as to the interests
of the drawers and endorsers.

Ranchurn Mullick v. Radakissen, Moore, P. C. 46.

41. A bill is duly i)resented for acceptance {{ui^,^ as to
which is presented in accordance with the fol- presentment

, . \ fvr accept-

lOWing rules : ance.

(a.) The jiresentment must be made by or
on behalf of the holder to the drawee or to
some person authorized to accej^t or refuse ac-
ceptance on his behalf, at a reasonable hour
on a business day and before the bill is over-
due ;

The holder Js not necessarily the lawful holder.
Morrison v. Buchanan, 6 C. & F. 18.

30 The Bills of Exchange Act, 1890.

The holder need not present the bill in person.
Nouguier § 462.

Reasonable hour in the case of a trader means
business hours, and banking hours in the case of a
banker.

(b.) Where a bill is addressed to two or
more drawees, who are not partners, present-
ment must be made to them all, unless one has
authority to accept for all, wlien presentment
may be made to him only ;

Compare this sub-section with sec. 4 et sec. 19.
Judge Chalmers points out that a difficulty may
arise if one of the drawees refuses to accept. There
would in such a case be a qualified acceptance and
the holder might treat the bill as dishonored. See
Sec, 44 r '

(c.j Acre the drawee is dead, presentment
may be made to his jjersonal representative ;
Hei eLorc-e th'^- ' "v on this point was very doubt-
ful. Now Lu^ liolcter las an option; See sec. 2 (a)
post.

(d.) Where authorized by agreement or
usage, a presentment through the post office is
sufficient :

2. Presentment in accordance with these rules
is excused, and a bill may be treated as dishon-
ored by non-acceptance —

(a.) Where the drawee is dead or bankrupt,
or is a fictitious person or person not having ca-
pacity to contract by bill ;

(b.) Where, after the exercise of reasonable
diligence, such presentment cannot be effected ;

(c.) Where, although the presentment has
been irregular, acceptance has been refused on
some other ground :
When there is 3. The fact that the holder has reason to
no excuse. believe that the bill, on presentment, will be
dishonored does not excuse presentment. (Ibid,
sec. 41.)

Excuses for
non-present
ment.

person.

r means
ise of a

two or
•resent-
)ne has
Qtment

see. 19.
ty may
. There
ice and
d. See

itment
ative ;
doubt-
;c. 2 (a)

nt or
Bfice is

rules
ishon-

:rupt,
ag ca-
llable
cted;

'j has
ed on

)n to
11 be
Ibid.

The Bills of Exchange Act, 1800. 31

A bill should be presented for payment where the
money is. Any one can then hand over the money.
A bill should be presented for acceptance to the
drawee himself, for he has to write the acceptance.
Again (except in the case of demand drafts) the day
of payment is fixed ; but not so the day for accept-
ance. These considerations are material as to whe-
ther the holder has used due diligence to effect pre-
sentment.

42. When a bill is duly presented for accept- Non-Accept-
ance and is not accepted on the day of present- *"'^'''
ment or within two days thereafter, the person
presenting it must treat it as dishonored by
non-acceptance. If he does not, the holder

shall lose his right of recourse against the
drawer and indorsers. (^Ihid. sec. 42.)

Three days are thus given for acceptance.

43. A bill is dishonored by non-acceptance- Dishonor by
(a.) When it is duly presented for accept- ?^^^g^^^^i^^j.g

ance, and such an acceptance as is i)rescribed by consequences,
this Act is refused or cannot be obtained ; or —

{h.) When presentment for acceptance is ex-
cused and the bill is not accepted :

2. Subject to the provisions of this Act, when Recourse in
a bill is dishonored by non-acceptance an im- ^"^^ ^'*^^'
mediate right of recourse against the drawer
and indorsers accrues to the holder, and no
presentment for payment is necessary. {Ibid,
sec. 43.)

See sec. 17 and 19 for the essentials of a valid
acceptance.

See sec. 41 as to presentment for acceptance and
as to excuses for non-payment for acceptance.

For the provisions referred to in sub-sec. 2, see
sec. 65 post. " Right of recourse " is to be disting-
uished from " right of action." The latter right
does not exist until the necessary notices of dis-
honour and protest are given.

i i

As to qualified
ftcceptances.

If takon with-
out authority.

Partial accept-
anco.

What shall be
deemed as-
sent.

Presentment
for payment.

Rules as to
presentment.

32 Tlie Bills of Exchange Act, 1890.

44. The holder of a bill may refuse to take a
qualified acceptance, and if he does not obtain
an unqualified acceeptance may treat the bill
as dishonored by non-acceptance :

As to qualified acceptances, see sec. 19 ante.

2. Where a qualified acceptance is taken,
and the drawer or an indorser has not ex-
pressly or impliedly authorized the holder to
take a qualified acceptance, or does not subse-
quently assent thereto, such drawer or indor-
ser is discharged from his liability on the bill ;

The provisions of this sub-section do not ap-
ply to a partial acceptance, whereof due notice
has been given. Where a foreign bill has been
accepted as to part, it must be protested as to
the balance :

3. When the drawer or indorser of a bill
receives notice of a qualified acceptance, and
does not within a reasonable time express his
dissent to the holder, he shall be deemed to
have assented thereto. (^Ibid. sec. 44.)

45. Subject to theprovisionsofthis Act, a bill
must be duly presented for payment. If it is
not so presented, the drawer and indorsers
shall be discharged :

For the provisions referred to see sec. 46 post.
and sec. 39 ante.

A drawer or indorser who is discharged from
his liability on the bill is also discharged from his
liability on the consideration therefor. [Peacock v.
Pursell, 32 L. J. C. P. 266.)

2. A bill is duly presented lor payment
which is presented in accordance with the fol-
lowing rules : —

(a.) Where the bill is not payable on demand,
presentment must be made on the day it falls
due :

post.

and,
falls

The Bills of Exchange Act, 1890. 33

(ft.) Where the bill is payable ou demand,
then, subject to the provisions of this Act,
presentment must be made within a reason-
able time after its issue, in order to render the
drawer liable, and within a reasonable time
after its indorsement, in order to render the
indorser liable ;

In determining what is a reasonable time, re-
gard shall be had to the nature of the bill, the
usage of trade with regard to similar bills, and
the facts of the particular case ;

(c. ) Presentment must be made by the holder
or by some person authorized to receive pay-
ment on his behalf, at the proper place, as
hereinafter defined, either to the person desig-
nated by the bill as payer or to his represent-
ative or some person authorized to pay or
refuse payment on his behalf, if, with the
exercise of reasonable diligence, such person
can there be found 5

{d.) A bill is presented at the proper pla-
ce : —

(1.) Where a place of payment is specified
in the bill or acceptance, and the bill is there
presented ; (2.) Where no place of payment is
specified, but the address of the drawee or
acceptor is given in the bill, and the bill is
there presented ; (3.) Where no place of pay-
ment is specified and no address given, and
the bill is presented at the drawee's or accept-
or's place of business, if known, and if not, at
his ordinary residence, if known; (4.) In any
other case, if presented to the drawee or ac-
ceptor wherever he can be found, or if pre-
sented at his last known place of business or
residence ;

3. Where a bill is presented at the proper

I :

84 The Bills of Exchange Act, 1890.

place, and, after the exercise of reasonable
diligence, no person authorized to pay or
refuse payment can be found there, no further
presentment to the drawee or acceptor is
required :

4. Where a bill is drawn upon, or accepted
by two or more persons who are not partners,
and no place of payment is specified, present-
ment must be made to them all : {Ibid. sec.
45.)

[5. Where the drawee or acceptor of a bill
is dead, and no place of payment is specified,
presentment must be made to a personal re-
presentative, if such there is and, with the
exercise of reasonable diligence, he can be
found :]

6. Where authorized by agreement or usage,
a presentment through the post oflBce is suf-
ficient : {Ibid. sec. 45.)

This gives effect to a well established custom in
England and the United States.

[7. Where the place of payment specified
in the bill or acceptance is any city, town or
village, and no place therein is specified, and
the bill is presented at the drawee's or ac-
ceptor's known place of business or known
ordinary residence therein, and, if there is no
such place of business or residence, the bill is
presented at the post office, or principal post
office in such city, town or village, such pre-
sentment is sufficient.]

Excuse for
delay in pre-
sentment for
payment.

46. Delay in making presentment for pay-
ment is excused when the delay is caused by
circumstances beyond the control of the holder,
and not imputable to his default, misconduct
or negligence. When the cause of delay ceases

The Bills of Exchange Act, 1890. 35

jonable
pay or
further
ptor is

jcepted
rtners,
resent-
id. sec.

' a bill
ecified,
nal re-
th the
can be

usage,
is suf-

itom in

ecified
►wn or

and
or ac-
Luown

is no
bill is

post

pre-

pay,
ed by
)lder,
iduct
eases

to operate, presentment must be made with
reasonable diligence :

See Pothier No. 114. S+^ry, sec. 327.
Very sudden death of holder: war, a siege, etc.,
might excuse such delay. See Chalmers, 137.

2. Presentment for payment is dispensed when such

..■, '^ " ^ presontmcnt

Wltn — is dispensed

(rt.) Where, after the exercise of reasonable ^^^^*
diligence, presentment, as required by this
Act, cannot be affected ;

The fact that the holder has reason to believe
that the bill will, on present!? mt, be dishon-
ored, does not dispense with tiie necessity for
presentment ;

(6.) Where the drawee is a fictitious person ;

(c.) As regards the drawer, where the
drawee or acceptor is not bound, as between
himself and the drawer, to accept or pay the
bill, and the drawer has no reason to believe
that the bill would be paid if presented ;

(d.) As regards an indorser, where the bill
was accepted or made for the accommodation
of that indorser, and he has no reason to
expect that the bill would be paid if pre-
sented ;

(e.) By waiver of presentment, express or
implied. (Ibid. sec. 46.)

