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Protest prima facie
§ 93. 1 Cr. & P. 31 (1840); Dean v. Green, 8 P. D. at pp. 89, 90
5. A protest of any bill or note, and any copy evidence 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. 0. 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. Ranton, 9 Ont. A. R. 530 (1883).
Section 71 (f) makes protests out of Canada also prima facie evidence in all courts.
Crossed dividend warrants.
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 indoree as required by section 32, 8-8. 3.
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, 8-8. 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 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-8. 52 of the Interpretation Act.
". The Bank Act" not affected
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 nampelyset 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
orders which have been or may be made or uttered $ 95. therein.
This sub-section formed part of the Con. Stat. U. C. c. 42. It was inserted in R. S. C. c. 123, as section 26, but remained applicable to Ontario alone. These Imperial Acts were introduced into Upper Canada by the first Statute of that Province, 32 Geo. 3, c. 1, ante p. 10. They would also be in force in Manitoba, the North-West Territories and British Columbia, ante pp. 17, 18. “Province" here includes the Territories : R. S. C. c. 1, s. 7 (13).
The other Imperial Acts relating to bills and notes in force in the various provinces are not formally repealed, except such as were made part of the law of Quebec by Article 2340 of the Civil Code, which is repealed as forming part of the second schedule, except in so far as it relates to evidence. It is doubtful if there are any provisions in them not covered by the Act, in which case they would be practically repealed by the new enactment.
96. Where any Act or document refers to any Construcenactment repealed by this Act, the Act or docu- Other Acts, ment shall be construed and shall operate as if it referred to the corresponding provisions of this Act. Imp. Act, s. 98.
97. This Act shall come into force on the first day of September next.
The Act was assented to on the 16th of May, 1890, but did not come into force until the first of September of that year.
The Imperial Act, like the Canadian, is not retrospective, but it has been held to be largely declaratory of the prior law. See ante p. 21. As may be seen from the fore
$ 97. going pages, the law has varied considerably in the different
provinces, so that the Canadian Act cannot be received as declaratory in Canada to the same extent as in England.
In harmony with this principle it was held in Fyfe v. Boyce, 21 R. L. 4 (1891), that where a person put his name on the back of a note as an aval in August, 1890, he was liable without notice of dishonor, although the note matured after the 1st of September, and that section 56 of the Act did not apply to such a note.
A distinction is to be observed on this point between matters affecting the rights of parties, and those relating to procedure and analogous subjects. Statutes relating to the latter are always retrospective, unless the contrary is declared. Thus, a bill or note issued before the first of September, 1890, falling due after that date and dishonored would be governed by the present Act as to the form of protest, notice, etc. The new Act would also govern as to the due date, if, for example, such a bill or note should fall due on a day made a holiday by the Act, and not a holi. day under the old law. See Wright v. Hall, 6 H. & N. 227 (1860); Kimbray v. Draper, L. R. 3 Q. B. at p. 163 (1868); re Joseph Suche & Co., 1 Ch. D. at p. 50 (1875); Gardner v. Lucas, 3 App. Cas. at p. 603 (1878); Singer v. Hasson, 50 L. T. N. S. 327 (1884); Atty.-Gen. v. Theobald, 24 Q. B. D. at p. 560 (1890).