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§ 21. determining the quantity of evidence requisite for the support of any particular averment which is not permitted to be overcome by any proof that the fact is otherwise. They have been adopted by common consent, from motives of public policy, for the sake of greater certainty, and the promotion of peace and quiet in the community; and therefore it is, that all corroborating evidence is dispensed with, and all opposing evidence is forbidden”: 1 Taylor, § 71. In disputable presumptions, the law "defines the nature and amount of the evidence which is sufficient to establish a prima facie case, and to throw the burden of proof on the other party; and if no opposing evidence is offered, the jury are bound to find in favor of the presumption. A contrary verdict might be set aside as being against evidence": 1 Taylor, § 109. "Legal presumptions are those which are specially attached by law to certain facts. They exempt from making other proof those in whose favor they exist; certain of them may be contradicted by other proof; others are presumptions juris et de jure and cannot be contradicted": C. C. Art. 1239.

Capacity of parties.

As to corporations.

Provincial subject.


22. Capacity to incur liability as a party to a bill is co-extensive with capacity to contract:

Provided, that nothing in this section shall enable a corporation to make itself liable as drawer, acceptor or indorser of a bill, unless it is competent to it so to do under the law for the time being in force relating to such corporation: Imp. Act, s. 22 (1).

Under the British North America Act, s. 92, s-s. 13, the local legislatures have the exclusive right under the

head of "civil rights," to legislate regarding the capacity $ 22. to contract, except as to corporations created by or under the authority of the Dominion Parliament, and they may be subject indirectly to Dominion legislation regarding some of the other subjects enumerated in section 91. The first sentence of this section, like the greater part of the Act, is taken without change from the Imperial Act. In England it could not give rise to any question, except as to contracts made abroad. Here it is open to question as to how far it would prevail, if it clashed with a provincial law on the subject. It would no doubt have effect to this extent at least, that no person having capacity to contract by provincial law is rendered incapable of contracting as to bills and notes by the present Act.


The practical difficulty that will at once arise will be Conflict of as to which provincial law is to govern where that of more than one province is to be applied. The law of Quebec as to capacity differs considerably from that of most of the other provinces, and the intimate commercial relations between that province and the others will soon bring these questions before the courts. The point to be determined in such cases, is whether the law of the domicile of the person, or the law of the place where the contract is made, or of the place where it is to be performed, is to control. The law in Quebec is explicit, and adopts the civil law rule in favor of the domicile. The Civil Code says: "Art. 6.-An inhabitant of Lower Canada, as long as he retains his domicile therein, is governed by its laws respecting the status and capacity of persons." The law of the other provinces can hardly be said to be settled, as the question of the capacity to contract appears seldom to have come before the courts when there has been a conflict. Judging from analogy, the leaning appears to be towards the law of the domicile. In the United States, on the other hand, the law of the place of the contract is

$ 22. generally followed as to the capacity of the contracting parties: Story on Conflict of Laws, s. 102. In England the question does not seem to be authoritatively settled. "When the capacity of a person to act in any given way is questioned on the ground of his age, it is still perhaps uncertain whether the solution of the question will be referred in England to a personal law," that is to the law of the domicile: Westlake, p. 43. "The capacity to contract is regulated by the law of the domicile," per Halsbury, C., in Cooper v. Cooper, 13 App. Cas. 99 (1888). In this case Lords Watson and Macnaghten declared against the lex loci solutionis as regulating the capacity to contract, but expressed no clear opinion between the law of the domicile and the lex loci contractus, which happened to be the same. "When the capacity of a married woman to act in any given way is questioned on the ground of her coverture, it would seem that the choice between the lex loci contractus and her personal law, as deciding the question, should follow whatever may be laid down as to the similar choice when capacity is questioned on the ground of age": Westlake, p. 47.

Bank depositors.

It is provided by section 84 of the Bank Act, 53 Vict. c. 31, that any person although not qualified to enter into ordinary contracts may make deposits up to $500 and withdraw the money without the authority or assistance of any person or official. This would authorize the drawing of cheques by such disqualified persons. By section 16 of the Savings Bank Act, 53 Vict. c. 32, deposits may be made in Quebec by such persons to the amount of $2,000. The principal classes of persons without full capacity to contract are:

I. Infants or minors.-As the age of majority throughout the Dominion, as in England, is fixed at 21, conflict will not arise as to these, except probably as to minors

emancipated under the law of Quebec by marriage, or by § 22. the Court, whereby they acquire a restricted right to contract: C. C. Arts. 314-322; or by engaging in trade when they are reputed of full age for all acts relating to such trade: Art. 323. A promise or ratification after majority to pay a debt or obligation contracted during minority, is only binding when in writing: C. C. Art. 1235 (2); R. S. O. c. 123, s. 6.

2. Idiots, lunatics and interdicted persons.-The rule in Quebec is that all acts subsequent to interdiction for imbecility, madness, or insanity are null and void; previous acts may be annulled if injurious: C. C. Arts. 334, 335. So of the acts of persons interdicted for prodigality and drunkenness: C. C. Art. 987. The contract of a lunatic or drunken man, who by reason of lunacy or drunkenness, is not capable of understanding its terms or forming a rational judgment of its effect on his interest, is not void, but only voidable at his option, and this only if his state is known to the other party: Pollock on Contract, p. 91. See Robertson v. Kelly, 2 O. R. 163 (1883).

3. Married women.-The law of Quebec differs in this respect from that of the other provinces. The general rule there is that a wife cannot contract without the authorization of her husband. If she is separate as to property by marriage contract she may administer her own property: C. C. Art. 1422; or if she be granted by the court a separation from bed and board: Art. 210; or even a separation as to property: Art. 177. If she is a public trader she may bind herself without the authorization of her husband for all that relates to her commerce: Art. 179. A wife cannot bind her separate property in any contract with or for her husband: Art. 1301. So that if a wife gives a note or accepts a bill for her husband's debt, or indorses her husband's bill or note, it is a nullity.

$ 22.

In the other provinces the original rule was that of the common law. "Without authority from her husband, a wife cannot at the common law charge either him or herself by making, drawing, accepting, or indorsing negotiable instruments ": Byles, p. 71. In those provinces which have adopted the principle of the English Married Women's Property Act, 1882, the stringency of the common law rule is somewhat relaxed, and a married woman having separate property may by bill, note, or otherwise, bind the separate property which she then has, or which she may afterwards acquire, in all respects as if she were feme sole. See "The Married Women's Property Act," R. S. O. c. 132; R. S. N. S. c. 94: C. S. Man. c. 65; N. W. Territories Act, R. S. C. c. 50: Cons. Acts, B. C. c. 80.


1. A promissory note made by a married woman for a debt of her husband is not binding on her personally either at common law or under the statutes. Where a married woman who has separate property contracts a debt, she is deemed in equity to have contracted it with reference to her separate property, and if she had power to dispose of that property, equity will make it liable for the payment of the debt: Lawson v. Laidlaw, 3 Ont. A. R. 77 (1878). See also Merchants' Bank v. Bell, 29 Grant, 413 (1881). These cases were prior to the passing of the Ontario Married Women's Property Act, 47 V. c. 19.

2. An infant gave his note for value and got it indorsed by his father who was of unsound mind, and who got no value for it. The holder was not aware of the condition of the father. Held, that the father's estate was not liable: re James, 9 Ont. P. R. 88 (1881).

3. Defendant, a married woman, indorsed certain notes held by plaintiff and wrote him a letter that she had $33,000 worth of land in her own name and right. There was no evidence given at the trial as to when she was married or as to how the property

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