4T. A bill is dishonored by non-payment Dishonor by

(a) when it is duly presented for payment and ''°'''P*y°'®°*'
payment is refused or cannot be obtained, or

(b) when presentment is excused and the bill
is overdue and unpaid ;

2. Subject to the provisions of this Act, Recourse in

when a bill is dishonored by non-payment, ^''*'^ *'*^®'
an immediate right of recourse against the
drawer, acceptor and indorsers accrues to the
holder. (Ibid. sec. 47.)

Notice of dis-
honor and
effect of non-
notice.

Rules as to
notice of dis-
honor.

86 The Bills of Exchange Act, 1890.

48. Subject to the provisions of this Act,
when a bill has been dishonored by non-
acceptance or by non-payment, notice of dis-
honor must be given to the (;rawer and each
indorser, and any drawer or indorser to whom
such notice is not given is discharged ; Pro-
vided that —

(«.) Where a bill is dishonored by non-
acceptance, and notice of dishonor is not
given, the rights of a holder in due course
subsequent to the omission shall not be prejud-
iced by the omission ;

(ft.) Where a bill is dishonored by non-
accej)tance and due notice of dishonor is given,
it shall not be necessary to give notice of a
subsequent dishonor by non-payment, unless
the bill shall in the meantime have been ac-
cepted. (Ibid. sec. 48.)

40. Notice of dishonor, in order to be valid
and effectual, must be given in accordance
with the following rules : —

(a.) The notice must be given by or on
behalf of the holder, or by or on behalf of an
indorser who, at the time of giving it, is him-
self liable on the bill ;

(h.) Notice of dishonor may be given by an
agent either in his own name, or in the name
of any party entitled to give notice, whether
that party is his principal or not ;

(c.) Where the notice is given by or on
behalf of the holder, it enures for the benefit
of all subsequent holders and all prior indors-
ers who have a right of recourse against the
party to whom it is given ;

(d.) Where notice is given by or on behalf
of an indorser entitled to give notice as here-
inbefore provided, it enures for the benefit of

The Bills of Exchange Act, ISOO. 37

the holder and all indorsers siil)se([ueiit to the
party to whom notice is given ;

((?.) The notice may be given in writing or
by personal commnnication, and may be given
in any terms which sutliciently identify the
bill and intimate that the bill has })een dis-
honored by non-acceptance or non-payment ;

(/.) The retnrn of a dishonored bill to the
drawer or an indorser is, in point of form,
deemed a sufficient notice of dishonor ;

{g.) A written notice need not be signed,
and an Insufficient written U/'ice may be
supplemented and validated by veibnl commun-
ication. A misdescription of the bill shall
not vitiate the notice, unless the party to whom
the notice is given is in fact misled thereby ;

(Ji.) Where notice of dishonor is required
to be given to any person, it may be given
either to the party himself, or to his agent in
that behalf ;

(i.) Where the drawer or indorser is dead,
and the party giving notice knows it, the notice
must be given to a personal representative,
if such there is and, with the exercise of rea-
sonable diligence, he can be found ;

(J.) Where there are two or more drawers
or indorsers who are not partners, notice must
be given to each of them, unless one of them
has authority to receive such notice for the
others ;

(Jc.) The notice may be given as soon as the
bill is dishonored, and must be given not
later than the next following juridical or
business day :

2. Where a bill, when dishonored, is in the if dishonored
hands of an agent, he may either himself give han^Vof an
notice to the parties liable on the bill, or he agent.
may give notice to his principal. If he gives
notice to his principal, he must do so within

The Bills of Exchange Act, 1890.

Notice to an-
tecedent par-
ties.

When notice

the same time as if he were the holder, and
the principal, upon receipt of such notice, has
himself the same time for giving notice as if
the agent had been an independent holder :

3. Where a party to a bill receives due no-
tice of dishonor, he has, after the receipt of
such notice, the same period of time for giving
notice to antecedent parties that the holder
has after the dishonor : (Ibid. sec. 48.)
[4.Notice of the protest or dishonor of any bill
shall be given, p^yj^l^j^ in Canada shall, notwithstanding any-
thing in this section contained, be sufficiently
given if it is addressed in due time to any party
to such bill entitled to such notice, at his cus-
tomary address or place of residence or at the
place at which such bill is dated, unless any
such party has, under his signature, desig-
nated another place ; and in such latter case
such notice shall be sufficiently given if
addressed to him in due time at such other
place ; and such notice so addressed shall be
sufficient, although the place of residence of
such party is other than either of such above-
mentioned places ; and such notice shall be
deemed to have been duly served and given for all
purposes if it is deposited in any post office^ tvith
the postage paid thereon, at any time during the
day on which such protest or presentment has been
made, or on the next following juridical or business
day ; such notice shall not be invalid by reason of
the fact that the party tv whom it is addressed is
dead ;]
Miscarriage in 5. Where a notice of dishonor is duly ad-
post service. (j,.essed and posted, as above provided, the
sender is deemed to have given due notice of
dishonor, notwithstanding any miscarriage by
the post office. (Ibid. sec. 49.)

Excuseafor 50. Delay in giving notice of dishonor is
anddeiay! excused where the delay is caused by circum-

The Bills of Excliamje Act, 1890.

stances beyond the control of the party giving
notice, and not imputable to his default, mis-
conduct, or negligence : when the cause of
delay ceases to operate the notice must be
given with reasonable diligence :

Compare sec. 46, note.

If an indorser gives a wrong address, delay caused
by his so doing would be excused ; and if the holder
does not know an indorser's address, delay occu-
pied in making enquiries would be excused ; so too
by sec. 49 (15) delay caused by the default of the
post office is excused. See Chalmers, p. 153.

2. Notice of dishonor is dispensed with — when notice

(a.) When, after the exercise of reasonable with,
diligence, notice as required by this Act cannot
be given to or does not reach the drawer or
indorser sought to be charged ;

(6.) By waiver express or implied : notice
of dishonor may be waived before the time of
giving notice has arrived, or after the omission
to give due notice ;

(c.) As regards the drawer, in the following
cases, namely, (1) where drawer and drawee
a; " the same person, (2) where the drawee
is a fictitious person or a person not having
capacity to contract, (3) where the drawer is
the person to whom the bill is presented for
payment, (4) where the drawee or acceptor is,
as between himself and the drawer, under no
obligation to accept or pay the bill, (5) where
the drawer has countermanded payment ;

{d.) As regards the indorser, in the follow-
ing cases, namely, (1) where the drawee is a
fictitious person or a person not having capa-
city to contract, and the indorser was aware of
the ftict at the time he indorsed the bill, (2)
where the indorser is the person to whom the
bill is presented for payment, (3) where the

Noting or pro-
test of bill.

Protest of
foreign bill.

40 The Bills of Exchange Act, 1890.

bill was accepted or made for his accommo-
dation. {Ibid. sec. 50.)

51«AVliere an inland bill has been dishonored
it may, if the holder thinks fit, be noted and
protested for non-acceptance or non-payment,
as the case may be ; [but, subject to the pro-
visions of this Act with respect to notice of
dishonor, it shall not, except in the Provincr
of Quebec, be necessary to note or protest any
such bill in order to preserve the recourse
against the drawer or indorser ; but in the
case of a bill drawn upon any person in the
Province of Quebec, or payable or accepted at
any place therein, in default of protest for
non-acceptance or non-payment, as the case
may be, and of notice thereof, the parties
liable on the bill other than the acceptor are
discharged, subject, nevertheless, to the ex-
ceptions in this section hereinafter contained :

(2) By " noting " is meant the minute made by a
notary public on a dishonored Bill at the time of
its dishonor. The formal notarial certificate, or
protest, attesting the dishonor of the Bill is based
upon the noting.

By sec. 73 this provision applies to Cheques and
by sec. 89 to Promissory Notes.

2. Where a foreign bill, appearing on the
face of it to be such, has been dishonored by
non-acceptance, it must be duly protested for
non-acceptance, (3) and where such a bill,which
]\as not been previously dishonored by non-
acceptance, is dishonored by non-payment, it
must be duly protested for non-payment. If
it is nOc so protested, the drawer and indor-
sers are discharged. Where a bill does not
appear on the face of it to be a foreign bill,
protest thereof in case of dishonor, except as
in this section provided, is unnecessary :

The Bills of Exchange Act, 1890. 41

(31 Protest of a foreign Promissory Note is not
required. See sec. 89 post.

3. A bill which has been protested for non- Subsequent
acceptance, or a bill of which protest i'or non- p''°^^^^-
acceptance has been waived, may be subse-
quently protested for non-jmyment :

4. Subject to the provisions of this Act,Tin?efor
,^ when a bill is protested the protest must be"'"^^"^'
, made or noted on the day of its dishonour.

When a bill has been duly noted, the i)rotest
may be subsequently extended as of the date
of the noting :

For the provisions referred to, see sub-sec. 6 (a)
and sub-sec. 9 and sec. 93 poet.

5. Where the acceptor of a hill becomes ftawA;- ff acceptor is
rupt or suspends payment before it matures, the
holder may cause the bill to be protested for better
security against the drawer and indorsee's :

The protest for better security is new to our law.
A bill so protested may be accepted suprd protest
for honor. See sec. 65.

6 A bill must be protested at the place where bui
where it is dishonored, or at some other place "eated.*'^'^""
in Canada situate within five miles of the place
of presentment and dishonor of such bill : Pro-
vided that —

(a.) When a bill is presented through the
post office, and returned by post dishonored,
it may be protested at the place to which it is
returned, not later than on the day of its re-
turn or the next juridical day ;

(ft.) Every protest for dishonor, either for non-
acceptance or non-payment, may be made on the
day of such dishonor at any time after non-accept-
ance, or in case of non-payment, at any time after
three o^ clock in the afternoon :

42 The Bills of Exchange Act, 1890,

What protest
shall set forth.

If bill is lost,

Excuses for
non-protest
and delay.

