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Sec. 71.

A note made here payable at a place in the United States, without limiting it “not otherwise or elsewhere,” is payable generally, and the law and currency of the place of contract must govern: Hooker v. Leslie, 27 U. C. Q. B. 295. See also Meyer v. Hutchinson, 16 U. C. Q: B. 476.

A fixed law at the foreign place of drawing, as to the damages and interest for non-payment of a bill, binds the drawer as a part of his contract: Re State Insurance Company, 32 L. J. Ch. 300 ; 9 Jur. N. S. 298.

A. being a resident in Ontario, while temporarily in New York, drew a bill on B. in Toronto, in favor of a New Ỳork firm, which was refused acceptance, and protested ; -Held, that the contract, notwithstanding that A. and B. are domiciled in Ontario, must be governed by the law of New York : Story v. McKay 15 Ont. R. 169.

In declaring on a note drawn in a foreign language, its meaning in English may be averred, as in this form : the sum of two hundred louis current money, meaning thereby the sum of two hundred pounds of lawful money of Canada : Gibb v. Morisette, 4 U. C. Q. B. 205.

Where a note made and payable in Ogdensburg, New York, matured before the United States made treasury notes a legal tender there, the plaintiff was held entitled to the sum made payable by the note at the time it matured, without reference to the rate of exchange existing between Canada and the United States, at the time of the trial: Judson v. Griffin, 13 U. C. C. P. 350.

6“ The Law of Canada.” The sources of the Canadian law have been various ; and there has been as yet no judicial decision giving an exact and accurate rendering of the term “ Law of Canada.” In considering the general question, it must be remembered that part of the territory now within the jurisdiction of the Dominion, was acquired by settlement, and part by conquest. The parts, so separately acquired, have to be brought within the operation of clear and well recognized rules, by which the sources of their original laws may be ascertained and determined. These rules were promulgated by the Imperial I'rivy Council in 1722, as follows : (1) In countries originally settled by British subjects, the common and statute laws of England established at the settlement, and applicable to their situation and condition, are in force ; but not the laws made after such country had been inhabited by the English, unless such later laws were made expressly applicable to the colonies : 2 P. Wms. 75. In countries so settled, there being no preceding laws in force, to contest the superiority with them, the common and statute laws of England applicable to their condition, are in force : Clark's Colonial Law, 7. (2) In countries acquired by conquest or cession, the former laws remain in force, until provision is made for their government by the Crown (which has the power of legislation by Order-in-Council), or by Parliament : Mills on Colonial Constitutions, 19. And there the conqueror may impose on the inhabitants what laws he pleases : 2 P. Wms. 75, (3) Until such laws are given by the conqueror, the laws and customs of the conquered country are to prevail : Ibid. The King, without the concurrence of Parliament, has full power of legislation in a conquered country ; but such legislation is subordinate to the King's own authority in Parliament; and he cannot change fundamental princi

as

ples, which form part of the constitution. But where a local constitution is Sec. 71. granted to a colony acquired by conquest, the Crown, by such grant, precludes itself thereafter from the exercise of the sole legislative authority over such colony, and such grant is irrevocable : Chapman v. Hall, 20 How. St. Tr. 239; s c. Cowp. 204. The territory of Ontario and Quebec was acquired by conquest in 1760; and by a Royal Proclamation of 1763, a small Province, called Quebec, was established within that territory, and was granted a local legislature which was authorized to make laws near as may be agreeable to the laws of England.” It was further provided that until such laws were made, the inhabitants were to have “the enjoyment of the benefit of the laws of England.”. “ As soon as Canada ceased to belong to France the law of Canada ceased to exist, and the law of England came in : Per Smith, J., in Corse v. Corse, 4 L. C. J. 314. In 1774, the Quebec Act, 14 George III., c. 83, provided that within what is now Ontario and Quebec, “in all matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada,” (s. 8). The Constitutional Act of 1791, 31 George III., c. 31, which established the two Provinces of Upper and Lower Canada, authorized the local legislature of each province, to make laws for the peace, welfare and good government thereof. In Lower Canada, now Quebec, the French Canadian law has remained in force, except where it has been subsequently altered by Imperial legislation. The only English law introduced into Lower Canada (Quebec) was that relating to the tenure of lands: Stewart v. Bowman, 3 L. C. R. 211; the law relating to wills : Migneault v. Malo, L. R. 4 P. C. 123 ; and the law relating to bills and notes: Macdonald v. Whitfield, 8 App. Cas. 733. In Upper Canada, now Ontario, the French Canadian law was displaced ; and by the Act 32 George III. c. 1, (now R. S. 0. 1887, c. 93) it was enacted that in all matters of controversy relating to property and civil rights, the laws of England then (1792) existing, should be the rule for the decision of the same. The territories of New Brunswick, Nova Scotia, and Prince Edward Island were established as settlements, soon after their discovery in 1497: 1 Burge on Colonial and Foreign Law, xxxiv. The laws of Prince Edward Island are the laws of England, in force at the time of its acquisition : Ibid, 464. The whole of the English common law is recognized as in force in Nova Scotia, which originally included New Brunswick, excepting such parts as are obviously inconsistent with the circumstances of the country ; while, on the other hand, none of the statute law is received, except such parts as are obviously applicable and necessary : Uniacke v. Dickson, James, N. S. 287. The English common law was introduced into Manitoba and the North-West Territories by the Charter of the Hudson's Bay Company in 1670 : Connelly v. Woolrich, 11 L. C. J. 197. In 1862, and 1864 the laws of England were declared to be in force within what is now Manitoba : Keating v. Moises, 2 Man. R. 47. In addition to these original sources of Canadian law, it has been held that, where the English and colonial laws are the same, the decisions of the

