In Quebec the Civil Code, Art. 2336, provided that bills $4. drawn upon persons in Upper Canada, or any other of the British North American Colonies, and returned under Damages. protest for non-payment, were subject to four per cent. damages. Most of the other provinces had similar provisions. See Con. Stat. U. C. c. 42, s. 9; Rev. Stat. N. S. (3rd Series) c. 32, s. 1; 1 Rev. Stat. N. B. (1854) c. 116, s. 1; and Acts of P. E. I., 17 Geo. 3, c. 5, s. 2. These damages were abolished by the Dominion Act, 38 V. c. 19, and only the amount of the bill with the cost of noting and protest, interest, exchange and re-exchange were to be recoverable after the 1st of July, 1875, on a bill drawn upon any person in the Dominion or Newfound

land.

The following are inland bills:

1. A bill drawn in Canada upon some person resident there and payable in Canada.

2. A bill drawn in Canada upon some person abroad but payable in Canada.

3. A bill drawn in Canada upon some person resident there but payable abroad.

4. Any bill which on its face purports to come within any of the foregoing classes but which was actually drawn abroad though dated in Canada.

The place of payment in any of the foregoing cases may be determined by the acceptance: section 19, 2 (a). If no place of payment is specified in the bill or acceptance it is payable at the address of the drawee or acceptor: section 45, s-s. 2 (d) (3). Forms of inland and also of foreign bills will be found in the Appendix.

It is sometimes of importance to determine whether a bill is an inland or a foreign one. The latter when dishonored in any part of Canada by non-acceptance or non

§ 4. payment must be protested: section 48. In any other province than Quebec an inland bill need not be protested: section 51. The drawer, acceptor, and each endorser of a bill is a several and distinct contracting party and the rights, duties, and liabilities of these parties respectively may vary according to the law of the place of issue, or of the place where such contract was made, or where it is to be performed. On this point see section 71. As to inland and foreign promissory notes, see section 82, s-s. 4, and 88, s-s. 4.

In the United States the different States are considered to be foreign to each other for the purposes of bills of exchange: Daniel § 9.

ILLUSTRATIONS.

1. On a bill drawn in London, England, on defendant in Toronto, but accepted by him on London and payable there, plaintiff was allowed the current rate of exchange on the day it became due, and not merely 24s. 4d. in the £ sterling: Greatorex v. Score, 6 U. C. L. J. 212 (1860).

2. A bill written and accepted in England and sent abroad to the drawer, who signed it there, is a foreign bill: Boehm v. Campbell, Gow 56 (1818).

3. A bill in blank signed and endorsed in Ireland, sent to England where the blanks were filled up and the bill negotiated there, is a foreign bill: Snaith v. Mingay, 1 M. & S. 87 (1813).

4. A bill drawn in London upon Brussels and accepted there, but payable in London is an inland bill: Amner v. Clark 2 C. M. & R. 468 (1835).

5. A bill payable to order, drawn, accepted and payable in England, but endorsed in France is an inland bill: Lebel v. Tucker, L. R. 3 Q. B. 77 (1867).

6. A bill drawn and payable in England upon a Boston house, and accepted in England by a partner of the Boston

house, who was there at the time, held to be a foreign bill, as if § 4. accepted in Boston: Grimshaw v. Bender, 6 Mass. 157 (1809).

7. A bill drawn in one State and payable in another, is a foreign bill, although all parties are citizens of one State: Grafton Bank v. Moore, 14 N. H. 142 (1843).

noted as

2. Unless the contrary appears on the face of If not the bill, the holder may treat it as an inland bill. foreign. Imp. Act, s. 4 (2).

He says,

This is given by Chalmers as new law. p. 15: "The result appears to be that though a bill purports to be a foreign bill, the holder may nevertheless show that it is in fact an inland bill for the purpose of excusing protest; while if it purports to be an inland bill, though really a foreign bill, he may treat it at his option as either."

