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C. C. 2353.
2353. Subject to the provisions contained in the last preceding article, the holder of a cheque who has received it from the drawer, may upon refusal of payment by the bank or banker return it to the drawer with reasonable diligence, and recover the debt for which it was given, or he may retain the cheque and recover upon it without protest. If the cheque be received from any other party than the drawer, the holder may in like manner return it to such party, or he may recover from the parties whose names are upon it as in the case of an inland bill of exchange.-Poth. Ch. n. 229; 1 Sav. 238, 244; 2 Ib. 166, 169, 715, 719, 745, 748; Sto. P. N. n. 498.
2354. In the absence of special provisions in this section, cheques are subject to the rules concerning inland bills of exchange in so far as their application is consistent with the usage of trade.-1 Chit. & H. 24; Ros. B. 9; Sm. M. L. 206; 3 Kt. Com. 75, 77; Sto. P. N. n. 488, 489.
CIVIL CODE OF LOWER CANADA.
ARTICLE 1232.-Testimony given by a party in a suit cannot avail in his favor. A witness is not rendered incompetent by reason of relationship or of being interested in the suit, but his credibility may be affected thereby.
The following has been added by the Quebec Statute, 54 Vict. c. 45, s. 1:-Notwithstanding that which precedes, any party to a suit may give testimony on his own behalf in every matter of a commercial nature; but his credibility may be affected thereby.
See also Arts. 2341, 2342 ante pp. 499-500.
CODE OF CIVIL PROCEDURE
C. C. 1232.
(IN FORCE SINCE JUNE 28TH, 1867.)
ARTICLE 89.-If, in any action founded upon a bill of exchange, promissory note, cédule, cheque, act or private writing, the defendant fails to appear or to plead, judgment may be rendered out of term upon the written application of the plaintiff, without its being necessary to prove the signatures to such documents, or to make any other proof. C. S. L. C. c. 83, ss. 86, 118.
If the action is on a note signed by an attorney, the power of attorney must be proved: Ethier v. Thomas, 17 L. C. J. 79 (1870).
ARTICLE 145.-Every denial of a signature to a bill of exchange, promissory note, or other private writing or document, upon which any claim is founded, must be accompanied with an affidavit of the party making the denial, or of some person acting as his agent or clerk, and cognizant of the facts in such capacity, that such instrument or some material part thereof is not genuine, or that his signature or some other on the document is forged, or, in the case of a promissory note or bill of exchange, that the necessary protest, notice and service have not been regularly made, stating in what the irregularity consists; without prejudice, however, to the recourse of such party by improbation. C. S. L. C. c. 83, s. 87, § 2.
In the case of promissory notes or bills of exchange payable at a particular place, they are presumed, as against the maker or acceptor, to have been presented at that place at maturity, unless the exception founded upon such want of presentation is accompanied with an affidavit that, at the time they became due, provision had been made for their payment at the specified place.-Added by codifiers.
1. A plea attacking a protest insufficient on its face must be accompanied by an affidavit: Chamberlin v. Ball, 5 L. C. J. 88 (1860); Bank of Upper Canada v. Turcotte, 15 L. C. R. 276 (1865). Contra, Hobbs v. Hart, 5 L. C. J. 52 (1860).
2. A plea of no protest should be supported by an affidavit : Ryan v. Malo, 12 L. C. R. 8 (1861).
3. An affidavit by an indorser that the signature purporting C.C.P. 145 to be his was not written by him or with his knowledge, consent or authority, held sufficient: Browne v. Dow, 11 L. C. R. 273 (1861). Contra, Milloy v. Farmer, 2 L. N. 182 (1879).
4. A plea of fraud and no consideration does not require an affidavit McCarthy v. Barthe, 6 L. C. J. 130 (1862); Baxter v. Bruneau, 17 R. L. 359 (1884). Contra, Kelly v. O'Connell, 16 L. C. R. 140 (1866).
5. An exception declining the jurisdiction as to a note dated at Montreal, but claimed to have been made in another district does not require an affidavit: Hudon v. Champagne, 17 L. C. J. 45 (1872).
6. A general denial to an action on a note, without an affidavit, will not be rejected on motion: Mechanics' Bank v. Seale, 20 L. C. J. 196 (1876); Banque Jacques Cartier v. Cote, 9 Q. L. R. 76 (1883). Contra, Laprise v. Methot, 4 Q. L. R. 328 (1877).
7. When defendant has signed with a cross, an affidavit is required if he denies it: Straas v. Gilbert, 15 Q. L. R. 59 (1889.)
ARTICLE 251.-Any party to a suit may be subpœnæd, examined, cross-examined and treated as any other witness; but his evidence cannot avail himself; the adverse party may however declare, before he closes his proof, that he does not intend to avail himself of his testimony, and in such case it is deemed not to have been given. The answers given by a party thus examined as a witness may be used as a commencement of proof in writing.
The following has been added by the Quebec Statute, 54 Vict. c. 45. s. 2:-Any party to a suit may give testimony on his own behalf in every matter of a commercial nature, and in such a case, be examined, cross-examined, and treated as any other witness. He may also be subpænæd and treated as a witness by the opposite party,
C. C. P. 251 and in such latter case, his answers may be used as a commencement of proof in writing. The default by a party to nder his own evidence cannot be construed against him.
ARTICLES 887-899 a-By these articles of the Code of Civil Procedure, as amended by R. S. Q. Art. 5977; 52 Vict. c. 52, s. 1; 53 Vict. c. 61, s-s. 2, 3; and 54 Vict. c. 41, s. 4, actions founded on bills of exchange, notes to order or bearer, cheques or orders for payment, and bons or acknowledgement of debt, are included among “summary matters." In these actions a defendant may be summoned to appear in five days instead of ten; he must appear on the day named, and file his plea within two days. Two days are allowed to answer it, and one day for a replication to the answer if necessary. It may then be inscribed for proof for any subsequent day, and for hearing when the proof is closed. If inscribed for proof and hearing at the same time, five days' notice are required. Execution may issue eight days after judgment.
1. In summary matters, default to appear is recorded, not at noon, but only after the close of the day of the return of the writ: Desjardins v. Pauze, 11 L. N. 346 (1888).
2. By Art. 897 a, as amended by 53 Vict. c. 61, s. 2, a notice of five clear days to the adverse party is required of an inscription for proof and for hearing immediately after proof in contested cases, in summary matiers: Couray v. Mount, M. L. R. 7 S. C. 143 (1891).
3, Such inscription and notice must not only be served, but filed in the prothonotary's office five clear days. A note for June 4th given May 29th, but only filed June 1st, is insufficient: Bleau v. Brissette, M. L. R. 7 S. C. 206 (1891).