protest does not require to state that it was made after three § 121 o'clock. See Forms in the Schedule. In England, Canada, and most of the United States, bills, as a rule, are not presented by the notary in person, but by his clerk. Where such a usage prevails it will be recognized. So held in Ontario by Galt, C.J., in Boas v. McCartney, Feb. 18th, 1889; affirmed by Queen's Bench Divisional Court, May 23rd, 1889 (not reported). of protest. 122. A protest must contain a copy of the bill, Contents or the original bill may be annexed thereto, and the protest must be signed by the notary making it, and must specify, (a) the person at whose request the bill is pro-Person. tested; (b) the place and date of protest; Place. Reason. (c) the cause or reason for protesting the bill; any; or, (e) the fact that the drawee or acceptor could Excuse. not be found. 53 V., c. 33, s. 51 (7). Imp. Act, ibid. The words "or the original bill may be annexed thereto," are not in the Imperial Act; but this mode of protesting was that followed in Ontario before the Act: R. S. C. (1886) c. 123, s. 24, and Schedule A. In Quebec, the bill and indorsements were copied in the protest, which was made in duplicate, the notary retaining one in his office and delivering the other with the bill to the person at whose request the protest was made: Con. Stat. L. C. c. 64, ss. 11, 12; R. S. C. (1886) c. 123, s. 29, and Schedule B. Before the Act of 1882, protests in England were usually made under the seal of the notary: Brooks' Notary, 4th ed., p. 82. The clause requiring a seal was struck out in Committee: Chalmers, p. 178. In the case of foreign bills at least it is well for a notary to use his seal, as in some countries a protest will not be received in evidence without an official seal. § 122 Protest. Official when notary is not ILLUSTRATIONS. 1. Before the Act a seal was not required on the protest in Ontario or Quebec: Goldie v. Maxwell, 1 U. C. Q. B. 424 (1841); Russell v. Crofton, 1 U. C. C. P. 428 (1852); R. S. C. (1886) c. 123, Schedules A and B; but was in Nova Scotia: Merchants' Bank v. Spinney, 13 N. S. (1 R. & G.) 87 (1879). 2. Before the Act of 1851, a protest in Lower Canada that did not state that it was made in the afternoon of the day it bore date was invalid: Joseph v. Belisle, 1 L. C. R. 244 (1851). 3. When the protest is made for a qualified acceptance, it must not state a general refusal to accept, otherwise the holder cannot avail himself of the qualified acceptance: Bentinck v. Dorrien, 6 East, 199 (1805); Sproat v. Matthews, 1 T. R. 182 (1786). 123. Where a dishonoured bill is authorized or required to be protested, and the services of a noaccessible. tary cannot be obtained at the place where the bill is dishonoured, any justice of the peace resident in the place may present and protest such bill and give all necessary notices and shall have all the necessary powers of a notary in respect thereto. 53 V., c. 33, s. 93 (1). Imp. Act. s. 94. The Imperial Act reads, "when a dishonoured bill or note," etc. No reason was given for the omission of "note." Under section 186, this provision would, no doubt, be held to apply to notes. It has been the law in Lower Canada and Quebec since 1849: C. S. L. C. c. 64, s. 24; C. C. Art. 2304. Instead of a justice of the peace, the Imperial Act names as the substitute for a notary any householder or substantial resident." Justices of the peace are not so common in England as in Canada. The powers of a notary referred to are those relating to presentment, protest, and notice of dishonour. Notaries. In England, notaries are appointed by the Archbishop of Canterbury, acting as the Court of Faculties. In Canada, they are provincial officers. In most of the provinces there are statutes regulating their appointment, duties and powers. See R. S. O. c. 175; R. S. Q. Arts. 36043957; R. S. N. S. c. 34; C. S. N. B. c. 70; R. S. Man, c. 124; Alta. 1906, c. 16; Cons. Ord. N. W. T. c. 25; R. S. B. C. c. 89. In the provinces, other than Quebec, they are usually barristers, solicitors or attorneys. In Quebec the notarial is a distinct profession, and § 123 incompatible with that of advocate or attorney. Notaries Notaries. are the regular conveyancers, and the more important documents must be executed