$ 43

were struck out in 1893, by 56 V. c. 30. Labor Day was added in 1894, and Victoria Day in 1901, both for the whole Holidays. Dominion.

Time of payment.

The holidays on bills and notes in England are Sundays, Christmas Day, Good Friday, and any public fast or thanksgiving day, and the bank holidays-Easter Monday, Whit Monday, and the first Monday in August.

In most of the United States the holidays on bills and notes besides Sundays are New Year's Day; Washington's Birthday, Feb. 22nd; July 4th; Thanksgiving Day, and Christmas Day; also in most of the Northern States, Declaration or Memorial Day, May 30th, and in many of the States, election day. As a rule when any of these days is a Sunday Monday is observed as a holiday.

44. Where a bill is payable at sight, or at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run and by including the day of payment. 53 V, c. 33, s. 14 (2). Imp. Act, ibid.

The method of computing time on a bill is that of the old law: Campbell v. French, 6 T. R. 200 (1795); also of the English Judicature Act, Order lxiv., Rule 12; of the Ontario Judicature Act, Rule 344, and of the Quebec Civil Code in matters of prescription, Art. 2240; but not the law of procedure in Quebec, where both terminal days are excluded: Code of Civil Procedure, Art. 9. There is no general rule in computing time from an act or event, that the day is to be inclusive or exclusive; it depends on the reason of the thing according to circumstances: Lester v. Garland, 15 Ves. 248 (1808). The expressions "in thirty days," "in thirty days from date," "at thirty days," and "thirty days after date," are synonymous: Ammidown v. Woodman, 31 Me. 580 (1850); Henry v. Jones, 8 Mass. 453 (1812).

A promissory note dated 7th Nov., 1895, and payable "21st Nov. next," is payable on the 21st Nov., 1896, and not on 21st Nov., 1895: Drapeau v. Pominville, Q. R. 11 S. C. 326 (1897).

45. Where a bill is payable at sight or at a fixed § 45 period after sight, the time begins to run from the sight bill. date of the acceptance if the bill is accepted, and from the date of noting or protest if the bill is noted or protested for non-acceptance, or for nondelivery. 53 V., c. 33, s. 14 (4). Imp. Act, ibid.

This section also reproduces the old law: Campbell v. French, 6 T. R. 200 (1795). A bill need not be noted or protested for non-acceptance, if the drawee do not forthwith accept on its presentment; but if not accepted on that day or within two days thereafter, it must be treated as dishonored or the holder will lose his recourse against the drawer and endorsers: sec. 80. A bill is protested for non-delivery when the drawee to whom it has been presented wrongly detains it, and refuses either to accept or return it: sec. 120. When a bill, payable after sight, is dishonored and subsequently accepted supra protest, the time runs from the date of protesting for non-acceptance and not from the date of acceptance: sec. 150.

46. Every bill which is made payable at a Due date. month or months after date becomes due on the same numbered day of the month in which it is made payable as the day on which it is dated, unless there is no such day in the month in which it is made payable, in which case it becomes due on the last day of that month, with the addition, in all cases, of the days of grace.

2. The term 'mouth' in a bill means the calen- 'Month.' dar month. 53 V., c. 33, s. 14 (6) and (5).

Act, s. 14 (4).

Imp.

When first
Act stated

The first sub-section is not in the Imperial Act, but it corresponds with the English usage: Chalmers, p. 36; also with that of the United States: 1 Daniel, § 624. enacted in Canada in 1872, the preamble of the that doubts existed on the point: 35 Vict. c. 10. The last clause of the sub-section as found in the present Act differs from that in the previous Acts, which read: "with the addi

M'L.B E.A.-9

§ 46 tion, in all cases, of the days of grace allowed by law." By section 42 days of grace are allowed "where the bill itself Due date. does not otherwise provide." Notwithstanding the clause as it now stands says that they shall be allowed "in all cases," it is hardly to be presumed that it would be held to apply, say to a bill made after date "without grace." The rule will sometimes make bills of different dates on their face having an equal time to run, mature on the same day. For instance, four bills dated respectively, December 28th, 29th, 30th, and 31st, 1906, payable two months from date, would fall due on the 3rd of March, 1904. If made on the same dates in 1907, the first would fall due on the 2nd of March and the other three on the 3rd of March, 1908, on account of 1908 being a leap year.

Capacity

"Month" has been always held to mean a calendar month in mercantile contracts, even when at common law and in statutes it meant a lunar month: Reg. v. Chawton, 1 Q. B. 247 (1841); Webb v. Fairmaner, 3 M. & W. 473 (1838); Hart v. Middleton, 2 C. & K. 10 (1845). In England the change was not made in the interpretation of Statutes until 1850. In Canada it was made in 1849.

