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declared to be one of the chief objects of the Act, that induced Parliament to pass section 8 of the amending Act of 1891, and to make it retroactive.
It might be thought that the Act is such a complete codification of the law regarding bills and notes, that few questions would arise which are not there provided for. It is however quite certain that many questions affecting these instruments directly or indirectly will arise for which no provision is made in the Act. It is not necessary here to do more than barely mention a few of these, such as aral; the relation of indorsers inter se; the rights and liabilities of parties to bills and notes, once the relation of principal and agent or that of principal and surety is established between them; whether the insolvency of the acceptor of a bill or the maker of a note makes these instruments mature or gives the holder any rights.
The growth and firm establishment in the jurispru. Aval in dence of Quebec of the doctrine of aval under Art. 2311 C. C., as will be more fully noticed under section 56, notwithstanding the existence of the provision in the Act of 1849, and in the Civil Code, that in all cases not therein provided for, recourse should be had to the laws of England, affords a striking example of the divergence that would certainly have arisen under the new Act if parliament had not furnished a uniform rule, and even now it is quite certain that the application of the varying principles of the laws of the different provinces, and a difference of opinion as to when and how far these should be applied, will lead to considerable divergence even under the rule provided by the Act of 1891.
The Act does not treat of the limitation of actions or Limitation prescription as affecting bills and notes, but leaves the law of each province to be applied within its bounds. The period is five years in Quebec and six years in the other
provinces. This diversity will in many cases involve a question of the conflict of laws as between the different provinces. For its consideration the reader is referred to the notes under section 71, as the rules which govern it have much in common with the principles there laid down when there may be a conflict between the law of Canada and that in force in foreign countries.
Other negotiable in
The Act applies only to bills, notes, and cheques, and struments. not to other negotiable commercial instruments with the exception of section 94, which declares that the provisions as to crossed cheques shall apply to warrants for the payment of dividends. It is certain however that the rules. laid down as to bills, notes, and cheques, will by analogy be applied in the course of business by bankers and merchants to the other commercial instruments which have so much in common with them, and some of which are now undergoing the process by which customs and usages of trade are crystallized into, and have all the force of law. A short chapter on other negotiable instruments will be found at the end of the notes on the Act.
1. This Act may be cited as Exchange Act, 1890."
"The Bills of short title.
The Act was assented to on the 16th of May, but did not come into force until the 1st of September, 1890: section 97. It is not retrospective, and that part of it which is new law will not apply to instruments issued before its commencement, except in the case of transactions and matters connected with them after that time; as for instance, the acceptance of such a bill after the first of September, or the protesting of a bill or note issued before, but only dishonored after that date: Maxwell on the Interpretation of Statutes, 257, 271; Leeds and County Bank v. Walker, 11 Q. B. D. at p. 91 (1883).
The Imperial Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61, from which the Canadian Act is almost wholly copied, has been held to be largely declaratory of the prior English law. The Master of the Rolls speaks of it as "the codifying Act which declares what was and is the law" Vagliano v. Bank of England, 23 Q. B. D. at p. 248 (1889); and Stirling, J. says that it "may be accepted as declaratory of the prior law" re Bethell, 34 Ch. D. at p. 567 (1887). See also to the same effect the remarks of Lord Blackburn in McLean v. Clydesdale Banking Co., 9 App. Cas., at p. 106 (1883).
As the law in the various provinces of Canada has heretofore varied considerably, as shewn in the foregoing
§ 1. pages, and as the present Act has in a number of instances changed the law to make it harmonize with that of England, it cannot be so generally accepted as declaratory of the old law in Canada. Nevertheless, there will probably be a disposition on the part of the courts to consider it as declaratory, where it is not clear that the law has been actually changed.
2. In this Act, unless the context otherwise requires,
(a) The expression Acceptance means an acceptance completed by delivery or notification;
This and the following clauses are copied from section 2 of the Imperial Act with the changes noted below. The words defined occur a number of times, and are used in a technical, and not in their ordinary or popular sense, hence the necessity for definitions or an interpretation clause.
"Acceptance" in connection with a bill was formerly used to indicate the act by which the drawee made himself responsible for the payment of a bill-whether by writing on the bill itself, or by collateral writing, or by parol Lumley v. Palmer, Str. 1000 (1735); Clarke v. Cock, 1 East, 57 (1803); Lagueux v. Everett, 1 Rev. de Leg. 510 (1817); Jones v. Goudie, 2 Rev. de Leg. 334 (1820). Since the two latter methods have been done away with by legislation, the word has been generally used to designate simply the writing on the bill. In the Act, however, when used without qualification, it is applied only to the cases where the writing and the liability thereunder have become complete and irrevocable by being followed either by delivery of the bill or by notification that it has been accepted: Cox. v. Troy, 5 B. & A. 474
"Acceptance" in commercial language is also § 2. sometimes used to designate a bill that has been accepted, but it is not used in this sense in the Act. "Delivery here is also used in the technical sense defined in clause (f) of the present section. "Notification " is not defined in the Act, but is described in section 21, and may be either written or verbal.
The definition and requisites of a valid acceptance are given in section 17.
(b) The expression "Action claim and set-off;
"Action" includes counter "Action."
The word "action" is not often used in the Act. It is found in sections 24, 30, 52, 69, 86 and 93. The procedure in the provincial courts, in which actions on bills and notes are brought, is within the exclusive jurisdiction of the local legislatures: B. N.A. Act, s. 92, s-s. 14. The Dominion Parliament has however the right to interfere with this procedure in so far as may be necessary to deal fully with the subject of bills and notes: See Cushing v. Dupuy, 5 App. Cas. at p. 415 (1880). Most of the provinces have special provisions in their statutes and rules regulating the procedure of their courts, as to actions on bills and notes. These have not been repealed by the present Act, and extracts from them will be found in the appendix.
Mr. Pitt Lewis in his work on County Court Practice, quoted with approval by Cockburn, C. J. in Stooke v. Taylor, 5 Q. B. D. 577 (1880), says: "A set-off would Set-off. seem to be of a different nature from a defence (? counter claim) inasmuch as a set-off appears to shew a debt balancing the debt claimed by the plaintiff, and thus leaving nothing due to him; while a counter claim, it