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Act of 1891.
49 Vict. c. 25, s. 3; R. S. C. c. 50, s. 11; Reg. v. Nan-equis-a-ka, 1 S. C. R. N. W. T. 24 (1889).
British Columbia. The laws of England as they existed on November the 19th, 1858, were introduced into this province: C. S. B. C. c. 69; Reynolds v. Vaughan, 1 B. C. R. 3 (1872). There was no provincial legislation regarding bills and notes prior to the administration of the province into the Dominion which took place July 20th, 1871, under the Imperial Order in Council of May, 16th, 1871.
The Old Laws.-The Act of 1890 having repealed all previous Dominion and Provincial legislation, and not having furnished any uniform rule for cases not provided for, recourse would have been had for these to the old law as introduced into each province, and failing any provision applicable there, to the principles of the law on analogous subjects in the respective provinces.
If this rule were adopted, recourse would have been had in the province of Quebec to the old French law, and in the other provinces to the law of England as it existed at the following respective dates. In Ontario as on the 17th of September, 1792; in Nova Scotia and New Brunswick, probably as on the 3rd of October, 1758; in Prince Edward Island, as on the 7th of October, 1763; in Manitoba as on the 15th of July, 1870; in the North West Territories, for matters arising prior to the 2nd of June, 1886, to the law of England, as on the 2nd of May, 1670, and for matters arising since the 2nd of June, 1886, to the law of England, as on the 15th of July, 1870; and in British Columbia to the law of England, as on the 19th of November, 1858.
It was no doubt the conclusion that such a conflict would to some extent defeat the uniformity which was
declared to be one of the chief objects of the Act, that induced Parliament to pass section 8 of the amending Act of 1891, and to make it retroactive.
It might be thought that the Act is such a complete codification of the law regarding bills and notes, that few questions would arise which are not there provided for. It is however quite certain that many questions affecting these instruments directly or indirectly will arise for which no provision is made in the Act. It is not necessary here to do more than barely mention a few of these, such as aral; the relation of indorsers inter se; the rights and liabilities of parties to bills and notes, once the relation of principal and agent or that of principal and surety is established between them; whether the insolvency of the acceptor of a bill or the maker of a note makes these instruments mature or gives the holder any rights.
The growth and firm establishment in the jurispru. Aval in dence of Quebec of the doctrine of aval under Art. 2311 C. C., as will be more fully noticed under section 56, notwithstanding the existence of the provision in the Act of 1849, and in the Civil Code, that in all cases not therein provided for, recourse should be had to the laws of England, affords a striking example of the divergence that would certainly have arisen under the new Act if parliament had not furnished a uniform rule, and even now it is quite certain that the application of the varying principles of the laws of the different provinces, and a difference of opinion as to when and how far these should be applied, will lead to considerable divergence even under the rule provided by the Act of 1891.
The Act does not treat of the limitation of actions or Limitation prescription as affecting bills and notes, but leaves the law of each province to be applied within its bounds. The period is five years in Quebec and six years in the other
Other negotiable in
provinces. This diversity will in many cases involve a question of the conflict of laws as between the different provinces. For its consideration the reader is referred to the notes under section 71, as the rules which govern it have much in common with the principles there laid down when there may be a conflict between the law of Canada and that in force in foreign countries.
The Act applies only to bills, notes, and cheques, and struments. not to other negotiable commercial instruments with the exception of section 94, which declares that the provisions as to crossed cheques shall apply to warrants for the payment of dividends. It is certain however that the rules laid down as to bills, notes, and cheques, will by analogy be applied in the course of business by bankers and merchants to the other commercial instruments which have so much in common with them, and some of which are now undergoing the process by which customs and usages of trade are crystallized into, and have all the force of law. A short chapter on other negotiable instruments will be found at the end of the notes on the Act.
1. This Act may be cited as "The Bills of short title. Exchange Act, 1890."
The Act was assented to on the 16th of May, but did not come into force until the 1st of September, 1890: section 97. It is not retrospective, and that part of it which is new law will not apply to instruments issued before its commencement, except in the case of transactions and matters connected with them after that time; as for instance, the acceptance of such a bill after the first of September, or the protesting of a bill or note issued before, but only dishonored after that date: Maxwell on the Interpretation of Statutes, 257, 271; Leeds and County Bank v. Walker, 11 Q. B. D. at p. 91 (1883).
The Imperial Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61, from which the Canadian Act is almost wholly copied, has been held to be largely declaratory of the prior English law. The Master of the Rolls speaks of it as "the codifying Act which declares what was and is the law": Vagliano v. Bank of England, 23 Q. B. D. at p. 248 (1889); and Stirling, J. says that it "may be accepted as declaratory of the prior law": re Bethell, 34 Ch. D. at p. 567 (1887). See also to the same effect the remarks of Lord Blackburn in McLean v. Clydesdale Banking Co., 9 App. Cas., at p. 106 (1883).
As the law in the various provinces of Canada has heretofore varied considerably, as shewn in the foregoing.
1. pages, and as the present Act has in a number of instances changed the law to make it harmonize with that of England, it cannot be so generally accepted as declaratory of the old law in Canada. Nevertheless, there will probably be a disposition on the part of the courts to consider it as declaratory, where it is not clear that the law bas been actually changed.
2. In this Act, unless the context otherwise requires,
"Accept. (a) The expression "Acceptance means an acceptance completed by delivery or notification;
This and the following clauses are copied from section 2 of the Imperial Act with the changes noted below. The words defined occur a number of times, and are used in a technical, and not in their ordinary or popular sense, hence the necessity for definitions or an interpretation clause.
"Acceptance" in connection with a bill was formerly used to indicate the act by which the drawee made himself responsible for the payment of a bill-whether by writing on the bill itself, or by collateral writing, or by parol: Lumley v. Palmer, Str. 1000 (1735); Clarke v. Cock, 1 East, 57 (1803); Lagueux v. Everett, 1 Rev. de Leg. 510 (1817); Jones v. Goudie, 2 Rev. de Leg. 334 (1820). Since the two latter methods have been done away with by legislation, the word has been generally used to designate simply the writing on the bill. In the Act, however, when used without qualification, it is applied only to the cases where the writing and the liability thereunder have become complete and irrevocable by being followed either by delivery of the bill or by notification that it has been accepted: Cox. v. Troy, 5 B. & A. 474