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CANADIAN 
 
 '9 
 
 DOMESTIC LAWYER 
 
 •f * 
 
 WITH 
 
 PLAIN AND SIMPLE INSTRUCTIONS 
 
 I 
 
 FOR THB 
 
 MERCHANT, FARMER, AND MECHANIC. 
 
 I 
 
 TO ENABLE THEM TO TRANSACT THEIR BUSINESS 
 ACCORDING TO LAW. 
 
 Lit- ' 
 
 By JOHN WHITLEY, Esq., 
 
 ATTORNET-AT-LAW, TORONTO. 
 
 WITH AN APPENDIX, CONTAINING THE NEW INSOLVENT 
 ^ - ACT, STATUTE LABOR ACT AND STAMP ACT. 
 
 '' ' -I ,.. . 
 
 
 '.^ " 
 
 ^^ iFCmt <^09srCfi!)t IStrttion. 
 
 -#t 
 
 
 STRATFORD, C. W.: 
 SAMUEL VIVIAN, PRINTER AND PUBI.ISHBB. 
 
 * 1865. * 
 
 PRICE, 1.25. . .« . 
 
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 Entered according to the Act of the Provincial Parlianieut, in the 
 year one thousand eight hundred and aixty-fiTe, 
 
 '^ By SAMUEL VIVIAN, " 
 
 Proprietor and Publisher, Stratford, C. W. 
 
 
 
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 PREFACE. 
 
 This work is presented to tLe public, not 
 as one wliicli will altogether do away with the 
 necessity for the advice and assistance of a 
 lawyer, — for such a claim in its behalf would 
 be simply ridiculous, — but merely as a guide 
 to the farmer and merchant in the ordinary 
 business details of every-day life. 
 
 It frequently happens that recourse is had 
 to a lawyer for the preparation of a simple in- 
 strument, or for advice on some trivial point, 
 which would be quite unnecessary if a book 
 like the present were at command. For all 
 such cases it Jias been especially prepared. 
 
 The father of a family does not think of 
 calling in the aid of a doctor for every trifling 
 indisposition to which any of his household 
 
 8 
 
 /' 
 
 '% 
 
 *» 
 
 i-»« 
 
 ■-# 
 
 3/5/r '.Vr^ 
 
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 4 PBEFACE. 
 
 may be subject; and there is as little reason 
 why a rush should be made to a lawyer for 
 the preparation of every little document or for 
 advice upon every small matter which should 
 be plain to the ordinary comprehension of 
 every common-sense person. ^ 
 
 The merit of absolute originality is not 
 claimed for this work. The compiler (for he 
 assumes no other appellation) has drawn 
 largely from sources with which the profes- 
 sional man is familiar, but which are practi- 
 cally closed to the general public. To reca- 
 pitulate the various sources whence informa- 
 tion and assistance have been sought, would 
 be alike tedious and superfluous. 
 
 It has not been deemed . advisable to cum- 
 ber this work with many special formSj which 
 are serviceable only to the professional man. 
 In every case of intricacy the reader is advised 
 still to have recourse to his lawyer for that 
 aid and assistance which no work of this kind 
 could give him. Whenever the matter in hand 
 
 » 
 
 
PEEFACE. ^ "M 
 
 passes out of the category of a plain and sim- 
 ple ordinary every-day-matter, the reader is 
 reminded of the old adage that " he who is 
 his own lawyer has a fool for a client." 
 
 With these remarks, this work is submitted 
 to the judgment of the public. If it meets 
 their approbation, the objects of the compila- 
 tion, undertaken at the instance of the pub- 
 lisher, will have been accomplished. 
 
 / 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. PAOR. 
 Of Affidavits . 9 
 
 CHAPTER II. 
 Of Contracts or Agreemxmts 13 
 
 * 
 
 CHAPTER III. 
 Of Arbitration 50 
 
 CHAPTER ly. 
 Of Assignments 74 
 
 CHAPTER V. 
 Of Auctions and Auctionbbrs 136 
 
 CHAPTER VI. 
 Of Bills of Exchangb 143 
 
 CHAPTER Vn. 
 Of Bonds 159 
 
 CHAPTER VIII. 
 Of Chattbl Mortgages 167 
 
 CHAPTER IX. 
 Of the Collection of Debts in the Division Courts 195 
 
 CHAPTER X. 
 
 Of Deeds 225 
 
 7 
 
 t ' Js, 
 
I' 
 
 8> CONTENTS. 
 
 *', 
 CHAPTER XI. ' FAoii. 
 Of Line-Fences and Water-Courses 256 
 
 CHAPTER XII. 
 Of Landlord and Tenant— Leases, etc 263 
 
 CHAPTER XIII. 
 Of Master and Servant 300 
 
 CHAPTER XIV. 
 Of Mortqaoes 313 
 
 CHAPTER XV. 
 Of Naturauzation 377 
 
 CHAPTER XVI. 
 Of Partnership .' 381 
 
 CHAPTER XVII. ' 
 Of Promissory Notes 399 
 
 CHAPTER XVIII. 
 Of Patents 403 
 
 CHAPTER XIX. 
 Of Receipts and Releases 416 
 
 CHAPTER XX. 
 Of Wdlls and Intestacy ' 420 
 
 CHAPTER XXI. 
 Insolvent Act . 431 
 
 CHAPTER XXII. 
 Statute Labor t 444 
 
 CHAPTER XXIII. 
 Stamp Duties on Promissory Notes, etc 449 
 
 i- .:. ■' ■ -■ '•■'■' ^ .-^ 
 
 m 
 
<l • 
 
 THE 
 
 CANADIAN 
 
 DOMESTIC LAWYER. 
 
 I/" 
 
 7' 
 
 CHAPTER I. 
 
 . / 
 
 Of Affidavits. 
 
 An aflfidavit is a statement, in writing, of some par- 
 ticular fact, sworn to by the party making the state- 
 ment. Some persons entertain conscientious scruples 
 about the taking of an oath, for any purpose : for the 
 relief of whom the law provides that an affirmation 
 may bo made in lieu of an oath. The difference, then, 
 between an affidavit and an affirmation, is simply this : 
 the one is sworn to be true; the other is affirmed. 
 The penalties for making a false affidavit, or a false 
 affirmation, are identical. ::.>*' 
 
 Specific forms of affidavits, applicable to particular 
 cases, will be found scattered throughout this work ; 
 we shall here give only general forms. - •- 
 
 Every affidavit ought to be written in words at 
 length : figures should not be used in the body of it. 
 We do not mean to say that the use of figures would 
 vitiate an affidavit; but as a matter of convenience, 
 and for greater certainty, it is always better to use 
 
 a; :? 
 
 / 
 
h 
 
 10 
 
 CANADIAN DOMESTIC LAWYER. 
 
 M 
 
 words: many figures, hurriedly, or perhaps badly, 
 made, being oftentimes hard to decipher. 
 
 Affidavits to be used in the courts of law, as a gen- 
 eral rule, require to be taken before a commissioner : 
 sometimes, however, it is sufficient to take them before 
 a Justice of the Peace. In other cases, it must be 
 made before a Justice, and not before a commissioner. 
 The forms given will generally indicate before whom 
 they must be sworn. 
 
 Affidavits to be used in a court of law are required 
 to be written in paragraphs, each paragraph relating, 
 as much as possible, to a distinct subject. Although 
 the same particularity is not prescribed with reference 
 to affidavits not intended to be used in a court, yet, 
 3lS the practice is very convenient, the same method is 
 recommended in every case. 
 
 In the margin of an affidavit not intended for use 
 in court, the name of the county wherein it is sworn 
 should be stated. 
 
 1. General Form of Affidavit. 
 
 County of 
 
 to wit: 
 
 or 
 
 I, A. B., of • 
 
 I in the County of , 
 
 yeoman (or other proper desig- 
 nation)^ make oath and say: — 
 First. That, <fcc. &c. {Here 
 state the matter to be sworn to, 
 plainly/ and accurately. If the affidavit relates to 
 more matters than one^ then, having disposed of one 
 matter in the first paragraph, go on to a second, as 
 follows:) ., . .,. 
 
 United Counties of 
 and 
 to wit: 
 
 # 
 
y^ 
 
 AFFIDAVITS. 
 
 m- 
 
 11 
 
 Second. That, &c. <fcc. {and so on^ with as many 
 paragraphs as may be necessary^ confining each paror 
 graph to a distinct maUe^^ and commencing eaxh in a 
 new line,) 
 
 Sworn before me dV 
 
 in the County of ) A. B. 
 this day of 
 A. D. 18 . 
 
 C. D., 
 
 J. P., or Commissioner, &o., 
 or County of [ , ] 
 
 M 
 
 ^A 
 
 2. General Form of Afflrmatlon. 
 
 County of \ I| A. B^ of 
 
 to wit: fin the County of , 
 
 -'W-'- ( yeoman (or other proper desig- 
 
 United Counties of ( nation), do solemnly and sin- 
 
 • and I cerely affirm and declare as fol- 
 
 to wit: /lows: ^ , » 
 
 First. Thsity &io, &o, {as in an affidavit,) 
 
 ,?■ 
 
 Affirmed before me at 
 
 /' 
 
 in the County of ) A. B. 
 this day of 
 A. D. 18 . 
 
 CD., 
 J. P., or Commissioner, <fcc., 
 
 for the County of [ 
 
 ] 
 
 ■m 
 
12 
 
 CANADIAN DOMESTIC LAWYER. 
 
 The following is the form of an oath: — 
 
 If 
 
 * 3. Oath, * 
 
 You swear that this affidavit, by you subscribed, is 
 true, to the best of your knowledge and belief. So 
 HELP YOU God. 
 
 . The following is the form of an affirmation: — 
 
 *i 
 
 4. Afflrmation. 
 
 You do solemnly and sincerely declare and affirm, 
 as you shall answer to Almighty God at the great day 
 of judgment, that this affirmation, by you subscribed, 
 is true, to the best of your knowledge and belief. 
 
 Every affidavit or affirmation must be subscribed at 
 the foot by the party making the same ; but, if unable 
 to write, a mark may be made, thus: — 
 
 The mark of 
 
 .,:.., ,- .■ :■- ^ ^ 
 
 And whenever an affidavit or affirmation is made by 
 a marksman, — that is, a person who cannot write his 
 name, — the jurat must be in the following form: — 
 
 Sworn {or affirmed) before me, at in the 
 
 county of this day of 18 . 
 
 And I certify that the foregoing affidavit {or affirma- 
 tion) was read over by me {or in m^ presence) to the 
 said A. B., who appeared perfectly to understand the 
 same, and made his mark in my presence. . _ 
 
 C. D. ^' 
 J. P., or Commissioner, <fcc. 
 
CONTRACTS OR AGREEMENTS, 
 
 13 
 
 ■' , < 1 •^ 
 
 ;■;-!■ ;;. ',?■■ t 
 
 
 CHAPTER n. 
 
 Of Contracts or Agreements, 
 
 An agreement is an engagement entered into be- 
 tween two or more persons. In legal phraseology, 
 it is termed a contract, which is defined by Sir W. 
 Blackstone, the great commentator upon the laws of 
 England, to be " an agreement upon suflSicient consid- 
 eration to do or not to do a particular thing." This 
 agreement, or contract, may be either express or 
 implied. Express contracts are either by parol, or 
 word of mouth, which are technically called simple 
 contracts^ or by deed under seal, which are called 
 special contracts. Simple contracts, however, may, 
 and in some cases must, be evidenced by writing. A 
 parol contract, then, is an agreement by word of 
 mouth, upon sufficient consideration, to do or not to 
 do a particular thing. According to English law, a 
 consideration is essential in every contract: a promise 
 without a consideration cannot be enforced. Thus, 
 if a man promise to give me $1000 without any con- 
 sideration, he is not bound to perform his promise, 
 and I am without remedy if he should break his word. 
 
 Considerations are of two kinds, — ^ooc? (sometimes 
 called meritorious) and valuable. A good considera- 
 tion is that of bloody or the natural love and affection 
 which a person has to his wife or children or any of 
 
 i^ 
 
m 
 
 14 
 
 CANADIAN DOMESTIC LAWYER. 
 
 his relatives. A valuable consideration may be either 
 the payment of money, or the gift or conveyance of 
 any thing valuable ; or it may be the consideration of 
 the marriage of the party himself or of any relative, 
 or any act of one party from which the other, or any 
 stranger at his request, express or implied, derives 
 any advantage; or any labor, detriment, inconveni- 
 ence, or risk sustained by the one party if such labor 
 be performed, or such detriment, inconvenience, or 
 risk be suffered, by the one party at the request, ex- 
 press or implied, of the other, although such other 
 may himself derive no actual benefit. A good consid- 
 eration is not of itself sufficient to support a promise, 
 any more than the moral obligation which arises from 
 a man's passing his word ; neither will the two together 
 make a binding contract: thus, a promise by a father 
 to make a gift to his child will not be enforced against 
 him. A valuable consideration is, therefore, in all 
 cases necessary to form a valid contract. 
 
 By some statutes writing is required to most simple 
 contracts respecting matters of importance. It should 
 be remembered, however, that in all cases where writ- 
 ing is by any statute made necessary to a contract, 
 the contract is still a parol one, though evidenced by 
 the writing; but when a contract is made by deed, 
 the deed itself is the contract. *« ' 
 
 The first and most important of these statutes is 
 called the Statute of Frauds, passed in the reign of 
 Charles II. (29 Car. II. cap. 3), which enacts, in its 
 fourth section, that no action shall be brought whereby 
 to charge any executor or administrator upon any 
 special promise to answer damages out of his own 
 
CONTRACTS OB AGREEMEITES. 
 
 15 
 
 estate, or whereby to charge the defendai. . a^^on any 
 special promise to answer for the debt, default, or mis- 
 carriage of another person ; or to charge any person 
 upon any agreement made upon consideration of mar- 
 riage; or upon any contract or sale of lands, tene- 
 ments, or hereditaments, or any interest in or concern- 
 ing them; or upon any agreement that is not to be 
 performed within the space of one year from the 
 making thereof; unless the agreement upon. which 
 such action shall be brought, or some memorandum or 
 note thereof, shall be in writing, and signed by the party 
 to be charged therewith, or some other person there- 
 unto by him lawfully authorized. This statute, it will be 
 observed, does not give to writing any validity which 
 it did not possess before. A written promise, made 
 since this statute, without any consideration, is quite 
 as void as it would have been before. The statute 
 merely adds a further requisite to the validity of cer- 
 tain contracts, namely, that they shall, besides being 
 good in other respects, be put into writing, otherwise 
 they cannot be enforced. The phrase in the statute 
 to answer for the debt, default, or miscarriage of an- 
 other person, means to answer for a debt, default, or 
 miscarriage for which that other remains liable. The 
 words "any agreement that is not to be performed 
 within the space of one year from the making thereof" 
 mean an agreement which appears from its terms 
 incapable of performance within a year. In order to 
 bring an- agreement within this clause of the statute, 
 so as to render writing necessary, both parts of the 
 agreement must be such as are not to be performed 
 within XI year. The clause requiring the "agreement. 
 
» . 
 
 16 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 or some memorandum or note thereof, to be signed by 
 the party to be charged therewith, or some other per- 
 son thereunto by him lawfully authorized," has been 
 liberally construed, and any insertion by the party 
 of his name in any part of the agreement is a suffi- 
 cient signing within the statute, provided the name 
 be inserted in such a manner as to have the effect of 
 authenticating the instrument ; and it is not necessary 
 that both parties should sign the agreement. The whole 
 of the agreement must be contained in the writing, 
 either expressly or by reference to some other docu- 
 ment, but the writing is required by the statute to be 
 signed only by the party to be charged. And, as a 
 "memorandum or note" of the agreement is allowed, 
 a writing sufficient to satisfy the statute may often be 
 made out from letters written by the party, or from a 
 written offer accepted without any variation before 
 the party offering has exercised his right of retract- 
 ing; and when correspondence is carried on by means 
 of the post, an offer is held to be accepted from the 
 moment that a letter accepting the offer is put into 
 the post, although it may never reach its destination. 
 ' With reference to contracts for the sale of goods, 
 it is to be observed that the necessary requisites de- 
 pend partly upon the value of the goods. As to 
 goods under the value of $40, there can be no sale 
 without a tender or part payment of the money, or a 
 tender or part delivery of the goods, unless the con- 
 tract is to be completed at a future time. Thus, if A. 
 should agree to pay so much for the goods, and B., 
 the owner, should agree to take it, and the parties 
 should then separate without anything further pass- 
 
rEB. 
 
 ► be signed by 
 me other per- 
 ed," has been 
 by the party 
 3nt is a sufii- 
 led the name 
 the effect of 
 not necessary 
 it. The whole 
 the writing, 
 ) other docu- 
 statute to be 
 I. And, as a 
 nt is allowed, 
 may often be 
 •ty, or from a 
 iation before 
 it of retract- 
 on by means 
 ed from the 
 is put into 
 destination, 
 le of goods, 
 quisites de- 
 •ds. As to 
 be no sale 
 loney, or a 
 3S8 the con- 
 Thus, if A. 
 Ids, and B., 
 Ithe parties 
 irther pass- 
 
 0ONTRA0T8 OE AGBEEMENTS. 
 
 If 
 
 ing, this is no sale. But if A. should tender the 
 money, or pay but a cent of it, or B. should tender 
 the goods, or should deliver any, even the smallest 
 portion of them, to A., or if the payment, or delivery, 
 or both, should be postponed by agreement till a future 
 day, the sale will be valid, and the property in the 
 goods will pass from the seller to the purchaser. 
 If, however, any act should remain to be done on the 
 part of the seller previously to the delivery of the 
 goods, the property will not pass to the purchaser 
 until such act shall have been done. Thus, if goods, 
 the weight of which is unknown, are sold by weight, 
 or if a given weight or measure is sold out of a larger 
 quantity, the property will not pass to the purchaser 
 until the price shall have been ascertained by weigh- 
 ing the goods in the one case, or the goods sold shall 
 have been separated by weight or measure in the 
 other. So if an article be ordered to be manufac- 
 tured, the property in it will not vest in the person 
 who gave the order, until it shall, with his consent, 
 have been set apart for his benefit. 
 
 With regard to goods of the value of $40 or up- • 
 wards, additional requisites have been enacted by the 
 seventeenth section of the Statute of Frauds, which 
 provides "that.no contract for the sale of any goods, 
 wares, and merchandises for the price of £10 sterling or 
 upwards, shall be allowed to be good except the buyer 
 shall accept part of the goods so sold, and actually re- 
 ceive the same, or give something in earnest to bind the 
 bargain, or in part payment, or that some note or 
 memorandum in writing of the said bargain be made 
 and signed by the parties to be charged by such con- 
 
 / 
 
m 
 
 CANADIAN DOMESTIC LAWYER. 
 
 tract, or their agents thereunto lawfully authorized." 
 And by a still more recent act (Cons. St. U. 0. cap. 
 44, s. 11) this enactment ^* shall extend to all contracts 
 for the sale of goods of the value of $40 and upwards, 
 notwithstanding the^ goods may be intended to be 
 delivered at some future time, or may not, at the time 
 of such contract, be actually made, procured, or pro- 
 vided, or fit or ready for delivery, or although some 
 act may be requisite for the making or completing 
 thereof, or rendering the same fit for delivery." 
 
 If an agreement for sale of goods is not to be 
 performed within the space of one year from the 
 making thereof, then, however small be the value of 
 the goods, no action can be brought upon it, unless 
 the agreement, or some memorandum or bote thereof, 
 shall be in writing, and signed by the party to be 
 charged therewith, or some other person thereunto by 
 him lawfully authorized. 
 
 Agreements should be signed by all the parties 
 thereto; and where something is to be done on both 
 sides, it is very useful to have them written in dupli- 
 cate, so that each party may possess one copy. 
 
 The following are a few forms of agreement^ in 
 common use: — 
 
 Agreement for Sale of Lancf. 
 
 Articles op Agreement, made this day of 
 
 , in the year of our Lord one thousand eight 
 hundred and , between A. B. of, &c., of the 
 
 first part, and C. D. of, &c., of the second part. 
 
 Whereas the said part of the first part, ha agreed 
 to sell to the part of the second part, and the part 
 
CONTRACTS OR AGREEJrENTS. 
 
 19 
 
 of tho second part ha agreed to purchase of and 
 from the said part of the first part, All and Sin- 
 ouLAn, th certain tract or parcel of land, being 
 composed of [describe premises^] together with all the 
 privileges and appurtenances thereto belonging, at 
 and for the price or sum of , lawful money of 
 
 Canada, payable in manner and on the days and times 
 hereinafter jnentioned, that is to say : [state terms of 
 payment.^ 
 
 Now IT IS HEREBY AGREED between the parties 
 aforesaid in manner following, that is to say : The 
 said part of the second part, for sel heirs, execu- 
 tors, and administrators, do covenant, promise, and 
 agree, to and with the said part of the first part, 
 heirs, executors, administrators, and assigns, that he 
 or they shall and will well and truly pay, or cause to 
 be paid, to the said part of the first part, heirs, 
 executors, administrators, or assigns, the said sum of 
 money, together with the interest thereon, on the 
 days and times and in manner above mentioned ; and 
 also shall and will pay and discharge all taxes, rates, 
 and assessments, wherewith the said land may be 
 rated or charged from and after this date. In con- . 
 sideration whereof and on payment of the said sum 
 of money with interest as aforesaid, in manner afore- 
 said, the said part of the first part do , for sel , 
 heirs, executors, administrators, and assigns, covenant, 
 promise, and agree, to and with the said part of the 
 second part, heirs, executors, administrators, or 
 
 assigns, to convey and assure, or cause to be conveyed 
 and assured, to the said part of the second part, heirs 
 and assigns, by a good and sufficient Deed, in fee simple, ^ 
 
 
20 
 
 CANADIAN DOMESTIC LAWYER. 
 
 with the usual covenants, the said piece or parcel 
 of land, with the appurtenances, freed and discharged 
 frofn all incumbrances, but subject to the conditions 
 and reservations expressed in the original grant from 
 the Crown, and shall and will suffer and permit the 
 said part of the second part, heirs and assigns, to 
 occupy and enjoy the same, until default be made in 
 the payment of the said sum of money, or any 
 part thereof, on the days and times, and in manner 
 above mentioned, subject, nevertheless, to impeach- 
 ment for voluntary or permissive waste. And it is 
 expressly understood that time is to be considered the 
 essence of the agreement, and unless the payments 
 are punctually made, the said part of the first part 
 is at liberty to re-sell the said land. 
 
 In Witness Whereof, the said parties have hereto 
 set their hands and seals, the day and year first above 
 mentioned. ■- ■ | . v 
 
 Signed and sealed in presence of 
 • X. Z. - > A. B. [l. s.] 
 
 . .t I tf s> 
 
 CD. [L.S.] 
 
 (another FORM.) 
 
 Articles OF Agreement, made and entered into 
 this day of , in the year of our Lord one 
 
 thousand eight hundred and , between A. B. 
 
 of, &c., for heirs, executors, administrators, and 
 
 assigns, of the first part, and C. D. of, ifcc, for 
 heirs, executors, administrators, and assigns, of the 
 second part. Witnesseth, that the said part of the 
 first part, in consideration of the covenants and agree- 
 * ments hereinafter contained, on the part of the said 
 
 *> 
 
 - -^^1 
 
CONTRACTS OR AGREEMENTS. 
 
 21 
 
 part of the second part, Do hereby agree with the 
 said part of the second part to sell to All th 
 [describe property] with the appurtenances, for the 
 sum of of lawful money of Canada, to be paid 
 
 at the days and times and in manner following, that 
 is to say : [state terms of paymentJ] 
 
 And Further, that he the said part of the first part 
 will, upon receiving from the said part of the second 
 part, executors or administrators, the sum of 
 as above provided, execute to the said part of the 
 second part, heirs, executors, administrators, or 
 assigns, a good and sufficient Deed of Conveyance in 
 fee simple, for vesting the said premises, with the 
 appurtenances, in the said part of the second part, 
 heirs or assigns, or as he or they shall appoint, 
 free from all incumbrances. 
 
 And the said part of the second part, in consider- 
 ation of the premises, do hereby covenant and agree 
 vf'iih. the said part of the first part to purchase the 
 said premises, with the appurtenances, upon the terras 
 and conditions aforesaid, and that the said part 
 of the second part, heirs, executors, administra- 
 
 tors, or assigns, will well and truly pay or cause to 
 be paid to the said part of the first part, heirs, 
 executors, administrators, or assigns, the said j^urchase 
 money or sum aforesaid, on the days and times and 
 in manner above provided for payment thereof, with- 
 out making any deduction, defalcation, or abatement 
 thereout for or in respect of any taxes, assessments, 
 or otherwise howsoever. 
 
