14 even although addressed to him at some place in another Protest in province. It is probable however that a bill would not be Quebec. held to come within the provisions of this section, unless there was something on its face that plainly showed that it was drawn upon some person, or payable or accepted at some place in that province.

Subse

quent protest for

Where a bill or note is payable in Lower Canada the law of that province was held to govern as to the sufficiency of notice of dishonour, although the indorser resided in Upper Canada, and made the indorsement there: City Bank v. Ley, 1 U. C. Q. B. 192 (1843); Smith v. Hall, 3 U. C. Q. B. 315 (1847).

See the notes under the preceding section as to noting and protest.

This section applies to inland notes also: sec. 186.

For the circumstances which dispense with notice of dishonour, see sections 106, 107 and 108.

15. A bill which has been protested for nonacceptance, or a bill of which protest for nonnon-pay acceptance has been waived, may be subsequently protested for non-payment. 53 V., c.33, s. 51 (3). Imp. Act, ibid.

ment.

The above provision regarding a waiver of protest for non-acceptance is not in the Imperial Act. The holder may upon dishonour by non-acceptance either proceed at once against the drawer and indorsers: sec. 82; or if it is a time bill, he may hold it until maturity and present it for payment.

Protest for 116. Where the acceptor of a bill suspends security. payment before it matures, the holder may cause

better

the bill to be protested for better security against the drawer and endorsers. 53 V., c. 33, s. 51 (5); 54-55 V., c. 17, s. 7. Imp. Act, s. 51 (5).

Section 51 (5) of the Imperial Act reads, "Where the acceptor of a bill becomes bankrupt or insolvent, or sus

pends payment, etc." In the Act of 1890, the words "or in- § 116 solvent" were omitted, but "becomes bankrupt or" remained. These were struck out by the amending Act of 1891, as there is no general bankrupt law for Canada.

the conti

Chalmers says (p. 176):-" Under some of the Conti-Rule on nental codes, when the acceptor fails during the currency nent. of a bill, security can be demanded from the drawer and indorsers. English law provides no such remedy, and the only effect of such a protest in England is, that the bill may be accepted for honour.”

In Quebec the Civil Code provides, Art. 1092, that "the Rule in debtor cannot claim the benefit of the term when he has be- Quebec. come bankrupt or insolvent," and bankruptcy is defined as "the condition of a trader who has discontinued his payments:" Art. 17 (23). It has been held that on the bankruptcy of the maker, a promissory note which had two years to run became immediately exigible: Lovell v. Meikle, 2 L. C. J. 69 (1853).

When both maker and indorser become insolvent the holder may proceed against both, but before proceeding against the indorser he should protest the note: Banque Nationale v. Martel, Q. R. 17 S. C. 97 (1899).

In France, when the acceptor fails, the bill may at once. be treated as dishonoured and protested for non-payment: Code de Com. Art. 163; Nouguier, § 1277.

ance for

117. Where a dishonoured bill has been accepted Acceptfor honour supra protest, or contains a reference in honour. case of need, it must be protested for non-payment before it is presented for payment to the acceptor for honour, or referee in case of need.

for non

2. When a bill of exchange is dishonoured by Protest the acceptor for honour, it must be protested for payment. non-payment by him. 53 V., c. 33, s. 66 (1) (4).

Imp. Act, s. 67 (1)(4).

It is sufficient that the bill be noted for non-payment on the day of dishonour; the protest may be extended sub

§ 117 sequently: sec. 118. It is optional with the holder to resort to the referee in case of need or not as he thinks fit: sec. 33. In Quebec, under the Code, presentment to the referee was compulsory: C. C. 2306.

Noting equivalent

As to acceptance for honour, see sections 147 to 152.

The fact that a protest for non-payment is required in all cases where an acceptor for honour refuses to pay a bill, even when no one has endorsed the bill subsequent to his acceptance for honour, would seem to favour the idea that failure to present it would not only release him, but also release the party for whose honour he had accepted and subsequent parties. Notice of dishonour should be sent to each of these parties. See Nouguier, §§ 1320, 1321.

