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formal protest may be extended at any time there. $ 92. after as of the date of the noting. Imp. Act, s. 93.
93. Where a dishonored bill is authorized or Protest required to be protested, and the services of a not necesnotary 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 note," 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. 0. 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.
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, 8-8. 3. In some of the provincial tariffs no provision is made for a fee for noting. U ler 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 :
In some of the provinces these fees were settled by $ 93. statute; in others they were regulated by usages which were by no means uniform.
Ontario.-The fees allowed in Ontario before the Act were regulated by R. S. C. c. 123, s. 25, and were as follows:
For the protest of any bill, draft, note or order $0 50
For presenting and noting for non-acceptance
any bill of exchange, and keeping the same
bill of exchange, or promissory note, draft
or order, and puttir.g the same on record.. 1 00
bill or note with duplicate copy of any pro-
notice served upon the drawer and indorsers 0 50
recording copy of the same, to an indorser
Nova Scotia.—The foilowing tariff is laid down in R. S. C. c. 123, s. 7, for the protest of bills of exchange and promissory notes of $40 and upwards drawn or made at any place in this province upon or in favor of any person in the province : For the protest
$0 50 For each notice
0 25 For other than local bills and notes the former
charge of $2.50 for each protest, includ.
ing notices, is still made. Postage being additional in all cases.
New Brunswick.—The statute of this province, 46 Vict. c. 11, prescribed the following tariff:
For the presentment and noting of any bill of
exchange or promissory note, for non-
including presentment, noting and notice 1 00 Necessary postage to be allowed. As the Parliament of Canada has exclusive jurisdiction over Bills of Exchange and Promissory Notes, the constitutionality of this provincial Act is open to question. It is said that the charge still usually made in this province is that in force before the Act in question, viz. :For protest and all notices
$3 00 Postage actually paid. Prince Edward Island.-R. S. C. c. 123, s. 8, lays down for this province a tariff similar to that for Nova Scotia. The old tariff was framed in 1776, and allowed : For noting bills for non-acceptance.....
1s. Od. Stg. For every protest......
3 6 For other than local bills and notes the
usual charge still is For protest and notices
$250 Postage in addition. Manitoba.—The charges in this province appear to be regulated by usage, and are as follows: For protest
$1 00 For each notice
0 50 Postage in addition. North West Territories. The charges here also are governed by usage, and are as follows: For protest
$2 00 For each notice
0 50 Postage in addition. British Columbia.—The charges here also are governed by usage, and are as follows: For protest and notices
$2 50 Postage in addition.
4. The forms in the first schedule to this Act $ 93. may be used in noting or protesting any bill or Forms. note and in giving notice thereof. A copy of the bill or note and indorsement may be included in the forms, or the original bill or note may be annexed and the necessary changes in that behalf made in the forms:
The second part of this sub-section is substantially a repetition of section 51, 8-s. 7.
The forms in the first schedule to this Act are copied without change from Schedule B. to R. S. C. c. 123, where they were applicable to the province of Quebec alone, having been inserted there from the schedules to chapter 64 of the Consolidated Statutes of Lower Canada.
It will be observed that even the words "protested in duplicate" have been retained. In Quebec it was formerly compulsory to make out the protest in duplicate and to copy the bill or note in the protest. Neither of these is required by the present Act, so that these words are now inappropriate.
Form J. also provides for an attesting witness and the seal of the justice of the peace, although neither of these is required by the Act. As a matter of prudence it might be well to have a witness sign and to affix the seal in such a case, although the use of the forms is not imperative, and immaterial variations would not vitiate them: R. S. C. c. 1, s. 7, 8-8. 44.
It is a recognized rule in the construction of statutes that their operation will not be restrained by any reference to the words of a form given for convenience sake in a schedule; and if the enacting part and the schedule do not correspond, the latter must yield to the former : re Daines,