 And it is hereby mutually agreed, that the said 
 part of the second part may forthwith take posses- 
 
 / 
 
 •m 
 
22 
 
 CANADIAN DOMESTIC LAWYElt. 
 
 sion' of tho said premises, and receive the rents and 
 profits thereof to own use and benefit, as from 
 
 the , up to which time the said part of tho 
 
 first part will clear all out-goings payable in respect 
 of the said premises. 
 
 And that in case of default in payment of any 
 part of the said purchase money or interest as above 
 provided, for three months after the same shall become 
 due, the whole amount of the said purchase money 
 shall thereupon become due and payable, and be re- 
 coverable by the said party of the first part. 
 
 As Witness the hands and seals of the said parties. 
 
 Signed, sealed, and delivered in the presence of 
 X. Z. A. B. [l.s.] 
 
 CD. [l. s.] 
 
 • (another FORM.) 
 
 This Agreement, made and entered into the 
 day of , in the year of our Lord one thousand 
 
 eight hundred and , between A. B. of, Ac, of 
 
 the first part, and C. D. of, &c., of the second part, 
 WITNESSETH, That the said party of the first part, in 
 consideration of the covenants and agreements here- 
 inafter contained, agrees to sell unto the said party 
 of the second part, all th piece or parcel of land 
 known and described as lot number , for the 
 
 sum of of lawful money of Canada ; and the 
 
 said party of the second part, in consideration of the 
 premises, agrees to pay to the said party of the first 
 part the said sum of , in manner following, 
 
 namely : And in case default shall Ije made 
 
 in the payment of the principal or interest, as above 
 
 # 
 
rEK. 
 
 CONTRACTS OR AORE^MElTrS. 
 
 2d 
 
 the rents and 
 no fit, as from 
 >art of tho 
 l)lo in respect 
 
 .mcnt of any 
 3re8t as above 
 shall become 
 rchase money 
 io, and be re- 
 part. 
 
 e said parties, 
 resenco of 
 B. [l.s.] 
 D. [l. s.] 
 
 nto the 
 
 one thousand 
 . of, <fcc., of 
 second part, 
 first part, in 
 ments here- 
 said party 
 el of land 
 , for the 
 da ; and the 
 ation of the 
 of the first 
 r following, 
 all Ije made 
 st, as above 
 
 provided, for the period of three months after tho 
 same shall have become due as above atipuUti'l, it Ih 
 expressly understood and agreed upon bi^twoon Iho 
 said parties, that the whole amount of the principal 
 sum of money hereby agreed to be paid, together with 
 the interest thereon, shall at once become duo and 
 payable: Further, the said *party of the first part 
 agrees, that on receiving payment in full of tho said 
 sum of , with the interest thereon as aforesaid, 
 
 he will execute and deliver to the said party of tho 
 second part a good and sufiUcient Deed, for tho con- 
 veying and assuring to him, the said party of tho 
 second part, the fee simple of the said premises, free 
 from all incumbrances, and for the due performance of 
 this Agreement the said parties bind themselves, each 
 to the other, in the penal sum of ; and it is 
 
 understood, that the stipulations aforesaid are to 
 apply to, and to bind the heirs, executors, adminis- 
 trators, and assigns of the respective parties, and 
 that the party of the second part is to have immediato 
 possession of the premises. 
 
 In Witness Whereof, they, the said parties, have 
 hereunto set their respective hands and seals, on tho 
 day and year first above written. 
 
 In the presence of A. B. [l. s.] 
 
 X. Z. C. D. [l. s.] 
 
 (another form.) 
 Articles of Agreement, made the day of 
 
 , in the year of our Lord one thousand eight 
 hundred and , between A. B. of the 
 
 of . , in the county of , of the first part, and 
 
 
24 
 
 CANADIAN DOMESTIC LAWYER. 
 
 0. 
 
 > 
 
 9 
 
 of 
 
 C. D. of the of , in the county of 
 
 of the second part, Witness, that the part 
 
 the first part, for heirs, executors, and administra- 
 tors, covenants with the part of the second part, 
 heirs and assigns, that he shall and will, on the pay- 
 ment of the sum of and interest thereon, on 
 the days and times ami in manner hereinafter men- 
 tioned, and also on the observance and performance 
 of the convenants and conditions hereinafter mentioned 
 by the part of the second part, heirs or assigns, 
 but not otherwise, well and sufficiently convey, or 
 cause to be conveyed, to the part of the second 
 part, heirs and assigns, by a good and sufficient 
 deed in fee simple, all and singular th certain par- 
 cel or tract of land and premises situate, lying and 
 being in the of , in the county of , and 
 Province of Canada, consisting of , free from 
 all incumbrances, made, suflfered, or created, by the 
 part of the first part, or any person or persons claim- 
 ing by, from, or under . And the part of the 
 second part, for heirs, executors, and administrators, 
 covenant with the part of the first part, executors 
 and administrators, that the part of the second part, 
 heirs, executors, or administrators, shall and will 
 well and truly pay, or cause to be paid, to the part 
 of the first part, executors or administrators, the 
 said sum of , in the manner following : That is 
 to say . ; and in default of the payment of such 
 instalments or interest in any year, within one month 
 after any or either of the days on which the same is 
 made payable, the said principal sum of , or any 
 part thereof that at the time oj such default shall be 
 
-m 
 
 rER. 
 
 ity of , 
 
 ; the part of 
 id administra- 
 ond part, 
 , on the pay- 
 5t thereon, on 
 reinafter men- 
 [ performance 
 'ter mentioned 
 irs or assigns, 
 ly convey, or 
 )f the second 
 and sufficient 
 certain par- 
 ate, lying and 
 '■of , and 
 
 , free from 
 •eated, by the 
 persons claim- 
 part of the 
 Iministrators, 
 , executors 
 1 second part, 
 ihall and will 
 o the part 
 fstrators, the 
 ng: That is 
 ent of such 
 n one month 
 the same is 
 , or any 
 IluU shall he 
 
 CONTRACTS OR AGREEMENTS. 
 
 25 
 
 
 i 
 
 
 remaining unpaid, shall immediately become due and 
 payable; And the part of the second part, heirs, 
 executors, or administrators, shall immediately pay 
 the same, and all interest that may be due thereon, 
 although the day fixed for the payment of the said 
 principal sum by these presents shall not have arrived 
 at the time of such default; and also shall and will 
 pay and satisfy all rates and taxes of what nature or 
 kind soever they may be, whether parliamentary or 
 municipal, that are now or may hereafter be assessed 
 upon or against the said land, or the owner or occu- 
 pier thereof, or the said principal sum of money, or 
 any part thereof, during the continuance of these 
 presents. 
 
 And it is hereby further expressly agreed 
 between the said parties hereto, that the observance 
 and performance of the covenants and conditions 
 herein contained, and time, as well in the payment of 
 the interest as of the principal money as aforesaid, 
 are strictly of the essence of this contract. 
 
 In Witness Whereof, the parties to these presents 
 have hereunto set their hands and seals, the day and 
 year first above written. 
 
 Signed, sealed, and delivered in presence of 
 
 X. Z. A. B. [l. s.] 
 
 C. D. [l. s.] 
 
 (another form.) 
 
 Articles of Agreement, made the day of 
 
 , in' the year of our Lord one thousand eight 
 
 hundred and , between A. B. of, &c., of the 
 
 first part, and C. D. of, &c., of the second part; 
 
26 
 
 CANADIAN DOMESTIC LAWYER. 
 
 WiTN ESSETH .IS follows : Tli.it the said party of the 
 first part, in consideration of the sum of , law- 
 
 ful money of Canada, to be paid to the said party of 
 the first part, and of the covenants to be performed 
 by the said party of the second part as hereinafter 
 expressed, hereby agrees to sell to the said party of 
 the second part, his heirs, executors, administrators, 
 or assigns, All that certain tract of land situate 
 
 , with tlie privileges and appurtenances there- 
 unto belonging. - 
 
 And the said party of the second part, in consider- 
 ation of the covenants herein contained on behalf of 
 the said party of tlie first part, agrees to purchase of 
 the said party of tlie first part, the above described 
 land, and to pay for the same to the said party 
 
 of the first part, or legal representatives, the 
 
 sum of , lawful money of Canada, in manner 
 
 following, that is to say : with interest, to be 
 
 computed from the date of these presents, on the 
 whole sum that shall be from time to time unpaid, and 
 to be paid annually. And also, that will, 
 
 so long as any ^art of the principal or interest of the 
 said consideration money remains unpaid, well and 
 faithfully, in due season, in each and every year, pay, 
 or cause to be paid, all taxes and assessments that 
 may be levied or assessed on said premises, and that 
 will not commit, or suffer any other person to 
 commit, any waste or damage to the said lands, or the 
 appurtenances, except for lire-wood, improtements or 
 otlierwise, for his own use, or while clearing the land 
 for cultivation in the ordinary manner. 
 
 ,:(«■ 
 
CONTRACTS OB AGREEMENTS. 
 
 m 
 
 27 
 
 The said party of the first part further covenants 
 and agrees with tlie said party of the second part, 
 that upon the faithful performance by the said party 
 of the second part of the covenants and agreements 
 by ' to be performed, and upon the payment of 
 the several sums of money above mentioned, and the 
 interest thereon, at the times and in the manner, and 
 at the place above mentioned, to the said party of 
 the first part, that thereupon the said party of the 
 first part will well and faithfully execute and deliver 
 a good and sufficient Deed or Deeds with such cove- 
 nants and assurances as counsel learned in the law 
 shall advise and require, and thereby convey to the 
 said party of the second part, heirs and assigns, 
 
 a good and unincumbered title in fee simple, to the 
 above described premises, with their appurtenances. 
 
 It is further covenaxvted and agreed, by and 
 between the said parties hereto, that the said 
 may immediately enter on the said Land, and remain 
 thereon and cultivate the same as long as shall 
 
 fulfil and perform all the agreements hereinbefore 
 mentioned on part, to be fulfilled and performed, 
 
 and no longer, and that if shall, at any time 
 
 hereafter, violate or neglect to fulfil any of said 
 agreements, shall forfeit all right or claim under 
 
 this contract, and be liable to the said for 
 
 damages, and shall also be liable to be removed from 
 the said land in the same manner as is provided by 
 law for the removal of a tenant that holds over after 
 the expiration of the time specified in his lease. 
 
 And it shall be lawful for the said party of the 
 first part, at any time after the violation or non-ful- 
 
28 
 
 CANADIAN DOMESTIC lAWYEE. 
 
 filment of any of the said agreements on tlie part of 
 the said party of the second' part, to sell and convey 
 ^ the said land, or any part thereof, to any person 
 whomsoever; and the said party of the first part 
 shall not be liable in any way, nor to any person, to 
 refund any part of the money which may have 
 
 received on this contract, nor for any damages on 
 account of such sale. And it is hereby expressly 
 understood and declared that the prompt performance 
 of this contract is in contemplation of the parties, 
 that the time is and shall be deemed and taken as of 
 the very essence of this contract, and that unless the 
 same shall in all respects be complied with by the 
 said party of the second part at the respective times 
 and in the manner above limited and declared, the 
 said party of the second part shall lose and be de- 
 barred from all rights, remedies, or actions, either in 
 law or equity, upon or under this contract. 
 
 These Articles of Agreement are hereby declared to 
 be binding on the respective parties hereto, their heirs 
 or assigns, in the sum of 
 
 In Witness Whereof, the parties to these presents 
 have hereunto set their hands and seals the day and 
 year first above written. 
 
 Signed, sealed, and delivered In presence of 
 
 X. Z. A. B. [l. s.] 
 
 C. D. [l. s.] 
 
 Agreement for Sale by way of Lease, Reserving Purchase 
 
 Money as Rent. 
 
 This Agreement, made the day of in 
 
 the year of our Lord one thousand eight hundred 
 
5R. 
 
 I the part of 
 and convey 
 any person 
 e first part 
 ly person, to 
 may have 
 damages on 
 )y expressly 
 performance 
 the parties, 
 taken as of 
 at unless the 
 with by the 
 ective times 
 leclared, the 
 I and be de- 
 ns, either in 
 
 T declared to 
 ), their heirs 
 
 cse presents 
 the day and 
 
 e of 
 [l. s.] 
 [l. s.] 
 
 |ng Purchase 
 
 I of in 
 
 lit liundred 
 
 CONTRACTS OB AGREEMENTS. 
 
 29 
 
 1- 
 
 and , Between A. B., of &c., of the first part, 
 
 and C. D., of &c., of the second part. 
 
 Whereas, the said party of the second part hath 
 contracted with the said party of the first part for 
 the purchase, in fee simple, of all and singular the 
 land, tenements, hereditaments, and premises herein- 
 after mentioned to be hereby demised, for the sum of 
 [$ ] lawful money of Canada, to be paid on 
 the days and times and in manner hereinafter men- 
 tioned. And whereas the said parties are willing and 
 desirous that the said party of the second part shall 
 go into immediate possession and occupation of the 
 said land, tenements, hereditaments, and premises, 
 and receive a conveyance of the fee simple and in- 
 heritance thereof, so soon as the principal sum shall 
 be fully and faithfully paid on the days and times and 
 in manner after mentioned (all and singular other 
 the covenants and agreements hereinafter contained, 
 and which on the part and behalf of the said party 
 of the second part, his executors, administrators, and 
 assigns, are to be paid, fulfilled, performed, and kept, 
 having been well and truly paid, performed, fulfilled, 
 and kept, according to the true intent and meaning 
 of these presents), and that in the mean time the 
 lawful interest on the said principal sum should be 
 reserved and paid as rent issuing out of the said 
 land, tenements, hereditaments, and premises hereby 
 demised : iN'ow, therefore, this agreement wit- 
 NESSETH, that in consideration of the premises and 
 of the rents, covenants, and agreements hereinafter 
 reserved and contained, and which on the part and 
 behalf of the said party of the second part, his 
 
 • 
 
30 
 
 CANADIAN DOMESTIC LAWYER. 
 
 executors, acliniuistrators, and assigns, are to bo 
 paid, done, and performed, he, the said party of the 
 first part, IIatii demised, leased, set, and to farm let, 
 and by these presents Doth demise, lease, set, and to 
 farm let, unto the said party of the second part, his 
 executors, administrators, and assigns. All that land, 
 tenements, hereditaments, and premises, situate, lying, 
 and being in the in the County of in the 
 
 Province aforesaid [here describe the premises]^ to- 
 gether with all out-houses, waters, and water-courses 
 thereon erected, lying or being, and all and singular 
 other the rights, members, and appurtenances there- 
 unto belonging, or in any wise appertaining. To 
 HAVE AND TO HOLD the Said land, -tenements, heredi- 
 taments, and premises hereby demised, or intended so 
 to be, with the appurtenances thereunto belonging, 
 unto the said party of the second part, his executors, 
 administrators, and assigns, from the day of 
 
 in the year of our Lord one thousand eight 
 hundred and , for and during, and unto the full 
 
 end and term of years from thence next ensuing, 
 
 and fully to be completed and ended. Subject 
 NEVERTHELESS to the reservations, limitations, pro- 
 visoes, and conditions expressed in the original grant 
 thereof from the Crown, yieldiitvJ and paying there- 
 for, yearly and every year during the said term 
 hereby demised, unto the said party of the first part, 
 his heirs, executors, administ: ators, and assigns, the 
 yearly rent or sum of of lawful money of 
 
 Canada, in even and equal yearly payments on 
 
 the day of and day of in each 
 
 and every year during the said term, without any 
 
ER. 
 
 CONTllACTS OK AGREEMENTS. 
 
 $% 
 
 are to be 
 party of the 
 to farm let, 
 ;, set, and to 
 md part, hia 
 LL that land, 
 Ltuate, lying, 
 in the 
 remises]^ to- 
 ater-courses 
 md singular 
 ances there- 
 lining. To 
 3nts, heredi- 
 intended so 
 I belonging, 
 i executors, 
 day of 
 usand eight 
 nto the full 
 xt ensuing, 
 Subject 
 ions, pro- 
 ginal grant 
 ifiisrG there- 
 said term 
 first part, 
 ssigns, the 
 money of 
 yments on 
 in each 
 ;hout any 
 
 'm 
 
 i 
 
 I 
 
 1 
 
 deduction, defalcation, or abatement thereof, or out of 
 any part thereof, for or in respect of any taxes, rates, 
 levies, charges, rents, assessments, statute labor, or 
 other imposition of what nature or kind soever, either 
 already taxed, rated, levied, charged, a>!sessed, or im- 
 posed, or hereafter to be taxed, rated, levied, charged, 
 assessed, or imposed, whether the same be now due, 
 or shall hereafter become due, on the said demised 
 premises or any part thereof, or on the said rent or 
 any part thereof, or on the said principal sum of 
 money specified in the Schedule first above mentioned, 
 or any part thereof, or on either of the said parties 
 to these presents, their or either of their heirs, ex- 
 ecutors, administrators, or assigns, or any of them in 
 respect thereof, or any part thereof, by authority of 
 Parliament or otherwise howsoever, the first payment 
 of the said rent hereby reserved to be made on the 
 day of in the year of our Lord one thou- 
 
 sand eight hundred and . Provided always, 
 
 NEVERTHELESS, that on payment of any instalment 
 or instalments of the principal sum hereinafter speci- 
 fied according 16 the covenant hereinafter contained, 
 for payment thereof, and the true intent and meaning 
 of these presents, the said rent hereby reserved shall 
 from thenceforth be proportion ably reduced, so as at 
 no time to exceed the annual lawful interest on such 
 part of the said principal sum as shall from time to 
 time remain due and owing after the payment of such 
 instalment or instalments^ respectively: And pro- 
 vided, ALSO, that if the said yearly rent or any part 
 thereof, or the said principal sum or any part thereof, 
 shall at any time or times hereafter be behindhand 
 
 m 
 
32 
 
 CANADIAN DOMESTIC LAWYER. 
 
 
 and unpaid by the space of thirty days next after 
 any or either of the days on which the same or 
 any part thereof ought to be paid, as herein or hereby 
 provided, according to the true intent and meaning 
 of these presents. On if the said party of the second 
 part, liis executors, administrators, or assigns, or any 
 of them, sliall at any time assign, or set over, or 
 demise, or underlease the said demised premises, or 
 any part thereof, or in any other manner part with 
 the possession of the same, to any person or persons 
 whomsoever, for all or any part of the said demised 
 term, without the special license or consent of the 
 said party of the first part, his heirs or assigns, first 
 had in writing under hand and seal. Or if the party 
 of the second part, or any one acting under or claim- 
 ing from him, shall at any time during the continu- 
 ance of these presents commit or sufier to be com- 
 mitted any waste or destruction to any of the timber 
 upon the said land, for any other purpose whatsoever 
 than bringing the land into cultivation. Then, and in 
 any and every of the said cases, it shall and may be 
 lawful for the said party of the first part, his heirs 
 or assigns, into the said demised premises or any part 
 thereof, in the name of the whole, to re-enter, and out 
 of the same to eject, expel, amove, and put the said 
 party of the second part, his executors, administra- 
 tors, and assigns, and the same to have again, 
 repossess, and enjoy, as in his and their first and 
 former estate, and from the time of any such re-entry 
 by the said party of the first part, his heirs or assigns, 
 the said term hereby demised, or so much thereof as 
 shall be then unexj^ired, and these presents, and every 
 
 r% 
 
CONTRACTS OR AGREEMENTS. 
 
 a> 
 
 clause, matter, and thing therein contained, shall 
 cease and determine, and forever thereafter bo null 
 and void to all intents and purposes whatsoever, any- 
 thing herein contained to the contrary thereof in 
 any wise notwithstanding. And the said party of the 
 second part Doth hereby for himself, his heirs, ex- 
 ecutors, administrators, and assigns, covenant pro- 
 mise, and agree, to and with the said party of the 
 first part, his heirs and assigns, in manner following, 
 that is to say : That he the said party of the second 
 part, his heirs, executors, administrators, and assigns, 
 or some of them, shall and will well and truly pay 
 or cause to be paid unto the said jiarty of the first 
 part, his heirs, executors, administrators, or assigns, 
 the said yearly rent, on the days and times and in 
 manner hereinbefore mentioned, for payment thereof, 
 according to tlie true intent and meaning of these 
 presents. And also that he the said party of the 
 second part, his heirs, executors, administrators, or 
 assigns, or some of them, shall and will, during the 
 said term jiereby demised, pay, do, and perform 
 all taxes, rates, levies, cliarges, rents, assessments, 
 statute labor, or other imposition above mentioned, 
 lawfully cliarged or to be charged, whether the same 
 be now due, or shall hereafter become due, on the 
 said demised premises, on the said rent, or on the 
 said principal sum, or on any part thereof, or on any 
 person or persons in respect thereof, or any part 
 thereof, as aforesaid ; And also that he the said 
 party of the second part, his executors, administra- 
 tors, or assigns, or any of them, shall not nor will 
 at any time or times during the said term hereby 
 
 2* 
 
 - ♦ 
 
34 
 
 CANADIAN DOMESTIC LAWYER. 
 
 demised, assign or set over, underlet or underlease, 
 the said demised premises, or any part thereof, or in 
 any other manner part with the possession of the 
 same or any part thereof during any part of the said 
 demised term, without such special license and con- 
 sent as is hereinbefore specified, as aforesaid; And 
 ALSO THAT HB the Said party of the second part, or 
 any one acting under or claiming from him, shall not 
 at any time, during the continuance of these presents, 
 commit, or suffer to be committed, any waste or 
 destruction to any of the timber upon the same land, 
 for any other purpose than bringing the land into 
 cultivation ; And also that he the said party of the 
 second part, his heirs, executors, administrators, or 
 assigns, or some of them, shall and will well and 
 truly pay or cause to be paid, unto the said party of 
 the first part, his heirs, executors, administrators, or 
 assigns, the full and just sum of of laAvful 
 
 money of Canada, on the days and times and in 
 manner following, that is to say [here set fonh the 
 terms and manner in which the 2yuf chase money is to 
 be paid]. And the said party of the first part, Doth 
 hereby for himself, his heirs, executorff, administra- 
 tors, and assigns, covenant, promise, and agree, to 
 and with the said party of the second part, his 
 executors, administrators, and assigns, in manner 
 following, that is to say. That upon the due and 
 faithful payment, performance, and fulfilment by the 
 said party of the second part, his executors, adminis- 
 trators, or assigns, of all and singular the covenants 
 and agreements herein contained, and which on the 
 part and behalf of the said party of the second part. 
 
 . 3 
 
 "% 
 
underlease, 
 lereof, or in 
 sion of tho 
 of the said 
 io and con- 
 jsaid; And 
 nd part, or 
 n, shall not 
 30 presents, 
 T waste or 
 same land, 
 land into 
 arty of tho 
 strators, or 
 I well and 
 id party of 
 trators, or 
 of lawful 
 es and in 
 fonh the 
 oney is to 
 art, Doth 
 rainistra- 
 agree, to 
 part, his 
 manner 
 due and 
 it by the 
 adminis- 
 ovenants 
 on tho 
 nd part, 
 
 CONTRACTS Oil AGRElMENTS. 
 
