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orders which have been or may be made or uttered § 95.
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The other Imperial Acts relating to bills and notes in force in the various provinces are not formally repealed, except such as were made part of the law of Quebec by Article 2340 of the Civil Code, which is repealed as forming part of the second schedule, except in so far as it relates to evidence. It is doubtful if there are any provisions in them not covered by the Act, in which case they would be practically repealed by the new enactment.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 Where any Act or document refers to any Construcenactment repealed by this Act, the Act or docu- other Acts, ment shall be construed and shall operate as if it referred to the corresponding provisions of this Act.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
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 holiday 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).
AMENDING ACT OF 1891.
54-55 VICT. CAP. 17.
An Act to amend "The Bills of Exchange Act, 1890."
[ASSENTED TO 28TH AUGUST, 1891.]
ER MAJESTY, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
par. (a) of s. 11
1. The paragraph lettered (a) of sub-section 53 V. c. 33, one of section eleven of "The Bills of Exchange Act, 1890," is hereby repealed and the following substituted in lieu thereof:
(a) At sight, or at a fixed period after date or sight.
2. Section twelve is amended by inserting Section 13 after the word "payable" in the third line thereof the words "at sight, or."
3. Section eighteen is amended by inserting Section 18 after the word "payable" in the first line of subsection two thereof the words "at sight, or."
4. Section twenty-four is amended by adding Section 24 the following sub-section:
as to forged indorse
$ 4. "2. If the drawee of a cheque bearing a forged Provision indorsement pays the amount thereof to a subsequent indorser, or to the bearer thereof, he shall have all the rights of a holder in due course for the recovery back of the amount so paid from any indorser who has indorsed the same subsequent to the forged indorsement, as well as his legal recourse against the bearer thereof as a transferrer by delivery; and any indorser who has made such payment shall have the like rights and recourse against any antecedent indorser subsequent to the forged indorsement,-the whole, however, subject to the provisions and limitations contained in the last preceding sub-section."
Section 40 amended.
5. Section forty is amended by inserting in the second line thereof, after the word "payable," the words "at sight, or."
amended. 6. The paragraph lettered (a) of sub-section two of section forty-one, is amended by striking out the words "or bankrupt" in the first line thereof.
Common law of England and
amended. 7. Section fifty-one is amended by striking out the words "becomes bankrupt or" in the first line of sub-section five thereof.
The foregoing amendments have all been embodied in the sections to which they respectively refer, and their effect has been there considered.
8. The rules of the common law of England,
chant shall including the law merchant, save in so far as they
are inconsistent with the express provisions of the $8. said Act, as hereby amended, shall apply, and shall be taken and held to have applied from the date on which the said Act came into force, to bills of exchange, promissory notes and cheques. Imp. Act, s. 97 (2).
This clause was in the bill as it passed the House of Commons in 1890, but was struck out in the Senate. See Senate Debates, 1890, p. 467. As to what would have been the effect of the omission of any uniform rule for cases unprovided for by the Act, see ante pp. 5, 18. It will be observed that the present section is made retrospective. The expression "common law" is used in different
In this section it is probably used in the comprehensive Common sense in which it was spoken of by Baron Parke in the defined. House of Lords in Mirehouse v. Rennell, 8 Bing. 515 (1832), when he said:-"Our common law system consists in applying to new combinations of circumstances those rules. of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules when they are not plainly unreasonable or inconvenient, to all cases which arise; and we are not at liberty to reject them, and abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient or reasonable as we ourselves could have devised."
The law merchant" is another expression that may Law not be capable of an exact definition. It has always, as its defined. name implies, recognized the customs and usages of merchants. Indeed, it has been based upon them. "The law merchant is sometimes spoken of as a fixed body of law, forming part of the common law, and as it were,