7. A protest must contain a copy of the bill,
or the original bill may be annexed thereto,
and the protest must be signed by the notary
making it, and must specify —

(a.) The person at whose request the bill is
protested ;

(6.) The place and date of protest, the cause
or reason for protesting the bill, the demand
made, and the answer given, if any, or the
fact that the drawee or acceptor could not be
found :

8. Where a bill is lost or destroyed, or is
wrongly or accidentally detained from the per-
son entitled to hold it, or is accidentally re-
tained in a place other than where payable,
protest may be made on a copy or written parti-
culars thereof :

9. Protest is dispensed with by any circum-
stances which would dispense with notice of
dishonor. Delay in noting or protesting is excu-
sed when the delay is caused by circumstances
beyond the control of the holder, and not
imputable to his default, misconduct or negli-
gence. When the cause of delay ceases to
operate, this bill must be noted or protested
with reasonable diligence. (Ibid. sec. 51.)

[10. No clerk, teller or agent of any hank shall
act as a notary in the protesting of any bill or
note payahle at the bank or at any of the branches
of the bank in which he is employ ed.'l

Sub-section 10 is not so applicable to the province
of Quebec, as to the other provinces where the
notarial profession does not exist as it does in the
province of Quebec.

acceptor as to ^^' ^^^^^ ^^ place of payment is specified
presentment.^ in the bill or acceptance, presentment for pay-
ment is not necessary in order to render the
acceptor liable :

Officer of Bank
not to act as
notary.

■^

bill,

the

The Bills of Exchange Act, 1890. 43

2. When a place of payment is specified la
the bill or acceptance, the acceptor, in the ab-
sence of an express stipulation to that effect,
is not discharged by the omission to present
the bill for payment on the day that it ma-
tures, [but if any suit or action be instituted
thereon before presentation the costs thereof
shall be in the discretion of the court :]

3. In order to render the acceptor of a bill No protest or
liable, it is not necessary to protest it, or that "ary?^ ^^^^^'
notice of dishonor should be given to him :

4. Where the holder of a bill presents Presentment
it for payment, he shall exhibit the bill ^°' p^^"'^"*'
to th„ person from whom he demands pay-
ment, and when a bill is paid the holder shall
forthwith deliver it up to the party paying it.

{Ibid. sec. 52.)

Liabilities of Parties.

53. A bill, of itself, does not operate as an ^'""ds in
assignment of funds in the hands of the drawee drawer,
available for the payment thereof, and the
drawee of a bill who does not accept as re-
quired by this Act is not liable on the instru-
ment. {Ibid. sec. 53.)

54. The acceptor of a bill, by accepting it — Liability of
(a.) Engages that he will pay it according "^'^*^*'^ °'^*

to the tenor of his acceptance ;

{b.) Is precluded from denying to a holder
in due course —

(1) The existence of the drawer, the genu-
ineness of his signature, and his capacity and
authority to draw the bill :

(2.) In the case of a bill payable to drawer's
order, the then capacity of the drawer to in-
dorse, but not the genuineness or validity of
his indorsementj

44 The Bills of Exchange Act, 1890.

Liability of
drawer.

Ill

Liabilitiy of
indorser.

(3.) In the ease of a bill payable to the order
of a third person, the existence of the payee
and his then capacity to indorse, but not the
genuineness or validity of his indorsement.
(Ihid. sec. 54.)

55. The drawer of a bill, by drawing it —

(a.) Engages that on due presentment it
shall be accepted and paid according to its
tenor, and that if it is dishonored he will com-
pensate the holder or any indorser who is com-
pelled to pay it, provided that the requisite
proceedings on dishonor are duly taken ;

(b.) Is precluded from denying to a holder
in due course the existence of the payee and
his then capacity to indorse :

2. The indorser of a bill, by Indorsing it —

(a.) Engages that on due presentment it
shall be accepted and paid according to its
tenor, and that if it is dishonored he will com-
pensate the holder or a subsequent indorser
who is compelled to pay it, provided that the
requisite proceedings on dishonor are duly
taken ;

(6.) Is precluded from denying to a holder
in due course the genuineness and regularity
in all respects of the drawer's signature and
all previous indorsements ;

(c.) Is precluded from denying to his imme-
diate or a subsequent indorsee that the bill
was, at the time of his indorsement, a valid
and subsisting bill, and that he had then a
a good title thereto. (Ibid. sec. 55.)

stranger sign- 56. Where a person signs a bill otherwise

as^indorser!'^^ than as a drawer or acceptor, he thereby incurs

the liabilities of an indorser to a holder in due

course, [and is subject to all the provisions of

this Act respecting indorsers.] (Ibid. sec. 56.)

The Bills of Exchange Act, 1890. 45

57. Where a bill is dishonored, the measure Measure of
of damages which shall be deemed to be liquid- agSnft^parties
ated damages, shall be as follows : — to^dishonored

(tf.) The holder may recover from any party
liable on the bill, the drawer who has been
compelled to pay the bill may recover from
the acceptor, and an indorser who has been
compelled to pay the bill may recover from
the acceptor or from the drawer, or from a
prior indorser —

(1.) The amount of the bill ;

(2.) Interest thereon from the time of pre-
sentment for payment, if the bill is payable
on demand, and from the maturity of the bill
in any other case ;

(3.) The expenses of noting and protest ;

(b.) In the case of a bill which has been
dishonored abroad, in addition to the above
damages, the holder may recover from the
drawer or any indorser, and the drawer or an
indorser who has been compelled to pay the
bill may recover from any party liable to him,
the amount of the re-exchange with interest
thereon until the time of payment. {Ibid. sec.
57.)

The provisions as to damages on foreign extra-
provincial bills contained in article 2336 of the Civil
Code and the Dominion Act 38 Vic, ch. 19 have not
been re-enacted.

5S. Where the holder of a bill payable to Transferrer
bearer negotiates it by delivery without in- ^y delivery,
dorsing it, he is called a '' transferrer by
delivery : "

2. A transferrer by delivery is not liable on Liability.
the instrument :

3. A transferrer by delivery who negotiates warranty.
a bill thereby warrants to his immediate trans-
feree, being a holder for value, that the bill is

; !

DiBchargo by
payment.

Payment in
due course.

Payment by
drawer or in-
dorser ; its
effect.

Accommoda-
tion bill.

Acceptor the
holder at ma-
turity.

46 The Bills of Exchange Act, 1890.

what it purports to be, that he has a right to
transfer it, and that at the time of transfer he
is not aware of any fact which renders it
valueless. (^Ihid. sec. 58.)

Discharge of Bill.

59, A bill is discharged by payment in due
course by or on behalf of the drawee or ac-
ceptor :

'' 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 :

2. Subject to the provisions hereinafter
contained, when a bill is paid by the drawer
or an indorser, it is not discharged ; but —

(a.) Where a bill payable to, or to the order
of, a third party is paid by the drawer, the
drawer may enforce payment thereof against
the acceptor, but may not re-issue the bill ;

(h.) Where a bill is paid by an indorser, or
where a bill payable to drawer's order is paid
by the drawer, the party paying it is remitted
to his former rights as regards the acceptor or
antecedent parties, and he may, if he thinks
fit, strike out his own and subsequent indorse-
ments, and again negotiate the bill :

3. Where an accommodation bill is paid in
due course by the party accommodated, the
bill is discharged. (Ihid . sec. 59.)

60. When the acceptor of a bill is or be-
comes the holder of it at or after its maturity,
in his own right, the bill is discharged. {Ibid,
sec. 61.)

Express
waiver.

61* When the holder of a bill at or after its
maturity absolutely and unconditionally re-

The Bills of Exchange Act, 1890. 47

nounces his rights against the acceptor, the
bill is discharged : the renunciation must be
in writing, unless the bill is delivered up to
the acceptor :

2. The liabilities of any party to a bill may The same,
in like manner be renounced by the holder
before, at or after its maturity ; but nothing
in this section shall affect the rights of a holder
in due course without notice of renunciation.
{Ibid . sec. 62.)

6!3. Where a bill is intentionally cancelled Cancellation
by the holder or his agent, and the cancellation °
is apparent thereon, the bill is discharged :

2. In like manner, any party liable on a bill of any signa-
may be discharged by the intentional cancel- ^^^^'
lation of his signature by the holder or his

agent. In such case, any indorser who would
have had a right of recourse against the party
whose signature is cancelled is also discharged :

3. A cancellation made unintentionally, or Erroneous
under a mistake, or without the authority of ^'^"^®^^**^^°"-
the holder, is inoperative ; but where a bill or

any signature thereon appears to have been
cancelled, the burden of proof lies on the party
who alleges that the cancellation was made
unintentionally, or under a mistake, or without
authority. {Ibid. sec. 63.)

63. Where a bill or acceptance is materially Alteration of
altered without the assent of all parties liable
on the bill, the bill is voided, except as against
a party who has himself made, authorized, or
assented to the alteration, and subsequent
indorsers :

Provided, that where a bill has been mat- Proviso.
erially altered, but the alteration is not ap-
parent, and the bill is in the hands of a holder
in due course, such holder may avail him-

48 The Bills of Exchange Act, 1890.

self of the bill as if it had not been altered,
and may enforce payment of it according to
its original tenor :

The expression " holder in due course " is defined
by section 29 ante.

What are ma- 2. In particular, the following alterations
tfS. "^^^*^'^'* are material, namely, any alteration of the
date, the sum payable, the time of payment,
the place of payment, and where a bill has
been accepted generally, the addition of a
place of payment without the acceptor's assent.
{Ibid, sec, 64.)

Acceptance
for honor
SMprd protest.

In part.

Requirements
for validity.

For whose
honor.

Computation
of time.

Acceptance and Payment for Honor.

64. Where a bill of exchange has been
protested for dishonor by non-acceptance, or
protested for better security, and is not over-
due, any person, not being a party already
liable thereon, may, with the consent of the
holder, intervene and accept the bill supra
protest, for the honor of any party liable there-
on, or for the honor of the person for whose
account the bill is drawn :

2. A bill may be accepted for honor for part
only of the sum for which it is drawn :

3. An acceptance for honor suprd protest, in
order to be valid, must —

(a.) Be written on the bill, and indicate that
it is an acceptance for honor ;

(6.) Be signed by the acceptor for honor :

4. Where an acceptance for honor does not
expressly state for whose honor it is made, it
is deemed to be an acceptance for the honor of
the drawer :

5. Where a bill payable after sight is ac-
cepted for honor, its maturity is calculated
from the date of protesting for non-acceptance.