 85 
 
 ^ 
 
 his executors, administrators, and assigns, are to be 
 paid, done, and performed, he tho said party of tiio 
 first part, his heirs, or assigns, shall and will, at the 
 expiration or other sooner determination of the said 
 term hereby demised, upon and at the request of the 
 said party of tlio second part, his executors, adminis- 
 trators, or assigns, made to and upon him the said 
 party of the first part, his heirs, executors, adminis- 
 trators, or assigns, or any of them, but at the proper 
 costs and charges in the law of the said party of the 
 second part, his executors, administrators, or assigns, 
 well and sufficiently convey and assure, or cause to 
 be well and sufiiciently conveyed and assured, unto 
 the said party of the second part, and his heirs, in 
 fee simple absolute, or to such person or persons as 
 his, her, or their heirs, in fee simple absolute, as the 
 said party of the second part, his executors, adminis- 
 trators, or assigns, shall nominate and appoint, and to 
 such uses as he or they shall direct, all and singular 
 the said land, tenements, hereditaments, and premises 
 hereby demised by such conveyances and assurances 
 in the law, as by the said party of the second part, 
 his executors, administrators, or assigns, or his or 
 their counsel learned in the law, shall or may bo 
 reasonably devised, advised, or required, freed, and 
 discharged of and from all incumbrances whatsoever. 
 But subject nevertheless to the reservations, limita- 
 tions, provisoes, and conditions expressed in the 
 original grant thereof from the Crown. With usual 
 and proper covenants. And it is hereby further ex- 
 pressly agreed upon by and between the said parties, 
 that in case at any time any of the rent or interest 
 
3G 
 
 CANADIAN DOMESTIC LAWYER. 
 
 aforcaaid or of tho purcliaso money Bliall remain un- 
 paid by the space of months after tlie same 
 shall have fallen due, the party of the first part, his 
 lieirs or assigns, shall have full power to resell tho 
 said land at the best price which can bo reasonably 
 got for the same, and thereby utterly extinguish and 
 bar all claim, interest, and title of the party of the 
 second part, and all claiming under or by him in the 
 same land — such resale to be either for cash or upon 
 credit as the party of the first part, his heirs or 
 assigns, may determine. And that tho party of tho 
 first part, his heirs or assigns, may in the first place 
 pay himself the expenses of such resale, and the 
 whole of the claim due, or to become due, by tho 
 party of the second part, or any one claiming by or 
 under him, out of the proceeds of such resale, and 
 pay the balance (if any there be) when collected, over 
 to the party of the second part, or the person entitled 
 thereto; And that the party of the second part, or 
 those claiming by or under him, shall be answerable 
 to the party of the first part, his heirs or assigns, for 
 any deficiency which may happen to be produced by 
 the resale between the sum then due and to become 
 due, under these presents, to the party of the first 
 part, his heirs or assigns, and the proceeds of such 
 resale. In witness whereof, the parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first above written. 
 ' Signed, sealed, and delivered in the presence of 
 X. Z. A. B. [l. s.] 
 ♦ ^ C. D. [l. s.] 
 
remain nn- 
 r the samo 
 •St part, liis 
 
 resell the 
 reasonably 
 nguish and 
 irty of the 
 him in the 
 fill or upon 
 i heirs or 
 irty of the 
 
 first place 
 I, and the 
 je, by the 
 ing by or 
 esale, and 
 cted, over 
 n entitled 
 part, or 
 ipwerable 
 signs, for 
 
 need by 
 become 
 
 the first 
 
 of such 
 Ito these 
 
 eals, the 
 
 4 
 
 
 CONTRACTS OR AOREEffENTS. 
 
 Contract to Erect a House. 
 
 An Agreement made the day of 
 
 an 
 
 111 
 
 the year of our Lord J 8 , Betaveen T. G., of , 
 
 Builder, of the first pm , T. C. {8iirety)^oi , 
 
 of the second part, and J. B., of , of the third 
 
 part. 
 
 Whereas, the said J. B. is possessed of a ])iece of 
 ground situate , upon which he is dcHirous of 
 
 erecting a dwelling-lionse and offices according to tho 
 elevation, plans, and specification prepared lor that 
 purpose by W. M., surveyor, and under the dived ion 
 and to the satisfaction of the said W. M., or other 
 surveyor for the time being of the said J. JJ., hit) 
 executors, administrators, or assigns, ■which said ele- 
 vation, plans, and specification, are n^arked with tho 
 letters A, B, C, D, E, F, and G, and are signed by 
 the said T. G., T. C, and J. B., and the said sj)eciri- 
 cation is contained in the schedule hereunder M'ritton, 
 or hereunto annexed ; And the said T. G. has pro- 
 posed to erect and complete the said dwelling-houso 
 and offices, and to make and execute all other ^^^orks 
 mentioned and specified in the said elevation, plans, 
 and specification, within the time hereinafter lin.ited 
 for that purpose, and according to the stipulations 
 and agreements hereinafter contained, at or foi*tho 
 price or sum of , which proposal the said J. B. 
 
 hath agreed to accept on the laid T. G., together with 
 the said T. C, as his surety, entering into the agree- 
 ments hereinafter contained ; 
 
 Now IT IS hereby witnessed, That the said T. G. 
 and T. C. do, for themselves, their heirs, executors, 
 
m^ 
 
 38 
 
 CANADIAN DOMESTIC LAWYER. 
 
 and .iclministrntors, and each and every one of them, 
 doth for hhnself, his heirs, executors, and adminis- 
 trators, hereby agree with and to the said J. B., his 
 executors, administrators, and assigns, in manner fol- 
 lowing : (that is to say) that he, the said T.G., shall, at 
 his own cost and charges, forthwith erect and complete, 
 make and execute, with all proper and necessary ma- 
 terials, workmanship, and labor, of the best kinds in 
 every respect, and in the most substantial and work- 
 manlike manner, upon the said* piece of ground, a 
 dwelling-house and offices behind the same, with the 
 appurtenances, and all other works, matters, and 
 things mentioned and specified in the said elevation, 
 plans, and specification, under the direction and to 
 the satisfaction of the said W. M., or othen the sur- 
 veyor for the time being of the said J. B., his execu- 
 tors, administrators, or assigns ; And for that pur- 
 pose shall find and provide all proper and necessary 
 materials, implements, and machinery; and shall make 
 good all damages which may be occasioned either to 
 the said dwelli.i;^'-house, offices, and works, or any of 
 them, or to adjoining buildings, by the execution of 
 the same works or any of them ; and shall cleanse all 
 drains and cess-pools in or about the premises, and 
 cart and clear away at such times and in such manner 
 as shall or may be directed by the said W. M., or other 
 surveyor as aforesaid, all surplus earth and waste or 
 useless materials, implements, and machinery, which 
 may from time to time remain during tlie execution 
 of the same works, or at the completion thereof; And 
 ALSO shall pay and discharge all fees now due, or 
 hereafter to become due, to the district surveyor or 
 
II. 
 
 CONTKACTS OR AGREEMENTS. 
 
 39 
 
 ne of them, 
 d adminis- 
 d J. B., his 
 manner fol- 
 Ct., shall, at 
 cl complete, 
 jessaiy ma- 
 !St kinds in 
 and work- 
 ground, a 
 3, with the 
 tters, and 
 
 elevation, 
 on and to 
 c the sur- 
 his execu- 
 that pur- 
 necessary 
 hall make 
 
 either to 
 )r any of 
 cution of 
 leanse all 
 lises, and 
 1 manner 
 
 or other 
 waste or 
 y, which 
 xecution 
 of; And 
 
 due, or 
 
 eyor or 
 
 surveyors in respect of the premises, and shall indem- 
 nify the said J. B., his executors, administrators, and 
 assigns, of and from the same fees, and all claims and 
 demands on account thereof ; And shall at his own 
 costs and charges from time to time, until the said 
 dwelling-house, offices, and works, shall be erected, 
 completed, made, and executed, and the said J. B., 
 his executors, administrators, or assigns, shall take 
 possession of the premises, insure, or cause to be in- 
 sured, in the joint names of the said J. B., his execu- 
 tors, administrators, or assigns, and of the said T. G., 
 his executors or administrators, and for the sum of 
 , all and singular the erections and buildings 
 for the time being standing on the said piece of ground, 
 to the full value thereof, in some public insurance office 
 to be approved of by the said J. B., and shall deliver 
 the policy of insurance to the said J. B., his executors, 
 administrators, and assigns, and shall produce and 
 show to the said J. B., his executors, administra- 
 tors, or assigns, the receipts for the premium of insu- 
 rance, when requested so to do ; and that in case of 
 fire, all the moneys to be recovered by virtue of such 
 insurance shall forthwith be applied in reinstating the 
 premises, under the direction and to the approbation 
 of the said W. M. or other surveyor as aforesaid : 
 And that the said T. G. shall well and sufficiently 
 cover in, or cause to be covered in, the dwelling-house 
 and offices so to be erected as aforesaid, before the 
 day of , and shall complete, make, and 
 
 execute, or cause to be completed, made, and executed, 
 all and singular the said dwelling-house, offices, and 
 other works, in manner aforesaid, and according to 
 
:# 
 
 40 
 
 CANADIAN DOMESTIC LAWYER. 
 
 the true intent and meaning of these presents, before 
 the day of : And that if the said T. G., his 
 
 executors or administrators, shall not so well and 
 sufficiently cover in the said dwelling-house and 
 offices before the said day of , or sliall 
 
 not so complete, make, and execute, the said dwelling- 
 house, offices, and works before the said day of 
 , they, the said T. G. and T. C, shall pay to 
 the said J. B. the sum of for every week during 
 which the said dwelling-house arid offices shall remain 
 uncovered in after the said day of , and 
 the like sum for every week the said dwelling-house, 
 offices, and works shall remain unfinislied after the 
 said day of ; which sums may be recovered 
 as liquidated damages, or may be deducted from the 
 sums payable to the said T. G. under this agreement. 
 Provided always, that in case the said J. B., his 
 executors, administrators, or assigns, or his or their 
 surveyor, shall require any extra or additional works 
 to be done, or shall cause the works to be delayed in 
 their commencement or their progress, the said T. G. 
 shall be allowed to have such additional time for 
 covering in and linishing the said buildings and works, 
 beyond the said days above fixed, as shall have been 
 necessarily consumed in the performance of such extra 
 or additional works, or as shall have been lost by the 
 delay caused by the said J. B., his executors, ad- 
 ministrators, or assigns, or his or their surveyor as 
 aforesaid ; and the said payments for delay shall not 
 become payable until after the expiration of such 
 additional time or times. 
 
 And the said T. G. and T. C. do hereby further 
 
CONTRACTS OR AGREEMENTS. 
 
 41 
 
 nts, before 
 I T. G., his 
 well and 
 louse and 
 , or shall 
 dwelling- 
 day of 
 lall pay to 
 lek during 
 all remain 
 , and 
 ing-house, 
 after the 
 recovered 
 from the 
 grcement. 
 J. B., his 
 or their 
 al works 
 elayed in ' 
 aid T. G. 
 ime for 
 d works, 
 -ve been 
 ch extra 
 t by the 
 ors, ad- 
 eyor as 
 mil not 
 of such 
 
 ,* 
 
 agree with the said J. B., that in case the said W. M., 
 or other surveyor as aforesaid, -shall be dissatisfied 
 with the conduct of any workman employed by the 
 said T. G. in the said works, or with any materials 
 used or brought upon the said premises for the pur- 
 pose of being used in the said works, and shall give 
 notice thereof in writing under his hand to the said 
 T. G., he, the said T. G., Avill forthwith discharge 
 such workman from the said works and remove the 
 said materials; and that in case the said T. G. shall 
 not, in the judgment of the said W. M. or other sur- 
 veyor as aforesaid, employ a sufficient number of 
 workmen in the execution of the said works, or have 
 on the premises a sufficient quantity of materials or 
 implements of proper quality for the said works, 
 and the said W, M. or other surveyor as aforesaid 
 shall, by writing under his hand, require the said 
 Tr G. to employ an additional number of workmen, or 
 bring npon the premises an additional quantity of 
 materials or implements of proper quality, and shall 
 specify in such notice the number and description of 
 additional workmen to be employed, and the quantity 
 and description of additional materials or implements 
 to be supplied, and the said T. G. shall forthwith em- 
 ploy in the said works such additional number of work- 
 men, and shall forthwith bring upon the premises such 
 additional quantity of materials or implements for the 
 said works : and that in case he shall refuse or neg- 
 lect for the space of seven days to comply with any 
 such noticQ or request, it shall be lawful for the said 
 W. M. or other surveyor as aforesaid to dismiss and 
 discharge the said T. G. from the further execution 
 
42 
 
 CANADIAIT D03IESTIO LAWYER. 
 
 of the said works, and for the said J. B., his execu- 
 tors, administrators, and assigns, to employ some other 
 person to complete the same; and that in such case 
 the sum agreed to be paid to such other person to 
 complete the said works (such sum being approved by 
 the said W. M. or other surveyor as aforesaid) shall 
 be deducted from the said sum of , and the bal- 
 
 ance, after making any other r'^^ductions which the 
 said J. B. sljiall be entitled to make under this agree- 
 ment, shall be paid by the said J. B. to the said T. G. 
 in full for the work done by him, at the expiration of 
 one month after he shall have been so discharged as 
 aforesaid: And it is hereby further agreed by and 
 between the parties hereto, that all the materials 
 brought upon the said piece of ground for the purpose 
 of being used in the said buildings, except such as 
 shall be disapproved of by the said W. M. or other 
 surveyor as aforesaid, shall, immediately they shall 
 be brought upon the said premises, become the pro- 
 perty of the said J. B., and shall be used in the said 
 works. ' ■ ^ 
 
 And the said J. B. doth hereby, in consideration 
 of the works so agreed to be done by the said T. G., 
 agree with the said T. G., that he, the said J. B., shall 
 pay to the said T. G. for the same the said sum of 
 in manner following, that is to say: the sum 
 of "^ within one week after the said W. M. or other 
 surveyor as aforesaid shall have certified in writing 
 to the said J. B., his executors, administrators, or as- 
 signs, under his hand, that work to the value of 
 has been done under this agreement and the further 
 sum of within one week after the said W. M. or 
 
 \^ 
 
 su 
 
 J. 
 
 fin 
 it 
 pai 
 
I. 
 
 CONTRACTS OR AGREEMETiTTS. 
 
 43 
 
 his execu- 
 3onie other 
 I such case 
 person to 
 proved by- 
 said) shall 
 d the bal- 
 ivhich the 
 his agree- 
 laid T. G. 
 iration of 
 larged as 
 i by and 
 materials 
 ? purpose 
 
 such as 
 or other 
 ley shall 
 
 the pro- 
 the said 
 
 deration 
 d T. G., 
 B., shall 
 sum of 
 'he sum 
 )r other 
 writing 
 
 or as- 
 »f 
 
 urther 
 
 M. or 
 
 
 such other surveyor shall have certified as aforesaid 
 that further work to the value of has been done 
 
 under this agreement, and so on shall pay for 
 
 every worth of work so certified as aforesaid, 
 
 until the whole of the said works shall be finished, 
 and shall pay the balance remaining unpaid within 
 one month after the said works shall have been com- 
 pleted and finished to the satisfaction of the said 
 W. M. or such other surveyor, and the said W. M. or 
 such other surveyor shall have certified to the said 
 J. B. that the said works have been completed and 
 finished to his satisfaction. Peovided always, and 
 it is hereby further agreed by the parties hereto, and 
 particularly by the said T. G. and T. C, that if the 
 said J. B., his executors, administrators, or assigns, 
 shall at any time be desirous of making any altera- 
 tions or additions in the erection or execution of the 
 said dwelling-house, offices, and other works, then and 
 in such case the said T. G. shall erect, complete, make, 
 and execute the said dwelling-house, offices, and other 
 works, with such alterations and additions as the said 
 J. B., his executors, administrators, or assigns, or the 
 said W. M. or such other surveyor, shall from time to 
 time direct by writing under his or their hand or 
 hands, and to the satisfaction of the said W. M. or 
 such other surveyor ; and the sum or sums of money 
 to be paid or allowed between the said parties in 
 respect of such alterations and additions shall be set- 
 tled and ascertained by the said W. M. or such other 
 surveyor, ■ whose determination shall be final. Pro- 
 vided ALWAYS, and it is hereby further agreed, that 
 in the settling and ascertaining the said sum or sums 
 
44 
 
 CANADIAN DOMESTIC LAWYER. 
 
 * 
 
 of money, the said W. M. or such other surveyor 
 shall not include any charge for day-work, unless an 
 account thereof shall have been delivered to the said 
 J. B., his executors, administrators, or assigns, or the 
 said W. M. or such other surveyor, at the end of the 
 week in which the same shall have been performed. 
 Provided also, and it is hereby further agreed, that 
 no such alteration or addition shall release the said 
 T. G. and T. C, their executors or administrators, or 
 any or either of them, from the observance and per- 
 formance of the agreements herein contained on the 
 part of the said T. G., his executors or administrators, 
 to be observed and performed, so for as relates to the 
 other parts of the said dwelling-house, offices, and 
 works; but that the same agreements shall in all 
 respects be observed and performed in like manner as 
 if no such alteration or addition had been directed. 
 Peovided also, and it is hereby agreed, that if the 
 , said W. M. shall die, or cease to act as the surveyor 
 of the said J. B., his executors, administrators, or 
 assigns, and the said T. G., his executors or adminis- 
 trators, shall be dissatisfied with the surveyor for the 
 time being, to be appointed by the said J. B., his ex- 
 ecutors, administrators, or assigns, then it shall be 
 lawful for the said T. G., his executors or administra- 
 tors, at his own expense, to employ a surveyor on his 
 behalf in the adjustment of the accounts, to act with 
 the surveyor for the time being of the said J. B., his 
 executors, administrators, or assigns; and in case of 
 disagreement between such two surveyors, they shall 
 be at liberty to nominate a third; and the said three 
 surveyors, or any two of them, shall and may exercise 
 
 e; 
 
C0NTKA0T8 OE AGREEMENTS. 
 
 45 
 
 surveyor 
 unless an 
 o the said 
 ^ns, or the 
 !nd of the 
 erformed. 
 reed, that 
 i the said 
 rators, or 
 and per- 
 ed on the 
 istrators, 
 tes to the 
 ices, and 
 all in all 
 lanner as 
 directed. 
 li if the 
 surveyor 
 itors, or 
 adminis' 
 for the 
 his ex- 
 shall be 
 linistra- 
 r on his 
 ct with 
 B., his 
 case of 
 ?y shall 
 three 
 xercise 
 
 <k] 
 
 
 
 all the powers and discretion wliich the said W. M. 
 could or might have exercised under or by virtue of 
 these presents, if he had lived and continued to act 
 as the surveyor of the said J. B., his executors, admi- 
 nistrators, or assigns. And it is hereby further 
 agreed, that if the said T. G., his executors or admi- 
 nistrators, shall so employ a surveyor on their behalf, 
 he shall be nominated within ten days after the said 
 T. G. shall be informed of the surveyor for the time 
 being appointed by the said J. B., his executors, ad- 
 ministrators, or assigns, and notice in writing shall 
 forthwith be given of such nomination to the said J. 
 B., his executors, administrators, or assigns. 
 
 IjS" Witness, &c. 
 
 Schedule. — [The Specification referred to by the 
 foregoing Articles of Agreement.] 
 
 Sub-Contract between a Builder and a Carpenter. 
 
 An Agreement made the day of , in 
 
 the year of our Lord 18 , between T. G., of , 
 
 Builder, and C. D., of , Carpenter. 
 
 Whereas the said T. G. hath entered into a con- 
 tract with J. B., of, &c., to erect a dwelling-house and 
 offices according to certain plans, elevations, and spe- 
 cifications, referred to in said contract, under the su- 
 perintendence of W. M. or other surveyor of the said 
 J. B., and which contract is dated the day of 
 
 : Now it is hereby agreed, that in consideration 
 of the sum of to be paid by the said T. G. to 
 
 the said C. D. as hereinafter mentioned, the said C. D. 
 shall do all the carpenter's work necessary to be done 
 for the completion of the said contract, and referred 
 
 ^.; 
 
u 
 
 CANADIAN DOMESTIC LAWYER. 
 
 •f- 
 
 to in the said plans and specifications, and provide all 
 materials and implements necessary for the perform- 
 ance of such work, and shall do the same in all things 
 according to the said contract and specifications, and 
 shall in all things abide by, perform, fulfil, and keep 
 the said terms and stipulations of the said contract, 
 so far as the same are or shall be applicable to such 
 carpenter's work ; and that in case the said T. G. shall 
 become liable to pay any penalties under the said 
 contract in consequence of the delay of the said C. D. 
 in the performance of the work agreed to be performed 
 by him, the said C. D. shall pay to the said T. G. the 
 amount of such penalties ; and that in case the said W. M. 
 or other surveyor appointed to superintend the works 
 under the said contract shall disapprove of the work 
 ilone by the said C. D., or the materials used by him, 
 or the manner in which such work is done, it shall be 
 lawful for the said T. G. to dismiss and discharge the 
 said C. D. from the further performance of such work, 
 and employ some other person to complete the same ; 
 and that in such case the money which the said T, G. 
 shall pay to the said other person for the completion 
 of the said w^orks shall be deducted from the sum 
 which would otherwise be payable to the said C. D. 
 under this agreement^ And that for the consideration 
 aforesaid, the said T. G. shall pay to the said C. D. 
 the sum of $ , in manner following: 15 per cent, 
 
 on the price and value of the work done. by the said 
 C. D. during any week, to be paid to him on the 
 Saturday in every week during the continuance of 
 the said works, and the balance within one month 
 
 oil 
 
 ti(\ 
 er\ 
 
 
CONTRACTS OR AGREEMENTS. 
 
 47 
 
 provide all 
 
 perform- 
 all things 
 
 itions, and 
 and keep 
 
 1 contract, 
 le to such 
 T. G. shall 
 
 the said 
 said C. D. 
 performed 
 
 T. G. the 
 saidW.M. 
 the works 
 the work 
 d by him, 
 t shall he 
 barge the 
 ich work, 
 
 le same; 
 aid T. G. 
 mpletion 
 
 the sum 
 
 id C. D. 
 
 deration 
 CD. 
 
 )er cent. 
 
 the said 
 on the 
 
 ance of 
 month 
 
 after the comi^letion of the said dwelling-house and 
 
 offices. 
 
 In Witness, &c. 
 
 {IJua form may he easily adapted to any par- 
 ticular work on a building, as bricklayer's, Faint- 
 er^H, Sc.) . 
 
 Contract to do Repairs, &o. 
 
 An Agreement made the day of , in 
 
 the year of our Lord 18 , between A. B., of, &c., and 
 C. D., of, &c.: The said A. B. agrees to do all the 
 works hereunder specified, in the best and most 
 Avorkraanlike manner, and to provide for such works 
 all necessary materials and things of the best quality, 
 and to complete and finish the said works on or before 
 the day of next; and in case the said 
 
 works shall not be finished on or before the said 
 day of , to pay or allow to the said C. D., out 
 
 of the moneys payable under this agreement, the suia 
 of for each day during which the said works 
 
 shall remain unfinished after the said day of ; 
 and that in case the said CD. shall require any ad- 
 ditions or alterations to be made to the works here- 
 under specified, to execute such additions and altera- 
 tions in the best and most workmanlike manner, with 
 materials of the best quality : And it is hereby agreed, 
 that iti case any additional works shall be required by 
 the said CD., or in case the said CD. shall delay 
 the execution of the said works, the said A. B. shall 
 have such additional time for the performance of the 
 said works, after the. said day of , as shall 
 
 have been consumed in the execution of such addi- 
 
 
 
%8 
 
 CxiNADIAN DOMESTIC LAWYER. 
 
 .'*v 
 
 tional works, or as the time during wliicn the said C. 
 D. shall have delayed the said works, and that the 
 payments for delay shall not be payable until after 
 the expiration of such additional time : And it is 
 hereby further . agreed, that materials brought upon 
 the premises of the said C. D. for the purpose of being 
 used in the said works, shall, if of proper description 
 and quality, immediately become the property of the 
 said CD.: And the said C. D. agrees to pay to the 
 said A. B. for the said works the sum of within 
 
 one week after the same shall be finished : And it is 
 hereby agreed, that in case of any additions or altera- 
 ' tions being made in or to the said works, the price of 
 such additions or alterations shall be estimated in pro- 
 portion to the said sum of for the whole of the 
 said works, and such price so estimated shall be either 
 added to or deducted from the sum of 
 In Witness, &c. 
 
 
 Agreement for Sale of Merchant's Stock. 
 
 This Ageeement, made the day of , a. d. 
 
 18 , Between A. B., of, &c., merchant, of the one 
 part, and C. D., of, &c., merchant, of the other part. 
 
 The said A. B. agrees to sell, and the said C. D. 
 agrecb to buy, all the stock of goods, wares, and mer- 
 chandise now being in and upon the store occupied by 
 the said A. B., at aforesaid at the invoice price 
 
 thereof {or at the sum of $ ^ or othenoise, as 
 
 agreed 07i), an account of such goods, wares, and mer- 
 chandise being taken by the j)arties hereto in the 
 presence of each other. And it is hereby agreed 
 that any of the said goods, wares, or merchan- 
 
 ' % 
 
R. 
 
 the said C. 
 id that the 
 
 until after 
 
 And it is 
 •ught upon 
 3se of being 
 description 
 )erty of the 
 
 pay to the 
 within 
 
 And it is 
 8 or altera- 
 lio price of 
 ited in pro- 
 liole of the 
 1 be either 
 
 CONTRACTS OR AGREEMENTS. 
 
