§ 90.

ILLUSTRATIONS.

See also Illustrations ante pp. 151, 155.

1. In an action against B. and S., a firm of solicitors, on promissory notes indorsed by B. in the name of the firm, it was proved that on other occasions S. had indorsed in the same manner with B.'s knowledge. Held, sufficient evidence to go to the jury of a mutual authority: Workman v. McKinstry, 21 U. C. Q. B. 623 (1862).

2. Where one executor was authorized by the others to manage the estate, and signed notes in the names of all executors, but was given no authority to bind them personally, and they were not aware of the giving of the notes, held that the others were not liable on the notes: Gore Bank v. Meredith, 26 U. C. Q. B. 237 (1866).

3. Where a person, whose name had been signed as indorser for notes by a friend, gave a mortgage to secure the indebtedness and renewals "similarly indorsed," and allowed the maker to sign his name to the mortgage so that it would be in the same handwriting, the indorser was held liable for the indorsements although they were for a much larger sum than he was aware of: Merchants' Bank v. Bostwick, 3 Ont. A. R. 24 (1878).

4. A bank manager is not acting without the scope of his authority in accepting the cheque of a customer to deliver to another customer on a particular day, or on the happening of a specified event: Grieve v. Molsons Bank, 8 O. R. 162 (1885).

5. The power to draw bills is not of itself sufficient to establish the right to indorse in the name of the principal: Prescott v. Flinn, 9 Bing. at p. 22 (1832).

6. Where a wife had authority to indorse bills for her husband, and the name was written by her daughter in her presence and at her request, held, sufficiently authorized: Lord v. Hall, 8 C. B. 627 (1849).

7. The payee of a note transfers it for value without indors- § 90. ing it. The transferee is not authorized to indorse it in his name: Harrop v. Fisher, 10 C. B. N. S. 196 (1861).

8. The right of a solicitor to sign his firm's name to a cheque, does not authorize him to issue post-dated cheques which are in effect equivalent to bills payable after date: Forster v. Mackreth, L. R. 2 Ex. 163 (1867).

9. If another person sign the name of the party in his presence and at his request, it is the same as if he did it himself: Sager v. Tupper, 42 Mich. 605 (1880).

10. Verbal authority to execute or indorse a bill is sufficient, and it is not essential that the agent add his own name or initials: Mechanics' Bank v. Bank of Columbia, 5 Wheat. (U. S.) 326 (1820); First Nat. Bank v. Loyhed, 28 Minn. 398 (1881); Bettis v. Bristol, 56 Iowa, 41 (1881).

porations.

2. In the case of a corporation, where, by this As to corAct, 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. Imp. Act, s. 91 (2).

As to the powers of Foreign, Dominion and Provincial corporations with regard to bills and notes, see the notes and illustrations ante pp. 131-136.

Before the Act it was doubted whether an instrument in the form of a note, but under the seal of a company, was a negotiable note: Merritt v. Maxwell, 14 U. C. Q. B. 50 (1856); Merchants' Bank v. U. E. Club, 44 ibid. 468 (1879); Crouch v. Credit Foncier, L. R. 8 Q. B. at p. 382 (1876); Clark v. Farmers' Mnfg. Co. 15 Wend. (N. Y.) 256 (1836); Merritt v. Cole, 9 Hun (N. Y.) 98 (1876).

$ 90.

Computation of

time.

When noting is

A municipal corporation in Ontario may be liable on a promissory note under seal or without a seal: Armstrong v. Garafraxa, 44 U. C. Q. B. 515 (1879).

An instrument in the form of a note signed and sealed. is not a promissory note: Wilson v. Gates, 16 U. C. Q. B. 278 (1858); Warren v. Lynch, 5 Johns. 239 (1810); Rawson v. Davidson, 49 Mich. 607 (1883); Brown v. Jordhal, 32 Minn. 135 (1884).

91. Where, by this Act, the time limited for doing any act or thing is less than three days, in reckoning time, non-business days are excluded: "non-business days," for the purposes of this Act, mean the days mentioned in the fourteenth section of this Act; any other day is a business day. Imp. Act, s. 92.

The Imperial Act names the holidays; the list in Canada being so much longer and varying with the provinces, it was more convenient to embody them by reference.

Some of the short delays in the Act are:-the drawer has two days to decide whether he will accept a bill: section 42; notice of dishonor must be given the next following business day section 49 (k), and s-s. 4; and presentment to the acceptor for honor should be on the day following maturity section 66, s-s. 2.

:

92. For the purposes of this Act, where a bill equivalent or note is required to be protested within a specified time or before some further proceeding is

to protest.

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 may be extended at any time there- § 92. after as of the date of the noting. Imp. Act, s. 93.

or

Protest when

notary is sible.

93. Where a dishonored bill is authorized required to be protested, and the services of a not acces 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 : Imp. Act, s. 94.

The Imperial Act reads, "when a dishonored bill or mote," etc. No reason was given for the omission of "note." Under section 88, and sub-section 5 of this section, this provision would, no doubt, be held to apply to notes. It has been the law in Lower Canada and Quebec since 1849 S. C. L. C. c. 64, s. 24; C. C. Art. 2304. Instead of a justice of the peace, the Imperial Act names as the substitute for a notary "any householder or substantial resident." Justices of the peace are not so common in England as in Canada. The powers of a notary referred to are those relating to presentment, protest, and notice of dishonor in sections 41, 45, 49, 51, 64, 66 and 67.

Notaries. In England, notaries are appointed by the Archbishop of Canterbury, acting as the Court of Faculties. In Canada, they are provincial officers. In most of the provinces there are statutes regulating their appointment, duties and powers. See R. S. O. c. 153; R. S. Q. Arts. 3604-3957; C. S. N. B. c. 28; 46 & 47 Vict. (Man.) c. 37; Rev. Ord. N. W. T., c. 40; Cons. Acts. B. C. c. 89. In the provinces, other than Quebec, they are usually barristers, solicitors or attorneys.

In Quebec the notarial is a distinct profession, and

$93, incompatible with that of advocate or attorney. Notaries are the regular conveyancers, and the more important documents must be executed before them en minute, the notary keeping the original, and giving out certified copies; his certificate alone making full proof of the execution, in all courts, and for registration, etc. Certain less formal documents may be executed en brevet, the notary then simply attesting the instrument and handing out the original. Promissory notes are sometimes made before a notary in this form, which is analogous to the protest form under the Act. See form in Appendix.

Expenses.

Notarial fees.

A notary who is one of the indorsers on a promissory note is not entitled to act as notary to make the protest; even where he substitutes the name of another person for his own and purports to make the protest at the request of the person so substituted: Pelletier v. Brosseau, M. L. R. 6 S. C. 331 (1890).

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

This clause is not in the Imperial Act, and had been already provided for by section 57, s-s. 3. In some of the provincial tariffs no provision is made for a fee for noting. Under this sub-section probably the same fee would be allowed as for a protest. It would also probably be held that a justice of the peace would be entitled to the same fee as a notary, at least in the Province of Quebec, as the statute in force there since 1849 allowed a justice of the peace the same fees as a notary.

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