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Sec. 71. English Courts are binding on the Colonial Courts, as an authoritative con

struction of the law. And that, as a general principle, an Act of a Colonial Legislature, where the English law prevails, must be governed by the same rules of construction as prevail in England ; and the English authorities upon an Act, in pari materia, are authorities for the interpretation of the Colonial Act: Catterall v. Catterall, or Sweetman, 1 Rob. Ecc. Rep. 580 ; 9 Jur. 951. And it is equally a general rule, that where a Colonial Legislature has passed an Act in the same terms as an Imperial Statute, and the latter has been construed by an English Court of Appeal, a similar construction of the colonial law should be adopted by the Courts of the Colony ; it being of the utmost importance that in all parts of the Empire, where the English law prevails, the interpretation of that law by the Courts, should be, as nearly as possible, the same : Trimble v. Hill, 5 App. Cas. 342.

It is generally required as to bills of exchange, in order to fix the responsibility of other parties, that upon their dishonor, they should be duly protested by the holder, and due notice given to such parties. And the first question which niturally arises is, whether the protest and notice should be in the manner and according to the forms of the place in which the bill is drawn, or according to the forms of the place in which it is payable. By the common law the protest is to be made at the time, in the manner, and by the persons prescribed, in the place where the bill is payable. But as to the necessity of making a demand and protest, and the circumstances under which notice may be required or dispensed with, these are incidents of the original contract, which are governed by the law of the place where the bill is drawn. They constitute implied conditions upon which the liability of the drawer is to attach, according to the lex loci contractus ; and if the bill is negotiated, the like responsibility attaches upon each successive indorser, according to the law of the place of his indorsement, for each indorser is treated as a new drawer : Story on Conflict of Laws, s. 360. Locus regit actum is a canon of general jurisprudence, and in the absence of contrary evidence, applies to a system of foreign law; and the rule flowing from it is, that “the formal requisites demanded for a contract by the law of the place where it is made, are sufficient for it everywhere :" Westlake on International Law, s. 171.

ILLUSTRATIONS.

Where a foreign bill, payable in France, is dishonored, due notice of dishonor by the acceptor is parcel of the contract, and it is sufficient for the indorsee to shew that he had given the indorser such notice of the dishonor and protest as was required by the law of France : Rothschild v. Currie, 1 Q. B. 43.

Where in the case of a bill payable at a particular place in a foreign country, there is no evidence of presentment there, nor of the law of that country on the subject, the rules as to presentment must be determined by our own law : Buffalo Bank v. Truscott, U. C. M. T. 2 Vic.

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* By the par value of real moneys is meant the equality of the intrinsic Sec. 71. value of the money of one country with another; and by the par of exchange, the proportion that the imaginary moneys of any country bear to those of another, so that the rise and fall of an exchange, must be attributed, either to the current price of the coins of one country, or to an extraordinary demand in one place for money in another; or it may be sometimes owing to both. The term exchange” means a bartering, or exchanging, the money of one kingdom with another, which is always effected by the intervention of two or three lines of writing on a slip of paper: Beawes, Lex Mercatoria, 562. (A bill of exchange is the substitute for the actual transmission or exchange of money by sea or land : Parsons v. Arior, 3 Peters (U. S.) 413.

