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In the Act of 1849, 12 Vict. c. 22, for the first time a general law on the subject was enacted, embodying provisions that up to that time had existed in custom alone. This statute, passed by the Parliament of United Canada, does not purport to be for Lower Canada alone, but it has been decided that it did not apply to Upper Canada: Ridout v. Manning, 7 U. C. Q. B. 35 (1850). It was embodied in the Consolidated Statutes for Lower Canada as chapter 64, and most of its provisions subsequently appeared in the Civil Code. The Act itself was largely taken from the English law and usages, and by section 30, in all cases not provided for, recourse was to be had to the laws of England as they stood at the date of its passage, viz., May, 30th, 1849, a provision that was retained in the Civil Code as Art. 2340. The short Act of the following year, 13-14, Vict. c. 23, applied to both Upper and Lower Canada, and became chapter 57 of the Consolidated Statutes of Canada. It related chiefly to the protesting of bills and notes.
The Civil Code, which came into force on the 1st August, Civil Code. 1866, contained 76 articles (2279 to 2354) on the subject of bills, notes, and cheques. As a reference to these will be of great advantage in considering the Quebec decisions cited. as illustrations of various sections of the present Act, they will be found in the appendix. The references under each article show how largely the codifiers drew from English sources, and this with articles 2340 and 2341 adopting English law and the English rules of evidence has tended to assimilate the law of Quebec on this subject to that of England and thereby to that of the other provinces. The Code, modified in a few particulars by Dominion legislation, continued to be the law of Quebec until it was repealed by section 95 of the present Act, with the exception of the two articles that relate to evidence, viz., 2341 and 2342: See Second Schedule.
Ontario. What is now the province of Ontario formed a part of Quebec until 1791. It was subject to the same laws, viz., the French law as modified by Canadian ordinances up to 1760, then military rule to the peace of 1763, English law after the proclamation of October 1763, and French and Canadian law again after the 1st of May, 1775. The first Parliament of the new province of Upper Canada which met at Niagara on the 17th of September, 1792, by its first Act, 32 Geo. 3, c. 1, repealed that part of the Quebec Act relat. ing to the laws of Canada and provided that in all matters of controversy relative to property and civil rights resort should be had to the laws of England as the rule for the decision of the same, that is, as they stood at that date.
In 1811 the Quebec Ordinance of 1777 regulating protests, above referred to, was repealed by 51 Geo. 3, c. 9. The principal Acts relating to bills and notes were the following:-2 Geo. 4, c. 12, declaring that the Imperial Acts 15 & 17 Geo. 3, respecting small notes should not apply to Upper Canada; 5 Wm. 4, c. 1, facilitating actions on bills and notes; 7 Wm. 4, c. 5, requiring acceptances, to be in writing, and making an acceptance at a particular place general, unless the words "only and not otherwise or elsewhere" were added; 12 Vict. c. 76, regulating protests and damages; 14-15 Vict. c. 94, as to days of grace and holidays; and 19 Vict. c. 43, as to actions on lost bills and notes. These with some others were embodied in the Consolidated Statutes of Upper Canada of 1859, c. 42; and those sections which had not been previously altered by Dominion legislation formed sections 15 to 25 of chapter 123 of the Revised Statutes of Canada, 1886, but they continued to be applicable to Ontario alone.
Nova Scotia.-This province is considered to have become a British colony by discovery and settlement;
and the date of its settlement is generally, given as immediately following its discovery by Cabot in 1497: 1 Burge's Colonial Law, p. xxxiv; Forsyth's Constitutional Law, p. 26. The first actual settlement was under the grant to Sir William Alexander in 1621. It subsequently passed into the hands of the French who abandoned their claim by the treaty of Utrecht in 1713. Even after this there was a conflict of possession, but it was finally confirmed to England by the treaty of Paris in 1763. A country re-conquered from an enemy reverts to the same state that it was in before the conquest: Gumbe's case, 3 Knapp, 369 (1834). Having become a colony by settlement, the laws originally in force in Nova Scotia would be the common law of England with the statutes passed before its settlement, in so far as they were applicable to the condition of the people: Uniacke v. Dickson, 2 N. S. (James) at p. 300 (1848). The time usually fixed upon in such cases, as the date when ordinary Imperial legislation ceases to apply, is when the new colony first has a law-making body of its own. With respect to Nova Scotia, this date has not been authoritatively determined, some placing it as early as 1622, when Sir William Alexander made the first settlement, others placing it at various later dates.
