12. If a bill drawn in one country and payable in another is § 161 dishonored, the drawer is liable according to the law of the place where the bill was issued and not where it was payable: Allen V. IllustraKemble, 6 Moore P. C. 314 (1848); Astor v. Benn, 2 Rev. de Lég. tions. 27 (1812).

13. A bill drawn in California upon Washington is dishonored. The drawer is liable for interest at the rate in California: Gibbs v. Fremont, 9 Ex. 25 (1853).

14. A bill of exchange was drawn, accepted and payable in England. It was indorsed in France in proper English form, but in one which would not by French law give the indorser the right to sue in his own name. Held, that the indorsee could recover from the acceptor in England: Lebel v. Tucker, L. R. 3 Q. B. 77 (1867).

15. A bill drawn in England upon a person in Spain is indorsed in Spain. Such indorsement must be construed by the law of Spain: per Brett, L.J., in Horne v. Rouquette, 3 Q. B. D. at p. 520 (1878).

16. Bills drawn and indorsed in England and payable in Milan are dishonored. The Milan holder sues the drawer and indorsers in England. They plead that the bills are Italian, and by the law of Italy plaintiff's remedy is lost because no action was taken within 15 days after protest. Held, to be no defence in England: Cassanova v. Meier, 1 T. L. R. 245 (1885).

17. A man domiciled in Cape Colony, there assigned to his wife a policy on his life in an English company. He died at Cape Colony, being still domiciled there. Held, that the law of the colony which prohibited an assignment from husband to wife applied, and she could not recover: Lee v. Abdy, 17 Q. B. D. 309 (1886).

18. A note was signed and issued in Belgium. In an action by the indorsee against the maker, Belgian experts were examined as to whether the note was negotiable by Belgian law. The jury said they could not decide whether it was or not. This was held to be equivalent to a finding that the law of Belgium was not proved, and the note being negotiable by English law it was assumed that it would be by Belgian law, and judgment given in favor of plaintif: Nouvelle Banque de l'Union v. Ayton, 7 T. L. R. 377 (1891).

19. An inland English note payable to bearer, and overdue, was sold by judicial sale in Norway. By Norwegian law the transferee of an overdue note in good faith takes it free from equities. Held, that the transfer was governed by Norwegian law and defendant could not set up the equities attaching to the note which he had against the person who held it at maturity: Alcock v. Smith, [1892] 1 Ch. 238.

20. The validity of the transfer of a bill, like that of a chattel, is determined by the law of the country where the transfer is made: Embiricos v. Anglo-Austrian Bank, [1905] 1 K. B. 677.

21. A cheque given in Algiers on a London bank for a gaming debt cannot be recovered upon in England, although the gaming was not unlawful in Algiers: Moulis v. Owen, [1907] 1 K. B. 746.

§ 162

holder.

162. The duties of the holder with respect to Law as to presentment for acceptance or payment and the duties of necessity for or sufficiency of a protest or notice of dishonour, are determined by the law of the place where the act is done or the bill is dishonoured. 53 V., c. 33, s. 71 (2 c). Imp. Act, s. 72 (3).

This is one of the provisions of the Act to which the rule laid down in section 161 is subject.

The last clause of the section should be construed as if it read "where the act is done or to be done."

ILLUSTRATIONS.

Lex loci.

Currency.

1. A bill is payable in Buffalo.

Presentment, etc., are governed by the law in force there. In the absence of proof of that law, it will be presumed to be the same as here, and no presentment being proved or notice of dishonor, drawer and indorsers are not liable: Buffalo Bank v. Truscott, 1 Rob. & Jos. Dig. 495 (1838). See Howard v. Sabourin, 5 L. C. R. 45 (1854); Allen v. McNaughton, 9 N. B. (4 Allen) 234 (1858).

2. Notes made in New Brunswick were payable in England and dishonored there. An indorser lived at Richibucto, N. B. The holder mailed a notice of protest to him there, but not being certain of his address sent the protest to his agent in Halifax, who at once mailed a notice to him. Similar notes were also protested and sent to Halifax, and notices sent him from there. Held, that the notices were sufficient under section 49 of the Imperial Act: Fleming v. McLeod, 39 S. C. Can. 290 (1907).

3. Defendant indorsed in England to plaintiff a bill payable in Paris. Plaintiff indorsed to a Frenchman, who, on dishonor, had the bill protested and defendant notified according to French law. Held, that defendant was duly notified and was liable to plaintiff : Hirschfield v. Smith, L. R. 1 C. P. 340 (1866); Rothschild v. Currie, 1 Q. B. 43 (1841).

4. A bill drawn in England and payable in Spain is indorsed in England by defendant to plaintiff, who indorses it to M. in Spain. It is dishonored by non-acceptance, and twelve days later M. not fies plaintiff, who at once notifies defendant. The law of Spain does not require notice of non-acceptance. Defendant is liable to plaintiff : Horne v. Rouquette, 3 Q. B. D. 514 (1878).

163. Where a bill is drawn out of but payable in Canada, and the sum payable is not expressed in the currency of Canada, the amount shall, in the absence of some express stipulation, be calculated

according to the rate of exchange for sight drafts § 163 at the place of payment on the day the bill is payable. 53 V., c. 33, s. 71 (2d). Imp. Act, s. 72 (4).