The former part of this quotation appears to be clear; not however from sub-section 2 of section 4, but from the first part of the section, which declares that to be an inland bill which is drawn and payable within Canada, or is drawn within Canada upon some person resident therein. If actually drawn within Canada it may be treated as an inland bill although dated abroad. The second part of the above quotation does not appear to be authorized by any part of the section. The most obvious meaning of subsection 2 would appear to be the same as that part of the first sub-section which declares that to be an inland bill which on its face purports to be drawn within Canada although actually drawn abroad, and which meets the other requisites of an inland bill.

parties to

the same drawer.

5. A bill may be drawn payable to, or to the If different order of, the drawer; or it may be drawn payable bill and to, or to the order of, the drawee: Imp. Act, s. 5 (1).

§ 5.

Option of holder in

case

Usually there are three distinct parties to a bill, the drawer, the drawee and the payee. In the above cases there are only two parties. In the first instance the drawer and the payee are the same person. This is a form of bill or draft long in use, and frequently adopted Butler v. Crips, 1 Salk. 130 (1704). Such an instrument may be treated either as a bill of exchange or as a promissory note: Golding v. Waterhouse, 16 N. B. (3 Pugs) 313 (1876). In the second instance the drawee and the payee are the same. This is a more uncommon form and may be used when the drawee acts for himself, and as also as agent for another person interested in the bill, or when he acts as agent for two different persons: Pardessus, Droit Commercial, § 339. In this case he is, in the language of Pothier, at the same time, acceptans et praesentans: Change, No. 19.

In such cases the bill can not be enforced until the acceptor has endorsed and delivered it to some other person: Reg. v. Bartlett, 2 M. & R. 362 (1841); Holdsworth v. Hunter, 10 B. & C. 449 (1830); Witte v. Williams, 8 S. Car. 290 (1876).

The Civil Code does not in terms recognize as a bill an instrument payable to the order of the drawee: see Art. 2282. Nor does the Code de Commerce: see Art. 110.

2. Where in a bill drawer and drawee are the specified. same person, or where the drawee is a fictitious person or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or as a promissory note. Imp. Act, s. 5 (2).

Where the drawer and the drawee are the same person notice of dishonor is dispensed with as regards the drawer: section 50, 2 (c).

drawee.

Where a bill is drawn upon a fictitious person or a § 5. person not having capacity to contract by bill, presentment for acceptance is excused section 41, 2 (a); also Fictitious presentment for payment: section 46, 2 (b). Notice of dishonor is, in such cases, dispensed with as regards the drawer section 50, 2 (c)-and also as regards an indorser who was aware of the fact at the time he endorsed the bill: section 50, 2 (d).

For instance, a bill is drawn upon a fictitious person, or a minor, or a corporation having no power to incur liability on a bill, or a married woman having no separation of property from her husband in the province of Quebec and not a trader or marchande publique. The holder may treat it as a note, and without presenting or protesting it, sue the drawer or such indorser.

ILLUSTRATIONS.

1. A bill is drawn upon a fictitious person and negotiated by the drawer. The holder may treat it as a note of the drawer and need not prove presentment or notice of dishonor: Smith v. Bellamy, 2 Stark. 223 (1817).

2. An instrument in the form of a bill, drawn upon a bank, by the manager of one of its branch banks, by order of the directors may be treated as a note: Miller v. Thompson, 3 M. & G. 576 (1841).

66

3. The directors of a Joint Stock company draw a bill in the name of the company, addressed To the Cashier." The holder may treat it as a note by the company: Allen v. Sea F. & L. A. Co., 9 C. B. 574 (1850).

4. Although instruments where drawer and drawee are the same persons are promissory notes rather than bills, yet where the intention to give and receive them as bills of exchange is clear, both the holders and the parties may treat them accordingly Willans v. Ayers, 3 App. Cas. 133 (1877).