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6. A bill must be protested at the place where Where bil it is dishonored, or at some other place in Canada protested. situate within five miles of the place of presentment and dishonor of such bill: Imp. Act, s. 51 (6).
The Imperial Act simply reads, "A bill must be protested at the place where it is dishonored." The other words were added in the House of Commons on the suggestion of the Ministerof Justice, in order, as he said, to "facilitate the making of protests, and prevent hardship likely to occur in country districts." See Mitchell v. Baring, 4 C. & P. 35 (1829), and section 93.
(a.) When a bill is presented through the post the post office, and returned by post dishonored, it may be
If presented through
protested at the place to which it is returned, not later than on the day of its return or the next juridical day: Imp. Act, s. 51 (6) (a).
A bill may be presented for payment through the post office where by agreement or usage this is sufficient: section 45, s-s. 6. The Imperial Act requires the protest to be on the day of the return, if the bill arrives during business hours.
Every day is a juridical day except the legal holidays mentioned in section 14, s-s. 2.
Protest on day of
(b.) Every protest for dishonor, either for non
dishonor acceptance or non-payment, may be made on the day of such dishonor at any time after non-acceptance, or in case of non-payment, at any time after three o'clock in the afternoon: R. S. C. c. 123, s. 22.
This clause in the Revised Statutes of Canada, cited above, applied to Ontario alone, having been taken from.
the Consolidated Statutes of Upper Canada, chapter 42. § 51. In Quebec a bill could be protested for non-payment in the afternoon of the last day of grace: C. C. 2319.
A bill may apparently be presented for payment at any Day and reasonable hour on the day it falls due, or if payable on protest. demand, at any reasonable time on any day on which the holder may choose to present it: section 45; but it cannot be protested before three o'clock, even on Saturday. It was proposed in the Commons to make the hour one o'clock on Saturday, but the suggestion was not adopted. This provision as to the hour is general, and apparently will apply to bills payable on demand as well as to those payable on a fixed day. The protest does not require to state that it was made after three o'clock: Forms E and F.
In England, Canada, and most of the United States, bills, as a rule, are not presented by the notary in person, but by his clerk. When such a usage prevails it will be recognized. For notarial forms of protest, see First Schedule to the Act, Forms B, C, D, E, and F.
7. A protest must contain a copy of the bill, or What prothe original bill may be annexed thereto, and the set forth. protest must be signed by the notary making it, and must specify—
(a.) The person at whose request the bill is protested:
(b.) 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: Imp. Act, s. 7 (a) (b).
The words "or the original bill may be annexed thereto" are not in the Imperial Act; but this mode of protesting
If bill is lost, etc.
was that followed in Ontario before the Act: R. S. C. c. 123, 8. 24, and Schedule A. In Quebec, the bill and indorsements were copied in the protest which was made in duplicate, the notary retaining one in his office and delivering the other with the bill to the person at whose request the protest was made: Con. Stat. L. C. c. 64, ss. 11, 12; R. S. C. c. 123, s. 29, and Schedule B.
Before the Act of 1882, protests in England were usually made under the seal of the notary: Brooks' Notary, 4th ed. p. 82. The clause requiring a seal was struck out in Committee: Chalmers, p. 175.
In the case of foreign bills at least it is well for a notary to use his seal, as in some countries a protest will not be received in evidence without an official seal.
1. Before the Act a seal was not required on the protest in Ontario or Quebec : Goldie v. Maxwell, 1 U. C. Q. B. 424 (1841); Russell v. Crofton, 1 U. C. C. P. 428 (1852); R. S. C. c. 123, Schedules A and B; but was in Nova Scotia: Merchants' Bank v. Spinney, 13 N. S. (1 R. & G.) 87 (1879).
2. Before the Act of 1851, a protest in Lower Canada that did not state that it was made in the afternoon of the day it bore date, was invalid: Joseph v. Delisle, 1 L. C. R. 244 (1851).
3. When the protest is made for a qualified acceptance, it must not state a general refusal to accept, otherwise the holder cannot avail himself of the qualified acceptance: Bentinck v. Dorrien, 6 East, 199 (1805); Sproat v. Matthews, 1 T. R. 182 (1786).
8. Where a bill is lost or destroyed, or is wrongly or accidentally detained from the person entitled to hold it, or is accidentally retained in a place other than where payable, protest may be made on a
copy or written particulars thereof: Imp. Act, § 51. s. 51 (8).
The provision here made for protest in case of the accidental detention or retention of a bill is not in the Imperial Act. The necessary particulars can usually be obtained from the bill book.
The right to make a protest on a copy of a lost note has long been recognized: Dehers v. Harriot, 1 Shower, 168 (1690).
9. Protest is dispensed with by any circum- Excuses for stances which would dispense with notice of dis- test and honor. Delay in noting or protesting 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 to operate, the bill must be noted or protested with reasonable diligence. Imp. Act, s. 51 (9).
The circumstances which dispense with notice of dishonor are set out in section 50, s-s. 2.
The circumstances which excuse delay in noting and protesting, as set out in this sub-section, are identical with those which excuse delay in making presentment for payment, as set out in section 46.
See the notes and cases cited under these sections; also Legge v. Thorpe, 12 East, 171 (1810); Gibbon v. Coggon, 2 Camp. 188 (1809); Greenway v. Hindley, 4 Camp. 52 (1814); Patterson v. Beecher, 6 Moore, 319 (1821); Campbell v. Webster, 2 C. B. 258 (1845); ex parte Lowenthal, L. R. 9 Ch. 591 (1874).
10. No clerk, teller or agent of any bank shall No bank act as a notary in the protesting of any bill or note protest.
§ 51. payable at the bank or at any of the branches in which he is employed. R. S. C. c. 123, s. 11.
Where payment to be made.
This provision is not in the Imperial Act. It was first enacted for Upper and Lower Canada in 1850, and made applicable to the whole Dominion by the Revised Statutes of Canada.
52. When no place of payment is specified in as to pre the bill or acceptance, presentment for payment is not necessary in order to render the acceptor liable : Imp. Act, s. 52 (1).
The Imperial Act reads, "when a bill is accepted generally, presentment is not necessary in order to render the acceptor liable." The change was made in this section to correspond with that made in section 19, which provides that an acceptance to pay at a particular specified place is not a qualified acceptance. The same rule applies to the maker of a promissory note: section 86, s-s. 1. See Wilson v. Brown, 6 Ont. A. R. 87 (1881); Shuter v. Paxton, 5 L. C. J. 55 (1860); Archer v. Lortie, 3 Q. L. R. 159 (1877); Mineault v. Lajoie, 9 R. L. 382 (1877); Rowe v. Young, 2 Bligh, H. L. at pp. 467, 468 (1820); Maltby v. Murrelle, 5 H. & N. at p. 823 (1860). Also notes and illustrations under section 86, s-s. 1.
The reason given by Chalmers for the rule in this section is that "at common law the debtor is bound to seek out his creditor to pay him": Coke on Littleton, s. 340; Cranley v. Hillary, 2 M. & S. 120 (1813). The general rule in Quebec is, that if no place is indicated in the contract, payment should be made at the domicile of the debtor: C. C. Art. 1152. By Art. 1069 of the Civil Code it is provided that in all contracts of a commercial nature in which the time of performance is fixed, the debtor is put in default by the mere lapse of time, and this would apply to