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§ 93.

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-
acceptance or non-payment..........
Protest of note or bill of exchange, when made,
including presentment, noting and notice
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
Postage actually paid.

For noting bills for non-acceptance.....

For every protest..

For other than local bills and notes the
usual charge still is

For protest and notices
Postage in addition.

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 :1s. Od. Stg. 3 6 66

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For protest

For each notice


1 00


For protest

For each notice

Manitoba. The charges in this province appear to be regulated by usage, and are as follows:


For protest and notices
Postage in addition.


Postage in addition.

North West Territories.-The charges here also are governed by usage, and are as follows:


0 50


0 50

Postage in addition.

British Columbia.-The charges here also are governed by usage, and are as follows :


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, s-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, s-s. 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,

§ 93. 1 Cr. & P. 31 (1840); Dean v. Green, 8 P. D. at pp. 89, 90


Protest prima facie evidence.

Crossed dividend


5. A protest of any bill or note, and any copy therof as copied by the notary or justice of the peace, shall, in any action be prima facie evidence of presentation and dishonor, and also of service of notice of such presentation and dishonor as stated in such protest.

This provision is taken in substance from Article 2305 of the Civil Code, which also made the duplicate prima facie evidence. For similar provisions as to protests in Ontario, see C. S. C. c. 57, s. 6, and R. S. O. c. 61, ss. 31-34; and for Nova Scotia, Prince Edward Island, and New Brunswick, R. S. C. c. 123, ss. 7, 8, 10.

See also Ross v. McKindsay, 1 U. C. Q. B. 507 (1845);
Codd v. Lewis, 8 ibid. 242 (1850); Merchants' Bank v.
McDougall, 30 U. C. C. P. 236 (1879); Southam v. Ran-
ton, 9 Ont. A. R. 530 (1883).

Section 71 (f) makes protests out of Canada also prima facie evidence in all courts.

94. The provisions of this Act as to crossed cheques shall apply to a warrant for payment of dividend. Imp. Act, s. 95.

These warrants are not defined in the Act, and this section is the only provision in it concerning them. The Imperial Act contains in addition a proviso that nothing in the Act or in any repeal effected by it shall affect the validity of any usage relating to dividend warrants, or the indorsement thereof: section 97, 3 (d). This was inserted to protect the usage of paying these warrants on the indorsement of one of several payees, instead of having all indorse as required by section 32, s-s. 3.

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In Partridge v. Bank of England, 9 Q. B. 396 (1846), it § 94. was held that Bank of England dividend warrants payable to a person by name, and not to his order or bearer, were not negotiable, although it was the practice of bankers to treat them as negotiable. Such bills would now be negotiable under section 8, s-s. 4.

In Canada they are usually called dividend cheques, and made payable to order; so that sections 75 to 81 relating to crossed cheques would have applied to them in this form independently of the present section. When they are issued by a bank and drawn upon itself, drawer and drawee being the same person, the holder might at his option treat. them as promissory notes, in which case the crossing would be inappropriate.

It is probable that it would be only those that are drawn upon an incorporated bank, that would be held to be dividend warrants within the meaning of the Act, as the policy of the Act is not to recognize any instrument as a cheque which is not drawn upon one of these banks.

95. The enactments mentioned in the second Repeal, schedule to this Act are hereby repealed, as from the commencement of this Act, to the extent in that schedule mentioned:

Provided, that such repeal shall not affect any- Proviso. thing done or suffered, or any right, title or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title or interest: Imp Act, s. 96.

The Acts named in the second schedule were considered to be the only Dominion or Provincial enactments relating to bills and notes not previously repealed.


"The Bank Act" not affected

The articles of the Civil Code which relate to evidence, and which are saved from repeal by the exception at the foot of the schedule, are 2341 and 2342.

As already pointed out there are isolated provisions in other Acts, chiefly in those relating to procedure in the Courts. These will still be in force, in so far as they do not conflict with the Act.

The proviso is substantially a repetition section 7, s-s. 52 of the Interpretation Act.

2. Nothing in this Act or in any repeal effected thereby shall affect the provisions of "The Bank Act: "

The Bank Act in force when the present Act took effect was R. S. C. c. 120. The new Bank Act, 53 Vict. c. 31, came into force on the 1st of July, 1891. This sub-section would also apply to the latter under sub-section 51 of section 7 of the Interpretation Act.



3. The Act of the Parliament of Great Britain named not passed in the fifteenth year of the reign of His late Majesty George III, intituled "An Act to restrain the negotiation of Promissory Notes and Inland Bills of Exchange under a limited sum within that part of Great Britain called England," and the Act of the said Parliament passed in the seventeenth year of His said Majesty's reign, intituled "An Act for further restraining the negotiation of Promissory Notes and Inland Bills of Exchange under a limited sum within that part of Great Britain called England," shall not extend to or be in force in any Province of Canada, nor shall the said Acts make void any bills, notes, drafts or

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