Capacity and Authority of Parties.

47. Capacity to incur liability as a party to a of parties. bill is co-extensive with capacity to contract: Provided that nothing in this section shall enable a Corpora corporation to make itself liable as drawer,

tions.

acceptor or endorser, of a bill, unless it is competent to it so to do under the law for the time being in force relating to such corporation. 53 V., c. 33, s. 22 (1). Imp. Act, ibid.

Under the British North America Act, s. 92, s-s. 13, the Local Legislatures have the exclusive right, under the head of "civil rights," to legislate regarding the capacity to contract, except as to corporations created by or under the authority of the Dominion Parliament, and they may be subject indirectly to Dominion legislation regarding some of the other subjects enumerated in section 91. The first part of this

8 47

of corpora

section, like the greater part of the Act, is taken without change from the Imperial Act. In England it could not give rise to any question, except as to contracts made abroad. Capacity Here questions frequently arise where there is a conflict tions. between Dominion and Provincial legislation. In Cushing v. Dupuy, 5 App. Cas. 409 (1880), the Privy Council upheld Dominion legislation on bankruptcy, and in Tennant v. Union Bank, [1894] A. C. 31, legislation on banking, although they both interfered with subjects exclusively assigned to the local legislatures by section 92 of the B. N. A. Act. In other cases a like rule has been laid down. It has been, perhaps, most pointedly expressed in the judgment delivered on the 16th October, 1908, in the Quebec appeal of La Compagnie Hydraulique v. The Continental Heat and Light Co., where it was contended that the powers conferred by the Dominion Parliament on the latter company were affected by provincial legislation in favour of the former. The following language was there used by the Judicial Committee: "This contention seems to their Lordships to be in conflict with several decisions of this Board. Those decisions have established that where, as here, a given field of legislation is within the competence both of the Parliament of Canada and of the Provincial Legislature, and both have legislated, the enactment of the Dominion Parliament must prevail over that of the Province if the two are in conflict, as they clearly are in the present case."

laws.

The practical difficulty that will arise will be as to which Conflict of provincial law is to govern where that of more than one province is to be applied. The law of Quebec as to capacity differs considerably from that of most of the other. provinces, and the intimate commercial relations between that province and the others will no doubt bring these questions before the Courts. The point to be determined in such cases is whether the law of the domicile of the person or the law of the place where the contract is made, or of the place where it is to be performed, is to control. The law in Quebec is explicit, and adopts the civil law rule in favour of the domicile. The Civil Code says:-" Art. 6. An inhabitant of Lower Canada, so long as he retains his domicile therein, is governed by its laws respecting the status and capacity of persons." The law of the other provinces can

Conflict of laws.

§ 47 hardly be said to have been settled in the comparatively few cases which have come up for adjudication by the want of unanimity of judicial opinion. In this they followed the example of the judges in England, where there was great divergence. The tendency, however, was in the main towards the adoption of the law of the domicile, and it may probably be said to be fairly well settled in that sense. The authorities ordinarily cited in favor of the lex loci contractus are Lord Kenyon in Huet v. Le Mesurier, 1 Cox 275 (1786); Lord Eldon in Male v. Roberts, 3 Esp. 163 (1800); Cresswell, J., in Simonin v. Mallac, 2 S. & T. 77 (1860); and Hannen, J., in Sottomayor v. De Barros, 5 P. D. 94 (1879). In favour of the law of the domicile the following are leading authorities: Lord Westbury in Udny v. Udny, L. R. 1 Sc. Ap. 457 (1869); Cotton, J., in Sottomayor v. De Barros, 3 P. D. 5 (1877); and Lord Halsbury in Cooper v. Cooper, 13 App. Cas. 99 (1888). In this last case Lords Watson and Macnaghten were against the lex loci solutionis, but did not decide between the domicile and lex loci contractus, which there happened to be the same.

On a review of the authorities, Westlake lays down the following proposition at p. 41:-"When the capacity of a person to act in any given way is questioned on the ground of his age, the solution of the question will be referred in England to his personal law" (the law of his domicile). And at p. 44: "When the capacity of a married woman to act in any given way, is questioned on the ground of her coverture, the solution will also be referred in England to her personal law."

It is provided by section 95 of the Bank Act, R. S. C. c. 29, that any person, although not qualified to enter into ordinary contracts, may make deposits up to $500 and withdraw the money without the authority or assistance of any person or official. This would authorize the drawing of cheques by such disqualified persons. By section 29 of the Quebec Savings Bank Act, R. S. C. c. 32, deposits may be made in Quebec by such persons to the amount of $2,000 in these savings banks.

The principal classes of persons without full capacity to contract are:

1. Infants or Minors. As the age of majority throughout the Dominion, as in England, is fixed at 21, conflict will