instrument at law the character of negotiability by making it payable to bearer, the custom could not have that effect, because, being recent, it formed no part of the ancient law merchant. For the reasons we have already given we cannot concur in thinking the latter ground conclusive. While we quite agree that the greater or less time during which a custom has existed may be material in determining how far it has generally prevailed, we cannot think that, if a usage is once shewn to be universal, it is the less entitled to prevail because it may not have formed part of the law merchant as previously recognized and adopted by the Courts. It is obvious that such reasoning would have been fatal to the negotiability of foreign bonds, which are of comparatively modern origin, and yet, according to Gorgier v. Mieville, 3 B. & C. 45 (1824), are to be treated as negotiable. We think the judgment in Crouch v. The Credit Foncier, L. R. 8 Q. B. 374 (1873), may well be supported on the ground that in that case there was substantially no proof whatever of general usage. We cannot concur in thinking that if proof of general usage had been established, it would have been a sufficient ground for refusing to give effect to it that it did not form part of what is called the ancient law merchant.' "In addition to the cases we have already referred to, in which usage has been relied on as making mercantile instruments negotiable, the case of Lang v. Smyth, 7 Bing. 284 (1831), was cited as showing that the question with reference to instruments of this description turns upon how far the particular instrument has by usage acquired the quality of negotiability. The action had reference to Neapolitan bonds with coupons attached to them, which latter referred to a certificate. The plaintiff's agent being in possession of the coupons belonging to the plaintiff, but not of the certificate, fraudulently pledged the coupons with the defendant, who took them bona fide. On an action by the plaintiff to recover the amount received by the defendant on the coupons, Tydal, C.J., left it to the jury to say whether the coupons without the certificate passed from hand to hand like money or bank notes,' in other words, whether they had acquired from the course of dealing pursued in the city, the character of bank notes, bills of exchange, dividend warrants, exchequer bills or other instruments, which formed part of the currency of this country.' The jury, indeed, found in the negative, but it was held by the Court of Common Pleas that the question had been rightly left to them. If the usage had been found the other way, and the Court had been satisfied with the verdict, it would no doubt have been upheld. "We must by no means be understood as saying that mercantile usage, however extensive, should be allowed to prevail, if contrary to positive law, including in the latter such usages as, having been made the subject of legal decision, and having been sanctioned and adopted by the Courts, have become by such adoption part of the common law. To give effect to a usage which involves a defiance or disregard of the law would be obviously contrary to a fundamental principle. And we quite agree that this would apply quite as strongly to an attempt to set up a new usage against one which has become settled and adopted by the common law as to one in conflict with the more ancient rules of the common law itself. Thus, it having been decided in the two cases of More v. Manning, 1 Comyns, 311 (1719), and Acheson v. Fountain, 1 Str. 557 (1736), that when a bill of exchange was indorsed to A. B. without the words or order, the bill was nevertheless assignable by A. B., by further indorsement, Lord Mansfield and the Court of King's Bench, in the case of Edie v. The East India Company, 2 Burr. 1216 (1761), held that evidence of a contrary usage was inadmissible. In like manner, in Grant v. Vaughan, 3 Burr. 1516 (1764), where a cash note, payable to bearer, had been lost by the owner, but had been taken by the plaintiff bona fide for value, on an action on the note by the latter against the maker, Lord Mansfield having left it to the jury to say 'whether such drafts as this, when actually paid away in the course of trade dealing and business, were negotiable or in fact and practice negotiable'; and the jury, influenced no doubt by the natural desire to protect the owner of the note, having found for the defendant, Lord Mansfield and the Court here again set their verdict aside, on the ground that, the law having been settled by former decisions that notes payable to bearer passed by delivery to a bona fide holder, the Judge ought to have directed a verdict for the plaintiff. "If we could see our way to the conclusion that, in holding the scrip in question, to pass by delivery, and to be available to bearer, we were giving effect to a usage incompatible either with the common law or with the law merchant as incorporated into and embodied in it, our decision would be a very different one from that which we are about to pronounce. But so far from this being the case, we are, on the contrary, in our opinion, only acting on an established principle of that law in giving legal effect to a usage, now become universal, to treat this form of security, being on the face of it expressly made transferable to bearer, as the representative of money, and as such, being made to bearer as assignable by delivery." "Other The reader is also referred to the chapter on Negotiable Instruments," to be found at page 456 of the present work, as to the progress made in Canada by legislation and otherwise towards placing instruments other than bil's, notes and cheques upon a similar footing. An Act relating to Bills of Exchange, Cheques and BY (Came into force January 31st, 1907.) Y the British North America Act, section 92, sub-sec- Dominion tion 18, the right to legislate respecting Bills of legislation Exchange and Promissory Notes was assigned exclusively to the Dominion Parliament. So sparingly, however, had this power been exercised during the first nineteen years of Confederation, that when the Statutes were revised and consolidated in 1886, the whole of the Dominion legislation on the subject was comprised in ten short sections of chapter 123. The remaining twenty sections are made up of provincial enactments passed before Confederation, which were as a rule applicable only to a single province. Apart from the contents of that chapter, the only Canadian legislation. on the subject in force in any part of the Dominion was: (1) two short chapters of the Civil Code of Quebec, (2) a single section in the Revised Statutes of Nova Scotia, (3) two sections in the Statutes of New Brunswick-all of which, except two Articles of the Code relating to evidence, are repealed by the present Act; and (4) such provisions in the criminal statutes and those relating to procedure in the provincial courts as refer to actions on bills and notes, which latter are not affected by the Act. M'L.B. E.A-1 A code. A cheque being a bill of exchange drawn on a bank, payable on demand, as defined by section 165 of the Act, falls under the authority of the Dominion Parliament, especially as the subject of banking is also within its exclusive jurisdiction. Previous legislation respecting cheques was still more meagre, being almost wholly confined to the short chapter on the subject in the Civil Code and the references to these instruments in the Criminal Statutes. The Bills of Exchange Act, 1890, was really a codification of the law, although this idea was not expressed in its title, as is the case in the English Act from which it was copied, the title adopted being the same as that of chapter 123 of the Revised Statutes of Canada, with the addition of the single word "cheques." Provincial Although the Act treated directly only of Bills, Notes and subjects. Cheques, which are clearly within the jurisdiction of the Dominion Parliament, under section 91 of the British North America Act, it also touched and affected matters within the exclusive jurisdiction of the local legislatures. Mention need only be made of such subjects as the capacity of persons, and of corporations, the law of contracts, of agency, of partnership, of suretyship, of evidence, and the procedure in the provincial civil courts. There are also other matters indirectly affected, which come chiefly under the head of "Property and Civil Rights" and "the Administration of Justice." Bill of 1889. The validity of similar Dominion legislation has been questioned from time to time, but it is well settled that the power to legislate conferred by section 91 of the British North America Act may be fully exercised, although the effect may be to modify civil rights in the province, or otherwise interfere with subjects assigned to the provinces by section 92. See Cushing v. Dupuy, 5 App. Cas. at p. 415; Tennant v. Union Bank, [1894] A. C. at p. 47; and Atty.-Gen. for Ontario v. Atty.-Gen. for the Dominion, [1896] A. C. at p. 360. The Bill which subsequently became law in the form of the Act of 1890, was first introduced by the Minister of Justice in the House of Commons in the session of 1889, in the following terms: "The object of this Bill is to render uniform in almost every particular the laws throughout the |