The above rule is the same as that applied by section Foreign 136 to the converse case of a bill drawn in Canada and dis- currency. honoured abroad, and was the old law: Hirschfield v. Smith, L. R. 1 C. P. at p. 353 (1866). Although the bill is drawn for a certain sum expressed in the terms of a foreign currency, it would not on principle be satisfied by a tender in Canada of so much foreign coin or currency, unless the same passed current as money in Canada, and in case of dispute as legal tender here. A bill must be for a sum certain in

money;" sec. 17; and if made payable in Canada, this would, in the absence of some express stipulations, mean the equivalent in Canadian money of the amount named in the bill calculated as above indicated.

The same rule applies where bills payable abroad in a foreign currency are sued upon in Canada. The holder is entitled to recover the amount according to the rate of ex change on the day of maturity or dishonour, with interest thereon and expenses.

164. Where a bill is drawn in one country and is Due date. payable in another, the due date thereof is determined according to the law of the place where it is payable. 53 V., c. 33, s. 71 (2e). Imp. Act, s. 72 (5).

This is one of the provisions to which section 161 is subject, and is in accordance with the general principles of international law. The difference arises chiefly from legal holidays, and whether or not days of grace are allowed.

ILLUSTRATIONS.

1. A note drawn in Montreal was made payable in New York. The third day of grace fell on Sunday. The note was protested on Saturday in accordance with the law of New York. Held, to be regular: Bank of America v. Copeland, 4 L. N. 154 (1881-.

2. A bill is drawn in England payable in Paris three months after date. Before it matures, a moratory law is passed in France, in

§ 164 consequence of war, postponing the maturity of all current bills for a month. The bill is subject to this French law: Rouquette v. Overmann, L. R. 10 Q. B. 525 (1875).

Capacity. Any person who has capacity to contract may, as a rule, incur liability as party to a bill: sec. 47. Where there is a conflict of different laws on this question, the general rule, as stated ante p. 132, is that it is governed by the law of the domicile. The Act has no provision on this question of conflict unless such a wide meaning should be given to the word "interpretation" in section 161 as to make it include the capacity of the parties. The Quebec Code, Art. 6, adopts the lex domicilii. A Quebec minor who is a trader may bind himself by a note for the purpose of his business: City Bank v. Lafleur, 20 L. C. J. 131 (1875): but a note given by an Ontario trader under 21 in Montreal and payable there is null, as by the law of Ontario he cannot bind himself: Jones v. Dickinson, Q. R. 7 S. C. 313 (1895).

Discharge. The general rule is that a defence or discharge, good by the law of the place where the contract is made or is to be performed, is to be held of equal validity in every place where the question may come to be litigated. In England and America this principle has been adopted, and acted on with a most liberal justice: Ellis v. McHenry, L. R. 6 C. P. at p. 234 (1871); Gibbs v. Société Industrielle, 25 Q. B. D. at p. 405 (1890); Story on Conflict of Laws, secs. 331, 332. This rule would apply not only to the discharge. of a bill, but also to the discharge of any party to it. The latter point arises most frequently with reference to discharges in bankruptcy: Potter v. Brown, 5 East, 124, 130 (1804); Smith v. Smith, 2 Johns. (N. Y.) 235 (1897); Blanchard v. Russell, 13 Mass. 1 (1816). Where, however, a bill was drawn, accepted and payable in England, the bankruptcy and discharge of the acceptor in Australia did not relieve him from the bill: Bartley v. Hodges, 30 L. J. Q. B 352 (1861). Where an Austrian bill was discharged by a partial payment there, it was held good in England where if paid it would not have had that effect. Ralli v. Dennistoun, 6 Ex. at p. 496 (1861). If a Demerara bill is discharged by compensation there, it will be held discharged in

Discharge.

England, where compensation would not have this effect: § 164 Allen v. Kemble, 6 Moore P. C. 314 (1838). So a bill discharged in Quebec by either compensation or prescription, would be held to be discharged in other countries where these would not operate as discharges as to bills made or payable there. See Huber v. Steiner, 2 Bing. N. C. 211 (1835); Harris v. Quine, L. R. 4 Q. B. 653 (1869); Story, sec. 582.

Lex loci contractus.-The general effect of this part of the Act will probably be to establish more firmly the doctrine of the law of the place where the contract is made, especially if section 161 is construed in a liberal way and a wide meaning given to the word "interpretation."

Before the Imperial Act, the case of Lebel v. Tucker, L. R. 3 Q. B. 77 (1867), and the remarks of Cockburn, C.J., in Rouquette v. Overmann, L. R. 10 Q. B. 525 (1875), appeared to have somewhat shaken the doctrine laid down in Allen v. Kemble, 6 Moore P. C. 314 (1848), and Gibbs v. Fremont, 9 Ex. 25 (1853), in favour of the application of the law of the place where the contract was made. In Alcock v. Smith, [1892] 1 Ch. 238, however, the corresponding clauses of the Imperial Act, which have been copied into our own, were considered, and the doctrine of the earlier cases above cited re-affirmed. This case was approved and followed in the recent case of Embiricos v. Anglo-Austrian Bank, [1905] 1 K. B. 677. In the Quebec case of London and Brazilian Bank v. Maguire, Q. R. 8 S. C. 358 (1895), Andrews, J., gave a very able and comprehensive judgment, in which the authorities were carefully reviewed and full effect given to the wide. meaning of "interpretation" in section 161 as to the drawer and indorsers. On the other hand the recent English case of Moulis v. Owen, [1907] 1 K. B. 746, while not referring to the Act, adopts the law of the place of performance as to the consideration for the contract of the drawer of a cheque. In Canada before the Act it was held that in an action against the drawer on a foreign bill the legality of the consideration was determined by the law of the place where it was drawn: Story v. McKay, 15 O. R. 169 (1888); and notes made in Ontario and Manitoba payable in the United States, but without the words "not otherwise or elsewhere," were gov