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If the action is on a note signed by an attorney, the powej 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, 8, 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 subpænæd, 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. g. 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 tender 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, 8-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).
R.S.,N.S.2. REVISED STATUTES OF NOVA SCOTIA.
THIRD SERIES.- CHAPTER 82.
2. A promissory note shall be assignable or endorsable in the same manner as an inland bill of exchange, and the payee or indorsee thereof, or the holder, where the note is payable to bearer, may bring an action thereon in his own name.
(Repealed September 1st, 1890, by the Bills of Exchange Act, s. 95).
3. A note in writing for a sum certain payable otherwise than in money shall be held prima facie to be given for a valuable consideration, but shall not be negotiable. The amount of such note shall be sued for and recovered as if the amount thereof were payable unconditionally in money.
4. In an action brought upon such note, only the amount payable thereunder shall be recoverable, without damages, for the non-delivery of the articles ennumerated therein.
(In the Revised Statutes of Nova Scotia, Fourth Series, 1873, the whole of chapter 82 is placed in Appendix B, as unrepealed legislation, wholly or partially within the jurisdiction of the Parliament of Canada, or of doubtful jurisdiction. In the Fifth Series, 1884, it is omitted as being exclusively within the jurisdiction of the Parliament of Canada.
In the Revised Statutes of Canada, 1887, Appendix 1, page 2342, section 2 is placed in Schedules B, as one of the Acts not consolidated. Sections 3 and 4 are omitted as being within provincial jurisdiction, and are not referred to in the present Act. On the other hand, section 1 of 30 Vict. c. 34 of the Statutes of New Brunswick, and copied
R.S., N.8.4. on the next page, which is to the same effect as section 3
above quoted, is placed in Schedule B of the Revised Statutes of Canada (see p. 2366), and is repealed by the second Schedule to the present Act.
These notes which are not payable in money, are not really promissory notes within the meaning of the B. N. A. Act, section 91, and the Nova Scotia Legislature would appear to be in error in treating these two sections as being under Dominion jurisdiction, and the Dominion Parliament in error in purporting to deal with the New Brunswick Statute. It seems strange tbat the Dominion Parliament should have treated the two statutes in a different way).
REVISED STATUTES OF NEW
2. A note in writing for money, payable to order or bearer, shall be assignable and endorsable in the same manner as an inland bill of exchange is by the custom of merchants; and the payee, endorsee, or holder thereof may maintain an action thereon in his own name.
New Brunswick Statutes, 1867, 30 Vict. c. 34 :
1. That all notes, drafts or orders in writing for a sum certain payable otherwise than in money, shall be deemed and held prima facie to import that they are given for a valuable consideration in like manner as promissory notes for the payment of money.
(These two sections were repealed September 1st, 1890, by the Bills of Exchange Act, s. 95. As to the effect of the repeal of the latter, see the note on the preceding page.