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FROM CANADIAN, ENGLISH AND AMERICAN DECISIONS, AND
REFERENCES TO AXCIENT AND MODERN FRENCH LAW.
J. J. MACLAREN, Q.C., D.C.L., LL.D.,
Member of the Bar of Ontario and Quebec; Law Examiner of Victoria University;
L'niversity of Toronto.
Entered according to Act of the Parliament of Canada, in the year one thousand
eight hundred and ninety-two, by THE CARSWELL COMPANY (Limited), in the office of the Minister of Azriculture,
In the course of his work upon the Act of 1890 the writer found that in a number of instances where our Parliament had not followed the Imperial Act, the changes had not been carried into other sections where this was necessary in order to make the Act consistent with itself. The absence of any general rule for unprovided for cases it was also thought would interfere with the uniformity of the law in the different provinces which was one of the main objects of the Act. The Minister of Justice signified his approval of these changes, and the amending Act of 1891 was introduced and passed.
The present work was delayed in order that these amendments might be embodied in their proper places. Meantime the notes and illustrations were extended beyond the limits originally contemplated. The references to cases, statutes and other authorities in the work number nearly four thousand. The number of separate decisions cited is two thousand three hundred, and the number of illustrations nearly a thousand. The decisions are brought down to January, 1892.
Where a summary of the law is given for any country it is taken as a rule from the latest edition of one of the leading text writers. Thus, for a summary of the law in England reference is usually made to Byles on Bills, 15th
ed., 1891, or to Chalmers, 4th ed., 1891. For the United States Daniel on Negotiable Instruments, 4th ed., 1891, and Randolph on Commercial Paper, have been selected. For the old French law, Pothier, Contrat de Change, is usually cited; and for the modern French law, the Code de Commerce, and Nouguier, Lettres de Change, 4th ed., 1875.
The Canadian cases cited number nine hundred and fifty, the English about the same number, and the American nearly four hundred. It will be observed that the illustrations have been arranged in three classes in the foregoing order. The Canadian cases have been subdivided by provinces, observing the order (in which the provinces are usually named. The date of each decision has been given, and the cases in each class arranged in chronological order beginning with the oldest. The principal English and Canadian Statutes have also been given for convenience of reference and for comparison with the dates of the cases.
The Canadian cases comprise nearly all the decisions of the Supreme Court and of the provincial Courts on the subject, except those based on repealed statutes, such as the Stamp Act, and the old laws regulating pleading and procedure, and those which depend upon the facts of the particular case. A large proportion of the Canadian cases will be found in the illustrations, where they are given with considerable fulness.
Special attention has also been paid to the decisions upon the Imperial Act of 1882. Not only those in the regular English Law Reports have been cited, but also the Scotch and Irish cases, and those in the other English Reports including twenty-five cases from the London Times Law Reports. These decisions are of special value on account of the great similarity of the two Acts, especially in view of the provision in section 8 of the amending Act
of 1891, that the rules of the common law of England including the law merchant shall apply to Canada, except in so far as they are inconsistent with the express provisions of the Canadian Act.
The decisions selected from the great mass of American cases have been chiefly from the reports of the Supreme Court of the United States, and of the higher Courts of those States which follow most closely the common law and the law merchant. They are, as a rule, upon points that are not affected by local statutes or usages. Preference has also been given to decisions of these Courts in the leading commercial centres with which Capada has most intercourse.
As so many of the Canadian decisions contain allusions to the laws in force in the various provinces before the present Act, there will be found in the Appendix not only Chapter 123 of the Revised Statutes of Canada, but also the Articles of the Civil Code of Quebec upon the subject, and the Nova Scotia and New Brunswick Statutes, which were repealed when the present Act came into force.
In order to facilitate reference, in addition to the alphabetical index at the end of the volume, a somewhat full table of contents is given at the beginning.
The list of overruled cases is, of course, only a partial one, but it is hoped that it may be found useful. It will be observed that a number of cases are there referred to that are not to be found in the body of the work.
J. J. M.
TORONTO, APRIL, 1892.