The liability of persons who are not parties to a bill, but § 108 who may be guarantors of the bill or of some of the parties to it, or who may be liable on the consideration for which the bill is given, is not affected by the Act, but will remain subject to the common law or to the laws in force in the several provinces.

A person who has given a guarantee for the payment of a bill is liable without notice of dishonor: Palmer v. Baker, 22 U. C. C. P. 59 (1871); Warrington v. Furbor, 8 East, 242 (1807); Murray v. King, 5 B. & Ald. 165 (1821); Van Wart v. Woolley, 3 B. & C. 439 (1824); Walton v. Mascall, 13 M. & W. 72 (1844).

It has also been held that the person who gives a guarantee for the price of goods to be supplied to the acceptor of a bill or the maker of a note is not entitled to notice of dishonor Anderson v. Archibald, 9 N. S. (3 G. & O.) 88 (1872); Holbrow v. Wilkins, 1 B. & C. 10 (1822); while if the goods are for the drawer of the bill he is entitled to notice: Philips v. Astling, 2 Taunt. 206 (1809). See also Swinyard v. Bowes, 5 M. & S. 62 (1816); Camidge v. Allenby, 6 B. & C. 373 (1827); Smith v. Mercer, L. R. 3 Ex. 51 (1867); Carter v. White, 25 Ch. D. 666 (1883).

As to those who have placed their names on bills in Quebec "pour aval" or as warrantors elsewhere, see the notes on section 131.

Protest.

of.

109. In order to render the acceptor of a bill Necessity liable it is not necessary to protest it. 53 Vic., c. 33, s. 52 (3). Imp. Act, ibid.

Protest or notice of dishonour to the acceptor of a bill in order to bind him is unnecessary even if it be a foreign bill. The maker of a note is in the same position: sec. 186. The reason is that they are the persons primarily liable: Treacher v. Hinton, 4 B. & Ald. 413 (1821); Smith v. Thatcher, ibid. 200 (1821). The acceptor engages to pay the bill according to the tenor of his acceptance: sec. 128. By the very act of making a note the maker engages that he will pay it according to its tenor: sec. 185.

§ 110 110. Protest is dispensed with by any circumDispensed stances which would dispense with notice of dishonour. 53 Vic., c. 33, s. 51 (9). Imp. Act, ibid.

with.

excused.

The circumstances which dispense with notice of dishonour are set out in sections 106, 107 and 108.

Delay III. Delay in noting or protesting is excused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence.

Diligence.

Foreign bill, nonaccept

ance.

Non-payment.

Balance.

Discharge.

2. When the cause of the delay ceases to operate, the bill must be noted or protested with reasonable diligence. 53 V., c. 33, s. 51 (9). Imp. Act, ibid.

The circumstances which excuse delay in noting or protesting a bill are the same as those which excuse presentment for payment: sec. 91; and notice of dishonour: sec. 105. See the notes and cases under these sections and also Legge v. Thorpe, 12 East, 171 (1810); Gibbon v. Coggon, 2 Camp. 188 (1809); Greenway v. Hindley, 4 Camp. 52 (1814); Patterson v. Becher, 6 Moore, 319 (1821); Campbell v. Webster, 2 C. B. 258 (1845); Ex parte Lowenthal, L. R. 9 Ch. 591 (1874).

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 (2), and 51 (2). Imp. Act, ibid.

A foreign bill is one which is not or does not on its § 112 face purport to be both drawn and payable within Canada; Of foreign or which is not, or does not on its face purport to be drawn bill. within Canada upon some person resident therein. Unless the contrary appears on its face, the holder may treat it as an inland bill: sec. 25.

An inland bill need not be protested for either nonacceptance or non-payment except in the province of Quebec: sec. 113.

This section is part of the law merchant: Rogers v. Stephens, 2 T. R. 713 (1788); Gale v. Walsh, 5 T. R. 1793; Orr v. Maginnis, 7 East, 359 (1806).

An inland as well as a foreign bill must be protested for non-acceptance before it is accepted supra protest or for honour: sec. 147; and must be protested for non-payment before it is presented for payment to the acceptor for honour or referee in case of need: sec. 117.