From 1713 to 1758, the government consisted of a Governor and a Council, which undertook as a legislative body to pass ordinances. In 1755 the Chief Justice of the province held that they had no such power without an Assembly, and this opinion was confirmed by the law officers of the Crown in England. The first General Assembly met at Halifax on the 3rd of October, 1758, and this would seem to be the latest date at which general British Statutes not specially applicable to it or the other colonies would apply: Doran v. Chambers, 20 N. S. at p. 311 (1887); Forsyth, p. 19.
Cape Breton is also claimed to have been a British colony from 1497 for the same reasons: 1 Burge, xxxiv. By the treaty of Utrecht, however, it was retained by France. Conquered in 1758, it was confirmed to England by the treaty of Paris: and by the proclamation of October 7th, 1763, it was annexed to Nova Scotia, and the laws of England made applicable. It was separated in 1784, and re-united to Nova Scotia in 1820: re Cape Breton, 5 Moore, P.C. 259 (1846). By the provincial Act 1 & 2 Geo. 4, c. 5, the laws of Nova Scotia were extended to Cape Breton.
Like most of the other colonies the first Act passed by the Nova Scotia Assembly regarding bills of exchange, was to regulate protests and the damages on dishonored bills, and this was done at the first session in 1758. The provincial legislation on the subject was very meagre, and at Confederation the whole of the statute law, apart from that relating to procedure in the courts was comprised in three short sections of Chapter 82, Revised Statutes, as amended in 1865, relating respectively to (1) damages on protested bills, (2) the transfer and indorsement of promissory notes, and (3) requiring the acceptance of a bill to be in writing upon it. Notes for sums payable otherwise than in money were presumed to be for value, and recognized as promissory notes but were not negotiable. These last have not been dealt with in the present Act or in any other Dominion legislation as they are not considered promissory notes within the meaning of the British North America Act.
The provincial Act making promissory notes assignable and indorsable like inland bills of exchange, and allowing the payee, indorsee, or holder to sue in his own name, was passed in 1768: 8 Geo. 3, c. 2. This was substantially a re-enactment of the English Act 3 & 4 Anne c. 9. From
this it would appear that the local Assembly was of opinion that the Imperial Act was not in force in the colony.
It is possible that in Nova Scotia the period of the restoration of Charles II. was adopted as the date at which English Statutes generally should cease to apply, as is said by Judge Chipman in The King v. McLaughlin, quoted below, to have been the case in New Brunswick. The statute requiring the acceptance of a bill of exchange to be in writing on the bill was passed in 1865.
New Brunswick. This province was a part of Nova English Scotia until 1785; but all Nova Scotia statutes passed previous to that date were repealed in 1790 in so far as they affected the new province. As to English law and statutes, the rule would be the same as that applicable to Nova Scotia. The question was discussed in The King v. McLaughlin, an unreported case decided in 1830, quoted in Cassels' "Procedure in the Supreme and Exchequer Courts," at page 30, from which the following extracts are taken. Saunders, C.J., said that "the colony was not to be considered as either a conquered or a ceded country, and therefore the colonists at the time it was settled brought with them such parts of the common law of England as were applicable to their condition." Bliss, J., was of the same opinion, and Botsford, J., said he never considered Nova Scotia, of which New Brunswick was a part, in the light of a conquered country. The British right to it was founded on discovery and was always so maintained; and the grant to Sir William Alexander, in 1620, was founded on this right of discovery; therefore the English common law and all statutes in amendment of the common law passed anterior to the settlement of the colony were in force." Chipman, J., considered the true principle to be as laid down by Lord