9 The maturity, or due date, of a bill of exchange depends upon the number of days of grace allowed in the country where the bill is payable. In some countries, no days of grace are allowed ; while in others, where they are allowed, they vary from three to fifteen days. See notes to s. 14.

10 There is no similar clause in the English Act. Prior to this Act, it had been held in Ontario, that a protest of a notary of a foreign country was no evidence of the facts therein stated, as the statute C. S. C. 57, s. 6, making a protest prima facie evidence of those facts, only applied to protests made by notaries of the former Province of Canada : Griffin v. Judson, 12 U. C. C. P. 430. Nor was a protest of a foreign bill by a foreign notary, evidence of notice of dishonor, although the notary certified therein that he had given the parties due notice of dishonor : Ewing v. Cameron, 6 U. C. 0. S. 541. But in England it was held that the dishonor of a foreign bill presented abroad, could be proved by producing the protest attested by a notary public : Anon. 12 Mod. 345.

PART III.

a bill of

CHEQUES ON A BANK. 72. A cheque is a bill of exchange drawn on a bank, Cheque is payable on demand : 1

exchange.

Imp. Act,s.73 2. Except as otherwise provided in this part, the provis- 38.6 & 19. ions of this Act applicable to a bill of exchange payable on

provisions demand apply to a cheque. 2

apply to

cheques. 1 Cheques on a bank are the modern substitute for the “goldsmith’s notes” of former times. See p. 8, ante. The definition of a bill of exchange is given in s. 3; and of a bill payable on demand in s. 10.

Ind. Act,
Certain

Sec. 72. All cheques are inland bills of exchange, and are subject to the conditions

attaching to them as such. But all bills of exchange are not cheques, nor subject to all the rules applicable to cheques. Thus an authority to draw cheques, does not necessarily include an authority to draw bills: Forest v. Mackreth, L. R. 2 Ex. 163. Further, a cheque is intended for prompt presentment and payment, while a bill payable on demand, is intended to be a continuing security. Marking” a cheque is not necessarily an acceptance of the cheque, unless it is in the form prescribed by s. 17. The definition of a bill of exchange completely embraces in it a cheque. A cheque like a bill of exchange, is an unconditional order in writing addressed to a bank requiring it to pay a sum certain in money, at a fixed or determinable future time, that is on presentation ; but it has not, like an ordinary bill, days of grace. Though it has not all the privileges of a bill, it is as much a negotiable instrument; and the holder to whom the property in it has been transferred for value, either by delivery or indorsation, is entitled to sue upon it, if, upon due presentment, it is not paid : McLean v. Clydesdale Banking Co., 9 App. Cas. 95. This part III. does not apply to private bankers.

ILLUSTRATIONS. Cheques, like bills, are negotiable instruments, generally payable to bearer, but sometimes to order, requiring as essentials, a drawer, drawee, and payee : Hewitt v. Gooderich, 10 Ala. 340.

A bank cheque is an inland bill of exchange ; and, in general, is governed by the law applicable to bills of exchange and promissory notes : Minturn v. Fisher, 4 Cal. 35.

A cheque upon a bank, until accepted, is merely an order upon the bank. The bank is not liable upon it; and it may be revoked : Schneider v. Irving Bunk, 1 Daly, (N.Y.), 500.

Where a cheque was drawn upon a banker, payable to bearer, and the person who received it wrote his name on the back of it, and passed it away to another; the person so indorsing was held liable as an indorser to the person to whom he had passed it: Macdonald v. Union Bank, 2 Sess. Cas. (Scot.), 3 Ser. 963 ; s. p. Keene v. Beard, 8 C. B. N. S. 372. Banks are bound to known the signatures of their customers ;

and therefore a bank which has paid a cheque which has been forged, cannot recover back the money from the person to whom it has paid it : National Bank v. Grocers National Bank, 35 How. (N. Y.) 412.

Although the date of a cheque is not material to its validity, it is as to the period of its payment. Therefore the payment by a bank of a postdated cheque before the day of its date, is a payment in its own wrong : Godin v. Bank of the Commonwealth, 6 Duer. (N. Y.) 76.

The reasonable and established usages and customs of banks, enter into and become part of the contracts made with them by persons having knowledge of such usages and customs, and must receive due weigbt in expounding such contracts : Brent v. Bank of Metropolis, 1 Peters, (U. S.) 89.

A bank is not bound to receive on deposit the funds of every man who offers them; but has the right to select its customers : Thatcher v. Bank of the State, 5 Sand. (N. Y.) 121.

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