The Bills of Exchange Act, 1890. 49

Itered,
ling to

and not from the date of the acceptance for
honor. {Ibid. sec. 65.)

defined

rations
of the
jrment,
ill has
a of a
assent.

J been

nee, or

t over-

tlready

of the

supra

there-

whose

3r part

best, in

te that

nor :
es not
ade, it
)nor of

is ac-
ulated
tance.

65. The acceptor for honor of a bill by ac- Liability of
cepting it engages that he will, on dne present- Soiufr^'^ '"'^
ment, pay the bill according to the tenor of

his acceptance, if it is not paid by the drawee,
provided it has been dnly presented for pay-
ment and protested for non-payment, and that
he receives notice of these facts :

2. The acceptor for honor is liable to the To what par-
holder and to all parties to the bill subsequent '^*^^*
to the party for whose honor he has accepted.
{Ibid. sec. 66.)

66. Where a dishonored bill has been accepted Presentment

-T ^jj J- ^-^to acceptor

for honor supt^a protest, or contains a reference tor honor.
in case of deed, it must be protested for non-pay-
ment before it is presented for payment to the
acceptor for honor, or referee in case of need :

2. Where the address of the acceptor for Time for pre-
honor is in the same place where the bill is sontment.
protested for non-payment, the bill must be
presented to him not later than the day follow-
ing its maturity ; and where the address of the
acceptor for honor is in some place other than

the place where it was protested for non-
payment, the bill must be forwarded not later
than the day following its maturity for pre-
sentment to him :

3. Delay in presentment or non-presentment Excuses for
is excused by any circumstance which would ment or delay.
excuse delay in presentment for payment or
non-presentment for payment :

4. When a bill of exchange is dishonored by Protest for
the acceptor for honor, it must be protested "^^"P*^'"'^"^'
for non-payment by him. {Ibid. sec. 67.)

til!

Payment for
honor suirrd
protest.

If more than
one offer to
pay.

Attestation.

Baals thereof.

Liabilities
and rights in
such case.

Delivery to

Eayer for
onor.

Effect of re-
fusal to re-
ceive pay-
ment.

60 The Bills of Exchange Act. 1S90.

OT. Where a bill has been j^rotested for
non-payment, any person may intervene and
pay it supra protest for the honor of any party
liable thereon, or for the honor of the person
for whose account the bill is drawn :

2. Where two or more persons offer to pay
a bill for the honor of different parties, the
person whose payment will discharge most
parties to the bill shall have the preference :

3. Payment for honor suprd protest, in order
to operate as such and not as a mere voluntary
payment, must be attested by a notarial act of
honor, which may be appended to the protest
or form an extension of it :

4. The notarial act of honor must be founded
on a declaration made by the payer for honor,
or his agent in that behalf, declaring his in-
tention to pay the bill for honor, and for whose
honor he pays :

5. Where a bill has been paid for honor, all
parties subsequent to the party for whose
honor it is paid are discharged, but the payer
for honor is subrogated for and succeeds to
both the rights and duties of the holder as
regards the party for whose honor he pays,
and all parties liable to that party :

6. The payer for honor, on paying to the
holder the amount of the bill and the notarial
expenses incidental to its dishonor, is entitled
to receive both the bill itself and the protest.
If the holder does not on demand deliver them
up, he shall be liable to the payer for honor
in damages :

7. Where the holder of a bill refuses *^
receive payment suprd protest, he shall 1 j
his right of recourse against any party Wko
would have been discharged by such payment.
(Ibid. sec. 68.)

The Bills of Exchange Act, 1890.
Lost Instruments.

68. Where a bill has been lost before it is Holder's right
overdue, the person who was holder of it may !,? loaf bin!*'
apply to the drawer to give him another bill
of the same tenor, giving security to the
drawer, if required, to indemnify him against
all persons whatever, in case the bill alleged
to have been lost shall be found again :

2. If the drawer, on request as aforesaid, if refused,
refuses to give such duplicate bill, he may be
compelled to do so. {Ibid. sec. 69.)

Presumably, if the drawer, on tender of in-
demnityj declined to give a new bill, an action would
lie to compel him, and damages might be claimed
in the alternative. Chalmers, 216.

It will be observed that there is no provision
for obtaining a second indorsement and acceptance.
Compare art. 2316 Civil Code.

69. In any action or proceeding upon a bill, Aff^°^ °" ^°^^
the court or a judge may order that the loss
of the instrument shall not be set up, provided
an indemnity is given to the satisfaction of the
court or judge against the claims of any other
person upon the instrument in question. {Ibid,
sec. 70.)

Bill in a Set.

•70. Where a bill is drawn in a set, each As to biUs in
part of a set being numbered, and containing ^®^*'
a reference to the other parts, the whole of
the parts constitute one bill ;

2. Where the holder of a set indorses two ifmdorsed to
or more parts to different persons, he is liable sons.'^*^" ^^^'
on every such part, and every indorser sub-
sequent to him is liable on the part he has
himself indorsed as if the said parts were
separa^ '^ bills :

[

If negotiated
to different
holders.

Acceptance.

If more than
one part is aC'
cepted.

Payment
without deli-
very of proper
part.

Discharge.

62 The Bills of Exchange Act, 1890.

3. Where two or more parts of a set are
negotiated to different holders in due course,
the holder whose title first accrues is, as be-
tween such holders, deemed the true owner of
the bill ; but nothing in this sub-section shall
affect the rights of a person who in due course
accepts or pays the part first presented to
him :

4. The acceptance may be written on any
part, and it must be written on one part only :

5. If the drawee accepts more than one part,
and such accepted parts get into the hands of
different holders in due course, he is liable on
every such part as if it were a separate bill :

6. When the acceptor of a bill drawn in a
set pays it without requiring the part bearing
his tiCceptance to be delivered up to him, and
that part at maturity is outstanding in the
hands of a holder in due course, he is liable to
the holder thereof:

7. Subject to the preceding rules^ where
any one part of a bill drawn in a set is dis-
charged by payment or otherwise, the whole
bill is discharged. {Ibid. sec. 71.)

Conflict of Laws.

' P]

Rules where
laws conrtict.

Validity, how
determined.

Tl. Where a bill drawn in one country is
negotiated, accepted or payable in another,
the rights, duties and liabilities of the parties
thereto are determined as follows : —

(«.) The validity of a bill as regards requis-
ites in form is determined by the law of the
place of issue, and the validity as regards
requifLitesin form of the supervening contracts,
such as acceptance, or indorsement, or accep-
tance suprd protest, is determined by the law
of the place where such contract was made :

The Bills of Exchange Act, 1890. 53

Provided that — Proviso.

(l.)Where a bill is issued out of Cauada,it is
not invalid by reason only that it is not
stamped in accordance with the law of the
place of issue ;

(2.) Where a bill, issued out of Canada,
conforms, as regards requisites in form, to the
law of Canada, it may, for the i^urpose of
enforcing payment thereof, be treated as valid
as between all persons who negotiate, hold or
become parties to it in Canada ;

(6.) Subject to the provisions of this Act, ij>rawing in-
the interpretation of the drawing, indorse- &"?*''"*'" *
ment, acceptance or acceptance supra prote?
of a bill, is determined by the law of the plact
where such contract is made :

Provided, that where an inland bill is Proviso.
indorsed in a foreign country, the indorsement
shall, as regards the payer, be interpreted
according to the law of Canada ;

(c.) The duties of the holder with respect [>"Jie3 of
to presentment for acceptance or payment and ^ ^^ '
the necessity for or sufficiency of a protest or
notice ol dishonor, or otherwise, are deter-
mined by the law of the place where the act is
done or the bill is dishonored ;

(d.) Where a bill is drawn out of but pay- currency.
able in Canada, and the sum payable is not
expressed ir. the currency of Canada, the
amount shall, in the absence of some express
stipulation, be calculated according to the rate
of exchange for sight drafts at the place of
payment on the day the bill is payable ;

(e.) Where a bill is irawn in one country Duo date,
and is payable in another, the due date thereof
is determined according to the law of the place
where it is payable. (Ibid. sec. 72.)

(/.) If a bill or note, presented for accep- Evidence of
tance, or payable out of Canada, is protested ^^° '^^ '

54 The Bills of Exchange Act, 1890.

for non-acceptance or non-payment, a notarial
copy of the protest and of the notice of dis-
honor, and a notarial certificate of the service
of such notice, shall be received in all ' Durts,
as prima facie evidence of such protest, notice
and service.]

PART III.

Cheque de-
fined.

Certain provi-
sions to app]}\

Presentment
of cheque for
payment.

CHEQUES ON A BANK.

T2. A cheque is a bill of exchange drawn on
a bank, payable on demand :

See section 2 sub-sec. (c) for definition of "Bank."

2. Except as otherwise provided in this part,
the provisions of this Act applicable to a bill
of exchange payable on demand apply to a
cheque. {Ihid. sec. 73.)

See Cheques compared with and distinguished
from Bills of Exchange, McrchanVa Bank vs. State
Bank, Supreme Court of the United States. 10
Wallace, 647.

78. Subject to the provisions of this Act —
(«.) Where a cheque is not presented for
payment within a reasonable time of its issue,
and the drawer or the person on whose account
it is drawn had the right at the time of such
presentment, as between him and the bank, to
have the cheque paid, and suffers actual
damage through the delay, he is discharged to
the extent of such damage, that is to say, to
the extent to which such drawer or person is
a creditor of such bank to a larger amount
than he would have been had such cheque been
paid ;

(b.) In determining what is a reasonable

The Bills of Exchange Act, 1890. 65

time, regard shall be had to the nature of the
instrument, the usage of trade and of banks,
and the facts of the particular case ;

(c.) The holder of such cheque, as to which
such drawer or person is discharged, shall be
a creditor, in lieu of such drawer or person, of
such bank to the extent of such discharge, and
entitled to recover the amount from it. (Ibid,
sec. 74.)

