visions. If the bill has been duly noted, the protest may § 51. be completed even during the trial. Orr v. Maginnis, 7

East, at p. 361 (1806).

The rule requiring the noting or protest to be on the day of the dishonor is new.

suspends

5. Where the acceptor of a bill suspends pay- If acceptor ment before it matures, the holder may cause the payment. bill to be protested for better security against the drawers and indorsers: Imp. Act, s. 51 (5); 54-55 V. c. 17, s. 7 (Can.).

66

The Imperial Act reads, "where the acceptor of a bill becomes bankrupt or insolvent, or suspends payment, etc." In the Act of 1890, the words or insolvent" were omitted, but "becomes bankrupt or" remained. These were struck out by the amending Act of 1891, as there is no general bankrupt law for Canada.

the Conti

nent.

Chalmers says, (p. 173) :—“ Under some of the Con- Rule on tinental codes when the acceptor fails during the currency of a bill, security can be demanded from the drawer and indorsers. English law provides no such remedy, and the only effect of such a protest in England is, that the bill may be accepted for honor."

Quebec.

In Quebec the Civil Code provides, Art. 1092, that "the Rule in debtor cannot claim the benefit of the term when he has become bankrupt or insolvent," and bankruptcy is defined as "the condition of a trader who has discontinued his payments": Art. 17 (23). It has been held, that on the bankruptcy of the maker, a promissory note which had two years to run became immediately exigible: Lovell v. Meikle, 2 L. C. J. 69 (1853). See p. 269 ante.

In France, when the acceptor fails, the bill may at once be treated as dishonored and protested for non-payment: Code de Com. Art. 163; Nouguier, § 1277. ·

$51. 6. A bill must be protested at the place where Where bill 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).

must be

If present

ed through

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.

Provided that

(a.) When a bill is presented through the post 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 return or the next juridical day: Imp. Act, s. 51 (6) (a).

Protest on day of dishonor.

A bill may be presented for payment through the post office where by agreement or usage this is sufficient: section 45, 8-8. 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.

(b.) Every protest for dishonor, either for nonacceptance 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.

hour of

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.

What protest shall

7. A protest must contain a copy of the bill, or the 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

$ 51.

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.

ILLUSTRATIONS.

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, 163 (1690).

non-pro

delay.

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).

officer to

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.

M'C.B.E.A.-20