$ 2.

"Value."

"Defence.'

Other defi

nitions.

a wrong date of issue when a bill has been issued undated, see section 12. As to the re-issue of a bill, see section 37. Where a bill drawn in one country is payable, negotiated or accepted in another, it may become of importance to determine the place of issue: section 71. A bill is complete in form when it complies with section 3, and a note when it complies with section 82. For the definition of "person" see the note at the end of the present section.

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(j) The expression "Value "Value" means valuable consideration.

27.

The term "valuable consideration" is defined in section

(k) The expression "Defence" includes counterclaim.

The word "defence" is used in sections 30, s-s. 5 and 38 (b). For a definition of counter-claim see note to clause (b) of this section. "Defence" would also include in Quebec an incidental demand by a defendant: C. C. P. Art.

151.

The foregoing definitions are taken from the correspon ding section of the Imperial Act, almost without change. "Banker" in the Imperial Act has been replaced by "Bank" in the Canadian, for the reasons above mentioned. "Bankrupt" is not used in the Canadian Act as we have no general bankrupt or insolvent law in force in the Dominion. "Person" "written " and "writing," which are all used in a peculiar sense, are defined in the Imperial Act, but not in the Canadian, as they are defined in the general Interpretation Act, R. S. C. c. 1, s. 7, as follows:

" includes any body

corporate and politic, or party, and the heirs, executors,

administrators or other legal representatives of such § 2. person, to whom the context can apply according to the law of that part of Canada to which such context extends."

66

(23) The expression "writing," "written," or any term of like import, includes words printed, painted, engraved, lithographed, or otherwise traced or copied."

The only one of the foregoing definitions not in the Imperial Act is that of "defence." This section is another illustration of the fact that the original portions of the Canadian Act were not prepared or arranged with the same care as must have characterized the preparation of the Imperial Act. In the latter the words defined are all arranged alphabetically. Those copied from it in the Canadian Act follow the same order; but the word "defence" which has been added, instead of being inserted in its proper alphabetical place comes after "value." Another change which is scarcely an improvement, is the insertion of the words "The expression" at the commencement of each definition, while in the Imperial Act each clause begins with the word to be defined. If any prefix was thought necessary, it would have been more appropriate to have used "the word " rather than "the expression," as in each instance it is a single word that is defined.

PART II.

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 3 to 71 inclusive.

Section 72 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 88 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 AND INTERPRETATION.

§ 3.

change de

3. A bill of exchange is an unconditional order Bill of Exin writing, addressed by one person to another, fined. 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: Imp. Act, s. 3 (1).

The foregoing clause is copied from the Imperial Act without change. Probably no definition of a bill of exchange has yet been given which is not open to criticism. The phraseology of this section is not the most felicitous, as the next clause almost discredits the definition in two respects. First, a bill of exchange must be "unconditional," yet the next sentence speaks of the "conditions," of which there appear to be no less than six. Again, the introduction of the words "except as hereinafter provided" is an intimation that certain instruments which do not meet the requirements of the definition are nevertheless bills of exchange.

This definition also includes a cheque and is declaratory of the former law: McLean v. Clydesdale Banking Co., 9 App. Cas. per Lord Blackburn at p. 106 (1883).

The Civil Code of Lower Canada says: "Article 2279. A bill of exchange is a written order by one person to another for the payment of money absolutely and at all events. Article 2280.-It is essential to a bill of exchange: That it be in writing and contain the signature or name of the drawer; That it be for the payment of a specific sum of money only; That it be payable at all events without any condition."

M'C.B.E.A.-3

$ 3.

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The definition in the Code is taken from Kent's Commentaries, vol. 3, p. 74. Kent copied it from Bayley on Bills, p. 1, and speaks of it as "a concise, clear and accurate production." Blackstone says a bill of exchange is an open letter of request from one man to another desiring him to pay a sum of money therein named to a third person on his account": 2 Comm. 466. Chitty follows Blackstone. For a very full list of the different definitions given by various authors, see 1 Randolph, § 3, note.

In France the law governing bills of exchange differs in some important particulars from that of England or the United States, as may be seen from the following definition taken from the Code de Commerce, Art. 110:-"A bill of exchange is drawn from one place on another. It is dated. It sets forth, the sum to be paid; the name of the person who is to pay; the time and place of payment; the value given in money, goods, account or otherwise. It is payable to the order of a third party, or of the drawer himself. It must state whether it be the first, second, third, or fourth, etc., of the same tenor and contents."

A bill of exchange is sometimes called a draft, and after it has been accepted, sometimes an acceptance. It may be in any language, and in any form of words that complies with the requirements of the foregoing definition or the provisions of the Act. Where an instrument is so ambiguous as to make it doubtful whether it is a bill of exchange or a promissory note, the holder may, as against the maker, treat it as either: Edis v. Bury, 6 B. & C. 433 (1827); Forbes v. Marshall, 11 Ex. 166 (1855); Fielder v. Marshall, 9 C. B., N. S. 606 (1861).

"An Unconditional Order."-A bill of exchange is an order, and is in its nature the demand of a right, not the