This F^aon is very badly drawn and without
Judge C i .mers explanation, would be quite unin-
telligible.

The effect of sub-sections a and c appears to
be this : — A person draws a cheque for $500 on his
Bank. Cheque is not presented for payment within
a reasonable time. The Bank becomes insolvent,
the drawer having at the time suflQcient funds at
his credit in the Bank to meet the cheque. The
drawer is discharged but the holder can rank for
$500. against the Bank. If however, drawer had no
funds but was authorized to overdraw, the drawer
would be discharged but the holder could not rank
against Bank. See Chalmers^ 232.

■74. The duty and authority of a bank to Revocation of
pay a cheque drawn on it by its customer are Ju"!' ^ ^"'*^°'
terminated by —

(a.) Countermand of payment ,•
(b.) Notice of the customer's death. {Ibid.
sec. 75.)

rossed Cheques.

"75. Where a cheque bears across its face an General cross-
addition of- inK defined.

(a.) The word ^'bank" between two pa-
rallel transverse lines, either with or without
the words ^' not negotiable ; " or —

(b.) Two parallel transverse lines simply,
either with or without the words '^ not nego-
tiable j"

66 The Bills of Exchange Act, 1890.

Special cross-
ing.

That addition constitutes a crossing, and
the cheque is crossed generally :

2. Where a cheque bears across its face an
addition of the name of a bank, either with or
without the words '' not negotiable," that ad-
dition constitutes a crossing, and the cheque
is crossed specially and to that bank. {Ibid,
sec. 76.)

Crossing by
drawer or
after issue.

General or
special.

May be
varied.

Words may be
ad led.

!Re-crossing
I'or collection.

Crossing by
bank.

Uncrossing
crossed cheque

material part
of cheque.

TO. A cheque may be crossed generally or
specially by the drawer :

2. Where a cheque is uncrossed, the holder
may cross it generally or specially :

3. Where a cheque is crossed generally, the
holder may cross it specially :

4. Where a cheque is crossed generally or
specially, the holder may add the words '' not
negotiable •"

5. Where a cheque is crossed specially the
bank to which it is crossed may again cross
it specially, to another bank for collection :

6. Where an uncrossed cheque, or a cheque
crossed generally, is sent to a bank for collec-
tion, it may cross it specially to itself : {Ibid,
sec. 77.)

[7. A crossed cheque may be reopened or
uncrossed by the drawer writing between the
transverse lines, and initialling the same, the
words ^' pay cash."]

TT. A crossing authorized by this Act is a
material part of the cheque ; it shall not be
lawful for any person to obliterate or, except
as authorized by this Act, to add to or alter
the crossing. {Ibid. sec. 78.)

Duties of bank •78, Where a cheque is crossed specially to

cheques. ' more than one bank, except when crossed to

another bank as agent for collection, the bank

and

The Bills of Exchange Act, 1S90, 57

on which it is drawn shall refusi; payment
thereof :

2. Where the bank on which a cheque so Liability for
crossed is drawn, nevertheless pays the same, mcK?^^'^ ^^^
or pays a cheque crossed generally otlierwise
than to a bhik, or, if crossed specially, other-
wise than to the bank to which it is crossed,
or to the bank acting as its agent for collection,
it is liable to the true owner of the ciie(|ue for
any loss he sustains owing to the cheque
having been so paid :

Provided, that where a cheque is presented ^,^'hcn liability
for payment which does not at the time of pre- crue.
sentment appear to be crossed, or to have had
a crossing which has been obliterated, or to
have been added to or altered otherwise than
as authorized by this Act, the bank paying the
cheque in good faith and without negligence
shall not be responsible or incur any liability,
nor shall the payment be questioned by reason
of the cheque having been crossed, or of the
crossing having been obliterated or having
been added to or altered otherwise than as
authorized by this Act, and of payment having
been made otherwise than to a bank or to the
bank to which the cheque is or was crossed, or
to the bank acting as its agent for collection,
as the case may be. (Ibid. sec. 79.)

71>. Where the bank, on which a crossed Protection to
cheque is drawn, in good faith and without drawer whore
negligence pays it, if crossed generally, to acfSd!^
bank, or, if crossed specially, to the bank to
which it is crossed, or to a bank acting as
its agent for collection, the bank paying the
cheque, and if the cheque has come into the
hands of the payee, the drawer, shall respect-
ively be entitled to the same rights and be
placed in the same position as if payment of

68 The Bills of Exchange Act, 1890.

the cheque had been made to the true owner
thereof. {Ihid. sec. 80.)

EfTect of cross- SO. Where a person takes a crossed cheque
ing on holder. ^jji(.ij ^ears on it the words '^ not negotiable,"
he shall not have and shall not be capable of
giving a better title to the cheque than that
which had the person from whom he took it.
(Ibid. sec. 81.)

Proctection to

collecting

bank.

81, Where a bank, in good faith and with-
out negligence, receives for a customer pay-
ment of a cheque crossed generally or specially
to itself, and the customer has no title, or a
defective title thereto, the bank shall not in-
cur any liability to the true owner of the
cheque by reason only of having received such
payment. {Ibid. sec. 82.)

The practice of crossing cheques originated at
the clearing-house ; the clerks of the different
bankers who did business there having been ac-
customed to write across the cheques the names of
their employers so as to enable the clearing-house
clerks to make up their accounts. It afterwards
became a common practice to cross cheque which
were not intended to go through the clearing-house
at all, with the name of a bank oi banker, or with
the words " & Co." The effect of this custom is
that where a cheque is thus crossed, bankers gen-
erally refuse to pay it to any one except a banker ;
and if they do pay it to a person not a banker, they
consider that they do so at their peril, in the event
of the party to whom the payment is made not
being entitled to receive it. The object is, that the
person for whose use the money was received, may
be easily traced.

In Bellamy v. Marjoribanks, 7 Ex-chec[uer Re-
ports, 402, Baron Parke is reported as saying :

" There can be no doubt but that the usage
" of crossing cheques is highly beneficial to the
" public. Cheques are in their essential character
*' payable to bearer ; they are in manv respects
" treated as bank notes, for which of late years

The Bills of Exchange Act, 1890. 59

} owner

cheque
tiable,"
)able of
an that
took it.

d with-
er pay-
pecially
le, or a
not in-
of the
ed such

lated at

iififerent

ieen ac-

ames of

K-house

Brwards

e which

g-house

or with

stom is

rs gen-

)anker ;

r, they

e event

de not

hat the

id, may

er Re-

J usage
to the
iracter
Bspects
years

((
((
((
(<
(I
((
((
((
it

((
((

(C
(C

((

they have been largely substituted ; but like all
other things they are liable to be mislaid, or lost,
or stolen, and may get into the hands of persons
who are not entitled to receive payment of them.
It is manifestly therefore a great protection and
safe guard to the real owner, that there should
exist the means of tracing and ascertaining for
whose use the money paid on a cheque is re-
ceived, and to whom the money actually goes.
Payment through a banker secures this object.
We think therefore, that it is a matter of great
public advantage and benefit that this custom or
usage should be maintained ; and we think it well
may without at all improperly trenching upon
or restricting the negotiability of cheques."

PART IV.

PROMISSORY NOTES.

82. A promissory note is an unconditional Promissory
promise in writing made by one person to an- "o*- defined.
other, signed by the maker, engaging to pay,
on demand or at a fixed or determinable future
time, a sum certain in money, to, or to the
order of, a specified person, or to bearer :

See note to sec. 3.

An instrument promising to do anything in
addition to the payment of money is not a Pro-
missory Note, but in New- York an instrument
reading " I promise to pay C. or order 100 dollars
or in goods on demand " was held to be a valid
note. Oatater v. Wilaon, 31 Barb. 307.

An I. O. U. is merely an acknowledgement of debt,
and is not a Promissory Note. Gould V8. Coombs,! C.
B. 543.

2. An instrument in the form of a note pay- indoibcment
able to maker's order is not a note within the '^^ '"**''®^"
meaning of this section, unless and until it is
indorsed by the maker :

Inland and
foreign.

60 The Bills of Exchange Act, 1890.

Collateral 3. A note is not invalid by reason only that

no*t invafidato. it Contains also a pledge of collateral security
with authority to sell or dispose thereof :

4. A note which is, or on the face of it pur-
ports to be, both made and payable within
Canada, is an inland note : any other note is a
foreign note. {Ibid. sec. 83.)

83. A promissory note is inchoate and in-
complete until delivery thereof to the payee
or bearer. (Ibid. sec. 84.)

Inchoate i. e. incomplete and inoperative.

Joint and H4. A promissory note may be made by two

several notes, ^j, n^Qj-g makers, and they may be liable there-
on jointly and severally, according to its tenor :
As to number. 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.
{Ibid. sec. 85.)

Delivery ne-
cessary.

Note payable
on demand.

Reasonable
time.

85. Where a note payable on demand has
been indorsed^ it must be presented for payment
icithin a reasonable time of the indorsement : if
it is not so inesented, the indorser is discharged :
[if, however, with the assent of the indorser
it has been delivered as a collateral or con-
tinuing security it need not be presented for
payment so long as it is held as such security :]

By sec. 10 read with sec. 88 a note is payable on
demand which is expressed to be so payable, or
at sight, or on presentation or in which no time for
payment is specified.

2. In determining what is a reasonable time,
regard shall be had to the nature of the in-
strument, the usage of trade, and the facts of
the particular case :

The Bills of Exchange Act, 1S90. (il

ly that

ecurity

f :

it pur-
within

ote is a

and in-
) payee

by two
3 there-
i tenor :
3 pay,"
s, it is
1 note.

nd has
ayment
ent : if
arged :
idorser
or con-
ted for
iirity :]

able on
able, or
:ime for

e time,
the in-
acts of

3. Where a note payable on demand is ne- Defects with-
gotiated, it is not deemed to be overdue, for°"^"°"^®'
the purpose ofaflfecting the holder with defects
of title of which he had no notice, by reason
that it appears that a reasonable time for pre-
senting it for payment has elapsed since its
issue. (Ibid. sec. 86.)