 49 
 
 , A. D. 
 
 the one 
 
 ler part. 
 
 tiid C. D. 
 
 and mer- 
 
 3upied by 
 
 )ice price 
 
 noise, as 
 
 and mer- 
 
 3 in the 
 
 Y agreed 
 
 nerchan- 
 
 dise which may be damaged, nhall be appraised and 
 vahied by three disinterested persons; each of the 
 parties hereto selecting one of such persons, and the 
 two so selected appointing the third; and that the 
 price set upon such damaged goods, wares, or mer- 
 chandise by the said three jiersons shall be substi- 
 ? tutcd for the invoice price thereof; a:.^l that within 
 tten days after the value of the said goods, wares, and 
 ' llnerchandise shall have been ascertained as aforesaid, 
 sf the said C. D. is to pay the valuation thereof to the 
 ik said A. B. And the said A. B. agrees to make, 
 I execute, and deliver unto the said C. D. a good and 
 sufficient bill of sale and conveyance thereof, and 
 to give to the said C. D. quiet and peaceable posses- 
 sion thereof upon payment to him, the said A. B., by 
 the said C. D., withm the time before specified, of 
 the invoiced or appraised value ae aforesaid. 
 In Witness, &c. 
 
 {J^ desired, the form for appraising damaged goods 
 can he made applicable to the entire stock.) 
 
 Agreement for Sale of Grain. 
 
 It is agreed this day of , a. d. 18 , 
 
 by and between A. B., of, <fcc., and C. D., of, &c., as 
 follows : The said A. B. agrees to sell to the said 
 C. D. five thousand bushels of wheat, to be delivered 
 to the said C. D. at , on or before the first day 
 
 of January next, free of all charges, at the price or 
 sum of per bushel. And the said C. D. agrees 
 
 to purchase the said wheat, and to pay therefor at 
 the rate aforesaid, upon delivery as aforesaid. And 
 
#60 
 
 CANADIAN DOMESTIC LAWYEIl. 
 
 the said A. B. lioreby guarantees and warrants tho 
 said wheat to be good, clean, and merchantable grain. 
 
 Witness our hands. 
 
 Signed in presence of I n D 1 
 
 CHAPTER in. 
 
 Of Arbitration, 
 
 Instead of the ultimate remedy of an action at 
 law or suit in equity, recourse is sometimes had for 
 the settlement of disputes to the more amicable ex- 
 pedient of arbitration. And in some transactions, 
 especially in articles of copartnership between traders, 
 it is usual to stipulate that if any dispute shall arise 
 it shall be referred to tho determination of two in- 
 different persons as arbitrators, or of their umpire, 
 who is usually, and very properly, required to bo 
 chosen by the arbitrators before they proceed to take 
 the subject in question into consideration. And it is 
 agreed that the award in writing of the arbitrators, 
 or of their umpire in ease of their disagreement, shall 
 be binding and conclusive on all parties. It is 
 generally also farther provided, that in case either 
 party should neglect or refuse for a given time to 
 appoint an arbitrator, the arbitrator chosen by the 
 other party may make an award, w^hicli shall be bind- 
 ing on both. \ 
 
 As the courts of law and equity have full juris- 
 diction on all questions arising out of agreements of 
 
OF ARBITBATION. 
 
 tif 
 
 any kind, it follows that they retain a jiiri*t(liclion 
 over matters which the parties tiiemselves liavo npfreod 
 should be referred to arbitration. Notwithstanding, 
 therefore, an agreement to refer disputes to arbi- 
 tration, either party may bring the matter into couvt ; 
 although if the agreement should contain an express 
 covenant not to sue, and especially if arl)itrators bo 
 actually named, it seems that such covenant may Ixs 
 effectually pleaded in bar to any suit in equity. And 
 without such a covenant, the circumstance of the 
 parties having agreed to refer to arbitration will in- 
 duce a court of equity to pause before granting to 
 any of them summary relief on a point which they 
 have expressly agreed to settle by amicable moans. 
 If, however, one of the parties should, notwithstand- 
 ing his agreement, refuse to name an arbitrator, iho 
 Court of Chancery will not entertain a bill to comj>el 
 him to do so, neither will it substitute the master for 
 the arbitrators; for the court acts only when it lias 
 it in its power itself to execute the whole contract in 
 the terms specifically agreed upon. " 
 
 The reference of disputes to arbitration appears to 
 liave been early adopted by the courts of law, with 
 the consent of the parties to an action, in cases wliero 
 the matter in dispute could be more conveniently 
 settled in this mode. A verdict was taken for the 
 plaintiff by consent, subject to the award of an arbi- 
 trator agreed npon by the parties, and the reforenco 
 was made a rule of court. This plan is still con- 
 tinually ^doj)ted. The arbitrators and the parties to 
 the reference by this means become subject to the 
 jurisdiction of the court, which has power to set aside 
 
ff2 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 any award which may appear to have been given un- 
 justly or through mistake of the law ; or, if the award 
 be valid, its performance may be enforced under the 
 penalty of imprisonment for contempt of court. In 
 order to extend the benefits of this mode of submis- 
 sion to arbitration to all cases of controversies be- 
 tween merchants and traders or others concerning 
 matters of account or trade or other matters, an act 
 of Parliament was passed in the reign of William the 
 Third, intituled "An Act for determining differences 
 by arbitration" (9 & 10 W. III. c. 15). This Act 
 empowers all merchants and traders and others de- 
 siring to end by arbitration any controversy for 
 which there is no other remedy but by personal action 
 or suit in equity, to agree that their submission of 
 their suit to the award or umpirage of any person or 
 persons shall be made a rule of any of her majesty's 
 courts of record which the parties shall choose. And 
 it provides that in case of disobedience to the arbi- 
 tration or umpirage to be made pursuant to such sub- 
 mission, the party neglecting or refusing to perform 
 and execute the same, or any part thereof, shall be 
 subject to all the penalties of contemning a rule of 
 court when he is a suitor or defendant in such court. 
 And the process to be issued accordingly shall not be 
 stopped or delayed in its execution by any order, 
 rule, command, or process of any other court, either 
 of law or equity, unless it shall be made appear on 
 oath to such court that the arbitrators or umpire mis- 
 behave themselves, and that such award, arbitration 
 or umpirage was procured by corruf>tion- or other un- 
 due means. It is also further provided that any ar- 
 
 i t 
 
OP ARBITEATION. 
 
 53 
 
 bitration or umpirage procured by corruption or undue 
 means shall be judged void, and be set aside by any 
 court of law or equity, so as complaint of such cor- 
 ruption or undue practice be made in the court where 
 the rule is made for submission . o such arbitration or 
 umpirage, before the last day of the next term after 
 such arbitration or umpirage is made and published 
 to the j)arties. 
 
 Previously to a recent statute, either party might 
 have revoked his submission, and thus determined the 
 authority of the arbitrators; and this may still be 
 done, if the submission relate to criminal matters, 
 which are not within the statute. But it is now en- 
 acted (Cons. St. U. C. c. 22, s. 179) that the power 
 and authority of any arbitrator or umpire, appointed 
 by or in pursuance of any rule of court or judge's 
 order or order of nisi prius in any action, or by or in 
 pursuance of any submission to reference containing 
 an agreement that such submission shall be made a 
 rule of any of her majesty's courts of record, shall 
 not be revocable by any party to such reference with- 
 out the leave of the court by which such rule or order 
 shall be made, or which shall be mentioned in such 
 submission, or by leave of a judge. And the arbi- 
 trator or umpire is empowered and required to pro- 
 ceed with the reference notwithstanding any such 
 revocation, and to make such award although the 
 person making such revocation shall not afterwards 
 attend the reference. And the court, or any judge 
 thereof, may from time to time enlarge the term for 
 any such arbitrator makhig his award. The court, 
 or any judge, is also empowered under any such re- 
 
 
 
 i'5i 
 
u 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ference, by rule or order to command the attendance 
 and examination of witnesses, or the production of 
 any documents. And if in any rule or order of re- 
 ference, or in any submission to arbitration containing 
 an agreement that the submission shall be made a 
 rule of court, it shall be ordered or agreed that the 
 witnesses upon such reference shall be examined upon 
 oath, the arbitrator or umi^ire, or any one arbitrator, 
 is authorized and required to administer an oath to 
 such witnesses, or to take their affirmation in cases 
 where affirmation is allowed by law instead of oath; 
 and any witness wilfully and corruptly giving false 
 evidence shall be deemed guilty of j)erjury, and shall 
 be prosecuted and punished accordingly. But an 
 express order or agreement that the witnesses shall 
 be examined upon oath is not now necessary; for 
 every arbitrator or other person, having by law or 
 by consent of parties authority to hear, receive, and 
 examine evidence, may administer an oath to all such 
 witnesses as are legally called before them respect- 
 ively. 
 
 The authority of arbitrators is liable to be deter- 
 mined not only by a revocation of the submission, but 
 also by the death of either of the parties previously 
 to the making of the award. In order to obviate this 
 inconvenience, it is now usual to insert in the order 
 or rule of court, by which reference is made to arbi- 
 tration, a provision that the death of either of the 
 parties shall not operate as a revocation of the author- 
 ity of the arbitrators, but that the award shall bo 
 delivered to the executors or administrators of tho 
 parties, or either of them, in case of their or his do- 
 
OF ARBITRATION. 
 
 55 
 
 cease. And the same stipulation may be effectually 
 made in a submission to arbitration by private agree- 
 ment. - , 
 
 When no time is limited for the making of the award, 
 it must be made within a reasonable time ; but if a 
 given time be limited, the award must be made within 
 that time, unless the time for making it be enlarged. 
 And if the award is required to be made and ready to 
 be delivered to the parties by a certain day, it will be 
 considered as ready to be delivered if it be made, 
 unless the arbitrators should fail to deliver it to either 
 of the parties on request made for that purpose on the 
 last day. The submission to arbitration frequently 
 contains a power for the arbitrators or umpire to en- 
 large the tiire j r making the award; and in this case 
 the time ma^^ . c larged from time to time by such 
 arbitrators or umpire, provided the enlargement be 
 made on or before the expiration of the time origin- 
 ally limited for making the award. And if the submis- 
 sion be made a rule of court, then, whether the arbi- 
 trators or umpire have power to enlarge the time or 
 not, the court, or a judge thereof, has power to en- 
 large the time under the provisions of the statute above 
 mentioned. And should no enlargement be formally 
 made, yet the parties may, by continuing their attend- 
 ance on the reference, or by recognizing the proceed- 
 ings under it, virtually empower the arbitrators or um- 
 pire to make a valid award subsequently to the time 
 originally limited. 
 
 In proceeding in the business of the arbitration, the 
 arbitrators are bound to req^nre the attendance of the 
 parties, for which purpose notice of the meetings of 
 
 m 
 
66 
 
 CANADIAN DOMESTIC LAWYER. 
 
 the arbitrators should be given to them. But if either 
 party neglect to attend either in person or by attorney 
 after due notice, the arbitrators may proceed without 
 him. In taking the evidence the arbitrators are at 
 liberty to proceed in any way they please, if the par- 
 ties have due notice of their proceedings, and do not 
 object before the award is made. But in order to 
 obviate any objection, they ought to proceed in the 
 admission of evidence according to the ordinary rules 
 of law. The award should be signed by the arbitra- 
 tors in each other's presence, and when made it must 
 be both certain and final. Thus, if the award be that 
 one party enter into a bond with the other for his quiet 
 enjoyment of certain lands, this award is void for un- 
 certainty; for it does not appear in what sum the 
 bond should be. On the question of finality many cases 
 have arisen. If the arbitrators be ertiiwwered to de- 
 cide all matters in difierence between the parties, the 
 award will not necessarily be wanting in finality for 
 not deciding on all such matters, unless it appear to 
 have been required that all such matters should be 
 determined by the award. If the award reserve to the 
 arbitrators, or give to any other person, or to one of 
 the parties, any further authority or discretion in the 
 matter, it will be bad for want of finality. And if the 
 award be that any stranger to the reference should do 
 an act, or that money should be paid to or any other act 
 done in favor of a stranger, unless for the benefit of 
 one of the parties, such award will be void. An award, 
 however, may be partly good and partly bad, provided 
 the bad part is independent of and can be separated 
 from that which is good. But if, by reason of the 
 
 % 
 
OF ARBITEATION. 
 
 57 
 
 
 m 
 
 \>{ the 
 
 invalidity of part of the award, one of the parties 
 cannot have the advantage intended for him as a 
 recompense for that which ho is to do, according to 
 that part of the award which would otherwise be valid, 
 the whole will be void. If it should appear on the 
 face of the award that the arbitrators, intending to 
 decide a point of law, have fallen into an obvious 
 mistake of the law, the award will be inv^ilid. But 
 where subjects involving questions both of law and fact 
 are referred to arbitration, the arbitrators may make 
 an award according to what they believe to be the 
 justice of the case, irrespective of the law on any 
 particular point. 
 
 When the submission to arbitration is not made the 
 rule of any other court, the Court of Chancery, ac- 
 cording to the ordinary principles of equity, has power 
 to set aside the award for corruption or other miscon- 
 duct on the part of the arbitrators, or if they should 
 be mistaken in a plain point of law or fact. If the 
 submission be made a rule of court under the above- 
 mentioned statute of Will. III., the court of which it 
 is made a rule has power to set aside the award, not 
 only on the grounds of corruption or undue j)ractice 
 mentioned in the act, but also for mistakes in point 
 of law ; and no other court has a right to entertain 
 any application for this purpose. The application to 
 set aside the award must, however, be made within 
 the time limited by the act. But although the time 
 limited by that statute may have expired, yet, if there 
 be any defect apparent on the face of the award, tlie 
 court will not assist in carrying it into eftbct by grant- 
 ing an attachment for its non- performance. If the 
 
 3* 
 
 'tm 
 
ts 
 
 CANADIAN DOMESTIC LAWYER. 
 
 submission to arbitration be made by rule or order of 
 the court in any cause independently of the statute, 
 the court still retains its ancient jurisdiction of setting 
 aside the award on account either of the misconduct 
 of the arbitrators, or of their mistake in point of law. 
 In analogy, however, to the practice under the statute 
 of Will. III., the court in ordinary cases requires ap- 
 plication fpr setting aside the award to be made within 
 the time limited by that statute ; but upon sufficient 
 grounds it will grant such an application, though made 
 after the expiration of that time. Sometimes power 
 is reserved to the court to refer the matter back to 
 the arbitrators for further examination, in the event 
 of any application being made to the court on the 
 subject of the award. In this case the application 
 must be made within the same time as an application 
 to set aside the award. 
 
 If ail umpire be appointed, his authority to make 
 an award commences from the time of the disagree- 
 ment of the arbitrators, unless some other period be 
 expressly fixed ; and if, after the disagreement of the 
 arbitrators, he make an award before the expiration 
 of the time given to the arbitrators to make their 
 award, such award will nevertheless be valid. The 
 umpire must be chosen by the arbitrators in the exer- 
 cise of their judgment, and must not be determined 
 by lot, unless all the parties to the reference consent 
 to his appointment by such means. In order to enable 
 liim to form a proper decision, he ought to hear the 
 whole evidence over again, unless the parties should 
 be satisfied with his deciding on the statement of the 
 arbitrators. And the whole matter in difierence must 
 
OF AEBITEATION. 
 
 m 
 
 bo submitted to his decision, and not sonic particular 
 points only on which the arbitrators may disagree. 
 
 An award for the payment of money creates a debt 
 from one party to the other, for which an action may 
 be brought in any court of law. But when the award 
 is made a rule of court, its performance may be 
 enforced by attacliment or execution. And where the 
 reference is made by order of the Court of Chancery, 
 or where the award requires any act to be done 
 which cannot be enforced by an action at law, equity 
 will decree a specific performance. 
 
 It often happens that the matters to be referred 
 are of too complicated a nature to " dmit of a success- 
 ful carriage without the intervention of a professional 
 man. The foregoing observations and following forms 
 are not intended to apply to any such cases : they are 
 meant for plain and simple cases only. 
 
 Arbitration Deed. 
 
 This Indentube, made the day of , 
 
 A. D. 18 , Between A. B., of, &c., of the one part, 
 and C. D., of, &c., of the other part. Whereas cer- 
 tain differences have arisen between the said A. B. 
 and the said C. D. respecting, &c. Inhere state concisely/ 
 the suhject-matter in dis2nite, or, if all matters in differ- 
 ence are referred, you had better not state such suhject- 
 matter at all] ; and it is agreed by and between the 
 said A. B. and C. D. to refer the said difference [or 
 all matters i7i difference between them] to the award, 
 order, final end and determination of U. V., of, &c., 
 and X. Z., of, &q., arbitrators, nominated by the said 
 A. B. and C. D., respectively; and in case they dis- 
 
60 
 
 CANADIAN DOMESTIC LAWYER. 
 
 agree about making an award, ox fail to make an 
 award, before tlie day of next, then to 
 
 the award, umpirage, final end and determination of 
 such umpire as the said arbitrators shall by writing 
 under their hands, endorsed on these presents, before 
 they enter upon the consideration of the matters 
 referred, nominate and appoint. 
 
 Now THIS Indenture witnessetii, that they, tho 
 said A. B. and C. D., do, and each of them for him- 
 self, severally and respectively, and for his several 
 and respective heirs, executors, and administrators, 
 doth covenant, promise, and agree with and to each 
 other, his executors and administrators respectively, 
 that the said differences [or all matters in differenct\ 
 between the said A. B. and C. D. be forthwith referred 
 to the award, order, arbitrament, final end and deter- 
 mination of the said U. V. and X. Z. ; and in case 
 they disagree about making an award, or fail to 
 make an award, before the day of next 
 
 then to the award, umpirage, final end and deternii- 
 nation of such umpire as the said arbitrators shall by 
 writing under their hands, endorsed on these presents, 
 before they enter upon the consideration of the mat- 
 ters referred, nominate and appoint : so as the said 
 arbitrators or umpire his or their award or umpirage 
 make and publish in writing under his or their hands 
 of and concerning i]ie premises, ready to be delivered 
 to the parties or to either of them, or, if they or either 
 of them shall be dead before the making of the award 
 or umpirage, to their respective personal representa- 
 tives who shall require the same, on or before the 
 day of next, or on or before any other 
 
 * 'A 
 
OF ARBITRATION. 
 
 01 
 
 
 day to which the said arbiti'ators or umpire shall by 
 any writing signed by iiim or them, endorsed on these 
 presents, -from time to time enlarge the time for 
 making such award or umpirage; and that the said 
 A. B. and C. D. respectively, and their respective 
 executors and administrators, shall and will perform, 
 fulfil, and keep the said award or umpirage so to be 
 made as aforesaid, and that the death of either of the 
 said parties shall not operate as a revocation of the 
 power and authority of the said arbitrators or umpire 
 to make said award or umpirage ; and that all costs 
 and charges of this reference and of the said award 
 shall be in the discretion of the f'aid arbitrators or 
 umpire, who shall direct and award by whom and to 
 whom and in what manner the same shall be paid: 
 And, further, that the said A. B. and C. D., and each 
 of them, shall and will produce unto and deposit with 
 the said arbitrators or umpire all deeds, books, papers, 
 evidences, and writings touching or relating to the 
 matters in difference in their respective possessions or 
 power as the said arbitrators or umpire shall think 
 fit: And that each of them shall and will submit to 
 be examined upon oath, if thought necessary by the 
 said arbitrators or umpire, and will as far as in them 
 lies respectively do all such other acts and things as 
 the said adraini^ators or umpire shall require for the 
 better enabling him or them to make the said award : 
 And, further, that if either of the said parties shall 
 obstruct or prevent the said arbitrators or umpire 
 from making an award by affected or wilful delay, or 
 by not attending after reasonable notice, and without 
 such excuse as the said arbitrators or umpire shall be 
 
 m 
 
62 
 
 CANADIAN DOMESTIC LAWYER. 
 
 satisfied with and adjudge to be reasonable, it shall be 
 lawful for the said arbitrators or umpire to proceed 
 ex parte : And, further, that neither of them, the said 
 A. B. and C. D., shall or will prosecute any action or 
 suit in any court of law or equity against the other of 
 them, or bring or prefer any bill in equity against each 
 other of and concerning the premises until the said 
 award be made and published: And, further, that this 
 submission shall be made a rule of her majesty's court of 
 • , if that court shall so please : And, further, that 
 the said arbitrators or umpires shall take the said arbi- 
 tration at aforesaid, and shall have power to call 
 for and examine all witnesses upon oath, and have the 
 assistance of accountants in adjusting and ascertain- 
 ing the state of the accounts of the said parties in 
 difference. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first above written. 
 
 A. B. [l. s.] 
 C. D. [l. s.] 
 
 Signed, sealed, and deliverecl in the presence of 
 E. F. 
 
 ANOTHER FORM. 
 
 This Indenture, made the "day of , in 
 
 the year of our Lord one thousand eight hundred and 
 , Between A. B., of, &c., of the first part, and 
 CD., of, &c., of the second part. 
 
 Whereas disputes and differences have arisen, and 
 are now depending, between the said parties of the 
 first and second parts in reference to [state matters 
 
OF ARBITRATIOX. 
 
 63 
 
 in disjimtel, and in order to put an end thereto, and 
 to obtain an amicable adjustment thereof, the said 
 parties of the first and second parts have respectively 
 agreed to refer the same to the award, order, arbi- 
 trament, final end and determination of U. V., of, &c., 
 and X. Z., of, &c., arbitrators, indifferently chosen, 
 by and on behalf of the said parties respectively: 
 And in the event of the said two arbitrators hereby 
 appointed not being able to agree within one month 
 from the date of these presents upon their said award, 
 then it shall and may be lawful for them to appoint 
 some fit person as third arbitrator, by a memorandum, 
 in writing, under their hands, to be endorsed on these 
 presents ; and the award of any two of them shall be 
 final and conclusive, both at law and in equity, upon 
 both of the said parties hereto, such award to be made 
 in writing on or before the day of next. 
 
 Now Tuis Indenture witnesseth, that the said 
 parties hereto do, and each of them doth, each for 
 himself severally and respectively, and for his and 
 their respective heirs, executors, and administrators, 
 COVENANT, PROMISE, AND AGREE, to and with each other, 
 his and their heirs, executors, and administrators, well 
 and truly to stand to, obey, abide by, observe, per- 
 form, fulfil, and keep the award, order, arbitrament, 
 and final determination of the said arbitrators hereby 
 appointed ; or, in the event of it having been necessary 
 to appoint such third arbitrator as aforesaid, to stand 
 to, obey, abide by, observe, perform, fulfil, and keep 
 the award,, order, arbitrament, and final determination 
 of any two of them of and concerning the premises 
 aforesaid or any thing in any manner relating thereto, 
 
 
^IKft 
 
 CANADIAN DOMESTIC LAWYER. 
 
 SO as the said award of the said arbitrators bo made 
 in writing under their hands, or under the hands of 
 any two of them (in the v^ont of any such appoint- 
 ment as aforesaid). 
 
 And it is hereby agreed, that the said arbi- 
 trators hereby appointed, or in the event of any such 
 appointment being made as aforesaid, any two of them, 
 shall be at liberty, by writing, under their hands, re- 
 spectively endorsed on these presents, to enlarge the 
 time for making the said award when and as often 
 and to such times as they shall think tit. And also, 
 that all the costs and charges attending the said ar- 
 bitration shall be in the discretion of the said arbi- 
 trators hereby appointed, or in the event of such 
 appointment of a third arbitrator as aforesaid, of any 
 two of them so making their award as aforesaid, and 
 shall be paid and satisfied pursuant to their award. 
 And also, that these presents shall be made a rule 
 of her majesty's Court of Queen's Bench or Common 
 Pleas, at Toronto, to the end that the said parties 
 respectively may be finally concluded by the said 
 arbitration, pursuant to the statute in such case made 
 and provided. ' . - . ^ 
 
 And for the full performance of the said award 
 so to be made as aforesaid, the said parties hereto 
 bind themselves, severally and respectively, their se- 
 veral and respective heirs, executors, and adminis- 
 trators, each to the other of them respectively, in 
 the penal sum of lawful money of Canada, 
 
 firmly by these presents. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and af- 
 
OF ARBITRATION. 
 
 65 
 
 fixed their seals, the day and year first above 
 written. 
 
 A. B. [l. b.] 
 CD. [l. 8.] 
 Signed, sealed, and delivered ) 
 in the presence of J • 
 
 E. F. - . - .■ '• 
 
 III 
 
 Arbitration Bond. 
 
