Page images
PDF
EPUB
[graphic]

Sec. 2.

An interpretation clause should be used for the purpose of interpreting words which are ambiguous or equivocal, and not so as to disturb the meaning of such as are plain (Reg. v. Pearce, 1880, 5 Q.B.D. 389). Such a clause is not intended to exclude the rule, alike of good sense and of grammar and law, that general words are to be restrained to the subject matter dealt with. (Chorlton v. Lings, 1868, L.R. 4 C.P. 387.)

The definitions in sec. 2 are verbal, that is, they define the sense in which the particular terms are used in the Act. The substantial or operative definitions are referred to below, and appear in their appropriate places in the Act.

(a) Acceptance.

As to the operative definition and requisites of an acceptance, see secs. 35 et seq.

As to delivery or notification to complete a contract on a bill, see secs. 39, 40 and 41. Delivery is defined by clause (f).

(b) Action.

The word "action" is used in secs. 11, 49, 58, 93, 157 and 183. By clause (k) defence includes counterclaim.

Set off is of a different nature from counter-claim. A set off consists of a defence to the original claim of the plaintiff. A counter-claim is an assertion of a separate and independent demand which does not answer or destroy the original claim of the plaintiff (Stoke v. Taylor, 1880, 5 Q.B.D. at p. 577). The right to set up a counter-claim was first given by the Judicature Acts. The right to rely on a set off has long existed. Set off corresponds approximately to compensation under the Civil Code, counterclaim is analogous to a cross-demand under the Quebec Code of Civil Procedure: Maclaren, p. 22.

(c) Bank.

Cf. the Bank Act, sec. 2(a).

The corresponding clause of the English Act is as follows:"Banker" includes a body of persons, whether incorporated or not, who carry on the business of banking. Banking in Canada is carried on by the chartered banks, certain savings banks, and private bankers. A bank under the Act does not include a private banker: see notes to sec. 165. Savings banks are governed by R.S.C. cc. 30 and 32.

(d) Bearer.

As to when a bill or note is payable to bearer, see sec. 21. A bill payable to bearer is negotiated by delivery (sec. 60). The possessor of a bill or note payable to order is not technically the "bearer" of it, but "bearer" is included in "holder" as defined by clause (g).

(e) Bill and note.

The operative definitions of these words are contained in secs. 17 and 176. A cheque is defined by sec. 165.

(f) Delivery.

Delivery is necessary to make any contract on a bill complete and irrevocable (sec. 39). A person is said to have constructive possession of a thing when it is in the actual possession of his servant or agent on his behalf; therefore delivery may be effected without change of actual possession in three cases, namely: (1) A bill is held by C. on his own account; he subsequently holds it as agent for D: (2) A bill is held by C.'s agent, who subsequently attorns to D. and holds it as his agent: (3) A bill is held by D. as agent for C; he subsequently holds it on his own account. Chalmers, p. 4.

(g) Holder.

Holder as here defined includes classes of persons who are holders in different senses :

(1) The lawful holder or holder in due course (sec. 56). In this sense holder includes a person to whom a bill is by its terms payable and whose title is good against all the world; and also a person to whom a bill is by its terms payable, and who, as against third parties, is entitled to enforce payment thereof, though, as between himself and his transferor, he is a mere agent or bailee with a defeasible title, e.g., an endorsee for collection.

(2) An unlawful holder, that is, a person to whom a bill is by its terms payable, whose possession is unlawful (e.g., the finder of a bill endorsed in blank), but who nevertheless can give a valid discharge to a person paying it in good faith, and also a good title to a person who takes it before maturity in good faith and for value (sec. 74). An unlawful holder must be dis

Sec. 2.

Sec. 2.

Holder.

tinguished from a mere wrongful possessor, e.g., a person holding under a forged endorsement, or a person who has stolen a bill payable to the order of another (sec. 49). A wrongful possessor has no title and gives none. Chalmers, p. 5.

Possession is an essential part of the definition. As to holder for value, see sec. 54. Bearer is defined by clause (d).

(h) Endorsement.

As to delivery, see clause (f).

As to the other requisites of an endorsement to operate as a negotiation, see secs. 62, et seq.

The word endorser primarily denotes the holder of a bill who endorses it, but it is also used to denote any person who signs a bill otherwise than as drawer or acceptor and thereby incurs the liabilities of an endorser to a holder in due course (sec. 131). A person who signs a bill although not the holder of it is called under the foreign codes the giver of an "aval."

The term endorsee is used to denote not only the person to whom a bill is specially endorsed, but also any person who makes title through an endorsement, e.g., the bearer of a bill endorsed in blank. Chalmers, p. 6. Cf. also notes to clause (g) supra, as to a holder for collection.

[blocks in formation]

The operative definition of valuable consideration is contained in sec. 53. See also secs. 54 to 58.

(k) Defence.

The word is used in secs 15 and 74. Cf. clause (b), supra.
There is no corresponding clause in the English Act.

(1) Non-business days.

Sec. 43 provides that in all matters relating to bills, certain days and no others shall be observed as legal holidays or nonjuridical days.

See secs. 6, 42, and notes to sec. 43.

Person-written-writing.

The English Act also contains definitions of the words bankrupt, person, written and writing. By the Interpretation Act (R.S.C. c. 1, sec. 34), "person" includes any body corporate and politic, and the heirs, executors, administrators or other legal representatives of such person, according to the law of that part of Canada to which the context extends, and "writing," "written," or any term of like import, includes words printed, painted, engraved, lithographed or otherwise traced or copied.

As to "bankrupt" see notes to sec. 78.

Sec. 2.

CHAPTER XXXIII.

BILLS OF EXCHANGE ACT; GENERAL PROVISIONS.

In the present statute, "Part I." includes secs. 3 to 16, under the heading "General," these being, for the most part, the sections which, in the Act of 1890, are contained in "Part V." entitled "Supplementary." The short title and the interpretation clauses (secs. 1 and 2) compose "Part I." in the Act of 1890. In both statutes the second, third and fourth "Parts" contain substantially the same provisions and are entitled respectively: II. Bills of Exchange;

III. Cheques on a Bank;
IV. Promissory Notes.

PART I.

GENERAL.

Thing done in good

✓ faith.

Negligence and good faith.

3. A thing is deemed to be done in good faith, within the meaning of this Act, where it is in fact done honestly whether it is done negligently or not. 53 V., c. 33, s. 89. Eng. s. 90.

The expression "in good faith" is used in secs. 56, 139, 172 and 175.

This clause is obviously founded upon the distinction pointed out by Lord Blackburn, in Jones v. Gordon, 1877, 2 App. Cas. 616 at p. 629 (4 R.C. 415 at p. 427), between honest blundering or carelessness and a dishonest refraining from enquiry. (Tatam v. Haslar, 1889, 23 Q.B.D. at p. 348.)

Negligence on the part of the holder of a bill is not of itself sufficient to deprive him of his remedies for procuring its payment. But negligence, when considered in connection with the surrounding circumstances, may be evidence of mala fides. Good faith or bad faith is a question of fact depending on the circumstances of the individual case. It is for the tribunal, whether judge or jury, that has to decide questions of fact, to determine

1

« PreviousContinue »