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Houses of Parliament, most of these being in the direction of retaining special provisions of the law formerly recognized in Canada or in some of the provinces, and substituting these in the Bill for certain clauses of the Imperial Act which were embodied in the first draft. In the following notes special attention will be called to those sections which differ from the former Canadian law as well as to those in which the Imperial Act has not been followed.
The Bills of Exchange Act, 1882, is of special interest as being the first instance of the codification, by the Imperial Parliament, of any portion of the Civil Law. The experiment has been an unqualified success, and no greater tribute could be paid to those who prepared the bill and successfully piloted it through both Houses, than the mere mention of the fact that although it has now been in force for nine years, not a single amendment has been found to be necessary. The amount of litigation which has arisen over it has been comparatively small, and it has been very favourably received by the English Judges some of whom were not disposed to look with much approval upon the idea of a code.
The changes which were made in the Canadian Bill in its passage through Parliament tended, not only to lessen its similarity to the Imperial Act as above stated, but some of them also interfered with the uniformity of the law throughout the Dominion which was stated to be its chief object. Examples of the former are found in the legislation regarding bills payable at sight, and as to the payment by banks of demand drafts on them, when the endorsement is forged; and of the latter, in the special provisions regarding the protest of inland bills in Quebec, and the retention of the provincial tariffs for notarial services. These and other changes of like nature will be more specially noticed, when considering the particular sections affected.
But probably the change which would have interfered No uniform most seriously with the uniformity of the law, and which would have brought about great diversity in the jurisprudence of the respective provinces was the omission from the Act of a clause that stood in the original bill as section 97, and which was struck out in the Senate.-Senate Debates, 1890, p. 467. It was a reproduction of section 97, sub-section 2, of the Imperial Act and read as follows: "The rules of the common law of England, including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, shall continue to apply to bills of exchange, promissory notes and cheques." All the Dominion Statutes in force at the passing of the Act, as well as all the subsisting provincial statutes on the subject passed prior to Confederation, with the unimportant exceptions above mentioned, having been repealed by section 95, recourse would have been had in unprovided for cases in the several provinces, to the law as there originally introduced, in so far as it might be applicable, and where this failed, to the law in the respective provinces, which by analogy might serve as a rule in each particular case. The Act is no doubt a comparatively complete code of the law upon the subject, but a number of cases unprovided for will be pointed out in the course of the following notes, and experience will not fail to disclose many more.
The absence of any uniform rule or standard for the decision of these cases would no doubt have led to considerable diversity in the jurisprudence. In all the provinces except Quebec the English law was that which was originally introduced. It was introduced however at different dates so that English Statutes which were thus in force in some provinces were not in others. The French commercial law in force in Quebec it is true had much more in common with
that of England, than had other branches of the civil law. Both were based on the law merchant, and upon the usages and customs of merchants, who were much more cosmopolitan in their ideas than the legislators or judges who framed or settled the other laws of these countries. The course of provincial legislation also tended to similarity. The provisions of the successive English statutes on the subject were frequently re-enacted by the provinces, including Lower Canada. Notwithstanding these circumstances a glance at the jurisprudence as it is recorded in the provincial reports, and as it will be briefly noted in the following pages will show that there has been a wider divergence in the decisions of the courts in the different provinces than might have been expected from the similarity of the statute law.
Cases under old law.
The desire to render the law throughout the Dominion as nearly uniform as possible which was one of the leading objects of the Act, no doubt influenced the Parliament to restore the clause which had been dropped from the Bill in 1890, and it was made retroactive in its effect so that even a temporary divergence in jurisprudence from this cause. will be avoided. In all cases not specially provided for by the Act, recourse will now be had in all the provinces to the common law of England and the law merchant, instead of to the law of France in Quebec or to that of England at varying dates in the other provinces, as would have been the case under the Act of 1890: (54-55 V. c. 17, s. 8.)
In the course of the following notes upon the various sections of the Act, cases decided under the old laws will be cited which in whole or in part may be no longer law, either in consequence of this Act or prior Dominion or Provincial legislation. These have been noted partly because they will be of assistance in tracing the course of jurisprudence on the subject, and partly because for a few years at least the cases which will come before our Courts will be largely
upon bills and notes made before the passing of the Act, and consequently governed by the old laws.
In order to facilitate a comparison of this jurisprudence with the course of legislation, the dates of the various decisions will be given. A concise summary of the more salient points in the history of the law in the different provinces is also here given which it is hoped will be found to be sufficiently full and exact for the purpose above stated.
Quebec.-The French commercial law, introduced with French the Coutume de Paris on the establishment of the Conseil Superieur in 1663, as modified by subsequent enactments and decisions, and which was the law merchant, and substantially the same as the commercial law of England of the same period, regulated the bills and notes of the colony, until the conquest in 1760. The French Commercial Ordinance of March, 1673, has been generally held not to have been in force in the province on account of its not having been registered at Quebec: Merritt v. Lynch, 3 L. C. J. 276; 9 L. C. R. 353 (1859). The admirable treatise of Pothier on the subject, Contrat de Change, cannot consequently be accepted as an authority without question where the ordinance may have made a change in the older law. See the Seventh Report of the Commissioners on the Civil Code of Lower Canada, page 216.
As to whether the law in force in Quebec between 1763 and 1774 was English or French, has been a matter of controversy. By the Proclamation of Geo. 3 of the 7th of October, 1763, the government of Quebec was constituted, embracing the present province of Quebec and the eastern part of Ontario; the people to have the "enjoyment of the benefit of the laws of England," and the courts to decide "all causes, according to law and equity, and, as near as may be, agreeable to the laws of England." The validity of this Proclamation as a legislative act has been
questioned, but it was affirmed by a unanimous judgment of the Court of King's Bench, delivered by Lord Mansfield: Campbell v. Hall, Cowper 204 (1774). It has also been recognized by the Privy Council: Lyons v. East India Co., 1 Moore 272 (1836); and by the House of Lords : Whicker v. Hume, 7 H. L. Ca. 150 (1858). See Anderson v. Todd, 2 U. C. Q. B. 84 (1845); Stuart v. Bowman, 2 L. C. R. 369 (1851); in Appeal, 3 L. C. R. 309 (1853); 2 L. C. J. Appendix No. 2; Wilcox v. Wilcox, 2 L. C. J. 1 (1857); Atty. Gen. v. Stewart, 2 Merivale 143 (1817); Jephson v. Riera, 3 Knapp 152 (1835); Cameron v. Kyte, ibid. 346 (1835); Beaumont v. Barrett, 1 Moore P. C. 272 (1836). The majority of the Judges in these Lower Canada cases held that the English law was not introduced into the province during the period in question. As a matter of fact the courts during that period administered the English law in commercial cases: Wilcox v. Wilcox, at p. 11.
By the Quebec Act of 1774, 14 Geo. 3, c. 83, (Imp.) the limits of the province were extended westward, the proclamation of 1763 was revoked, and it was ordered that in all matters of controversy relative to property and civil rights, resort should be had to the laws of Canada. This restored the French commercial law with such modifications as had been introduced into Canada.
In 1777 an Ordinance was passed by the Governor and legislation. Council of the province regulating the protesting of bills, and the damages, interest and fees thereon: 17 Geo. 3, c. 3. Another Ordinance passed in 1785, 25 Geo. 3, c. 2, provided by Art. 10 that "in proof of all facts concerning commercial matters, recourse shall be had, in all the courts of civil jurisdiction in the province, to the rules of evidence laid down by the laws of England." In 1793 a statute was passed to facilitate the negotiation of promissory notes: 34 Geo. 3, c. 2.