§ 11

Copy of protest,

evidence.

See also Ross v. McKindsay, 1 U. C. Q. B. 507 (1845); Codd v. Lewis, 8 ibid. 242 (1850); Merchants' Bank v. McDougall, 30 U. C. C. P. 236 (1879); Southam v. Ranton, 9 Ont. A. R. 530 (1883).

Section 12 makes protests out of Canada also prima facie evidence in all courts.

12. If a bill or note, presented for acceptance, or prima facie payable out of Canada, is protested for non-acceptance or non-payment, a notarial copy of the protest and of the notice of dishonour, and a notarial certificate of the service of such notice, shall be received in all courts, as prima facie evidence of such protest, notice and service. 53 V., c. 33, s. 71.

Officer of bank not

to act as notary.

This section is not in the Imperial Act. Con. Stat. C. (1859) had a similar provision, but it applied only to protests in Upper or Lower Canada: Griffin v. Judson, 12 U. C. C. P. 430 (1862). See also Ewing v. Cameron, 6 U. C. O. S. 541 (1842); Ontario Bank v. Burke, 10 Ont. P. R. 561 (1885)..

It is to be observed that a notarial certificate of the service of notice of dishonour is required as well as a copy of the protest and notice.

13. No clerk, teller or agent of any bank shall act as a notary in the protesting of any bill or note payable at the bank or at any of the branches of the bank in which he is employed. 53 V., c. 33,

s. 51.

This provision is not in the Imperial Act. It was first enacted for Upper and Lower Canada in 1850, and was made applicable to the whole Dominion by R. S. C. (1886) c. 123 s. 11.

As the certificate of the notary is accepted as a substitute for sworn testimony, the desire is to obtain an officer who will not be biassed. For the same reason it has been held that a notary who is an indorser on a note is not entitled to make the protest, even when he substitutes the name of

another for his own and purports to make the protest at the request of such substitute: Pelletier v. Brosseau, M. L. R. 6 S. C. 331 (1890).

§ 13

ation, pur

patent.

14. Every bill or note, the consideration of which Considerconsists, in whole or in part, of the purchase money chase of a patent right, or of a partial interest, limited money of geographically or otherwise, in a patent right, shall have written or printed prominently and legibly across the face thereof, before the same is issued, the words, Given for a patent right.

of neces

2. Without such words thereon, such instrument Absence and any renewal thereof shall be void, except in the sary hands of a holder in due course without notice of words. such consideration. 53 V., c. 33, s. 30.

These provisions are not in the Imperial Act and were For a not in the bill as introduced into The House of Commons, patent right. but were reluctantly inserted by the Minister of Justice at the urgent request of certain members of that House: Commons Debates, 1890, pp. 105, 1415, and 1520. The first Canadian statute on the subject was passed in 1884, 47 Vict. c. 38, which did not contain sub-section 2 above. This was added to override the interpretation placed upon the original Act as embodied in R. S. C. c. 123, by the Ontario Common Pleas Divisional Court in the case of Girvin v. Burke, 19 0. R. 204 (1890), a decision which was rendered while the Bill was before Parliament: Senate Debates, 1890, p. 465. In that case it was held that the omission of the prescribed words in a note or renewal note did not render it void as between the maker and the payee, and that the intention of the Act was to give the indorsee or transferee notice, and to put him in the position of the payee as to any defence which the maker might have against a claim by the payee. In this the Court followed a decision in Pennsylvania on a similar statute: Haskell v. Jones, 86 Penn. St. 173 (1878); where Chief Justice Sharswood said: "By the express provisions of the statute the only effect of the insertion of such words is that such note or instrument in the hands of the pur

§ 14 chaser or holder shall be subject to the same defence as if in the hands of the original owner or holder."

For a patent

right.

Transferee to take with equities.

In those States which have passed similar statutes they are not embodied in the Negotiable Instruments Law.

In Johnson v. Martin, 19 Ont. A. R. 594 (1892), it was held that an indorsee for value before maturity who took a note given for a patent without these words, with knowledge of the consideration, could not recover.

A creditor of a patentee induced a third party to purchase a half interest in the patent for $700, and to join the patentee in a note for $1,000, the creditor giving the latter $200 as an inducement. The note was held to be void as to the third party for want of the words "given for a patent right" Craig v. Samuel, 24 S. C. Can. 278 (1895); reversing Samuel v. Fairgrieve, 21 Ont. A. R. 419 (1894).

As to what notice may prevent a holder for value of such a note from becoming a holder in due course, see Banque d'Hochelaga v. Menier, 3 R. J. 86 (1896); also the notes and authorities on the subject under s. 56.

Plaintiff moved for summary judgment on a promissory note. Defendant put in an affidavit that the consideration was to plaintiff's knowledge a patent right. Plaintiff denied this. Held, that defendant was entitled to unconditional leave to defend: Davey v. Sadler, 1 O. L. R. 626 (1901).

Under a statute on this subject where the rights of a holder in due course were not in express terms protected, as they are in our Canadian Act, it was held that if the patent right consideration were not expressed in the note, a bona fide holder would be protected according to the general principles of the law merchant: Palmer v. Minar, 8 Hun (N. Y.) 342 (1876).

15. The endorsee or other transferee of any such instrument having the words aforesaid so printed or written thereon, shall take the same subject to any defence or set-off in respect of the whole or any part thereof which would have existed between the original parties. 53 V., c. 33, s. 30.

16. Everyone who issues, sells or transfers, by § 16 endorsement or delivery, any such instrument not Transferhaving the words Given for a patent right printed ring deor written in manner aforesaid across the face note. thereof, knowing the consideration of such instrument to have consisted. in whole or in part, of the purchase money of a patent right, or of a partial Indictable interest, limited geographically or otherwise, in a patent right, is guilty of an indictable offence, and liable to imprisonment for any term not exceeding Penalty. one year, or to such fine, not exceeding two hundred dollars, as the court thinks fit. 53 V., c. 33,

s. 30.

The general scope of the Act is to restrict its provisions to the civil rights and remedies relating to bills and notes. This is adhered to in every other section, and provisions for the punishment of the forgery of bills and other frauds in connection with them, have not been inserted in the Act, but are to be found among the criminal statutes. This section is the only exception to this rule. It led to the further anomaly of the insertion in section 14 of the word "note" instead of leaving it to the operation of section 186, as it was not thought desirable to leave a criminal offence or implication, or the operation of incidental legislation: Senate Debates, 1890, p. 464.

offence.

PART II.

Bill of exchange defined.

BILLS OF EXCHANGE.

The Act, as its title indicates, relates to Bills of Exchange, Cheques and Promissory Notes. The rules and principles relating to the former are set out in Part II., which embraces sections 17 to 164 inclusive.

Section 165 defines a cheque as a bill of exchange drawn on a bank payable on demand, and enacts that the provisions of the Act applicable to a bill of exchange payable on demand shall apply to a cheque, except as otherwise provided in Part III.

By section 186 the provisions of the Act relating to bills of exchange apply to promissory notes with the necessary modifications, and subject to the exceptions of that section and the provisions of Part IV.

In the notes and illustrations appended to the various sections of Part II. of the Act, where a clause or provision is equally applicable to a promissory note or cheque as well as to a bill, authorities and cases bearing upon the principle will be cited, although they may have been laid down or decided with reference to notes or cheques.

Form of Bill and Interpretation.

17. A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay, on demand or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer. 53 V., c. 33, s. 3 (1). Imp. Act, ibid.