§ 164 erned by Canadian law: Hooker v. Leslie, 27 U. C. Q. B. 295 (1868); North-Western Bank v. Jarvis. 2 Man. 53 (1883).

Lex loci contractus.

The drawer of a bill on a foreign country which is dishonoured is liable for interest at the legal rate of the country in which the bill was drawn and not of that in which it was dishonoured: Gibbs v. Fremont, 9 Ex. 25 (1853); Allen v. Kemble, 6 Moore P. C. at p. 321 (1848).

Lex loci solutionis.-The law of the place of payment or performance is applied in the Act with respect to presentment for acceptance or payment, and the necessity for or sufficiency of a protest or notice of dishonour: sec. 162. Also as to the amount payable on foreign bills expressed in foreign currency: sec. 163; and so to the due date of bills: sec.

164.

The same rule would be applicable where a party to a bill has impliedly contracted with reference to the law of the place of performance, as where a drawee has accepted or made a bill payable in another country, or where it is otherwise manifest that such was the intention: Moulis v. Owen, [1907] 1 K. B. 746; Re Marseilles Extension Ry. Co., 30 Ch. D. 598 (1895).

On this principle a drawee who accepts a bill in one country payable in another is liable for interest at the legal rate of the latter: Cooper v. Waldegrave, 2 Beav. 282 (1840); Westlake, § 229. See also Re Gillespie, Ex parte Robarts, 18 Q. B. D. 286 (1886); Re Commercial Bank of South Australia, 36 Ch. D. 522 (1887): sec. 134.

Lex fori. The law of the place where the action is brought or proceedings are taken governs as to procedure and all matters belonging to the remedy or mode of enforcement: De la Vega v. Vianna, 1 B. & Ad. 284 (1830). Under this head are comprised:

1. The limitation of actions or prescription, where the remedy is barred but the debt not extinguished; subject to the operation of the law in places like Quebec where it

Lex fori

operates as a discharge. Don v. Lippmann, 5 Cl. & F. 1 § 164 (1837); British Linen Co. v. Drummond, 10 B. & C. 903 (1830); Fergusson v. Fyffe, 8 Cl. & F. at p. 140 (1841); Pardo v. Bingham, L. R. 4 Ch. 735 (1869); Alliance Bank v. Carey, 5 C. P. D. 429 (1880). See ante pp. 344-7.

2. Set-off or compensation, subject to the same limitations. See ante p. 343.

3. The admission of evidence: Yates v. Thompson, 3 Cl. & F. 544 (1835); Bain v. Proprietors W. & F. Ry. Co., 3 H. L. Cas. 1 (1850); Leroux v. Brown, 12 C. B. 801 (1852); Williams v. Wheeler, 8 C. B. N. S. at p. 316 (1860).

The Quebec Civil Code provides :

Article 1206: "When no provision is found in this Code for the proof of facts concerning commercial matters, recourse must be had to the rules of evidence laid down by the laws of England."

Article 2340: "In all matters relating to bills of exchange not provided for in this Code or the Federal laws, recourse must be had to the laws of England in force on the 30th day of May, 1849."

Article 2341: "In the investigation of facts, in actions or suits founded on bills of exchange drawn or endorsed by traders or other persons, recourse must be had to the laws of England in force at the time specified in the last preceding article, and no additional or different evidence is required or can be adduced by reason of any party to the bill not being a trader."

See Baril v. Tétrault, 29 L. C. J. 208 (1885); Guy v. Paré, Q. R. 1 S. C. 443 (1892); Hébert v. St. Cyr, 1 R. J. 246 (1895); Boulet v. Metayer, Q. R. 23 S. C. 289 (1902).

$ 165

English

and Canadian law differ.

PART III.

CHEQUES ON A BANK.

The Third Part of the Act, which is devoted to cheques, consists of eleven sections, 165 to 175, inclusive. The first three of these relate to cheques generally, and the remaining eight to crossed cheques. They are taken from the Im perial Act, with but two slight changes. The first is the substitution of the word "bank for 66 banker." The reason

for this is that in England the banking business is carried on largely by individuals, partnerships and incorporated companies, while in Canada the Bank Act and the Bills of Exchange Act recognize only those banks incorporated under R. S. C. c. 29, and savings banks under cc. 30 and 32. The other is the addition of sub-section 7 to section 169, providing for the uncrossing of a crossed cheque.