 Know all Men, That I, A. B., of, <kc., am held 
 and firmly bound to C. D., of, &c., in the sinu of 
 , of lawful money of Canada, to bo paid to 
 the said C. D. or to his certain attorney, executors, 
 administrators, or assigns, for which payment to bo 
 well and truly made I bind myself, my heirs, execu- 
 tors, and administrators forever, firmly by these pre- 
 sents. 
 
 Sealed with my seal. Dated this day of 
 
 , in the year of our Lord one thousand eight 
 hundred and 
 
 Whereas disputes and differences have arisen, and 
 are now pending, between the above-bbunden A. D, 
 and the said C. D. touching and concerning [state suh- 
 ject-matter in dispute as in deed.^ 
 
 And whereas the above-bounden A. B. and t'n© 
 said C. D. have agreed to refer such disputes aud 
 differences, as well as all actions, suits, controversies, 
 accounts, reckonings, matters, and things in anv wise 
 relating thereto, to the award, arbitrameiit. and do- 
 termination of U. V. and X. Z., arbitrators nomi- 
 nated, appointed, and chosen, as well by and on the 
 part and behalf of the above-bounden A. B. as of the 
 
 
CANADIAN DOMESTIC LAWYER. 
 
 said CD., and who have consented and agreed to 
 accept the burthen of the said arbitration. 
 
 Now, THE Condition of the above-written bond 
 or obligation is such, that if the above-bounden 
 A. B. do and shall well and truly submit to, abide by, 
 and perform, the award, arbitrament, and determi- 
 nation of the said arbitrators so nominated, appointed, 
 and chosen as aforesaid, touching and concerning the 
 matters in dispute between the above-bounden A. B. 
 and the said CD. and so referred to them, the said 
 arbitrators as aforesaid (provided such award be made 
 in writing under the hands and seals of the said arbi- 
 trators, ready to be delivered to the said parties, or 
 such of them as shall apply for the same, on or before 
 the day of , in the year of our Lord one 
 
 thousand eight hundred and ) Then this obli- 
 
 gation shall be void, otherwise to be and remain in 
 full force and virtue. And the said obligor hereby 
 consents and agrees that this Bond of Submission and 
 the award to be made thereunder shall and may be 
 made a rule of court of any of the superior courts of 
 this Province. . ^ j -^^ >' 
 
 " ' ' A. B. [l. s.] 
 
 Signed, sealed, and delivered ) '■•'■ - 
 
 in the presence of J - •■ ' 
 
 E. F. ^»r* I,. .■\^ , 
 
 Appointment of an Umpire. . , 
 
 We, the within-named U. V. and X. Z., do hereby 
 nominate and appoint U. U., of , to be umpire 
 
 between us in and concerning the matters in differ- 
 ence within referred [on condition that he do, within 
 
OF AEBITRATION. 
 
 67 
 
 days from the date hereof, by some writing 
 under his hand, accept the umpirage]. 
 Witness our hands this day of 
 
 Witness, W. W. 
 
 
 U. V. 
 
 '.Vl' 
 
 X. z. 
 
 s.] 
 
 Enlargement of Time for making Award. 
 
 We, the undersigned arbitrators, by virtue of the 
 power to us given for this purpose, do hereby appoint, 
 extend, and [if a second enlargement^ "further"] en- 
 large the time for making our award until the 
 day of next, on, or before which said day our 
 
 award in writing of and concerning the matters in 
 difference within mentioned and referred to us shall 
 be made and published. 
 
 In Witness whereof, we have set our hands the 
 
 day of , A. D. 
 
 ^ A. B, 
 
 '^''■' "^''' \ : • : c. D. 
 
 Witness, W. W. ' 
 
 Enlargement of Time by the Parties. 
 
 We, the within-named A. B. and C. D., for our- 
 selves severally and respectively, and for our several 
 and respective heirs, executors, and administrators, 
 do hereby give, grant, and allow unto the within-named 
 arbitrators further time for making their award of 
 and concerning the several matters within referred 
 to them, until the day of next. 
 
 In Witness whereof, we have hereunto set our 
 hands [or, if the submission was by bond or deed, say. 
 
CAN^ADIAN DOMESTIC LAWTEE. 
 
 "our hands and seals"], the 
 
 A. D. 
 
 P. 
 
 Witness, W. W. 
 
 '1' t- 
 
 day of 
 
 A. B. 
 C. D. 
 
 Appointment of Third Person as additional Arbitrator. 
 
 We, the within-naraed U. V. and X. Z., do, by this 
 memorandum under our hands [made before we enter 
 or proceed on the arbitration within mentioned] no- 
 minate and appoint Mr. X. Y., of , the third per- 
 son or arbitrator, to whom, together with ourselves, 
 all matters in difference between the said parties 
 within mentioned shall be referred, according to the 
 tenor and effect of the within [deed]. - , 
 
 Witness our hands this day of 
 
 , 186 
 
 U. V. 
 
 X. z. 
 
 Signed in the presence of 
 Y. Z. 
 
 Oatli to be administered by Arbitrator to a Witness. 
 
 You shall true answer make to all such questions 
 as shall be asked of you by or before me touching or 
 relating to the matters in difference between ,A. B. 
 and C. D. referred to my award [or "to the award 
 of myself and G. H." ], without favor or affection to 
 either party ; and therein you shall speak the truth, 
 the whole truth, and nothing but the truth. 
 
 So help you God. 
 
OP AEBITEATION. 
 
 Appointment by Arbitrator for Attendance before him. 
 
 B. ) I appoint , the day of next, 
 
 V. V at o'clock in the evening, at , for 
 
 D. ) proceeding in this reference. Dated the 
 day of ,A. D. 186 . A. A. 
 
 To Messrs. A. B. and\ {I7i,e arbitrator's signa- 
 
 C. D., and their re- 
 spective attorneys or' 
 agents, and all others' 
 whom it may concern. 
 
 ture. or the signature 
 of one or more ofthern^ 
 if inore than one.) 
 
 Peremptory Appointment for the same purpose. 
 
 I appoint ,the_ day of instant [or 
 
 "next"], at o'clock in the noon pre- 
 
 cisely, at , peremptorily to proceed upon and 
 
 conclude the reference now pending before me be- 
 tween A. B. and C. D.: And I hereby give notice, 
 that in case of non-attendance of either party, I shall 
 nevertheless proceed, and immediately make my 
 award, according to the statute in that case made and 
 provided. Dated the day of , a. d. 
 
 E. F.f Arbitrator. 
 To Messrs. A. B. and C. D.,and their respective attor- 
 neys or agents, and all others whom it may concern. 
 
 General Form of Award. 
 
 To all to whom these presents shall come, I, A. A., 
 of ,■ send greeting : [&c. proceed to recite the 
 
 instrument by which the parties referred to arbitration^ 
 and so rauch of its terms as m,ay be essential to show 
 
70 
 
 CANADIAN DOMESTIC LAWYER. 
 
 the authority of the arbitrator or umpire loith respect 
 to the subject-matter of reference^ and the time^ power 
 of enlargement^ and manner of TnaMng the award. 
 Tfius, if it be by indenture^ the recital may be thus : 
 "Whereas by an indenture bearing, &c., and made 
 between, &c., reciting that various differences had 
 arisen, &c.," so stating all that may he ^material to 
 warrant the folloioing awards and then proceed thus:'\ 
 Now know ye that I, the said A. A., having taken upon 
 myself the burthen of the said arbitration, and having 
 heard and duly considered all the allegations and evi- 
 dence of the said respective parties of and concerning 
 the said matters in difference and iso referred as afore- 
 said, do make this my award in writing of and con- 
 cerning the said matters in difference so referred, and 
 do hereby avard, order, determine, and direct that 
 [&c. conclude with a distinct statement of the arbi- 
 trator's decision on all the points referred to him']. 
 Witness, W.W. ^^ .. A. A. 
 
 Award where the Submission was by mutual Bonds. 
 
 To all to whom these presents shall come, I, A. A., 
 of , send greeting: Whereas on » by a 
 
 bond made and sealed with the seal of C. D., of , 
 he became held and firmly bound unto A. B. " ' in 
 the penal sum of ' " : And whereas on the day 
 and year aforesaid the said A. B., by another bond 
 sealed with his seal, become held and firmly bound 
 unto the said C. D. in the like penal sum, with con- 
 ditions written under the said several bonds that the 
 said A. B., his heirs, executors, and administrators, 
 and the said C. D.,]ii8 heirs, executors, and adminis- 
 
OF AEBITEATION. 
 
 trators, should well and truly stand to, abide by, 
 perform, fulfil, and keep the award, order, and final 
 end and determination of me, A. A., an arbitrator 
 indifferently named and elected, as well on the part 
 and behalf of the above-bounden A. B. as of the above- 
 bounden C. D., to arbitrate, award, order, judge, and 
 determine of and concerning [ifcc. here set out such 
 parts of the bond as bear upon the award, and state the 
 enlargement, if ani/]. Now I, the said A. A., having 
 taken upon myself the burthen of the said arbitration, 
 and having heard and duly and maturely weighed and 
 considered the several allegations, vouchers, and proofs 
 in difference respectively, do in pursuance of the said 
 submission make and publish this my award of and 
 concerning the said premises in manner following; 
 that is to say, I do award [<fcc.]. 
 
 In Witness, &c. "'" A. A. 
 
 Witness, W. W. -"^^-^ = 
 
 Award where the Submission was by Agreement, and stating 
 an Assent for an Enlargement. 
 
 To all to whom these presents shall come, we, A. A. 
 and T. A., of , send greeting : Whereas on 
 
 by a certain agreement in writing under the hands 
 [and seals] of A. B., of , and C. D., of , 
 
 bearing date on or about the day of last, 
 
 reciting that [&c. here set out the recital and such 
 parts of the agreement as bear upon the award :'] And 
 whereas by an endorsement on the said agreement, 
 bearing date on or about the day of last 
 
 past, and under the hands of all the said parties to 
 
72 
 
 CANADIAN DOMESTIC LAWYER. 
 
 the said agreement, they the said parties mutually 
 and reciprocally consented and agreed that the time 
 for the said arbitrator's making the said award should 
 be enlarged to the day of then next, and 
 
 that they would in all other respects abide by the 
 terms of the said agreement. Now know ye that we 
 the said aj'bitrators having taken upon us the burthen 
 of the said reference, and having examined all such 
 witnesses as were produced before us by the said par- 
 ties respectively, and having fully weighed and con- 
 sidered all the allegations, proofs, and vouchers made 
 and produced before us, do award [&c.]. 
 
 In Witness, &c. . A. A. 
 
 'i Witness, W. W. ■ _ « 
 
 Award that each Party shall pay his own Costs, and that 
 one shall pay the Costs of the Reference, and that the 
 other shall afterwards pay him half thereof. 
 
 And I do further award, order, and determine that 
 each of them the said A. B. and C. D. shall bear and 
 pay his own costs incurred by him in and about the 
 said submission and reference, and that the sum of 
 , being the amount of the other costs attend- 
 ing the said submission and reference, and of the 
 making of this award, shall be paid by the said 
 A. B. to me A. A. upon demand, and that the sum of 
 
 , being one moiety of the said sum of 
 shall, after such aforesaid payment by the said A. B. 
 be paid by the said C. D. to the said A. B. upon de- 
 mand. 
 
OF ARBITRATION. 
 
 n^ 
 
 /' 
 
 Affidavit of Execution of Arbitration Bond. 
 
 I, Y. Z., of, &c., make oath and 
 
 County of ' 1 ^' 
 
 to wit: I say, 
 
 1. That I was present and did see the annexed 
 Arbitration Bond duly signed, sealed, and delivered 
 by the therein-named A. B., and that I am the 
 subscribing witness to the execution of the said 
 
 bond. - > „ 
 
 Y. Z. 
 
 Sworn before me, at , 
 
 in the county of , this 
 
 day of %18 , 
 
 E. F., ;„,:x y-. ..-•=■ -, ...•^,.- . „:-_ 
 
 a Commissioner, &c., in B. R. ' . 
 for County of " i*;^ ;* 
 
 If the affid.ivit is intended for use in a court of law, 
 it must be orititled in the court. . 'm , i * 
 
 An affidavit of execution of award can easily be 
 framed from the above. 4 
 
 i,:.: 
 
 % 
 
 
74 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 ';«■ -f'.'i .■■"., 
 
 •:lr'!' •..»'yji'J':J V- ''• r- 
 
 
 .,fe^ 
 
 CHAPTER IV. 
 
 
 Of Assigntnents, 
 
 An assignment, in its general acceptation, is the 
 transfer of any kind of property, whether real or per- 
 sonal. The j)erson making the assignment is called 
 the assi(/9ior; lie to whom the assignment is made, 
 the assignee. 
 
 An assignment of land, or of any interest in land, 
 should be registered in the county registry office. 
 An assignment of goods and chattels, whether abso- 
 lute, as a bill of sale, or conditional, as a chattel mort- 
 gage, not accompanied by immediate delivery and 
 followed by an actual and continued change of posses- 
 sion, requires to be filed in the office of the clerk of 
 the county court of the county wherein the goods are. 
 See Cons. : Stat. U. C;, cap. 46, ss. 1-4. 
 
 An assignment requires to be executed with the 
 same formalities as other deeds. For a longer notice 
 of these formalities the reader may refer to the chapter 
 upon Deeds. 
 
 The following forms will be found to meet cases of 
 common occurrence. In matters of difficulty the ser- 
 vices of a professional man should be procured. 
 
 .# 
 
OF ASSIGNMENTS. 
 
 75 
 
 Assignment of Agreement to Purchase. 
 {To be endorsed upon or annexed to the Original.) 
 
 Whereas the within-named C. D. hath duly paid 
 to the within-named A. B. the sum of $ , being 
 
 the amount of the first two instalments of the purchase 
 money within-mcntioned,together with all interest upon 
 such purchase money up to the day of last, 
 
 according to the terms and provisions of the within- 
 written articles, and there now remains to be paid the 
 sura of $ only, by equal annual instalments 
 
 of $ each, with interest from the day of 
 
 last. And whereas the said CD. hath con- 
 
 tracted and agreed with E. F., of 
 
 for the sale 
 
 to him of the within-mentioned premises [and the im- 
 provements thereon] and all his right and title thereto 
 and estate and interest therein under or by virtue of 
 the within-written agreement, at the price or sum of 
 $ , but subject nevertheless to the payment by him, 
 the said E. F., his heirs, executors, or administrators, 
 unto the said A. B., his executors or administrators, of 
 the said sum of $ , residue of the original purchase 
 money aforesaid, and interest thereon from the period 
 aforesaid. 
 
 Now THESE PRESENTS WITNESS, that in pursuauce 
 of such agreement and in consideration of the sum of 
 $ , of good and lawful money aforesaid, to him, 
 
 the said CD., in hand paid by the said E. F. at or 
 before the execution hereof, the receipt whereof he, 
 the said C. D., doth hereby acknowledge, he, the said 
 C. D., hath granted, bargained, sold, assigned, trans- 
 ferred, and set over, and by these presents doth grant. 
 
76 
 
 CANADIAN DOMESTIC LAWYER. 
 
 bargain, sell, assign, transfer, and set over unto the 
 said E. F., his heirs and assigns, All and singular 
 the within-mentioned and described parcel or tract of 
 land and premises, and therein described as being lot 
 No. ill the concession of , together with 
 
 all the right, title, and interest of him, the said C. D., 
 of, in, and to the within-w'tten articles of agreement 
 covenants, and the lands and premises therein referred 
 to, and all improvements thereon, and all benefit and 
 advantage to arise therefrom, or from the penal sum 
 of $ thereby secm'ed: To have and to hold, 
 
 receive and enjoy, the said assigned premises mito 
 the said E. F., his heirs, executors, administrators, 
 and assigns, from henceforth, for his and their own 
 use and benefit forever. 
 
 And the said C. D. doth hereby make, ordain, au- 
 thorize, constitute, and appoint the said E. F., hie heirs, 
 executors, administrators, and assigns, his true and 
 lawful attorney and attorneys, irrevocable for him, the 
 said C. D., and in his name, but for the sole use and 
 benefit of the said E. F., his heirs, executors, and ad- 
 ministrators, to demand, sue for, recover, and receive 
 of and from the within-named A. B., his heirs, exe- 
 cutors, or administrators, all such sum or sums of 
 money and damages as shall or may at any time or 
 times hereafter accrue or grow due to him, the said 
 C. D., his heirs, executors, administrators, or assigns, 
 under or by virtue of the said recited articles of agree- 
 ment and covenants, or any matter^ clause, or thing 
 therein contained, by reason or on account of the 
 breach or default of him, the said A. B., his heirs, 
 executors, or administrators, in relation thereto ; the 
 
OF ASSIGNMENTS. 
 
 11 
 
 said C. D. hereby also covenanting with tho said 
 E. F., his heirs, executors, and administrators, tliat he 
 hath not done or suftered, nor will he do or suffer any 
 act, matter, or thing whereby the said E. F., his heirs, 
 executors, or administrators, shall or may be hindered 
 or prevented from commencing and prosecuting any 
 action or actions, suit or suits at law or in equity, for 
 the recovery of any principal money or damages under 
 or by virtue of the said articles of agreement and cove- 
 nants referred to, or enforcing the performance of the 
 said articles of agreement, or obtaining such other 
 satisfaction as can or may be had or obtained for the 
 same by virtue thereof; And the said E. F. doth 
 hereby, for himself, his heirs, executors, and adminis- 
 trators, covenant with the said 0. D., his heirs, exe- 
 cutors, and administrators, that he, the said E. F., his 
 heirs, executors, or administrators, shall and will well 
 and truly pay to the said A. B., his executors or ad- 
 ministrators, the aforesaid sum of $ . , residue of 
 the purchase money aforesaid, and all the interest 
 thereon now or hereafter to become due, by the instal- 
 ments and at the times mentioned and provided there- 
 for in and by the said recited articles of agreement, and 
 therefrom shall and will indemnify and forever save 
 harmless the said CD., his heirs, executors, and ad- 
 ministrators, and his and their goods and chattels, 
 lands and tenements, by these presents. . 
 
 In Witness, &c. 
 
 Signed, <fcc. .-. ^ ; 
 
CANADIAN DOMESTIC LAWYER. 
 
 Assignment of a Bond by Endorsement. 
 
 Know all Men by these Presents, that for and 
 in consideration of tlio suin of , of good and law- 
 ful money of Canada, by E. F., of , to the 
 within-mentioned obligee, C. D., in hand well and 
 truly paid at or before tlio sealing and delivery of 
 these presents, the rcecij)t whereof is hereby acknow- 
 ledged, he, the said CD., iiatii bargained, sold, as- 
 signed, transferred, and set over, and by these presents 
 DOTH bargain, sell, assign, transfer, and set over, unto 
 the said E. F., his executors, administrates, and as- 
 signs, the within-written bond or obligation, and all 
 principal and interest money thereby secured, and now 
 due or hereafter to become due thereon, and all benefit 
 and advantage whatever to be had, made, or obtained 
 by virtue thereof, and all the right, title, interest, pro- 
 perty, claim, and demand whatsoever, both at law and 
 in equity, of him, the said C. D., of, in, to, or out of 
 the said bond and moneys, together with the said bond. 
 To HAVE, HOLD, reccive, and enjoy the said bond 
 and moneys unto the said E. F., his executors, adminis- 
 trators, and assigns, from henceforth, for his and their 
 own use and benefit forever; And the said C. D. 
 doth hereby make, constitute, and appoint, and in his 
 place and stead put and place, the said E. F., his exe- 
 cutors, administrators, and assigns, the true and law- 
 ful attorney and attorneys irrevocable of him, the said 
 C. D., in his name, but to and for the sole use and 
 benefit of the said E. F., his executors, administrators, 
 and assigns, to ask, demand, and receive of and from 
 the within-named A. B., the obligor in the within- 
 
OF ASSIGNMENTS. 
 
 99 
 
 written bond or obligation named, hin lieirn, cxc'cutorrt, 
 jidniinistriitorH, or assigns, all such i)rincii)al and inte- 
 rest moneys as now are or shafl from time to time or 
 at any time hereafter bo due upon the said bond, and 
 to sue and prosecute any action, suit, judgment, or ^ 
 execution thereupon, and to acknowledge^, make, and 
 give full satisfaction, receipts, releases, and diHcliargeii 
 for all moneys secured by the said bond and now 
 duo or at any time hereafter growing due thereon, and 
 generally to do all and every such furtlier and otlu'f 
 lawful acts and things, as well for the recovering and 
 receiving as also for the releasing and dischargitig of all 
 and singular the said hereby assigned bond, money n, 
 and premises, as fully and effectually to all intents and 
 purposes as he, the said C. D., his executors, adminis- 
 trators, or assigns, could or might do if personally pre- 
 sent and doing the same. And the said C. D. doth 
 hereby, for himself, his executors and administratorw, 
 covenant with the said E. F., his executors, adminis- 
 trators, and assigns, to ratify, allow, and confirm all 
 and whatsoever the said E. F., his executors, admijuH- 
 trators, or assigns, shall lawfully do or cause to bo done 
 in or about the premises by virtue of these presents. 
 And the said C. D., for himself, his executors and 
 administrators, doth further covenant, promise, and 
 agree to and with the said E. F., his executors, admi- 
 nistrators, and assigns, by these presents, in manner 
 following, that is to say: that the within-mentioned 
 sura of remains justly due and owing upon tho 
 
 said bond, and that he, the said CD., hath not received 
 or discharged all or any of the said moneys duo or to 
 grow due on the said bond, nor shall or will roloaso. 
 
80 
 
 CANADIAN DOMESTIC LAWYER. 
 
 nonsuit, vacate, or disavow any suit or other legal 
 proceedings to be had, made, or prosecuted by virtue 
 of these presents, for the suing for, recovering, releas- 
 ing, or discharging of the said moneys or any of them, 
 ^ without the license of the said E. F., his executors, 
 administrators, or assigns, first had and obtained in 
 writing, nor shall or will revoke, invalidate, hinder, or 
 make void these presents, or any authority or power 
 hereby given, without such license as aforesaid. 
 In Witness, &c. ^ ■ . .--^•■■\, '. 
 
 and 
 
 ^; . , Assignment (Crown Lands). 
 
 Know all Men by these Presents, that I 
 of the of , in the County of 
 
 Province of Canada, for and in consideration 
 
 of the sum of , of lawful money of the said Pro- 
 
 vince, to in hand paid by , of the ' 
 
 of , in the County of and Province afore- 
 
 said, at or before the date hereof, the receipt whereof 
 do hereby acknowledge, have bargained, sold, 
 assigned, transferred, and set over, and by these pre- 
 sents do bargain, sell, assign, transfer, and set over 
 to the said , heirs and assigns, all estate, 
 
 right, title, interest, claim, and demand whatsoever, 
 both at law and in equity, of, in, and to that certain 
 parcel or tract of land and premises situate, lying 
 and being in the township of , in the County of 
 
 and Province aforesaid, containing by ad- 
 measurement acres, be the same more or less, 
 being composed of Lot number in the 
 Concession - of the Township aforesaid 
 [insert, if necessary, " subject to the conditions, as to 
 
i OF ASSIGNMENTS. 
 
 Bettlement and otherwise, of the Crown Lands Depart- 
 ment, which are to be performed."] 
 
 To HAVE AND TO HOLD the sumc, with all and every 
 the benefit that may or can be derived from the said 
 acres of land, unto the said , heirs and 
 
 assigns, forever. 
 
 In witness whereof, have hereunto set 
 
 hand and seal , this day of , in the year of 
 
 our Lord one thousand eight hundred and 
 
 Signed, seale*^ and delivered ) ^^.-^^ . 
 
 in presence of J ^' s ,: ' . • 
 
 Canada. County of , to wit: , of the 
 
 Township of , in the County of , maketh 
 
 oath and saith, that he was personally present and 
 did see the within-named duly sign and seal, 
 
 and as act and deed deliver, the within Assign- 
 
 ment on the day of the date thereof, and that he, this 
 deponent, is a subscribing witness thereto. 
 
 Sworn before me, at 
 this day of ,18 
 
 A. B., 
 a Commissioner for taking Affidavits 
 in and for the said county. 
 
 :l 
 
 Assignment of Lease. 
 
