Sec. 108.

Notice of dishonour dispensed with.

See notes to secs. 106 and 107.

As to the meaning of fictitious person, cf. notes to sec. 21. Clause (c) in the English bill of 1882, had the additional words "and he has no reason to expect that it will be honoured on presentment," but these words were struck out in committee. Chalmers, p. 172. Cf. sec. 92(d).

The endorser of a bill becomes the executor of the acceptor. It is presented to him and he dishonours it. He is not entitled to notice. (Caunt v. Thompson, 1849, 18 L.J. C.P. 125.)

CHAPTER XLIV.

PROTEST.

Protest is, in certain cases, one of the duties of the holder of

a bill. As to such duties generally, see notes at the beginning of Chapter XLI., supra.

Protest.

109. In order to render the acceptor of a bill liable it is not Necessity of. necessary to protest it. 53 V., c. 33, s. 52. Eng. s. 52.

Prior to 1906 this section and sub-sec. 2 of sec. 96 formed one sub-section in a section which included the provisions of sec. 93 and sub-sec. 3 of sec. 85.

The acceptor of a bill is not entitled to notice of dishonour (sec. 96). The same rule in regard to protest and notice of dishonour applies to the maker of a note (sec. 186) as to the acceptor of a bill.

As to drawer and endorsers, see secs. 112 to 114.

with.

110. Protest is dispensed with by any circumstances which Dispensed would dispense with notice of dishonour. 53 V., c. 33, s. 51. Eng. s. 51.

As to dispensing with notice of dishonour, see secs. 106 to 108.

111. Delay in noting or protesting is excused by circum- Delay stances beyond the control of the holder, and not imputable to his default, misconduct or negligence.

2. When the cause of delay ceases to operate, the bill must be Diligence. noted or protested with reasonable diligence. 53 V., c. 33, s. 51. Eng. s. 51.

Sec. 111.

Foreign bill,

non-accept

ance.

Non-payment.

Balance.

Discharge.

As to excuse for delay, cf. sec. 91 (presentment for payment) and sec. 105 (notice of dishonour).

112. Where a foreign bill appearing on the face of it to be such has been dishonoured by non-acceptance it must be duly protested for non-acceptance.

2. Where a foreign bill which has not been previously dishonoured by non-acceptance is dishonoured by non-payment, it must be duly protested for non-payment.

3. Where a foreign bill has been accepted only as to part it must be protested as to the balance.

4. If a foreign bill is not protested as by this section required the drawer and endorsers are discharged. 53 V., c. 33, ss. 44 and 51. Eng. ss. 44 and 51.

Prior to the revision of 1906, sub-sec. 3 formed part of one section with secs. 83 and 84. See notes to sec. 84. Sub-secs. 1, 2 and 4 formed one sub-section prior to 1906.

Protest is necessary in the case of a foreign bill by the custom of merchants. (Gale v. Walsh, 1793, 5 T.R. 239, 2 R.R. 580.)

An inland bill is a bill which is, or on the face of it purports to be, (a) both drawn and payable within Canada, or (b) drawn within Canada upon some person resident therein. Any other bill is a foreign bill. Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill (sec. 25). The notice of dishonour is not bad because it omits to state that the bill has been protested. (Ex parte Lowenthal, 1874, L.R. 9 Ch. 591.) Cf. notes to sec. 98.

If a foreign bill is dishonoured and is not protested, the drawer and endorsers are discharged. Noting for protest is sufficient (sec. 118). As against the acceptor, no protest is

necessary.

An inland bill, except in the Province of Quebec, need not be protested (sec. 113). Protest of a note is unnecessary except for the preservation of the liabilities of endorsers of a foreign note (sec. 187).

A bill must be protested before it is presented for payment to the acceptor for honour or referee in case of need and must be protested for non-payment by the acceptor for honour (sec. 117).

inland bill.

113. Where an inland bill has been dishonoured, it may, if Sec. 113. the holder thinks fit, be noted and protested for non-acceptance Protest of or non-payment as the case may be; but it shall not, except in the province of Quebec, be necessary to note or protest an in- Quebec. land bill in order to have recourse against the drawer or endorsers. 53 V., c. 33, s. 51. Cf. Eng. s. 51.

The corresponding section of the English Act omits the words. "and protested" and the words "except in the Province of Quebec."

Secs. 113 and 114 were formerly parts of one section.

By "noting" is meant the minute made by a notary on a dishonoured bill at the time of its dishonour. The formal notarial certificate or protest is based upon the noting.

The section recognizes the propriety of the usual practice Propriety of of protesting an inland bill. No legal consequence is attached to protest of inland bill noting such a bill. The protest is primâ facie evidence of pre- recognized. sentation and dishonour and also of service of notice of such presentation and dishonour as stated in such protest (sec. 11). The expense of noting and protesting any bill and the postages thereby incurred are to be allowed and paid to the holder in addition to any interest thereon (sec. 124).

Noting or protest is a necessary preliminary to acceptance for honour (sec. 147) and to presentment for payment to the acceptor for honour or the referee in case of need (sec. 117).

As to the necessity for protest in case of the dishonour of a bill which appears on its face to be a foreign bill, see sec. 112. A bill drawn upon any person in Quebec or payable or accepted at any place in that province must be protested (unless in cases in which notice of dishonour would be dispensed with: secs. 106 to 108) in order to preserve the liability of parties, other than the acceptor, liable on the bill. In other cases protest in case of dishonour is unnecessary (sec. 114).

Prior to the revision of 1906 the provisions of this section were expressly made "subject to the provisions of this Act with respect to notice of dishonour." Notice of dishonour to the drawer and endorsers is provided for by sec. 96, the provisions of which are not in any case affected by provisions as to the necessity or non-necessity of protest.

Sec. 114.

default of

protest.

114. In the case of an inland bill drawn upon any person in Discharge in the province of Quebec or payable or accepted at any place in the said province the parties liable on the said bill other than the acceptor are, in default of protest for non-acceptance or nonpayment as the case may be, and of notice thereof, discharged, except in cases where the circumstances are such as would dispense with notice of dishonour.

Protest

2. Except as in this section provided, where a bill does not unnecessary. on the face of it appear to be a foreign bill, protest thereof in case of dishonour is unnecessary. 53 V., c. 33, s. 51. Cf. Eng. s. 51.

Sub-sec. 1 and the words "except as in this section provided" in sub-sec. 2 do not appear in the corresponding section of the English Act.

Sub-sec. 1 is declaratory of the law of Quebec as it existed at the passing of the Act.

In Quebec, as in the other provinces and in England, it is not necessary to protest a bill in order to render the acceptor liable (sec. 109).

As against other parties, there must in Quebec be protest and notice of protest unless these are dispensed with (cf. secs. 106 to 108 as to dispensing with notice of dishonour).

In the other provinces, the English rule prevails and any bill which does not appear on its face to be a foreign bill need not be protested. The Canadian Act, unlike the English Act, expressly recognizes the propriety of the protest of any dishonoured bill (sec. 113).

Prior to 1906, secs. 113 and 114 were parts of one sub-section. Some alteration in the wording was effected in the revision. The provisions of sub-sec. 1 of sec. 114 which require protest and notice of protest were made "subject, nevertheless, to the exceptions in this section hereinafter contained." Among the subsequent provisions of the old section were the provisions now contained in secs. 110 and 111, 120 and 121. The revisers (probably correctly) have selected the provisions as to dispensing as being the only ones constituting an "exception" to the provisions requiring protest and notice.