Although the language of the two Acts is thus in the main identical, there are two marked differences between the law and the practice in the two countries. The first is in section 60 of the Imperial Act, which provides that when a bill payable to order on demand is drawn on a banker, and he pays it in good faith, he is not responsible even if the endorsements are forged. This rule applies to a cheque, which is a bill of exchange drawn on a banker payable on demand. An effort was made by the banks to have this clause embodied in the Canadian Act, but the House of Commons was unwil ling to make the change. The use of crossed cheques in England has been adopted largely to overcome the danger arising from such forged endorsements. Under the Canadian law there is not the same necessity, and although the Act has introduced the English statute as to the crossing of cheques, the practice has been adopted to a very limited extent.

The other great difference arises from the fact that the practice of getting cheques certified or accepted, so common ir Canada, does not obtain in England. Byles and Chalmers

say that to issue them accepted would probably be an in- § 165 fringement of the Bank Charter Acts. There being no corresponding Acts in Canada the practice has developed and cheque. become general.

A cheque drawn upon a private banker would not be a cheque within the meaning of the Bills of Exchange Act, and would not be subject to the special rules contained in this part of the Act, such as crossing and the like. It would be simply a bill of exchange, payable on demand, and subject to such provisions of the Act as apply to an instrument of that kind: Trunkfield v. Proctor, 2 O. L. R. 326 (1901). It would also be subject to such provisions of the common law and the law merchant as are applicable to such an instrument.

Not a

165. A cheque is a bill of exchange drawn on a Cheque bank, payable on demand. 53 V., c. 33, s. 72 (1). defined. Imp. Act, s. 73 (1).

Reading this definition in connection with that of a bill of exchange in section 17, a cheque is an unconditional order in writing addressed by a person to a bank, signed by the person giving it, requiring the bank to pay on demand a sum certain in money to, or to the order of a specified person, or to bearer.

According to the definition in sec. 2 (c), "bank" means "an incorporated bank or savings bank carrying on business in Canada "; that is, one of the banks to which the Bank Act, R. S. C. c. 29, applies; or a savings bank under R. S. C. c. 30 or 32; or a penny bank under R. S. C. c. 31; or a bank under an old provincial charter.

In Quebec, under the Code, a cheque might be drawn. upon a private banker as well as upon an incorporated bank: Art. 2349. This was the law before the Act in the other provinces also.

,, Form of

A cheque should be addressed to the bank by its proper corporate name, and not to the "cashier," "manager" cheque. or agent" of the bank. An instrument addressed to one of these would not, strictly speaking, be a cheque within

M'L.B.E.A.-26.

Form of.

§ 165 the meaning of the Act, and if marked or accepted it might be claimed that the bank was not liable, as it would not be the drawee of the instrument and consequently could not become liable by acceptance; although it would probably be held that the bank was estopped from setting up such a defence, and that it was a proper case for the application of section 35 (2), where the drawer being wrongly designated has accepted by his proper signature.

Not invalid.

Payable

day.

The words "on demand" need not be on the cheque, as they are understood when no time for payment is expressed: sec. 23.

A cheque is not invalid because it is not dated, nor because it does not specify the place where it was drawn, nor because it is antedated, or post-dated, or bears date on a Sun- * day or other non-juridical day; sec. 27: Wood v. Stephenson, 16 U. C. Q. B. 419 (1858); and the fact that it is post-dated is not an irregularity: Hitchcock v. Edwards, 60 L. T. N. S. 636 (1889); Carpenter v. Street, 6 T. L. R. 410 (1890). But a cheque dated seven days after delivery is, in substance, a bill of exchange at seven days' date: Forster v. Mackreth, L. R. 2 Ex. 163 (1867); Royal Bank v. Tottenham, [1894] 2 Q. B. 715. A bank should not pay a cheque before the day of its date: DaSilva v. Fuller, cited in Morley v. Culverwell, 7 M. & W. 178 (1840).

In the United States there has been a conflict as to on a future whether a cheque may be made payable on a day subsequent to its date. The weight of authority is in favor of what is law under our Act, that such an instrument is not a cheque, and has three days' grace. See Bowen v. Newell, 13 N. Y. 290 (1853); Morrison v. Bailey, 5 Ohio St. 13 (1855); Harrison v. Nicollet Bank, 41 Minn. 488 (1889); 2 Daniel, sec. 1574. But see contra Re Brown, 2 Story, C. C. 502 (1843); Westminster Bank v. Wheaton, 4 R. I. 30 (1856); Champion v. Gordon, 70 Penn. St. 474 (1872); Way v. Towle, 155 Mass. 374 (1892). As in those States that have adopted the Negotiable Instruments Law there are no days of grace, the question has become of less practical import

ance.