Jitt. Where a promissory note is in the Presentment
body of it made payable at a particular place, plyment?^
it must be presented for payment at that place.
But the maker is not discharged by the omis-
sion to present the note for payment on the day
that it matures. But if any suit or action is in-
stituted thereon against him before present-
ation, the costs thereof shall be in the dis-
cretion of the court. If no place of payment is
specified in the body of the note, presentment
for payment is not necessary in order to
render the maker liable :

Hon. Mr. Kaulbach:— Is that not a large dis-
cretion allowed to the Court? If the Note is not
presented, why not make the party who sues, liable
for the costs ?

Hon. Mr. Abbott : — Because the party who made
the note may not have provided any money at the
place of presentment, and that relieves the h'^lder
from the necessity of presenting it there. The judge
will only exercise discretion in cases where the
money is provided at the place of payment. Senate
Debates 1890, P. 506.

2. Presentment for payment is necessary in Liability.
order to render the indorser of a note liable.

3. Where a note is in the body of it made J'Jjf;;^^^^ Pre-
payable at a particular place, presentment at

that place is necessary in order to render an
indorser liable ; but when a place of payment
is indicated by way of memorandum only, pre-
sentment at that place is sufficient to render
the indorser liable, but a presentment to the

62 The Bills of Exchange Act, 1890.

Liability of
maker.

Application of
part II to
notes.

Correspond-
ing terms.

1 1 •

i .1

What provi-
sions do not
apply.

As to foreign
note.

maker elsewhere, if sufficient in otlier respects,
shall also suffice. (2) {Ibid. sec. 87.)

(2.) Article 145 Code of Civil Procedure provides:
" In the case of Promissory Notes or Bills of Ex-
change payable at a particular place, they are
E resumed, as against the maker or acceptor, to
ave been presented at that place at maturity, un-
less the exception founded upon such want or pre-
sentation is accompanied with an affidavit, that, at
the time they became due, provision had been made
for their payment at the specified place."

87. The maker of a promissory note, by
making it —

(a.) Engages that he will pay it according
to its tenor ;

(b.) Is precluded from denying to a holder
in due course the existence of the payee and
his then capacity to indorse. {Ibid. sec. 88.)

88. Subject to the provisions in this part,
and except as by this section provided, the
provisions of this Act relating to bills of ex-
change apply, with the necessary modifica-
tions, to promissory notes :

2. In applying those provisions the maker
of a note shall be deemed to correspond with
the acceptor of a bill, and the first indorser
of a note shall be deemed to correspond vt^ith
the drawer of an accepted bill payable to
drawer's order :

3. The following provisions as to bills do not
apply to notes, namely, provisions relating to —

{a.) Presentment for acceptance j
(6.) Acceptance ;
(c.) Acceptance suprd protest ;
{d.) Bills in a set :

4. Where a foreign note is dishonored, pro-
test thereof is unnecessary, except for the pre-
servation of the liabilities of indorsers. {Ibid,
sec. 89.)

jpects,

ovides:
of Ex-
ley are
tor, to
ity, un-
01 pre-
that, at
mmade

Dte, by

iording

holder
ee and

. 88.)

is part,
ed, the
^ of ex-
odifica-

maker
with
idorser
d with
iVjle to

do not
ng to —

)d, pro-
he pre-
{Ibid.

The BilU of Exchange Act, 1800. 03

PART V.

SUPPLEMENTARY.

SO. A thing is deemed to be done in good ^ 'o^ 'a>th-
faith within the meaning of this Act, where it
is in fact done honestly whether it is done ne-
gligently or not. {Ihid. sec. 90.)

90. "Where, by this Act, any instrument or signature.
writing is required to be signed by any person,

it is not necessary that he should sign it with
his own hand, but it is sufficient if his signa-
ture is written thereon by some other person
by or under his authority :

A pencil signature has been held sufficient Oeary
vs. Physic 5 B C. 234.

Where a Note ran " I William Smith promise to
pay " instead of" I promise to pay" with signature
in the usual place ; Held : — a sufficient signature
Taylor vs. Dobbin, 1 Stra. 399.

2. In the case of a corporation, ivhere, by f/i is As to corpora-
te^, any instrument or writing is required to be ^*'"^'
signed, it is sufficient if the instrument or writing
is duly sealed with the corporate seal ; but nothing
in this section shall be construed as requiring the
bill or note of a corporation to be under seal.
(Ibid. sec. 91.)

91. Where, by this Act, the time limited computation
for doing any actor thing is less than three

days, in reckoning time, non-business days are
excluded : '' non-business days," for the pur-
poses of this Act, mean the days mentioned in
the fourteenth section of this Act ; any other
day is a business day. {Ibid. sec. 92.)

When notinK
ia equivalent
to protest.

Protest when
notary is not
accessible.

Expenses.

Fees charge-
able.

Forms.

Evidence of

Sresentation,
ishonor and
notice.

The Bllh of Exchange Act, 1890.

1>3. For the purposes of this Act, where a
bill or note is required to be protested within
a specified time or before some further pro-
ceeding is taken, it is sufficient that the bill
or note has been noted for protest before the
expiration of the specified time or the taking
of the proceeding ; and the formal protest nuiy
be extended at any time thereafter as of the
date of the noting. (Ibid, sec. 93.)

0;5. Where a dishonored bill is authorized
or required to be protested, and the services
of a notary cannot be obtained at the place
where the bill is dishonored, any justice of
the peace resident in the place may present
and protest such bill and give all necessary
notices, and shall have all the necessary powers
of a notary in respect thereto :

Under the Imperial act these formalities may
be observed through " any householder or sub-
stantial resident."

[2. The expense of noting and protesting
any bill or note, and the postages thereby in-
curred, shall be allowed and paid to the holder
n addition to any interest thereon :]

[3. Notaries may charge the fees in each
Province heretofore allowed them :]

4. The forms in the first schedule to this Act
may be used in noting or protesting any bill
or note and in giving notice thereof. A copy
of the bill or note and indorsement may be
included in the forms, or the original bill or
note may be annexed and the necessary changes
in that behalf made in the forms :

5. A protest of any bill or note, and any
copy thereof as copied by the notary or justice
of the peace, shall, in any action he prima facie
evidence of presentation and dishonor, and

where a
1 witliin
ler pro-
the hill
fore the
B taking
est may
8 of the

3horized
services
le place
stice of
present
3cessary
' powers

les may
or 8ub-

)testing

eby in-

holder

n each

his Act
ny bill
A. copy
nay be
bill or
hanges

id any
justice
d facie
and

The Bills of Exchange Act, 1890. 65

also of service of notice of such presentation
and dishonor as stated in such protest. {Ihid.
sec. 95.)

94. The provisions of this Act as to crossed Dividend war-
cheques shall apply to a warrant for payment Jrowcd.*^ ^®
of dividend. {Ihid. sec. 95.)

05. The enactments mentioned in the second Hopcai.
schedule to this Act are hereby repealed, as
from the commencement of this Act, to the
extent in that schedule mentioned :

Provided, that such repeal shall not affect I'roviao.
anything done or suffered, or any right, title
or interest acquired or accrued before the
commencement of this Act, or any legal i)ro-
ceeding or remedy in respect of any such
thing, right, title or interest: {Ibid. sec. 96.)

2. Nothing in this Act or in any repeal " Tho Bank
affected thereby shall affect the provisions of ,fffocted'^

" The Bank Act:''

3. The Act of the Parliament of Great Brit- imperial Acts

ipt

ain passed in the fifteenth year of the reign of c^'aifamiM':,
His late Majesty George III, intituled " Au g,«»;^^^^{|^c. '
Act to restrain the negotiation of Promissory apply.
Notes and Inland Bills of Exchange under a
limited sum within that part of Great Britain
called England," and the Act of the said Par-
liament passed in the seventeenth year of His
said Majesty's reign, intituled '' An Act for
further restraining the negotiation of Promis-
sory Notes and Inland Bills of Exchange under
a limited sum within that part of Great Britain
called England," shall not extend to or be in
force in any Province of Canada, nor shall the
said Acts make void any bills, notes, drafts or
orders which hare been or may be made or

uttered therein.

66 The Bills of Exchange Act, 1890.

^^^^ ** ^^ "°*** ** ^o *^® sum for which a Bill
of Exchange, Promissory Note or Cheque, may be

Construction
with other
Acts. &c.

'I- i

'4 '
«^ I

Comnience-
ment of Act.

»«• Where any Act cr document refers to
any enactment repealed by this Act, the Act
or document shall be construed and shal oper-
ate as if it referred to the corresponding pro-
risions of this Act. (iWaf. sec, 99.)

[97- This Act shall come into force on the
first day of September next.]

' 11

I i

3h a Bill
, may be

efers to
bhe Act
1 oper-
»g pro-

on the

FIKST SCHEDULE.
Form A.

NOTING FOE NON-ACCEPTANCE.

{Copy of Bill and Indorsements.)

^^ the 18 , the above Bill was, by me, at

the request of , presented for acceptance to

E. P., the drawee, personally {or^ at his residence, office
or usual place of business), in the city (town or village)
of and I received for answer, ^' ."

The said bill is therefore noted for ron-acceptauce.

A. B.,

Notary Public.
(Date and place.) 18

Due notice of the above was by me served f A B )

*^® jindorse'r, [ Personally, on the day of

(or, at his residence, office or usual place of business)

ia , on the day of

(or, by depositing such no' ce, direcr^c to him, at

, in Her Majesty's j^- >>st office in the city [town or
village], on the day of , and prepaying

the postage thereon.)

A. B.,

Notary Public.
(Date and place.) 18

68 Schedule. — Forma.

Form B.

protest for non-acceptanoe or for non-payment
of a bill payable generally.

{Copy of Bill and Indorsements.)