 This Indenture, made the day of 
 
 m 
 
 the year of our Lord one thousand eight hundred and 
 Between , of the first part, and , of 
 
 the second part. Whereas, by an Indenture of Lease, 
 bearing date on or about the day of , in ' 
 
 the year of our Lord one thousand eight hundred and 
 
 4.» 
 
 t 
 
82 
 
 CANADIAN DOMESTIC LAWYER. 
 
 , and made between , the said lessor 
 
 therein named did demise and lease unto the said 
 lessee therein named, executors, administra- 
 
 tors, and assigns, All and singular th certain 
 
 parcel or tract of land and premises, situate, lying, 
 and being in the To hold the same, with the 
 
 appurtenances, unto the said lessee, executors, 
 
 administrators, and assigns, from the v . . day of 
 , in the year of our Lord one thousand eight 
 hundred and , for and during the term of 
 
 years from thence next ensuing, and fully to be com- 
 plete and ended at the yearly rent of and under 
 and subject to the lessee's covenants and agreements 
 in the said Indenture of Lease reserved and con- 
 tained. - ' ' ^ 
 
 Now THIS Indenture "Witnesseth, that in con- 
 sideration of the sura of * ' , of lawful money of 
 Canada, now paid by the said part of the second part 
 to the said part of the first part (the receipt whereof 
 is hereby acknowledged), the said part of the 
 
 first part Do hereby grant, bargain, sell, assign, 
 transfer, and set over unto the said part of tne 
 second part, executors, administrators, and assigns. 
 All and singular the said parcel or tract of land, 
 and all other the premises compri-sed in, and demised 
 by, the said hereinbefore in part recited Indenture of 
 Lease, Together with the said Indenture of Lease, 
 and all benefit and advantage to be had or derived 
 therefrom : To have and to hold the same, together 
 with all houses and other buildings, easements, pri- 
 vileges, fnd appurtenances thereunto belonging or 
 in any wise appertaining, unto the said part of the 
 
y. , 
 
 OF ASSIGDNHENTS. ~ 
 
 83 
 
 second part, executors, aduiinistrators, and assigns, 
 from henceforth for and during all the residue of the 
 said term granted by the said Indenture of Lease, 
 and for all other the estate, term, right of renewal 
 (if any), and other the interest of the said part of 
 the first part therein ; Subject to the payment of the 
 rent and the observance and performance of the les- 
 see's covenants and agreements in the said Indenture 
 of Lease reserved and contained. 
 
 And the said part of the first part do hereby, for 
 
 heirs, executors, and administrators, covenant, 
 
 promise, and agree, to and with the said part of the 
 
 second part, executors, administrators, and assigns, 
 
 in manner following, that is to say : 
 
 That notwithstanding any act of the said part of 
 the first part, the said hereinbefore in part recited 
 Indenture of Lease is, at the time of the sealing and 
 delivery of these presents, a good, valid, and sub- 
 sisting Lease in the law, and not surrendered, for- 
 feited, or become void or voidable ; and that the rent 
 and covenants therein reserved and contained have 
 been duly paid and performed by the said part of 
 the first part up to the day of the. date hereof. 
 
 And that, notwithstanding as aforesaid, the said 
 part of the first part now ha in good right, full 
 power, and lawful and absolute authority to assign 
 the said lands and premises, in manner aforesaid, and 
 according to the true intent and meaning of these 
 presents. 
 
 And that, subject to the said rent, and the lessee's 
 covenants and agreements in the said lease contained, 
 it shall be lawful for the said part of the second 
 
 m 
 
 
A4 
 
 w^-- 
 
 CANADIAN DOMESTIC LAWYER. 
 
 part, executors, administrators, and assigns, to 
 
 enter into and upon and hold and enjoy the said pre- 
 mises the residue of the term granted by the said 
 Indenture of Lease, and any renewal thereof (if any), 
 for their own use and benefit, without the let, suit, 
 hindrance, interruption, or denial of the said part 
 of the first part, executors, administrators, or as- 
 
 signs, or any other persons claiming under , 
 
 and that free and clear, and freely and clearly ac- 
 quitted, exonerated, and discharged, or otherwise, by 
 and at the expense of the said part of the first part, 
 heirs, executors, and administrators, well and 
 effectually saved, defended, and kept harmless, of, 
 from, and against all former and other gifts, grants, 
 bargains, sales, leases, and other incumbrances what- 
 soever, of the said part of the first part, or any per- 
 sons claiming under 
 
 And that the said part of the first part, heirs, 
 executors, administrators, and assigns, and all other 
 persons claiming any interest in the said premises, 
 under or them, shall and will, from time to time, 
 
 and at all times hereafter, at the request and cost of 
 the said part of the second part, executors, ad- 
 
 ministrators, or assigns, make, do, and execute, or 
 cause and procure to be made, done, and executed, 
 all such further assignments and assurances in the 
 law of the said premises for more effectually assign- 
 ing and assuring the said premises for the residue of 
 the said term, and any renewal thereof (if any), as by 
 the said part of the second part, executors, 
 
 administrators, or assigns, or counsel in the law, 
 
 shall be reasonably advised or required. 
 
OF ASSIGNMENTS. 
 
 85 
 
 And the said part of the second part do hereby, 
 for heirs, executors, administrators, and assigns, 
 
 covenant, promise, and agree, to and with the said 
 part of the first part, executors and adminis- 
 
 trators, that he or they, the said part of the second 
 part, executors, administrators, or assigns, shall 
 
 and will, from time to time, during all the residue of the 
 said term granted by the said Indenture of Lease, pay 
 the rent, and perform the lessee's covenants and agree- 
 ments therein respectively reserved and contained, and 
 indemnify and save harmless the said part of the first 
 part, heirs, executors, and administrators, there- 
 
 from, and from all actions, suits, costs, losses, charges, 
 damages, and expenses in respect thereof. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and affixed 
 their seals, the day and year first above written. , . 
 
 Signed, sealed, and delivered I ' 
 
 in the presence of j 
 
 Received, on the date hereof, the sum of , 
 
 beinu the full consideration above mentioned. 
 
 In presence of 
 
 Assignment of Lease, 
 shorter form. 
 
 This Indenture, made the day of , 
 
 in the year of our Lord ono thousand eight hundred 
 and , Between , of the first part, and 
 
 , of the second part, Witnksseth, that in con- 
 sideration of the sum of now paid by the said 
 part of the second part to the said part of the first 
 
 < 
 
 w 
 
CANADIAN DOMESTIC LAWYER. 
 
 part, the receipt whereof is hereby acknowledged, 
 ' the said part of the first part, Do hereby grant 
 and assign unto the said part of the second part, 
 executors, administrators, and assigns, All and 
 singular the premises comprised in and demised by a 
 certain Indenture of Lease, bearing date the day 
 
 of , in the year of our Lord one thousand eight 
 
 hundred and 
 
 and made between 
 
 , which 
 
 said piemises are more particularly known and de- 
 BCiibed nfe: follows, that is to say: All and singular 
 tb certain parcel or tract of land and premises 
 
 lUate, lying, and being • , together with the ap- 
 
 purtenances. To HOLD the same unto the said part 
 of the Recond part, executors, administrators, and 
 asyigiVH, hcijceforth for and during the residue of the 
 term of years from the r day- of ,18 , there- 
 by granted, and for all other the estate, term, and inte- 
 rest (if any) of the said part of the first part therein. 
 Subject to the payment of the rent and the perform- 
 ance of the lessee's covenants and agreements in the 
 said Indenture of Lease reserved and contained. 
 
 And the said part of the first part, for heirs, 
 executors, and administrators, do hereby covenant 
 with the said part of the seconc' part, executors, 
 administrators, and assig' s, that notwithstanding any 
 act of the said part of '>e first puvt, ha now 
 power to assign the said premises in nanner afore- 
 said. And that subject t^* the payn cnt of the said 
 rent, and the performance of the said lessee's cove- 
 nants, it shall be lawful for the said part of the 
 second part, executors, administrators, and assigns, 
 peaceably and quietly to hold and enjoy the said pre- 
 
' OF ASSIGNMENTS. 
 
 mises hereby assigned during the residue of the term 
 granted by the said Indenture of Lease, without any 
 interruption by the said part of the first part, or 
 any other persons claiming under , free from all 
 
 charges and incumbrances whatsoever, of the said 
 part of the first part. And that the said part 
 of the first part, and all persons lawfully claiming 
 under , will, at all times hereafter, at the request 
 and costs of the said part of the second part, 
 executors, administrators, and assigns, assign and co..- 
 firm to and them the said premises for the residue 
 of the said term as tlio said part of the second part, 
 executors, administrators, or assigns, shall direct. 
 
 And the said part of the second part, for heirs, 
 executors, and administrators. Do hereby covenant 
 with the said part of the first part, executors 
 and administrators, that , the said part of the 
 second part, executors, administrators, or assigns, 
 will, from time to time, pay the rent and perform the 
 lessee o cover a. its in the said Indenture of Lease, 
 and inde r.nify n:i 1 save harmless the said part of 
 the first part, heirs, executors, and administrators, 
 from all losses and expenses in respect thereof. 
 
 In WiTNESd Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first above written. 
 
 Signed, sealed, and delivered ) 
 in the presence of i 
 
 !K-11 
 
 pre- 
 
 As^ignment of Lease by Auministrator. 
 
 Know all men by these Presents, that A.. B., of 
 , f rministrator of all and singular the g'X ds and 
 
 
«s 
 
 CANADIAN DOMESTIC LAWYER. 
 
 chattels, rights and credits, of the within-named C. D. 
 deceased, for and in consideration of the sum of , 
 
 of good and lawful money of Canada, to him in 
 hand well and truly paid by E. F., of , at or bo- 
 
 fore the sealing and delivery of these presents, the 
 receipt whereof is hereby acknowledged, hatli (by 
 and with the consent of the within-named A. B., tes- 
 tified by his executing these presents) bargained, 
 sold, assigned, transferred, and set over, and by these 
 presents doth (by and with such consent as aforesaid) 
 bargain, sell, assign, transfer, and set over, unto the 
 said E. F., his exs., ads., and assigns, all and singular 
 the parcel or tract of land and premises comprised 
 in the with in-written indenture of lease, and all the 
 estate, 'right, title, and interest which he, the said 
 A. B., as administrator of the said C. D. as aforesaid, 
 or otherwise, now hath, or at any time hereafter shall 
 or may have, claim, challenge, or demand, of, in, or 
 to, all or any of the said premises, by virtue of the 
 said indenture of lease or otherwise, as administrator 
 of the said C. D. To have and to hold the said 
 parcel or tract of land, and all and singular other the 
 premises, with their and every of their appurtenances, 
 mito the said E. F., his exs., ads., and assigns, for and 
 during all the rest, residue, and remainder yet to come 
 and unexpired, of the within-mentioned term of 
 years, subject, nevertheless, to the yearly rent of 
 in and by the said indenture of lease reserved and 
 contained, and to become due and payable, and to all 
 and every the covenants, clauses, provisoes, and agree- 
 ments therein contained. And the said A. B., for 
 himself, his heirs, exs., and ads., doth hereby covenant 
 
OP ASSIGNMENTS. 
 
 nnd declare to and with the said E. F., his exs., ads., 
 and assigns, that he, the said A. B., hath not at any 
 time heretofore made, done, committed, or executed, 
 or wittingly or willingly permitted or suffered, any act, 
 deed, matter, or thing whatsoever, whereby or where- 
 with, or by means whereof, the said parcel or tract 
 of land and premises hereby assigned, are, is, can, 
 shall, or may be any ways impeached, charged, af- 
 fected, or incumbered in title, estate, or otherwise, 
 however. 
 In Witness, &c. 
 
 Assignment from Trader to Secure Debt. 
 
 Tins Indenture, made the ' day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , Between of the first part, 
 
 wi of the said , of the second part, and 
 
 of the third part. 
 
 Whereas the said part of the first part is justly 
 and truly indebted unto the said part of the third part 
 in the sum of or thereabouts, and hath agreed to 
 
 execute unto the said part of the third part, an 
 assignment of all his estates and interest in the real 
 and personal estate and effects hereinafter mentioned, 
 for the purpose of paying thereout or securing the 
 payment of such indebtedness. 
 
 Now THIS Indenture witnesseth, that in pursu- 
 ance of the said agreement, and in consideration of the 
 sum of five shillings of lawful money of Canada, to 
 the said part of the first part paid by the said 
 part of the third part, at or before the execution of 
 these presents (the receipt whereof is hereby ac- 
 
 
 fii 
 
 iJ; 
 
90 
 
 CANADIAN DOMESTIC LAWYER. 
 
 knowlcdged), , tho said part of the first part, Ha 
 granted, bargained, sold, released, conveyed, assigned, 
 transferred, and assured, and by these presents Do 
 grant, bargain, sell, release, convey, assign, transfer, 
 and assure, unto the said part of the third part, 
 heirs, executors, adniinistrato'-a, and assigns. All and 
 singular tho real estate specilied in the Schedule to 
 these presents marked A, and all the household 
 goods, books, credits, furniture, stock in trade, bonds, 
 bills, notes, books of account, and securities for 
 money, and all other the personal estate and effects, 
 now belonging, due, or owing to him the said part 
 of the first part, the greater part of which are now 
 in and upon the premises upon which the sold part 
 of the first part now carries on his said business, and 
 are specified in the Schedule to these presents marked 
 B ; and which said goods are forthwith, upon the exe- 
 cution of these presents, to be delivered into the pos- 
 session of the said part of the third part, or 
 agent or agents in that behalf; and all reversions, re- 
 mainders, rents, issues, and profits, and all the right, 
 title, interest, trust, possejision, property claim, and 
 demand whatsoever, at law or in equity, of the said 
 part of the first part, of, in, to, out of, or upon the 
 same real and pergonal estate, goods, chattels, effects, 
 and property, respectively. Together with the ap- 
 purtenances, and together with all books, writings, 
 deeds, bills, notes, and receipts, papers and vouchers, 
 touching or concerning the said premises hereby as- 
 signed, or any part thereof. 
 
 To HAVE AND TO HOLD, rcceive, take, and enjoy, 
 the said real and personal estate, goods, chattels. 
 
OF ASSIGNMENTS. 
 
 91 
 
 stocks, moneys, cretlits, bonds, bills, notes, secnri- 
 ties for money, and all and singular other the pre- 
 mises hereby convoyed and assigned, or intended so 
 to be, unto the said part of the third part, 
 heirs, executors, administrators, and assigns, hence- 
 forth forever, to and for solo and only use, and 
 as and for own proper goods, chattels, moneys, 
 and eftects absolutely. 
 
 Subject nevertheless, and to and for the intents 
 and purposes following, that is to say : 
 
 That the said part of the third part, or agent 
 or agents in that behalf, do and shall with all con- 
 venient speed sell and dispose of the said real and 
 personal estate, stock, chattels, and effects, either 
 together or in parcels, and either by public auction 
 or private contract, for the best price or prices that 
 can be reasonably obtained for the same, and either 
 for ready money or for credit or otherwise, as shall 
 be deemed most beneficial, the receipts of the said 
 part of the third part being sufficient discharges for 
 the same, and do and shall receive, collect, and get in 
 all and singular the credits and sums of money here- 
 by assigned or intended so to be, and apply the said 
 moneys to arise by such sale or sales, and to be re- 
 ceived or collected as aforesaid, after payment of all 
 costs, charges, and expenses of these presents, and in- 
 cidental thereto, and in carrying out the purposes 
 thereof, or otherwise in relation thereto, in and to- 
 wards the payment and liquidation in full of the said 
 indebtedness of the said part of the first part to the 
 said part of the third part, and after such payment 
 do and shall pay the residue and surplus, if any, to 
 
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92 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 the said part of the first part, his executors, ad- 
 ministrators, or assigns, or as shall direct. 
 
 And for the better carrying out of these presents, 
 the said part of the first part do hereUy nominate 
 and appoint the said part of the third part, exe- 
 cutors, administrators, and assigns, the true and law- 
 ful attorney and attorneys of , the said part of 
 the first parti for and in name to do, perform, 
 and execute all such acts, deeds, matters, and things 
 whatsoever in relation to all and singular the real and 
 personal estate and effects and premises iiereby as- 
 signed as aforesaid, as the said part of the third 
 part may deem necsessary for more efiectually carrying 
 into effect the true intent and meaning hereof; and 
 that for the purposes aforesaid it shall be lawful for 
 the said part of the third part, "^ servants and 
 agents, to continue in and to occupy the said premises 
 now in the occupation of the said part of the first 
 part, until the trusts of this assignment are fully exe- 
 cuted. 
 
 Provided also, that any collateral or other secu- 
 rities, by way of judgments or otherwise, which the 
 said part of the third part now hold against the 
 said part of the first part in respect of said in- 
 debtedness or any part thereof, shall not be preju- 
 diced or affected by this assignment, or otherwise than 
 by payment of such indebtedness out of the proceeds 
 to arise hereunder. 
 
 And provided, further, that the said part of 
 the third part shall not be answerable or chargeable 
 as implied trustee hereunder, except for wilful neglect 
 or default, but no further or otherwise. 
 
OP ASSIGNMEirrS. 
 
 93 
 
 And the said part of the second part wi of the 
 said, with the privity and consent of said 
 
 husband, in consideration of five shillings to paid 
 by the said part of the third part, hereby release 
 unto the said part of the third part all dower, and 
 right or title to dower, in the said lands hereby con- 
 veyed and every part thereof. , \ . 
 
 In Witness Whereof, the said parties to these pre- 
 sents have hereunto set their hands and seals, the 
 day and year first above written. ,. , 
 
 Signed, sealed, and delivered ) ^ | 
 
 in the presence of , ^», . i . -s'jtSv . ^ 
 
 Assignment of Judgment. 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred and 
 , Between , of the first part, and , 
 
 of the second part. 
 
 Whereas the said part of the first part, on or about 
 the day of , one thousand eight hundred and 
 
 , recovered a judgment in the Court of for Upper 
 Canada, at Toronto, for the sum of against 
 
 And whereas the said part of the first part hath 
 agreed to assign the said judgment, and all benefit to 
 arise therefrom, either at law or in equity, unto the 
 said part of the second part, in manner hereinafter 
 expressed. 
 
 Now this indenture WITNESSETH, that in pur- 
 suance of the said agreement, and in consideration of 
 the sum of ■ , of lawful money of Canada, to the 
 said part of the first part in hand paid by the said 
 part of the second part, at or before the execution 
 
94. 
 
 CANADIAN DOMESTIC LAWYER. 
 
 iiereof, the receipt whereof is hereby acknowledged, 
 the said part of the first part, Ha granted, 
 bargained, spold^and assigned, and by these presents 
 Do grant, bargain, sell, and assign, unto the said part 
 of the second part, executors, administrators, and 
 assigns, All that the said hereinbefore mentioned 
 judgment, and all benefit to be derived therefrom, 
 either at law or in equity, or otherwise howsoever. 
 
 To HOLD, receive, and take the same, and all benefit 
 and advantage thereof, to and for his and their own 
 proper use, and as and for his and their own proper 
 moneys and effects, absolutely. ;-i> >,,, i 
 
 And the said part of the first part hereby con- 
 stitutes and appoints the said part of the second 
 part, executors and administrators, to be true 
 and lawful attorney and attorneys, at the proper costs 
 and charges oi the said part of the second part, 
 executors and administrators, to take and prosecute 
 all and every remedy or proceeding at law or in equity, 
 which the said part of the second part, executors 
 or administrators, shall hereafter consider advisable 
 in reference to the said judgment, the said part of 
 the second part, for heirs, executors, and adminis- 
 trators^' hereby agreeing to indemnify and save harm- 
 less the said part of the first part, heirs, execu- 
 tors, and administrators, of and from all damages, 
 costs, charges, and expenses in respect thereof. 
 
 In Witness wheeeof, the said parties to these pre- 
 sents have hereunto set their hands and seals, the 
 day and year first above written. 
 
 Signed, sealed, and delivered 
 in the presence of . , 
 
 1. 
 
 hereby 
 
OF ASSIGNMENTS. 
 
 95 
 
 y V J. ■'». 
 
 pre- 
 . the 
 
 Assignment of Judgment .. ^-. 
 
 SPECIAL FORM. ' 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred and 
 , Between the Bank of , of the one part, 
 
 and A. B., of , of the other part. 
 
 Whereas the said Bank, on the day of 
 
 in the year of our Lord one thousand eight hundred 
 and , obtained a judgment in her majesty's 
 
 Court of Queen's Bench for Upper Canada, at Toronto, 
 against C. D., of , and E. F., of , for the 
 
 sum of 
 
 damages and 
 
 costs, making to- 
 
 gether the sum of '.'". 
 
 Now THIS Indenture witnesseth, that in con- 
 sideration of the sum of , of lawful money of 
 Canada, to the said Bank in hand well and truly 
 paid by the said A. B. at or immediately before the 
 sealing and delivery hereof, the receipt whereof is 
 hereby acknowledged, tbe said Bank hath granted, 
 bargained, sold, assigned, transferred, and set over, 
 and by these presents Doth grant, bargain, sell, as- 
 sign, transfer, and set over, unto the said A. B., his 
 executors, administrators, and assigns. All 'that the 
 said judgment debt or sum of and all and every 
 sum and sums of money now due and hereafter to 
 grow due by virtue thereof, for principal, interest, 
 and costs. And also the said judgment and all 
 other securities for the said debt, and the full benefit 
 and advantage thereof. To have, hold, receive, 
 and enjoy the said judgment debt and premises 
 hereby assigned, or intended so to be, unto the said 
 
96 
 
 CANADIAN DOMESTIC LAWYER. 
 
 A. B., his executors, admiuistrators, and assigns, 
 henceforth, to his and their own proper use and behoof, 
 as his and their proper goods and chattels forever. 
 And for the purpose of enabling the said A. B., his 
 executors, administrators, or assigns, to receive and 
 enforce payment of the judgment debt and premises 
 hereby assigned, the said Bank doth make, ordain, 
 constitute, and appoint the said A. B., his executors 
 and administrators, the true and lawful attorney and 
 attorneys of the said Bank, in the name of the said 
 Bank, but at the costs and charges of the said-A. B., 
 his executors or administrators, to ask, demand, and 
 receive of and from the said C. D. and E. F., their 
 executors or administrators, the judgment debt and 
 premises hereby assigned, and on non-payment of the 
 same or any part thereof to obtain any execution or 
 executions, or bring, commence, and prosecute any 
 action or actions, suit or suits, as well at law as in 
 equity, for the recovery of the same, and to use all 
 such other lawful remedies, ways, and means as the 
 said Bank could or might have used or taken for the 
 recovery of the same, and, on receipt or recovery 
 thereof, to sign and give a good and effectual receipt 
 or receipts for the same, with full power from time to 
 time to appoint a substitute or subtitutes for all or 
 any of the purposes aforesaid ; and the said Bank doth 
 hereby agree to ratify and confirm whatsoever the 
 said A. B., his executors or administrators, shall law- 
 fully do or cause to be done in or ibout the premises. 
 And the said A. B. hereby covenants to indemnify 
 and save harmless the said Bank from all loss, costs, 
 
 charg 
 accou 
 In 
 sident 
 and a 
 the sa 
 the da 
 
 This 
 the yes 
 
 and 
 
 of 
 
 hundrec 
 said asj 
 the sun 
 said 
 release, 
 his heirs 
 
 TOHC 
 
 and assi 
 proviso ( 
 same vo 
 executor 
 
 » 
 lowing, t 
 
 And t^ 
 
 g<ige the 
 And t\ 
 for the sa 
 
 ♦- 
 
,. ^ 
 
 OF ASSIGNMENTS. 
 
 97 
 
 charges, damages, and expenses, by reason or on 
 account of any such proceedings as aforesaid. 
 
 In Witness Whereof, , of , Esquire, Pre- 
 sident of the said Bank, hath hereunto set his hand 
 and affixed the common seal of the said Bank, and 
 the said A. B. hath hereunto set his hand and seal, 
 the day and year first above written. 
 
 Assignment of Mortgage. 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred and 
 , Between [assignor], of the first part, 
 
 and [assignee], of the second part. 
 
 Whereas, by Indenture bearing date the day 
 
 of , in the year of our Lord one thousand eight 
 
 hundred and 
 
 and made between 
 
 and the 
 
 said assignor of the part; in consideration of 
 
 the sum of paid by the said assignor to the 
 
 said , He, the said , did grant, bargain, sell, 
 
 release, convey, and confirm unto the said assignor, 
 his heirs and assigns, All 
 
 To HOLD the same unto the said assignor, his heirs 
 and assigns forever; Subject, nevertheless, to a 
 proviso or condition therein contained for making the 
 same void on payment by the said , his heirs, 
 
 executors, administrators, or assigns, of the sum of 
 , with interest, in manner and at the times fol- 
 lowing, that is to say : , • 
 
 And whereas there is now due on the said mort- 
 gage the sum' of for principal and interest. 
 