A foreign note, that is, one either made or payable outside Canada, must be protested in order to bind the endorsers: sec. 187.

inland bill.

113. Where an inland bill has been dishonoured, Protest of it may, if the holder thinks fit, be noted and protested for non-acceptance or non-payment as the case may be; but it shall not, except in the Province of Quebec, be necessary to note or protest Quebec. an inland bill in order to have recourse against the drawer or endorsers. 51 V., c. 33, s. 51 (1). Imp. Act, ibid.

An inland bill is one which is, or on its face purports to be, both drawn and payable within Canada, or which is drawn within Canada upon some person resident therein: sec. 25. An inland note is one which is, or on its face purports to be, both made and payable within Canada.

Section 51 of the Imperial Act reads as follows:- Sec. 51 of "Where an inland bill has been dishonoured it may, if the Imperial holder think fit, be noted for non-acceptance or non-payment,

Act.

§ 113 as the case may be; but it shall not be necessary to note or Protest of protest any such bill in order to preserve the recourse against

inland bill.

Optional.

Conflict of laws.

Noting

protest.

the drawer or indorser." It will be seen that the Canadian Act, for the provinces other than Quebec, is substantially the same as the Imperial Act; except that an inland bill may, on dishonour, be protested in Canada, and the expenses of protest added to the amount of the bill: sec. 134. This applies also to an inland note, subject to the modifications mentioned in section 186.

In these provinces the holder of an inland bill may either protest it, or merely send notices of dishonour in accordance with section 96. As a protest makes prima facie proof not only of presentation and dishonour, but also of the service of the notices, the practice of protesting in these other provinces has, as a rule, been adopted: sec. 12. If a bill sent for acceptance or collection is not to be protested in case of dishonour, special instructions should be given by attaching a memorandum of "no protest," or otherwise.

The protesting of inland bills for non-acceptance or for better security, elsewhere than in Quebec, is only compulsory as a preliminary to an acceptance supra protest for honour: sec. 147; and a protest for non-payment, only as a preliminary to presentment for payment, to the acceptor for honour, or referee in case of need: sec. 117.

In case of conflict, the laws governing presentment for acceptance or payment, and the necessity for or sufficiency of a protest, are those of the place where the act is done or the bill is dishonoured: sec. 162.

The form for the noting of a bill for non-acceptance is given as Form A in the schedule to the Act.

The protest of a bill need not be made out at the time, it is sufficient for the notary to make the necessary noting on the bill, and to extend it later, as of the day of the noting: sec. 119.

When a bill is not paid on the day it falls due, but is expected to be on the following day, it is sometimes simply noted on the day of maturity. If it is not paid the next day

as expected, the protest is extended and the notices of dis- § 113 honour sent.

Section 152 of the Negotiable Instruments Law provides "Where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor is unnecessary." A foreign bill should be protested on dishonor.

in default

114. In the case of an inland bill drawn upon Discharge any person in the province of Quebec or payable of protest. or accepted at any place in the said province the the parties liable on the said bill other than the acceptor are, in default of protest for non-acceptance or non-payment 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.

unneces

2. Except as in this section provided, where a Protest bill does not on the face of it appear to be a sary. foreign bill, protest thereof in case of dishonour is unnecessary. 53 V., c. 33, s. 51 (1).

By the enactment of this section of the Act Quebec re- All bills tained its old law as embodied in Articles 2298 and 2319 must be protested of the Civil Code, which required a notarial protest with in Quebec. notice to the drawer and endorsers of an inland as well as of a foreign bill, in order to hold them liable. A protest was not necessary to hold the acceptor.

bills.

This section covers three classes of inland bills: (1) Classes of those drawn upon any person in the province of Quebec; (2) those payable at any place in that province; and (3) those accepted at any place in the province.

The first class would no doubt be held to be those in which the address of the drawee on the bill was some place in that province, and possibly those addressed to a resident of that province without any place being designated. The second would include those in which the bill was payable there, either as drawn or by the acceptance. The third class would, if the language of the section were taken literally, include bills accepted by the drawee in that province