On this day of , in the year 18

I, A. B., notary public for the Province of

, in the Province of

at the

dwelling; at

request of , did exhibit the original bill of

exchange, whereof a true copy is above written, unto

E. F., the {acceptor j t^iereof personally {or, at his re-
sidence, office or usual place of business) in ,
and, peaking to himself {or his wife, his clerk, or his

servant, &c.,) did demand {paymen^^^l ^^^^reof ; unto

which demand \ , > answered : '* ."

"Wherefore I, the said notary, at the request aforesaid,
have i^rotested and, by these presents do protest against
the acceptor, drawer and indorsers {or drawer and in-
dorsers) of the said bill, and other parties thereto or
therein concerned, for all exchinge, re-exchange, and
all costs, damages and interest, present and to '^ome,

for want of { ^^^y^P^^-^r' } ^' *"« «»"' '■^'"-
All of which I attest by my signature.

(Protested in duplicate.)

A. B.,

Notary Public.

Schedule. — Forms.

FOEM C.

PROTEST FOR NON-ACCEPTANCE OR FOR NON-PAYMENT OF
A BILL PAYABLE AT A STATED PLACE.

{Copy of Bill and Indorsements.)

On this day of , in the year 18 , I, A. B.,

notary public for the Province of , dwelling

at , in the Province of , at the request

of , did exhibit the original bill of exchange,

whereof a true copy is above written, unto E. F. the

I drawee ) thereof, at , being the stated

(acceptor j '

place where the said bill is payable, and there, speakir.g

did demand {--£-} of the

^ald bill ; unto which demand he answered

Wherefore I, the said notary, at the request aforesaid,
have protested, and by these presents do protest against
the acceptor, drawer 'and indorsers (f»- drawer -md in-
dorsers) of the said bill, and all other parties thereto or
therein concerned, for all exchange, re-exchange, costs,
damages and interest, present and to come, for want of

(acceptance | of the said bill.
( payment j

All of which 1 attest by my sii';nature.

(Protested in cuplicate.)

A. B.,

Kotnri/ Puhlie.

Schedule. — Forme.

Form D.

1? i'l

PEOTEST FOB NON-PAYMENT OF A BILL NOTED, BUT NOT
PROTESTED, FOR NON-ACCEPTANCE.

If the protest is made by the same notary who noted the
hill J it should immediately follow the act of noting and mem-
orandum of service thereof^ and begin with the words '' and
afterwards on, &c.y^^ continuing as in the last preceding
forniy biit introducing between the words '^ did " and ** ex-
hibit," the word ** again," and, in a parenthesis^ between
the words '^ written '' and '^ unto," the words : *' and which
bill was by me duly noted for non-acceptance on the

day of "

But if the protest is not made by the same notary^
then it should follow a copy of the original bill and indorse-
ments and noting marked * n the bill — and then in the pro-
test introduce, in a parenthtsis, between the words ''written"
and " unto," the words : and which bill was on the

day of , by , notary

public for the Province of , noted for non-

acceptance, as appears by his note thereof marked on
the said bill."

*.:%

Schedule. — Forms.

Form E.

PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE

GENERALLY.

{Gojyy of Note and Indorsements.)

On this (lay of , in the year 18 ,

I, A. B., notary public for the Province of ,

dwelling at , in the Province of , at the

request of , did exhibit the original pron\issory

note, whereof a true copy is above written, unto

, the promisor, personiiliy {or, at his resi-
dence, office or usual place of business), in , and
speaking to himself (or his wife, his clerk or his servant,
&c.), di(l demand payment thereof ; unto which demand

I ?^1 answered: ''
(she)

Wherefore I, the said notary, at the request aforesaid,
have protested, and by these presents do protest against
the promisor and indorsers of the said note, and all other
parties thereto or therein concerned, for all costs,
damages and interest, present and to come, for want of
payment of the said note.
All of which I attest by my signature.

(Protested in duplicate.)

A. B.,
Notary Public.

Schedule. — Forms.

Form F.

;i .

PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE
AT A STATED PLACE.

{Copy of Note and Indorsements.)

On this day of , in the year 18 ,

I, A. B., notary public for the Province of ,

dwelling at , in the Province of

at the request of , did exhibit the original

promissory note, whereof a true copy is above written,
unto the promisor, at , being the

stated place where ihe said note is payable, and there,
speaking to did demand payment of the said

note, unto which demand he answered : '' ."

Wherefore 1, the said notary, at the request aforesaid,
have protested, and by these presents do protest against
the promisor and indorsers of the said note, and all
other parties thereto or therein concerned, for all costs,
damages and interest, present and to come, for want of
payment of the said note.

All which I attest by my signature.

(Protested in duplicate.)

A. B.,

Notary Public,

Schedule. — Forms.

Form G.

notarial notice of a noting, or of a protest

for non-acceptance, or of a protest

for non-payment of a bill.

{Place and date of Noting or of Protest.)

1st.
To P. Q,. (the drawer.)

at
Sir,
Your bill of exchange for $ , dated at

the , upon E.F., in favor of CD., payable days

after I ^ig'^*? 1 ^as this day, at the request of

, , ( noted ) 1 4- f iion-a;.oeptance. ")

*i^ly {protested PJ^^^^^^M non-payment. }

A.B.,

Notary Public.
{Place and date of Noting or of Protest.)
2nd.

To C. D. {indorser),

{orF.G:)

Sir,

Mr. P.Q. 's bill of exchange for $ , dated at ,

the , upon E.F., in your favor {or in favorof CD.,)

payable days after | ^^^J^J^' | and by you indors-

ed, was this day, at the request of , duly

( noted ) , f ( non-acceptance. )

I protested } ^^ "'® ^^"^ { non-payment. |

A. B.,

Notary Public.

II;

Schedule. — Forms.

Form H.

notarial notice of protest of non-
payment of a note.

Sir,

Mr. P.Q.'s promissory note for $ , dated at,

(' months "^

, the

payable < days > after date to
(on )

j F^F I ^^ order, and indorsed by you, was this day, at

, duly protested by me for non-

the request of
payment.

A.B..

Notary Public,

"«

Schedule. — Forms.

dated at,
r date to

is day, at
B for non-

Puhlic.

Form I.

NOTARIAL SERVICE OF NOTICE OF A PROTEST FOR NON-
ACCEPTANCE OR NON-PAYMENT OF A BILL, OR OF

NON-PAYMENT OF A NOTE {to he Subjoined to the Protest.)

And afterwards, I, the aforesaid protesting notary pub-
lic, did serve due notice, in the form prescribed by law,

of the foregoing protest for { non^parmeX^ } ^^ ^^^
1 note I *^®^®^y protested upon | ^' §• ' | the

{ fndoTers } P—"^' «" *«

day of {pr^ at his residence, office, or usual place of
business) in , on the day of ;

{or^ by depositing such notice, directed to the said

fP.Q.,)
(C.D..J

at , in Her Majesty's post office in

on the day of ,

and prepaying the postage thereon).

In testimony whereof, I have, on the last mentioned
day and year, at aforesaid, signed these

presents.

A.B.,

Notary PuUic.

Schedule. — Forriia.

i I

:l i

Form J.

PROTEST BY A JUSTICE OF THE PEACE (WHERE THERE IS

NO notary) for non-acceptance of a bill, or

NON-PAYMENT OF A BILL OR NOTE.

(Copy of Bill or Note and Indorsements.)

On this day of , in the year 18 , 1.N.O.,

one of Her Majesty's justices of the peace for the district
(or county,&c.), of , in the Province of ,

dwelling at (or near) the village of , in

the said district, there being no practising notary public
at or near the said village (or any other legal cause) ^ did,
at the request of and in the presence of

well known unto me, exhibit the original ] ■ \

whereof a true copy is above written, unto P. Q., the

! drawer ")
acceptor > thereof, personally (or at his residence,
promisor )

office or usual place of business) in and

speaking to himself (his wife, his clerk or his servant,

&c.), did demand I p^^^P*^"^® | thereof, unto which de-
mand ] -^ \ answered : *^ ."

Wherefore I, the said justice of the peaee,at the re-
quest aforesaid, have protested, and by these presents

( drawer and indorsers "|

do protest against the •! promisor and indorsers >■

(acceptor, drawer and indorsers)

Schedule. — Forms. 77

of the said | ^H^ 1 and all other parties thereto and

therein concerned, for all exchange, re-exchange, and all
costs, damages and interest present and to come, for want of

( acceptance \
\ payment j

of the said

f bill.
( note

All which is by these presents attested by the signature
of the said (the witness) and by my hand and seal.

(Protested in duplicate.)
{Signature of the xoitness.)
{Signature and seal of the J. P.)

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SECOND SCHEDULE.

ENACTMENTS REPEALED.

Province and Chapter.

Ill \

Dominion of Canada :
Chap. 123, Revised Statutes

Province of Cuebec :
Civil Code of Lower Canada

Nova ' -v^tia :
Reviseo Statutes, third
series s.i,u82

New Brui 'T v^rick :
Revised ^_-tatutes, chap. 116,

30Vic., 186T, chap. 34.

Title of Act and extent of repeal.

An Act respecting Bills of Exchange and Prom-
issory Notes.— The whole Act.

Articles 2,279 to 2,354, both inclusive [*]

" Of Bills of Exchange and Promissory Notes."
Section 2. The other sections of this chapter
have been heretofore repealed.

" Of Bills, Notes and Choses in Action." Section 2.
The other sections of this chapter have been
heretofore repealed.

An Act to amend chap. 116 of the Revised Stat-
utes, "Of Bills, Notes and Choses in Action ;"
also Act 12th Victoria, chapter 39, relating
thereto. Section 1.

[*Except in so far as such articles, or any of them, relate to evidence in
regard to bills of exchange, cheques and promissory notes.] These articles are
2341 and 2342, which read as follows : 2341. In the investigation of facts, in
actions or suits founded on bills of exchange drawn or endorsed either by traders
or other persons, recourse must be had to the laws of England in force at the
time specified in the last preceding article (30th May 1849) and as additional
evidence is required or can be adduced by reason of any party to the bill not
being a trader. 2342. The parties in the actions or suits specified in the last
preceding article may be examined under oath as provided in the title of
Obligations.