118. For the purposes of this Act, where a bill to protest. is required to be protested within a specified time or before some further proceeding is taken, it is sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding. 53 V, c. 33, s. 92. Imp. Act, s. 93.

Noting or protest.

A form of noting for non-acceptance is given in the schedule to the Act as Form A. This may be adapted to meet the case of noting for non-payment.

Before the Act it was held that the rule laid down in this section applied to the case of a payment supra protest for the honour of an indorser: Geralopulo v. Wieler, 10 C. B. 690 (1851).

119. Subject to the provisions of this Act, when a bill is protested the protest must be made or noted on the day of its dishonour. 53 V., c. 33, s, 51 (4), Imp. Act, ibid,

Chalmers says that before the Imperial Act, it was not clear that a bill could not be lawfully noted for protest on the day after its dishonour, which is the law in France. The Negotiable Instruments Law requires the protest or noting to be on the day of the dishonour: § 263.

2. When a bill has been duly noted, the formal § 119 protest may be extended thereafter at any time as Extending of the date of the noting. 53 V., c. 33, ss. 51 (4) protest. and 92. Imp. Act, ss. 51 (4) and 93.

Form D in the schedule for the extension of a protest where the bill had been duly noted would appear to suggest the extension as of the date of the protest and not of the date of the noting. A compliance with either this section or the form in the schedule would be sufficient.

Before the Act it was held in England that when a bill was duly noted the formal protest might be drawn up after the commencement of an action: Geralopulo v. Wieler, 10 C. B. 690 (1851); and even during the trial: Orr v. Maginnis, 7 East at p. 361 (1806).

copy or

lars.

120. Where a bill is lost or destroyed, or is Protest on wrongly or accidentally detained from the person particu entitled to hold it, or is accidentally retained in a place other than where payable, protest may be made on a copy or written particulars thereof. 53 V., c. 33, s. 51 (8). Imp. Act, ibid.

The provision here made for protest in case of the accidental detention or retention of a bill is not in the Imperial Act.

The right to make a protest on a copy of a lost bill has long been recognized: Dehers v. Harriot, 1 Shower, 163 (1690).

protest.

121. A bill must be protested at the place where Place of it is dishonoured, or at some other place in Canada situate within five miles of the place of presentment and dishonour of such bill: 53 V., c. 33, s. 51 (6). Imp. Act, ibid.

The Imperial Act simply reads, "A bill must be protested at the place where it is dishonoured." The other words were added in the House of Commons on the suggestion of the Minister of Justice, in order, as he said, to "facilitate

§ 121 the making of protests, and prevent hardship likely to occur in country districts." See Mitchell v. Baring, 4 C. & P. 35 (1829), and section 121.

Where bill returned

Time when.

Provided that,—

(a) when a bill is presented through the post office and returned by post dishonoured, it may be protested at the place to which it is returned, not later than on the day of its return or the next juridical day; 53 V., c. 33, s. 51 (6 a). Imp. Act, ibid.

A bill may be presented for payment through the post office where by agreement or usage this is sufficient: sec. 90. The Imperial Act requires the protest to be on the day of the return, if the bill arrives during business hours.

Every day is a juridical day except the legal holidays mentioned in section 43.

(b) every protest for dishonour, either for nonacceptance or non-payment may be made on the day of such dishonour, and in case of non-acceptance at any time after non-acceptance, and in case of non-payment at any time after three o'clock in the afternoon. 53 V., c. 33, s. 51 (6 b).

This clause, which was taken from R. S. C. (1886) c. 123, s. 22, applied to Ontario alone, having been taken front the Consolidated Statutes of Upper Canada, chapter 42. In Quebec a bill could be protested for non-payment at any time in the afternoon of the last day of grace: C. C. 2319.

A bill may apparently be presented for payment at any reasonable hour of the day it falls due, or if payable on demand, at any reasonable time on any day on which the holder may choose to present it: sec. 86; but it cannot be protested before 3 o'clock, even on Saturday. It was proposed in the Commons to make the hour one o'clock on Saturday, but the suggestion was not adopted. This provision as to the hour is general, and apparently will apply to bills payable on demand as well as to those payable on a fixed day.

The