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§ 71. there, it was held good in England when it would not have had that effect if paid there: Ralli v. Dennistown, 6 Ex. at p. 496 (1861). If a bill is discharged by compensation in Demerara, it will be held discharged in England where compensation would not have this effect: Allen v. Kemble, 6 Moore P. C. 314 (1848). So a bill discharged in Quebec by either compensation or prescription, would be held to be discharged in other countries where these would not operate as discharges as to bills made or payable there. See Huber v. Steiner, 2 Bing. N. C. 211 (1835); Harris v. Quine, L. R. 4 Q. B. 653 (1869); Story, sec. 582.
Evidence of foreign protest.
(f.) If a bill or note, presented for acceptance, or payable out of Canada, is protested for nonacceptance or non-payment, a notarial copy of the protest and of the notice of dishonor, and a notarial certificate of the service of such notice, shall be received in all courts, as prima facie evidence of such protest, notice and service.
This clause is not in the Imperial Act. Con. Stat. C. (1859) c. 57 had a similar provision, but it applied only to protests in Upper or Lower Canada: Griffin v. Judson, 12 U. C. C. P. 430 (1862). See also Ewing v. Cameron, 6 U. C. O. S. 541 (1842); Ontario Bank v. Burke, 10 Ont. P. R. 561 (1885). :
Lex loci contractus.-The effect of the Act will probably be to make the application of the law of the place of the contract more general, especially if clause (b) of this section is liberally construed.
Lex loci solutionis.-The law of the place of payment is applied in the Act with respect to presentment, protest, etc., by clause (c), and to the due date of bills by clause (e). See also what is said ante p. 384. It has been laid down
that interest on a bill dishonoured by non-payment is § 71. determined by the law of the place of payment: Cooper v. Waldegrave, 2 Beav. 282 (1840). See also re Gillespie, ex parte Robarts, 18 Q. B. D. 286 (1886); re Commercial Bank of South Australia, 36 Ch. D. 522 (1887); section 57.
Lex fori -The law of the place as to where the action. is brought or proceedings are taken governs as to all matters belonging to the remedy or mode of enforcement: De la Vega v. Vianna, 1 B. & Ad. 294 (1830). Under this head are comprised :
1. The limitation of actions, subject to the operation of the law in places like Quebec when it operates as a discharge: Don v. Lippmann, 5 Cl. & F. 1 (1837); British Linen Co. v. Drummond, 10 B. & C. 903 (1830); Fergusson v. Fyffe, 8 Cl. & F. at p. 140 (1841); Pardo v. Bingham, L. R. 4 Ch. 735 (1869); Alliance Bank v. Carey, 5 C. P. D. 429 (1880). See ante pp. 341-9.
2. Set-off, subject to the same limitations. See ante p. 339.
3. The admission of evidence: Yates v. Thompson, 3 Cl. & F. 544 (1835); Bain v. Proprietors W. & F. Ry. Co., 1 (1850); Leroux v. Brown, 12 C. B. 801 (1852); Williams v. Wheeler, 8 C. B. N. S. at p. 316 (1860).
CHEQUES ON A BANK.
The Third Part of the Act which is devoted to cheques consists of ten sections, 72 to 81, inclusive. The first three of these relate to cheques generally, the remaining seven to crossed cheques. They are taken from the Imperial Act with the single change that the word "bank" has been substituted for "banker," for the reason mentioned ante p. 25.
English and Can
Although this part of the two Acts is thus substantially adian law identical, there are two marked differences regarding cheques between the law and the practice in England and in Canada. The first arises from the omission of section 60 of the Imperial Act from the Canadian bill as already mentioned. It provides in effect that when a bill payable to order on demand is drawn on a banker, and he pays it in good faith in the ordinary course of business, he is not responsible although the indorsements are forged or unauthorized. As a cheque is a bill of exchange drawn on a banker payable on demand, and that section applies to cheques, the making of a cheque payable to order is in England little protection. The crossing of cheques has consequently become more general.
The other great difference arises from the fact that the practice of getting cheques marked or accepted, so general in Canada, is almost unknown in England. Byles says, p. 32, that cheques are not accepted, and that to issue
them accepted would probably be an infringement of the § 72. Bank Charter Acts.
A cheque drawn upon a private banker would not be a cheque within the meaning of the Act, and would not be subject to the special rules contained in this part of the Act applicable to cheques, such as crossing and the like. They would be simply bills of exchange payable on demand and subject to such provisions of the Act as apply to these instruments.
72. A cheque is a bill of exchange drawn on Cheque a bank, payable on demand. Imp. Act, s. 73.
Reading this definition in connection with that of a bill of exchange in section 3, a cheque is an "unconditional order in writing addressed by a person to a bank, signed by the person giving it, requiring the bank to pay on demand a sum certain in money, to, or to the order of a specified person, or to bearer."
As to what are bills payable on demand, see section 10.
According to the definition in section 2 (c), "bank" means "an incorporated bank or savings bank carrying on business in Canada"; that is, one of the 36 banks mentioned in Schedule A to the Bank Act, 53 Vict. c. 31; or the City and District Savings Bank of Montreal, or La Caisse d'Economie de Notre Dame de Quebec: 53 Vict. c. 32.
In Quebec, under the Code, a cheque might be drawn upon a private banker as well as upon an incorporated bank: Art. 2349. And this was the law before the Act in the other provinces.
A cheque should be addressed to the bank by its proper Form of corporate name, and not to the "cashier,' manager" or "agent." An instrument addressed to one of these would not, properly speaking, be a cheque within the meaning of
$72. the Act, and if marked or accepted it might be claimed that the bank was not liable, as it would not be the drawee of the instrument and consequently could not become liable by acceptance.
The words "on demand" need not be on the cheque, as they are understood when no time for payment is expressed section 10 (b).
A cheque may be antedated or postdated: section 13, s-s. 2; Wood v. Stephenson, 16 U. C. Q. B. 419 (1858); And the fact that it is postdated is not an irregularity: Hitchcock v. Edwards, 60 L. T. N. S. 636 (1889); Carpenter v. Street, 6 T. L. R. 410 (1890). But a cheque dated seven days after delivery is in substance a bill of exchange at seven days' date: Forster v. Mackreth, L. R. 2 Ex. 163 (1867).
In the United States there has been a conflict as to whether a cheque may be made payable on a day subsequent to its date. The weight of authority is in favor of what is law under our Act, that such an instrument is not a cheque, and has three days' grace. See Bowen v. Newell, 13 N. Y. 290 (1855); Morrison v. Bailey, 5 Ohio St. 13 (1855); Harrison v. Nicollet Bank, 41 Minn. 488 (1889); 2 Daniel, § 1574. But see contra, re Brown, 2 Story, C. C. 502 (1843); Westminster Bank v. Wheaton, 4 R. I. 30 (1856); Champion v. Gordon, 70 Penn. St. 474 (1872); Way v. Towle, 45 Alb. L. J. 177 S. C. Mass. (1892).
The Act does not make it a part of the definition that the drawer should be a customer of the bank; but if a person gets goods or money on the strength of a cheque where he has no account he is guilty of obtaining the goods or money by false pretences, and is liable to three years' imprisonment: R. S. C. c. 164, s. 77; Rex v. Jackson, 3 Camp. 370 (1814); Reg. v. Hazelton, L. R. 2 C. C. 134 (1874).