INDEX.

peal.

e and Prom-

ory Notes."
;m8 chapter

" Section 2.
have been

ivised Stat-
Q Action ;"
59, relating

vidence in
irticles are
of facte, in
'by traders
orce at the
additional
he bill not
n the last
»e title of

the numbers refer to the sections op the act.

Acceptance

defined 2 17

delivery or notification to compieie.'ll^'..'.''.'. ' 21

renunciation of, by holder 62

revocation of, by drawee 21

must be signed, and on bill " 17a

date, how supplied ■.''■■"!!.' 12, 18

bill m a set 70

Time of :

before bill complete as to form la on

after maturity jn' i«

after dishonor '.'.Z.'^Z ' 13

presumption when undated ..........................*.* 18

By whom :

in general by drawee 17

by one of several drawees !!!!!!"!..!!!!.....! 19

by drawee in assumed name 23

by fictitious persons 5 41

by corporation ",'*.".".' ' 22

forged or unauthorized 24

when general ......."!. 19

when qualified jg

option to take qualified ................'.'..'.'.*.*.".".'.'.' 44

Acceptance for Honor supra Protest

what bills may be so accepted and when «^

effect of accepting " ^l

must be protested S2

Acceptor

defined 3

for accommodation 28

signature of. ..........."............!!. 23

I j:

i *

80 Index.

Acceptor— Continued.

damages against 57

notice of dishonor not necessary to 52

presentment to 52

liability of. 54

Accommodation Bill

defined 28

value subsequently given for 27

presentment for payment when excused 46

notice of dishonor when excused 50

Action

includes counterclaim and ^-et off. 2

holder may bring, in his own name 38

lost bill ornote 68

costs of. 52,56,86, 93

Address

sufficiency of, when notice sent by post and lost 49

of drawer or indor^er of dishonored bill not known 50

to drawee in bill 6

After Date ^Bill Payable)

omission of date 12

entitled to days of grace 14

r Iculation of maturity 14

presentment for acceptance, when necessary 39

acceptance after maturity 10

presumed time of undated acceptance 18

After Sight (Bill Payable)

entitled to days of grace 14

computation of maturity 14

presentment for acceptance required 39

when presentment is excused 41

Agent 26

Allonge 32

Alteration

what material 63

effect of material on bill 63

Ante-dated Instruments 13

I I

Index.

57
52
52
54

28
27
46
50

2
38
68
93

12
14
14
39
10
18

14
14
39
41

63
63

Bank and Banker

bank defined ^ 2

lien on customer's bill 27

paying forged cheque or bill 24

duty when cheque crossed to more than one 78

receiving payment of crossed cheque for customer 81

payment of crossed cheque by 79

protection of, as to crossed cheques 78

Beabeb

defined 2

included in term "holder" 2

Bill Payable to, defined 8

Better Security

protest for 81

Bill op Exchange

definition 3

form and interpretation 3-21

capacity of parties 22

authority of parties.

forgery 24

consideration for. See Consideration.

duties of holder 30, 52

Bills of Exchange Act 1890

changes in law effected by. See Introduction.

not retrospective 2

applies only to bills, notes and cheques 2

acts repealed by 95

Blank, or Blank Signature

Indorsement in Blank.

definition 34

effect 34

conversion into special 34

Bona Fides

bond fide holder 29

test of, in holder 29

presumption of, in holder 30

Business Days

what are, or are not 91

r I

82 Index.

Capacity

general rule 22

Cancellation

of bill or signature by holder 62

if by mistake 62

acceptance by drawee 21

indorsement by indorser 21

Case of Need

meaning of term 15

designated by indovser 15

cannot accept without protest 66

option of holder to present in 15

Cheque

defined 72

provisions as to bills, how far applicable to 72

when deemed overdue or stale 36

payment by banker when held un^ar forged 24

is not a Q assignment of funds 53

Crossed

geaeral and special crossings 76

who may c-'oss 77

meaning and effect of '' not negotiable " 80

alteration of crossing 77

Collateral Security

effect whea bill held as 27

Company and Corporation

capacity to incur liability 22

seal or sigaature of ,.... 90

Conditional

acceptance 3, 11, 83

indorsement 33

Conflict of Laws

rules aB to 71

Consideration

what constitutes 27

pro tanto In case of pledge or lien 27

.... 22

.... 62

...... 90

3, 11, 83
33

Index. 83

Consider ATioN— Con< I n wed .

want of, creating privity between remote parties 30

presumption of 30

holder fot value 27

holder in due course 29

Costs 52, 56, 86, 93

Crossed Cheque. See Cheque

Damages (Measure of) 57

Date

insertion ofj proper, bub not essential 3, 12

alteration of, material 63

iiiterest to be calcalated from ^9

Days op Grace 14, 71

Delivery 3

definition of. 3

necessity for, to complete contract 21

by whom it must be made 21

Demand {Bill or note payable on)

expressed to beso payable 10

payable ^.t si^ht or on presentation 10

bill accented or indorsed after maturity is '. 10

discharge defined 59

Dishonor

By non-acceptance.

defined 43

consequences of. 43

By non-payment.

defined 47

consequences of. 47

Drawee

must be named 6

alternative 6

acceptance by 17

Drawee in Case of Need 15

'ft

arr

mssmmim

IH;

Index.

Dbawer.

defined 3

forged or unauthorized signature of. 24

payment by, as a dischargr- 59

taking up bill in a set 71

Due Date

how determined in general 14

conflict of laws 71

Equity Attaching TO Bill

Fees Chargeable by Notaries.

36
93

Foreign Bill or Note

defined 4

forged or unauthorized cignature 24

Forms

A. Noting for non-acceptance 67

B. Protest of bill payable generally 68

C. Protest of bill payable at stated place 69

D. Protest of bill noted for non-acceptance 70

E. Protest of note payable generally 71

F. Protest of note payable at stated place 72

G. Notarial notice of noting or protest of bill 73

H. Notarial notice of protest of note 74

I. Notarial service of notice of protest 75

J. Protest by a justice of the peace 76

Good Faith

test and definition of.

Grace, days of. 14

Holder

defined 3

for value 27

Duties.

presentment for acceptance 39

" " payment 45

protest of bill 51

Bights.

further negotiation of bill 38

with defective title to give good title 38

to duplicate of lost bill 68

• ••••••• a4

..... 39

.... 38
.... 38
68

Index. g5

Inchoate or incomplete bill or note gg

Indorser

included in term « holder "

' £

Indorsement

defined

delivery requisite* to compiete'.' '.■".■ ■" o o?

revocation of, by indorser '.".".".'.'.'.'.'.".".'.V.V.V.'.'.".'."' 21

Indorsed

defined

revocation of indorsement .*.'.' '■■■. S

how habiliW negatived by express" terms ■.'.■.■. Vr ^?

Inland Bill

defined

presumption that biiris'V.'.V. !

Instalments

bill payable by

Interest

9, 14

Interest proper

from what date it runs.

Lien

as consideration for bill

rights and duties of holder having.'

Lost Bill

9
9

27
27

rights to duplicate,
protest on copy.

68
51
69

payment where destruction pro v^^^^^^^ ^J

Maker (of Note)

defined

damages against .. . ........... ..........'...".' ??

Maturity

of bill how computed ^ .

acceptance after in

if|:j

86 Index.

Negotiability

restrained by indorsement 35

Negotiation

defined 31

" Not Negotiable "

cheque may be specially so crossed 75

Notary Public

when necessary ; fees &c. See Protest..... 51, 64, 71, 93

Notice of Dishonor

To charge drawer or indorsers 48

defined 49

when necessary 48

consequence of omission to give 48

Noting

defined 51

Order {Bill payable to)

what bi'ls are 8

e^ect of omitting words " or order " 8

how negotiated 31

Overdue Bill

negotiability of 36

Patent

bill given for 30

Payee

defined 7

included in term " holder " 2

Payment {of Bill)

meaning of term 59

payment for honor suprS, protest 67

Post Office

notice of dishonor sent through 49

presentment for acceptance through 41

" " payment through 45

1 1

, 64, 71, 93

48
49

7
2

59
67

49
41
45

Index. 87

Prescription 36

Presentment for Acceptance

when necessary 39

consequence of omission when necessary 40

by whom to be made 41

to whom and when 41

day and hour 41

excuses for non presentment 41

Presentment for Payment

consequence of omission 45

Principal and Agent

liability of principal to holder 25

on instrument when unnamed 23

name signed by agent 26

forged signature 24

Promissory Note

defined 82

how far provisions as to " bills " apply to 88

of corporation under seal without signature 90

payment suprS, protest 67

Protest

what it is 51

founded on noting 51, 92

may be extended fi'om noting at aay time 51, 92

notice of. 49

consequeace of not protesting 51

at what time to be made 51

Ratification

of forged or unauthorized signature 24

Reasonable Time

presentment for acceptance 39

" " payment 45

notice of dishonor

Referee in Case of Need 15, 67

Restrictive Indorsement

what indorsements are 35

■XBS

88 Index.

Revocation

acceptaiice by drawee 21

indorsement by indorser 2i

of delivery 21

Security

protest for better 61

Set (bill drawn in) 70

Signature

delivery to give effect to 21, 83

immaterial by what hand, if authorized

what sufficient in point of form 90

of corporation 90

Special indorsement

definition 34

effect 31, 34

distinguished from restrictive 35

Transferer by Delivery

defined 58

Usurious Consideration, bill givenfor 30

Value

defined 2, 27

Value Received

construction of the term 3

Waiver

of bill by holder 61

of liabilities of parties by holder 61

of presentment for payment 47

of protest.. 16, 51

of notice of dishonor 50

Without Recourse 16

... 21
... 21
... 21

... 61
... 70

21,83

".'.". 90
... 90

... 34
31,34
... 35

.. 58
,.. 30

. 2,27

.. 3

... 61
... 61
.. 47
16, 51
.. 50

.. 16