before them "en minute," the notary keeping the original, and giving out certified copies; his certificate alone making full proof of the execution, in all courts, and for registration, etc. Certain less formal documents may be executed "en brevet," the notary then simply attesting the instrument and handing out the original. Promissory notes are sometimes made before a notary in this form, which is analogous to the protest form under the Act. See form in Appendix. A notary who is one of the indorsers on a promissory note is not entitled to act as notary to make the protest, even where he substitutes the name of another person for his own and purports to make the protest at the request of the person so substituted: Pelletier v. Brosseau, M. L. R. 6 S. C. 331 (1890). 124. The expense of noting and protesting any Expenses. bill and the postages thereby incurred, shall be allowed and paid to the holder in addition to any interest thereon. 2. Notaries may charge the fees in each province Fees. heretofore allowed them. 53 V., c. 33, s. 93 (2) (3). In some of the provincial tariffs no provision is made Tariffs. for a fee for noting. Under this section probably the same fee would be allowed as for a protest.. It would also probably be held that a justice of the peace would be entitled to the same fee as a notary. The statute in force in Quebec since 1849 allows a justice of the peace the same fees as a notary. In some of the provinces these fees were settled by statute; in others they were regulated by usages which were by no means uniform. Ontario. The fees allowed in Ontario before the Act were regulated by R. S. C. (1886), c. 123, s. 25, and were as follows: M'L.B E. A.-20 $ 124 Protest For the protest of any bill, draft, note or order.... For postage, the amount actually expended. $0.50 ◊ 25 Quebec. The tariff of fees and charges in Quebec is found in Schedule B to R. S. C. (1886), c. 123, and is as follows: For presenting and noting for non-accentance any bill ..... For making and furnishing the holder of any bill or $1 00 0 50 1 00 ... 0 50 For every notice, including the service and recording 0 50 Nova Scotia. The following tariff is laid down in R. S. C. (1886), c. 123, s. 7. for the protest of bills of exchange and promissory notes of $40 and upwards drawn or made at any place in this province upon or in favor of any person in the province : For the protest For each notice For other than local bills and notes the former charge Postage being additional in all cases. $0.50 0 25 New Brunswick.-The statute of this province, 46 Vict. c. 11, prescribed the following tariff: For the presentment and noting of any bill of ex- Protest of note or bill of exchange, when made, in- Necessary postage to be allowed. $0.50 1.00 As the Parliament of Canada has exclusive jurisdiction over Bills of Exchange and Promissory Notes, the constitutionality of this provincial Act is open to question. It is said that the charge still usually made in this province is § 124 that in force before the Act in question, viz. :— For protest and all notices Fees. $3.00 Prince Edward Island.-R. S. C. (1886), c. 123, s. 8, lays down for this province a tariff similar to that for Nova Scotia. The old tariff was framed in 1776, and allowed: For noting bills for non-acceptance. For every protest .... ..... For other than local bills and notes the usual charge still is 1s. Od. Stg. For protest and notices Postage in addition. $2.50 Manitoba. The charges in this province appear to be regulated by usage, and are as follows: For protest For each notice $1 00 $0.50 Postage in addition. Alberta, Saskatchewan, Yukon and the North-West Territories. The charges in these provinces and territories also are governed by usage, and are as follows: For protest For each notice Postage in addition. $2.00 $0 50 British Columbia.-The charges here also are governed by usage, and are as follows: For protest and notices $2.50 Postage in addition. 125. The forms in the schedule to this Act may Forms be used in noting or protesting any bill and in giving notice thereof. 2. A copy of the bill and endorsement may be Contents. included in the forms, or the original bill may be annexed and the necessary changes in that behalf made in the forms. 53 V., c. 33, s. 93 (4). |