 And whereas, the said assignor having occasion 
 
 for the said sum of , the said assignee hath agreed 
 5 
 
98 
 
 CANADIAN DOMESTIC LAWYER. 
 
 M'- 
 
 to advance the same to him upon having a transfer 
 and assignment of the said mortgage debt, premises, 
 and securities made to him, the said assignee, in 
 manner hereinafter expressed. 
 
 Now THIS Indenture witnesseth that in con- 
 sideration of the said sum of paid by the said 
 assignee to the said assignor, at or immediately before 
 the sealing and delivery of these presents, the receipt 
 whereof the said assignor doth hereby acknowledge, 
 and therefrom doth release and discharge the said 
 assignee, his heirs, executors, administrators, and as- 
 signs. He, the said assignor. Doth by these presents 
 bargain, sell, and release unto the said assignee, his 
 heirs and assigns, All and singular the land, pre- 
 mises, and hereditaments comprised in the hereinbe- 
 fore recited Indenture of Mortgage, and hereinbefore 
 described, together with their and every of their 
 rights, members, and appurtenances; And all the 
 estate, right, title, interest, trust, property, claim, and 
 demand, whatsoever, at law and in equity, of him the 
 said assignor, in, to, or upon the land, and every part 
 thereof; And also all deeds, evidences, and writings, 
 whatsoever, relating to or concerning the same here- 
 ditaments and premises, or any part thereof, which 
 he, the assignor, now hath in his custody or posses- 
 sion or can or may obtain without suit at law or in 
 equity ; To have and to hold the said land and pre- 
 mises, and all and singular other the hereditaments 
 hereinbefore expressed to be hereby released unto the 
 said assignee, his heirs and assigns, to the use of 
 the said assignee, his heirs and assigns, forever: 
 Subject, nevertheless, to such right or equity of 
 
OF ASSIGNMENTS. 
 
 99 
 
 redemption on payment by the said , his heirs, 
 
 executors, administrators, or assigns, of the said sum 
 of , as^is or may be now subsisting under or by 
 
 vktue of the hereinbefore recited Indenture of Mort- 
 gage. 
 
 And this Indenture further witnbsseth that, 
 for the consideration aforesaid. He, the said assignor, 
 Doth by these presents bargain, Sell, assign, and 
 transfer unto the said assignee, his executor's, adminis- 
 trators, and assigns. All that the sura of now 
 due as aforesaid on the said mortgage, with the in- 
 interest to become due thereon; And also all the 
 right, title, interest, property, claim, and demand 
 whatsoever, at law and in equity, of him the said as- 
 signor, of, in, to, or out of the same and every part 
 thereof. To have, receive, take, and enjoy the said 
 last-mentioned sum and interest, and all other the 
 premises lastly hereinbefore expressed, to be hereby 
 assigned unto and by the said assignee, his executors, 
 administrators, and assigns, as and for his and their 
 own proper goods and chattels forever. 
 
 And for the better enabling the said assignee, his 
 executors, administrators, or assigns, to recover and 
 receive the sum of hereby assigned, and the in- 
 
 terest thereon. He, the said assignor. Doth by these 
 presents constitute and appoint the said assignee, 
 his executors and administrators, the true and lawful 
 attorney and attorneys irrevocable of him the said 
 assignor, for him and in his name, or in the name or 
 names of his executors or administrators, but for the 
 benefit and at the costs and risk of him the said as- 
 signee, his executors, administrators, or assigns, to ask. 
 
100 
 
 CANADIAN DOMESTIC LAWYER. 
 
 demand, and recover, by all lawful ways and means, 
 of and from the said , his hoirs, executors, or ad- 
 ministrators, and all and every other person and per- 
 sons liable to pay the same, the said sum of 
 secured by the said mortgage as aforesaid, and all in- 
 terest now due, and hereafter to grow due for the 
 same ; And in case of non-payment thereof, or of any 
 part thereof, to commence and prosecute such actions 
 or suits at law or in equity, or to take such proceed- 
 ings for the recovery of the same, as shall be thought 
 expedient, and on payment or receipt thereof, or of 
 any part thereof, to give sufficient releases and dis- 
 charges for the same ; And for the purposes aforesaid, 
 the said assignor doth hereby grant unto the said as- 
 signee, his executors and administrators, power and 
 authority to appoint a substitute or substitutes, and 
 such substitution from time to time at pleasure to 
 revoke ; And doth hereby ratify and confirm all and 
 whatsoever the said assignee, his executors or adminis- 
 trators, or his or their substitute or substitutes, shall 
 lawfully do or cause to be done in the premises, by 
 virtue of these presents. 
 
 And the said assignor, for himself, his heirs, execu- 
 tors, and administrators, doth hereby covenant with 
 the said assignee, his executors, administrators, and 
 assigns, in manner following, that is to say: That he, 
 the said assignor, hath not at any time heretofore done, 
 committed, or executed, or willingly permitted, any 
 act, matter, or thing whatsoever by means whereof the 
 lands and premises or the moneys hereby assigned or 
 intended so to be, or any part thereof, are, is, can, shall, 
 or maybe in any wise impeached, charged, encumbered, 
 
 or in a 
 
 estate, 
 
 Ane 
 
 ceived 
 
 and thf 
 
 and by 
 
 of Mor 
 
 And 
 
 ministri 
 
 revoke 
 
 hereinb( 
 
 lease, or 
 
 cution t 
 
 said assi 
 
 by virtu 
 
 him, the 
 
 or assigr 
 
 of law o 
 
 And t 
 
 tors, anc 
 
 the said 
 
 that he, 
 
 administi 
 
 keep ind( 
 
 administi 
 
 goads an 
 
 costs, dan 
 
 shall or m 
 
 by him o 
 
 actions, oi 
 
 or proseci 
 
 his execut 
 
OF ASSIGNMENTS. 
 
 101 
 
 or in any manner projudicially affected in title, charge, 
 estate, or otherwise howsoever. 
 
 And also that he, the said assignor, hath not re- 
 ceived the said sum of , or any part thereof; 
 and that the same is now justly due and owing, under 
 and by virtue of the said in part recited Indenture 
 of Mortgage. 
 
 And that he, the said assignor, his executors or ad- 
 ministrators, will not, nor shall at any time hereafter, 
 revoke or attempt to revoke the power or authority 
 hereinbefore contained; or disavow, discontinue, re- 
 lease, or discharge any action, suit, judgment, or exe- 
 cution to be brought, prosecuted, or obtained by the 
 said assignee, his executors, administrators, or assigns, 
 by virtue thereof, without the consent in writing of 
 him, the said assignee, his executors, administrators, 
 or assigns, or the rule, order, or decree of some court 
 of law or equity. 
 
 And the said assignee, for himself, his heirs, execu- 
 tors, and administrators, doth hereby covenant with 
 the said assignor, his executors and administrators, 
 that he, the said assignee, his heirs, executors, and 
 administrators, will at all times save harmless and 
 keep indemnified the said assignor, his executors and 
 administrators, and his and their lands and tenements, 
 goods and chattels, from and against all manner of 
 costs, damages, losses, and expenses whatsoever which 
 shall or may at any time hereafter be paid or sustained 
 by him or them for or by reason of any action or 
 actions, or suit or suits, which shall or may be brought 
 or prosecuted in the name or names of the said assignor, 
 his executors or administrators, under or by virtue of 
 
102 
 
 CANADIAN DOMESTIC LAWYER. 
 
 tho power or authority hereinbefore contained in that 
 behalf or in any manner relating thereto, except such 
 costs, damages, losses, and expenses only as shall or may 
 happen by or through the wilful default or neglect of 
 him, the said assignor, his executors or administrators. 
 
 In Witness whebbop, the said parties have here- 
 unto set their hands and seals, the day and year first 
 above written. 
 
 Signed, sealed, and delivered 1 
 in the presence of j 
 
 Assignment of Mortgage. 
 
 ANOTHER FORM. 
 
 J0 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred and 
 , in pursuance of the act to facilitate the convey- 
 ance of real property, Between , of the first part, 
 , of the second part [and , of the third part]. 
 
 Whereas, by an Indenture of Mortgage, bearing 
 date the day of , in the year of our Lord 
 
 one thousand eight hundred and , and made be- 
 
 tween : In consideration of the sum of 
 
 the said mortgagor therein named did grant, bargain, 
 sell, convey, and assure unto the said , his heirs 
 
 and assigns, forever. All and singular th certain 
 parcel or tract of land and premises situate, lying, 
 and being in the , Subject to a proviso for 
 
 redemption of the said premises on payment of the 
 said principal sum and interest on the days and times 
 and in manner therein mentioned. And whereas 
 the said party of the first part hath agreed with the 
 said party of the second part for the absolute sale to 
 
 him ( 
 
 bocon 
 
 all inl 
 
 in the 
 
 the pr 
 
 Ani 
 
 mortgj 
 
 tcrest : 
 
 hundre 
 
 Nov, 
 
 siderati 
 
 Canadn 
 
 second 
 
 the recc 
 
 said pai 
 
 gain, se 
 
 the said 
 
 assigns, 
 
 heredita 
 
 gaged b 
 
 ture of I 
 
 tenances 
 
 party of 
 
 said Ind 
 
 vantage 
 
 ters, and 
 
 with the « 
 
 and now 
 
 able, und 
 
 To HA 
 
 and even 
 
 of the sai 
 
OF ASSIONMENTS. 
 
 103 
 
 him of all principal moneys and interest dno and to 
 become due on the said Indenture of Mortgage, and 
 all interest of the said party of the first part of and 
 in the lands and premises thereby conveyed, at or for 
 the price or sum of 
 
 And whereas there is now due upon the said 
 mortgage, for principal, the sura of , with in- 
 
 terest from the day of , one thousand eight 
 
 hundred and . * ' 
 
 Now THIS Indenture witnesseth, that, in con- 
 sideration of the sum of , of lawful money of 
 Canada, now paid by the said party hereto of the 
 second part to the said party hereto of the first part, 
 the receipt whereof is hereby acknowledged, He, the 
 said party hereto of the first part. Doth grant, bar- 
 gain, sell, assign, transfer, convey, and set over unto 
 the said party hereto of the second part, his heirs and 
 assigns. All and singular the said lands, tenements, 
 hereditaments, and premises comprised in and mort- 
 gaged by the said hereinbefore in part recited Inden- 
 ture of Mortgage, with, their and every of their appur- 
 tenances, and all the estate and interest of the said 
 party of the first part therein. Together with the 
 said Indenture of Mortgage, and the benefit and ad- 
 vantage of all and every the clauses, covenants, mat- 
 ters, and" things therein contained; and together also 
 with the said principal sum and interest thereby secured 
 and now due and payable, or to become due and pay- 
 able, under and by virtue thereof. 
 
 To HAVE AND TO HOLD, reccivc and take, the same 
 and every part and parcel thereof unto and to the use 
 of the said party hereto of the second part, his heirs. 
 
104 
 
 .CANADIAN DOMESTIC LAWYER. 
 
 executors, administrators, and assigns, forever, free 
 from all incumbrances made or done by the said party 
 hereto of the first part ; but subject, nevertheless, to 
 such right or equity of redemption as is now subsist- 
 ing in the said lands and premises on payment of the 
 said principal moneys and interest under and by virtue 
 of the said Indenture of Mortgage. 
 
 And the said party hereto of the first part doth 
 hereby, for himself, his heirs, executors, and adminis- 
 trators, covenant with the said party of the second 
 part, his heirs, executors, administrators, and assigns. 
 That the said mortgage is now a good, valid, and 
 subsisting security for the principal money and inte- 
 rest hereby assigned, and that the same are now due 
 and unpaid. 
 
 And that hp hath good right to assign and convey 
 the said mortgage and premises unto the said party 
 hereto of the second part, in manner aforesaid. 
 
 And that the said party of the second part shall 
 have quiet possession of the said premises hereby 
 assigned, without any interruption by the said party 
 of the first part or any persons claiming under him, 
 free from all incumbrances. 
 
 And that the said party of the first part, his heirs, 
 executors, and administrators, will execute such further 
 assurances of the said premises as may be requisite. 
 
 And the said party of the first part doth hereby 
 make, constitute, and appoint the said party of the 
 second part, his heirs, executors, administrators, and 
 assigns, the true and lawful attorney and attorneys 
 irrevocable of him, the said party of the first part, 
 his heirs, executors, administrators, or assigns, for 
 
OF ASSIGNMENTS. 
 
 105 
 
 um. 
 
 him and in bis or their name or names, bat for the 
 sole use, benefit, and advantage of the said party of 
 the second part, his heirs, executors, administrators, 
 or assigns, to ask, demand, sue for, recover, and re- 
 ceive of and from the said mortgagor in the said 
 mortgage named, his heirs, executors, and adminis- 
 trators, all such principal and interest moneys as are 
 now or shall hereafter become due and owing upon 
 the said mortgage; and on non-payment thereof or 
 any part thereof to commence, institute, and prose- 
 cute, or proceed with, any action, suit, or execution 
 now pending, as he may think proper or be advised ; 
 and on payment thereof or any part thereof to make, 
 seal, execute, and deliver receipts, releases, acquit- 
 tances, and discharges, and generally to do, perform, 
 and execute all such acts, deeds, matters, and things 
 for recovering the said principal and interest, or fore- 
 closing the said mortgage, or obtaining the possession 
 of the said lands and premises, or for releasing the said 
 mortgage, as fully and effectually to all intents and 
 purposes as the said party of the first part, his heirs, 
 executors, or administrators, could do if personally 
 present and acting in the premises; the said party 
 of the first part, for himself, his heirs, executors, and 
 administrators, hereby ratifying and confirming and 
 covenanting and agreeing to ratify and confirm all 
 and whatsoever the said party of the second part, his 
 heirs, executors, administrators, or assigns, shall law- 
 fully do or cause to be done in or about the premises 
 by virtue hereof: Piwvided he or they do and shall 
 save harmless and indemnify arid keep harmless and 
 
 indemnified the said party of the first part, his heirs, 
 6* 
 
106 
 
 CANADIAN DOMESTIO LAWYER. 
 
 executors, and administrators, and his and their lands 
 and tenements, goods and chattels, of, from, and 
 against all loss, damage, costs, charges, and expenses 
 by reason or on account of any proceeding to be 
 taken in pursuance of the power hereby vested and 
 granted by him to the said party of the second part, 
 his heirs, executors, administrators, or assigns. [And 
 the said party of the third part hereby bars her dower 
 in the said lands.] ^ 
 
 In Witness whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first above written. 
 
 Signed, sealed, and delivered ] 
 in the presence of f :\ ''"-'' <. 
 
 Assignment of Mortgage. 
 
 SHOBT FOBM. . ' 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , Between , of the first part, and 
 
 , of the second part: Whereas, by an Inden- 
 ture of Mortgage, bearing date the day of , 
 one thousand eight hundred and , and made 
 between , It is witnessed, that in considera- 
 tion of , of lawful money of Canada, the said 
 mortgagor therein named did convey and assure 
 unto the said , heirs and assigns, All and 
 SINGULAR th certain parcel or tract of land and 
 premises situate, lying, and being in the : To 
 HOLD the same unto and to the use of the said 
 lieirs and assigns. Subject to a proviso for redemp- 
 tion, upon payment of the said principal moneys and 
 
 I 
 
OF ASSIGNMENTS. 
 
 107 
 
 interest as therein mentioned. [Here insert any ad- 
 ditional recital.] 
 
 Now THIS Indkntuke WITNESSETH, that in con- 
 sideration of the sum of , of lawful money of 
 Canada, now paid by the said part hereto of the 
 second part to the said part hereto of the first part 
 (the receipt whereof is hereby acknowledged), the 
 said part hereto of the first part Do hereby grant, 
 bargain, sell, assign, transfer, and set over unto the 
 said part hereto of the second part, heirs and 
 assigns. All and singular the said lands, tene- 
 ments, hereditaments, and premises comprised in and 
 conveyed by the said hereinbefore in part recited In- 
 denture of Mortgage, and all the estate and interest of 
 the said part hereto of the first part therein or thereto. 
 
 To H,5.VE AND TO HOLD the samc unto and to the use 
 of the said part hereto of the second part, heirs 
 and assigns forever, Subject, nevertheless, to such 
 equity of redemption, on payment by the said mort- 
 gagor of the said principal moneys and interest, as is 
 now subsisting therein by virtue of the said mortgage. 
 
 And this Indenture further witnesseth that, 
 for the consideration aforesaid , the said part here- 
 to of the first part Do hereby assign, transfer, and 
 set over unto the said part hereto of the second part 
 all principal moneys and interest now remaining due 
 and unpaid, and to accrue due and payable, under and 
 by virtue of the said Indenture of Mortgage. 
 
 To HAVE, receive, AND TAKE the samc unto the 
 said part hereto of the second part, executors, 
 administrators, and assigns, as and for own proper 
 moneys and eifects absolutely. 
 
 Sv^is* 
 
 II 
 
108 
 
 CANADIAN DOMESTIC LAWYER. 
 
 And for better enabling the said part hereto of the 
 second part, executors, administrators, and assigns, 
 to recover and receive the said principal moneys and in- 
 terest hereby assigned , the said part hereto of the 
 first part Do hereby nominate, constitute, and appoint 
 the said part hereto of the second part, executors, 
 administrators, or assigns, the true and lawful attorney 
 and attorneys of the said part hereto of the first part, 
 to ask, demand, sue for, recover, and receive either in 
 the name of the said part hereto of the first part or 
 otherwise from the said mortgagor, in the said inden- 
 ture of Mortgage named, executors, administra- 
 tors, or assigns, or any other person or persons liable 
 to pay the same, the said principal moneys and inte- 
 rest hereby assigned, and to commence, institute, and 
 prosecute any action, suit, or other proceeding, at 
 law or in equity, for the recovery of the same ; and 
 to give sufficient receipts and discharges therefor, 
 and to make, do, and execute any other act, deed, 
 matter, or thing for recovering the said principal 
 moneys and interest, or giving proper and sufficient 
 discharges therefor, or for further assuring the said 
 premises unto the said part hvireto of the second 
 part as shall be thought expedient. 
 
 And the said part hereto of the first part, for 
 heirs, executors, administrators, and assigns, hereby 
 covenant with the said part hereto of the second 
 part, heirs, executors, administrators, and assigns : 
 
 That the said principal moneys and interest ex- 
 pressed to be hereby assigned arfi now due and owing 
 to the said part hereto of the first part by virtue of 
 the said mortgage ; 
 
 An 
 
 have 
 said p 
 Anj 
 subsis 
 part 
 
 Ani 
 
 covena 
 
 of the 
 
 costs, < 
 
 on acc( 
 
 InT\ 
 
 sents h 
 
 day anc 
 
 Signe 
 
 in the p 
 
 This 
 the year 
 
 a 
 
 of 
 
 and 
 
 Province 
 Whek 
 
 date the 
 
 one thou 
 
 between 
 
 the 
 
 of the su 
 
 bim the 
 
OF ASSIGNMENTS. 
 
 109 
 
 And THAT ha done •no act wherolr ti\o same 
 have been received, released, or discharged, or the 
 said premises incumbered. 
 
 And that the said mortgage is good, valid, and 
 subsisting, notwithstanding any such act of the said 
 part hereto of the first part. * 
 
 And the said part hereto of the second part hereby 
 covenant to indemnify and save harmless the said part 
 of the first part, estate and effects, from all loss, 
 
 costs, charges, damages, and expenses, by reason or 
 on account of any such proceedings as aforesaid. 
 
 In Witness wheeeof, the said parties to these pre- 
 sents have hereunto set their hands and seals, the 
 day and year first above written. 
 ' Signed, sealed, and delivered ) ^ .-;*.v * • 
 in the presence of . ) ^ . ' 
 
 -r ^ Assignment of Mortgage. . 
 
 ^ -/'i^ "IJ ANOTHER SHORT FORM. * - ' 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred and 
 
 , Between , of the , in the County 
 
 and Province of Canada, of the first part, 
 , of the " , in the County of and 
 
 of 
 
 and 
 
 Province aforesaid, of the second part. ^ • 
 
 Whereas, by an Indenture of Mortgage bearing 
 date the day of , in the year of our Lord 
 
 one thousand eight hundred and , and made 
 
 between ., of the ' , &c., and the said , of 
 the part, it is Witnessed, that in consideration 
 of the sum of ' , of lawful money of Canada, to 
 him the said paid by the said , He, the 
 
110 
 
 CANADIAN DOMESTIC LAWYER. 
 
 said , did grantf bargain, sell, alien, release, 
 
 enfeoif, convey, and confirm unto the said , 
 
 his heirs and assigns, all '\nd. singular th certain 
 parcel or tract of land and premises situate, lying, 
 and being in the , the butts and bounds of 
 
 which said parcel or tract of land and premises are 
 more particularly described and set forth in the said 
 Indenture of Mortgage ; To have and to hold the 
 same unto the said , his heirs and assigns, for- 
 
 ever. Subject, nevertheless, to a proviso therein 
 contained for redemption upon payment by the said 
 
 to the said of the sum of 
 
 of lawful money aforesaid and interest, on the day 
 and time and in manner therein mentioned. 
 
 And whereas the sum of is now owing to 
 
 the said on the said in part recited security, 
 
 and the said hath agreed to sell and assign the 
 
 said lands and premises, and all the moneys thereby 
 secured, as well as the said Indenture of Mortgage, 
 and all his interest therein, unto the said for the 
 
 consideration hereinafter mentioned. 
 
 Now this Indenture witnesseth, that the said 
 party of the first part to this Indenture, in consider- 
 ation of the sum of , of lawful money of 
 Canada aforesaid, to him by the said party of the 
 second part to this Indenture in hand paid, the re- 
 ceipt whereof he, the said party of the first part, 
 doth hereby acknowledge, and of and from the same, 
 and every part thereof, acquit, release, and discharge 
 the said party of the second part, his heirs, executors, 
 administrators, and assigns, forever; He, the said 
 party of the first part, hath bargained, sold, assigned. 
 
OF ABSIG 
 
 nm'e: 
 
 INTS. 
 
 Ill 
 
 of 
 the 
 
 re- 
 art, 
 
 transferred, and set over *o the said party of the 
 second part to this Indenture, his heirs, executors, 
 administrators, and assigns, the said principal sum of 
 , so due and owing to him as aforesaid, and 
 secured by the hereinbefore in part recited Indenture 
 of Mortgage, and also all future and other sums of 
 money which from henceforth shall or may grow duo 
 by way of interest for or on account of the said prin- 
 cipal sum of . And also the said messuages 
 and tenements, lands and premises, comprised in the 
 said in part recited Indenture of Mortgage, and all 
 the estate, right, title, interest, claim, and demand 
 whatsoever of him, the said party of the first part, of, 
 in, to, or out of the said premises or any part thereof, 
 and of, in, to, or out of the said principal moneys. 
 
 To HAVE AND TO HOLD, receivo and take, the said 
 principal sum of • and interest, and aH and 
 
 singular other the premises hereby assigned, and 
 every part thereof, unto the said party of the second 
 part, his heirs, executors, administrators, or assigns, 
 to and for his and their own proper moneys, securi- 
 ties, and efiects absolutely ; And, for the more effec- 
 tually enabling the said party of the second part, his 
 executors, administrators, and assigns, to recover and 
 receive the said principal sum of and interest, 
 
 and to have and take the benefit of the security for 
 the same, he, the said party of the first part, hath 
 made, ordained, constituted, and appointed the said 
 party of the second part, his executors, administra- 
 tors, or assigns, his true and lawful attorney or attor- 
 neys, to ask, demand^ sue for, recover, and receive 
 from the said , his executors, administrators, or . 
 
112 
 
 CANADIAN DOMESTIC LAWYER. 
 
 1 I 
 
 assigns, or any other person or persons liable to 
 pay the same, the said sum of and interest, 
 
 and to commence and prosecute any action, suit, 
 or other proceeding, either at law or in equity, for 
 the recovery of the same, and on receipt of the said 
 principal moneys and interest, or any part thereof, to 
 give sufficient receipts and discharges. And to make, 
 do, and- execute all or any other act, matter, or thing, 
 for recovering and receiving the said principal sum and 
 interest ; And the said party hereto of the first part, 
 for himself, his heirs, executors, administrators, and 
 assigns, covenants with the party hereto of the second 
 part, his heirs, executors, administrators, and assigns, ; 
 that the said principal sum of is now owing to 
 
 him, the said party hereto of the first part, under the 
 said security, and that he has done no act or thing 
 whereby the 'said principal sum of is or has 
 
 been received, released, discharged, or incumbered. 
 
 In Witness whereof, the parties to these presents 
 have hereunto set their hands and seals, the day and 
 year first above written. 
 
 Signed, sealed, and delivered ) 
 in the presence of . ( 
 
 t .- 
 
 Assignment of Mortgage. 
 
 • BY INDORSEMENT. ' 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred and 
 
 , Between , of the first part, and 
 
 , of the second part. 
 
 WITNESSETH, that the said patty of the first part, 
 
 in consideration of the sum of > of lawful 
 
OF ASSIGNMENTS. 
 
 113 
 
 money of Canada, by the said party of tlie second 
 part to him in hand paid, the receipt whereof is here- 
 by by him acknowledged, hath bargained, sold, and 
 assigned, and by these presents doth bargain, sell, 
 and assign, unto the said party ol" the second part, his 
 executors, administrators, and assigns, all that cer- 
 tain suqa of , secured or intended to be 
 secured to the said party of the first part in and by 
 the Indenture of Bargain and Sale by way of Mort- 
 gage hereunto annexed, and all interest henceforth 
 to become due for the same, together with the said 
 Indenture of Mortgage, and together also with full 
 power and authority in the name or names of the 
 said party of the first part, his executors or adminis- 
 trators, to re'^eive and give effectual discharges for the 
 said sum of , and from time to time to commence, 
 institute, and prosecute such actions, suits, and other 
 lawful proceedings upon the said Indenture of Mort- 
 gage, for the recovery of the moneys, benefits, and 
 advantages secured thereby, as shall be deemed ne- 
 cessary or expedient. 
 
 To HAVE, HOLD, RECEIVE, AND TAKE the Said SUm 
 
 of , and the interest henceforth to become duo 
 
 for the same, and all and singular other the premises 
 hereby assigned or intended so to be, and every of 
 them and every part thereof, respectively, unto the 
 said party of the second part, his executors, adminis- 
 trators, and assigns, for his and their own absolute 
 use and benefit. 
 
 And this Indenture further witnesseth, that 
 in consideration of the further sum of ten shillings 
 by the said party jof the second part to the said 
 
114 
 
 CANADIAN DOMESTIC LAWYER. 
 
 party of the first part in hand paid, the receipt 
 whereof is hereby also acknowledged, he, the said 
 party of the first part, hath bargained, sold, and 
 released, and by these presents doth bargain, sell, 
 and release, unto the said party of the second part 
 and his heirs, All and singular that certain par- 
 cel or tract of land in the annexed Indenture de- 
 scribed, being , and all the estate, right, title, 
 and interest of the said party of the first part thereto 
 or therein, by virtue of the said Indenture of Mort- 
 gage. ■■''■ ^ 
 
 To HAVE AND TO HOLD the Same, with all appurte- 
 nances thereunto belonging or appertaining, unto 
 and to the use of the said party of the second part, 
 his heirs and assigns, forever, But subject to such 
 right, title, and equity of redemption as the same 
 are now subject and liable to under and by virtue 
 of the said annexed Indenture. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first above written. 
 
 Signed, sealed, and delivered ) 
 in the presence of . | /^ 
 
 Assignment of Mortgage. 
 
 BY INDORSEMENT. — SHORT FORM. ; 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , Between within named, of the first 
 
 part, and - , of - , of the second part, Wit- 
 nesseth, that the party of the first part, for divers 
 good considerations him thereunto moving, and for 
 
OF ASSIGNMENTS. 
 
 115 
 
 the further consideration of the sum of five shillings 
 to him in hand well and truly paid by the party of 
 the second part at or before the sealing and delivery 
 of these presents, the receipt whereof is liereby 
 acknowledged, hath granted, bargained, sold, and 
 assigned, and by these presents doth grant, bargain, 
 sell, and assign, to the party of the second part, his 
 heirs, executors, administrators, and assigns, all the 
 right, title, interest, claim, and demand whatsoever 
 of him, the party of the first part, of, in, and to the 
 lands and tenements mentioned and described in the 
 within mortgage. And also to all sum and sums of 
 money secured and payable thereby and now remain- 
 ing unpaid, to have and to hold the same, and to ask, 
 demand, sue for, and recover the same, as fully to 
 all intents and purposes as he, the party of the first 
 part, now holds and is entitled to the same. 
 
 hf Witness whereof, the parties to these pre- 
 sents have hereto set their hands and seals, the day 
 and year first above written. 
 
 Signed, sealed, and delivered ) 
 in the presence of , j .^r 
 
 Memorial of .Assignment of IMortgage. 
 
 A Memobial to be registered of an Indenture of 
 Assignment of Mortgage, bearing date the 
 day of , in the year of our Lord one thousand 
 
 eight hundred and , made between , of the 
 
 first part, , of the second part [and , of the 
 
 third part]. 
 
 Whereby it is witnessed that in consideration 
 of the sum of . , of lawful money of Canada, 
 
116 
 
 CANADIAN DOMESTIC LAWYER. 
 
 then paid by the said part of the second part to 
 the said part of the first part, the receipt whereof 
 is thereby acknowledged, he, the said part of t)ie 
 first part, did thereby assign, transfor, and set over, 
 convey and assure, unto the said part of the second 
 part, heirs, executors, adminiHtnvtors, and as- 
 
 signs, as well A certain Indenture of Mortgage, 
 bearing date the day of , one thousand 
 
 eight hundred and , and made between , 
 
 as also the unpaid principal and interest now re- 
 maining due of a certain mortgage debt or sum of 
 , and the following parcel or tract of land 
 and premises, that is to say. All and singular 
 th certain parcel or tract of land and pre- 
 mises, situate, lying, and being in the 
 
 To HOLD the same unto and to the use of the said 
 part of the second part, heirs, executors, ad- 
 ministrators, and assigns, forever. Subject to such 
 equity of redemption as was then subsisting therein 
 by virtue of the said Indenture of Mortgage. [And 
 the said party of the third part thereby barred her 
 dower in the said lands.] Which said Indenture is 
 witnessed by . - 
 
 And this Memorial thereof is hereby required to 
 be registered by me, the said assign therein named. 
 
 Witness my hand and seal, this 
 one thousand eight hundred and 
 
 V 
 
 Signed and sealed in the ) 
 presence of ♦ J 
 
 day of 
 
 \ 
 
 Count of , To wit. , of , in the 
 
 within Memorial named, maketh oath and saith that 
 
OF ASSIGNMENTS. 
 
 117 
 
 he was present, and did see the Indenture to which 
 the said Memorial relates duly uxt'cuted, higned, 
 sealed, and delivered, by the thireiu named , 
 
 and that ho is a subscribing witness to tlie exccuiiun 
 of the said Indouturo; that he, this deponent, also 
 saw the said Memorial duly signed and scaled by the 
 therein named for registry thereof, which 
 
 said Memorial was attested by him, this deponent, 
 and another subscribing witness, and that both said 
 instruments were executed at 
 Sworn before me, at ,thi8 day of ,18 . 
 
 A Communoner in B, B., t/e,, in and for the County qf . 
 
 to 
 
 Assignment for Benefit of Creditors. 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , Between , of the first part, 
 
 (Trustees), of the second part, and the several other 
 persons whose names and seals are hereunto sub- 
 scribed and set, being respectively creditors of the 
 said part of the first part, of the third part. 
 
 Whereas, the said part of the first part is in- 
 debted unto the said parties of the second and third 
 parts in the sums of money set opposite to their 
 respective names in the Schedule hereunder written, 
 and, being unable to pay the same in full, has agreed 
 to assign all his estate and effects, both real and 
 personal, unto the said part of the second part, 
 heirs, executors, administrators, and assigns, in 
 manner and upon the trusts hereinafter mentioned. 
 
 Now THIS Indeniurb WITNESSETH, that in con- 
 sideration of the premises, and of the sum of five 
 
 m 
 
 f 
 -tf 
 
118 
 
 CANADIAN DOMESTIC LAWYER. 
 
 shillings, of lawful money of Canada, to the said 
 part of the first part in hand paid by tlie said 
 part of the second part, the receipt whereof is 
 hereby acknowledged, the said part of the 
 
 first part Do by these presents grant, bargain, 
 sell, release, convey, assign, transfer, and set over 
 unto the said part of the second part. All and 
 SINGULAR the real estate enumerated in the Schedule 
 hereunto annexed; And also all and every ac- 
 counts, books of account, promissory notes, book and 
 other debts, sum and sums of money, and all secu- 
 rities for money, shares, rights, and interests, and 
 all other the real and personal estate and effects 
 whatsoever, and wheresoever, of , the said part 
 of the first part, whether in possession, reversion, 
 expectancy, or otherwise; Together with full and 
 free power and right of entry in and to all and 
 every the messuages, or tenements, and heredita- 
 ments, wherein the said accounts, books of account, 
 promissory notes, book and other debts, or any of 
 them, now are or hereafter shall be, and all rever- 
 sions, remainders, yearly and other rents, issues, and 
 profits, And all the estate, right, title, interest, pos- 
 session, property claim, and demand, both at law 
 and in equity, of , the said part of the first 
 
 part, of, in, to, or out of the same. 
 
 To HAVE and to hold the said real and personal 
 estate and effects, and other the premises hereinbe- 
 fore conveyed and assigned, or intended so to be, 
 with their and every of their appurtenances, unto 
 the said part of the second part, heirs, execu- 
 tors, administrators, and assigns, forever; upon 
 
 trust 
 vivor 
 trator 
 nienti' 
 
 • 
 
 for th( 
 
 obtain I 
 
 make 
 
 other i 
 
 the san 
 
 And 
 
 trust, t 
 
 and tb( 
 
 ministrj 
 
 or as S( 
 
 of, call 
 
 All ai 
 
 effects 
 
 and do 
 
 sell and 
 
 parts th 
 
 power f< 
 
 being tc 
 
 moneys 
 
 and to al 
 
 debts, m( 
 
 or witho 
 
 power al 
 
 time beii 
 
 conversio 
 
 public au( 
 
 And d( 
 
 arise from 
 
 
 » 
 
 V. 
 
m 
 
 OF ASSIGNMENTS. 
 
 119 
 
 trust as to the said real estate, that they, or the sur- 
 vivor of them, or the heirs, executors, or adminis- 
 trators of such survivor, shall, as soon as conve- 
 niently may be, make sale and dispose of the same 
 for the best price or prices that can be reasonably 
 obtained for the same, and, on the sale thereof, to 
 make and execute such deeds, conveyances, and 
 other assurances as may be necessary for conveying 
 the same to the purchaser or purchasers thereof. 
 
 And as to the said personal estate and effects upon 
 trust, that , the said part of the second part, 
 
 and the survivor of them, and the executors or ad- 
 ministrators of such survivor, do, and shall forthwith, 
 or as soon as conveniently may be, take possession 
 of, call in, collect, compel payment of, and receive. 
 All and singular the said personal estate and 
 effects hereinbefore assigned, or intended so to be, 
 and do and shall, as soon as conveniently may be, 
 sell and dispose of, and convert into money, such 
 parts thereof as shall not consist of money, with 
 power for the said trustees or trustee for the time 
 being to accept any composition for any debts or 
 moneys owing to the said part of the first part, 
 and to allow time for the payment of any of the said 
 debts, moneys, or compositions, and that either wdth 
 or without taking security for the same, and with 
 power also for the said trustees or trustee for the 
 time being to make any such sale, disposition, or 
 conversions, into money, as aforesaid, either by 
 public auction or by private sale. 
 
 And do and shall, by and out of the moneys to 
 arise from any of the means aforesaid, pay the costs, 
 
 ,41 
 
 
120 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 charges, and expenses of and attending the pre- 
 paring, engrossing, execution, and making copies of 
 these presents, and of the sale of the said real estate, 
 and the taking possession, calling in, collection, com- 
 pelling payment, recovering, sale, disposition, and 
 conversion into money of the said personal estate 
 * and effects, and all other the costs, charges, or ex- 
 penses to b.e incurred or become payable in the 
 execution of the trusts of these presents, or in rela- 
 tion thereto; And do and shall, in the next place, 
 pay and divide the clear residue or surplus of the 
 said moneys unto and amongst all and every of the 
 creditors of the said part of the first part, in ratable 
 proportions, according to the amount of their several 
 and respective debts, Subject, nevertheless, to the 
 covenants and provisions hereinafter contained. 
 
 And the said part of the first part do by these 
 presents make, ordain, constitute, and appoint the 
 said part of the second part, and the survivor of 
 them, and the executors and administrators of such 
 survivor, and their or his assigns, to be the true and 
 lawful attorneys of him the said part of the first 
 part, to ask, demand, sue for, recover, and receive 
 all debts and moneys due or owing, or payable or 
 to become payable, to , the said part of the 
 
 first part, and all and singular other the personal 
 estatd^ and effects hereinbefore assigned, or intended 
 so to be, which may be in the possession of any per- 
 son or persons other than the said part of the first 
 part, And on payment or delivery thereof, or of any 
 part thereof, to give and execute sufiicient receipts, 
 acquittances, or other discharges for the same, And 
 
 on no 
 
 and c( 
 
 tinue, £ 
 
 . pelling 
 
 or any 
 
 names ( 
 
 execute 
 
 the said 
 
 cause tc 
 
 said par 
 
 heirs, . e^ 
 
 the said 
 
 and adm: 
 
 And n 
 
 between 
 
 ful for t] 
 
 persons ii 
 
 of the fir 
 
 in, and di 
 
 and effect 
 
 intended i 
 
 in or abou 
 
 ration or 
 
 the person 
 
 tees or tru 
 
 Provide 
 
 who, at the 
 
 or liable ii 
 
 part of t 
 
 of the sam 
 
 place of th 
 
 owing for tl 
 
 f^» 
 
 Wm 
 
 '» 
 

 OF ASSIGNMENTS. 
 
 121 
 
 or 
 the 
 nal 
 ■dcd 
 
 on non-payment or non-delivery thereof, to bring 
 and commence, and either to prosecute or discon- 
 tinue, any action, suit, or other proceedings, for com- 
 pelling the payment or delivery thereof. And for all 
 or any of the purposes aforesaid to use the name or 
 names of the said part of the first part, his heirs, 
 executors, or administrators, and all and whatsoever 
 the said attorneys or attorney shall lawfully do or 
 cause to be done in or about the premises the 
 
 said part of the first part do hereby, for 
 heirs, . executors, and administrators, covenant with 
 the said part of the second part, executors 
 
 and administrators, to allow, ratify, and confirm. 
 
 And it is hereby agreed and declared by and 
 between the said parties hereto, that it shall be law- 
 ful for the said trustees to employ any person .or 
 persons in winding up the affairs of the said part 
 of the first part, and in the sale, collecting, getting 
 in, and disposing of the said real and personal estate 
 and effects hereinbefore conveyed and assigned, or 
 intended so to be, or any part thereof, or otherwise 
 in or about the premises, and to make such remune- 
 ration or allowance out of the said trust estate to 
 the person or persons so employed as the said trus- 
 tees or trustee may think fit. 
 
 Provided alvtays, that any person or persons 
 who, at the date of these presents, shall be a surety 
 or liable in any manner for any debt of the said 
 part of the' first part, may, after payment by him 
 of the same debt or any part thereof, stand in the 
 })lace of the person to whom the same debt was 
 owing for the whole or such part of the debt as shall 
 
 ■HI" 
 
 # 
 
122 
 
 CANADIAN DOMESTIC LAWYER. 
 
 '-% 
 
 m 
 
 have been paid, in respect of the trusts and benefit 
 of these presents notwithstanding the same may be 
 so paid and discharged after the date and execution 
 hereof, and the dividend or dividends thereafter pay- 
 able in respect of the amount of such debt or liability 
 shall be paid to such person or persons, pro rata, but 
 not so as to disturb any prior dividend or dividends. 
 
 pKoviDED ALSO, and it is hereby agreed and de- 
 clared, that the receipts of the said part of the 
 second part, and the survivor of them, and the 
 executors and administrators of such survivor, or 
 the trustees or trustee for the time being, acting in 
 the execution of the trusts of these presents, foi? 
 any sums or sum of money payable unde^ or by 
 virtue of these presents, shall be sufficient and effec- 
 tual discharges for the same, and that the persons 
 paying the same, his, her, or their heirs, executors, 
 administrators, or assigns, shall not afterwards be 
 answerable or accountable for any loss, misapplica- 
 tion, or non-application of the same, or be in any 
 wise obliged to see to the application thereof. 
 
 Provided also, and it is hereby further agreed 
 and declared, that the trustees or trustee for the 
 time being of these presents shall not be answer- 
 able the one for the other of them, nor for involun- 
 tary losses, and that it shall be lawful for them to 
 reimburse themselves out of the moneys which shall 
 come to their hands by virtue of these presents, all 
 costs, charges, and expenses incurred or to be in- 
 curred in any wise relating thereto or to the execu- 
 tion of the trusts thereof. 
 
 Provided also, and it is hereby further agreed 
 
 and d< 
 
 tees o] 
 
 if thej 
 
 the sail 
 
 debt 01 
 
 the firs 
 
 note, 01 
 
 interest 
 
 charges, 
 
 delivere 
 
 trustee, 
 
 inbefore 
 
 herein cc 
 
 In Wi 
 
 The S 
 
 the third 
 
 of the Jin 
 
 General 
 
 Kjtow 
 
 within-nar 
 Jne paid b; 
 his assignj 
 strument, 
 contained J 
 my attorne 
 all legal m 
 plete recov 
 ""ses, with 
 Witness 
 
 ■Hf _ ^ 
 
 % 
 
^• 
 
 OF ASSIGNMENTS. 
 
 123 
 
 and declared, that it shall be lawful for the said trus- 
 tees or trustee for the time being of these presents, 
 if they or he shall so think proper, by and out of 
 the said trust moneys to pay off and discharge any 
 debt or debts due or owing from the said part of 
 the first part on any mortgage, charge, lien, bill, 
 note, or other securities, and either with or without 
 interest, and thereupon to cause the same mortgages, 
 charges, liens, bills, notes, or other securities to be 
 delivered up or assigned to the said trustees or 
 trustee, to be held upon the same trusts as are here- 
 inbefore declared of the trust moneys and premises 
 herein comprised. 
 
 In Witness, &c. 
 
 The Schedule above referred tOy being parties of 
 the third part hereto, and Creditors of the said part 
 of the first part. 
 
 General Form of Assignment to be indorsed on any 
 
 Instrument. 
 
 Know all Men by these Presents, that I, the 
 within-named A. B., in consideration of five dollars to 
 me paid by C. D., have assigned to the said C. D. and 
 liis assigns all my interest in the within-written in- 
 strument, and every clause, article, or thing therein 
 contained ; and I do hereby constitute the said C. D. 
 my attorney, in my name, but to his own use, to take 
 all legal measures which may be proper for the com- 
 plete recovery and enjoyment of the assigned pre- 
 mises, with power of substitution. ^ 
 
 Witness my hand and seal, this, &c. 
 
 .'ii a 
 
 ♦ 
 
 «v 
 
 
X 
 
 '0 
 
 124 
 
 CANADIAN DOMESTIC LAWYER. 
 
 
 Assignment of Partnership Property and Debts by one 
 Partner to another, in trust to close the Concern and pay 
 over a IMoiety of the Funds realized after all Debts are 
 paid. 
 
 Whereas a copartnership has heretofore existed 
 between J. S. and A. B., both of the of , 
 
 which copartnership has been known under the name 
 of S. & B., and which it is the intention of the said 
 copartners forthwith to dissolve and determiine : 
 
 Now THIS Indenture of two parts, made this 
 day of , in the year , by and between the 
 
 said J. S., of the one part, and the said A. B., of the' 
 other part, witnesseth : 
 
 First. That the copartnership aforesaid is hereby, 
 by the mutual consent of the said parties, dissolved 
 and determined. 
 
 Second. The said J. S. doth hereby sell, transfer, 
 assign, and set over unto the said A. B., his moiety 
 of all the stock in trade, goods, merchandise, effects, 
 and property of every description belonging to or 
 owned by the said copartnership, wherever the same 
 may be, together with all debts, choses in action, and 
 sums of money due and owing to the said firm from 
 any and all persons whomsoever, to hold the same to 
 the said A. B. and his assigns forever in trust for 
 the following purposes, namely: that the said A. B. 
 shall sell and dispose of all the goods, property, and 
 effects belonging to the said firm, at such time and in 
 such manner as he may think prudent, and shall with 
 seasonable diligence collect all the debts and sums of 
 money due and owing to the said firm; and shall, out 
 
 of the 
 thus c 
 sums o: 
 as far j 
 money 
 all dera 
 surplus, 
 J. S. or 
 Thiri 
 appoint 
 the said , 
 fii'm, to ( 
 an debts 
 said firm 
 the recov 
 same, as h 
 and all su 
 paper wri 
 and gener 
 be necessj 
 settlement 
 copartners 
 Fourth 
 executors, 
 and with 
 sell and di 
 effects to tl 
 dili<jence ai 
 of money d 
 he will trul 
 sale, and tl 
 charge, and 
 
 
 m 
 
OF ASSIGNMENTS. 
 
 125 
 
 of the proceeds of the said sales, and with the money 
 thus collected, pay and discharge all the debts and 
 sums of money now due and owing from the said firm, 
 as far as the proceeds of said sales and the sums of * 
 money collected will go; and, after fully satisfying 
 all demands against the said firm, if there be any 
 surplus, shall pay over one moiety thereof to the said 
 J. S. or his assigns. , 
 
 Third. The said J. S. doth hereby constitute and 
 appoint the said A. B. his attorney irrevocable, in his 
 the said A. B.'s own name, or in the name of the said 
 firm, to demand, collect, sue for, and receive any and 
 all debts and sums of money due and owing to the 
 said firm; to institute and prosecute any suits for 
 the recovery of the said debts, or to compound the 
 same, as he may judge most expedient ; to defend any 
 and all suits against the said firm ; to execute all such 
 paper writings and acquittances as may be necessary; 
 and generally to do all such acts and things as may 
 be necessary or proper for the full and complete 
 settlement of all business and concerns of the said 
 copartnership. 
 
 Fourth. The said A. B., for himself and his heirs, 
 executors, and administrators, hereby covenants to 
 and with the said J. S. and his assigns that he will 
 sell and dispose of all the partnership property and 
 efiects to the best advantage ; that he will use his best 
 dili<5ence and endeavors to collect all debts and sums 
 of money due and owing to the said firm; and that 
 he will truly and faithfully apply the proceeds of said 
 sale, and the moneys collected, to the payment, dis- 
 charge, and satisfaction of all debts and demands 
 
 W" 
 
 n 
 
 \. . \i' 
 
 ,(i 
 
 :f i 
 
 ? i. 
 
 t 
 
 i 
 
126 
 
 CANADIAN DOMESTIC LAWYER. 
 
 .^4^. 
 
 •^ 
 
 against tho said firm, as far as the same will go, and, 
 after discharging all such debts, will pay over to the 
 said J. S. or his assigns one moiety of any surplus 
 that may remain; and, further, that he will keep 
 full and accurate accounts of all moneys received 
 by him for goods sold or debts collected, as well 
 as of moneys paid out, and will render a just, true, 
 and full account thereof to' the said J. S. or his 
 
 assigns. 
 
 Fifth. The said J. S., for himself, <fcc., covenants 
 to and with the said A. B:, &c., that, upon settlement 
 of accounts, if it shall be found that the debts due and 
 owing from the said firm exceed. the amount of moneys 
 received from the sales of the said goods and the debts 
 collected, he will pay unto the said A. B., or his as- 
 signs, one moiety of any balance that may then be 
 due and ow 'g from the said firm. 
 
 In Witness Whereof, &c. 
 
 Assignment of Partnership Property and Debts by one 
 Partner to another, for a sum certain. 
 
 This Indenture, of two parts, made and con- 
 cluded this day of , in the year of, &c., 
 , by and between W. S. P., of , of the 
 first part, and J. B. P., of , of the second part, 
 witnessi:th: 
 
 That whereas the said parties were lately copart- 
 ners in the business of , which partnership was 
 dissolved and determined on the day of 
 last; and whereas many debts, due and owing to tlie 
 said parties on account of their said copartnership, 
 are still outstanding, and debts due by the said firm 
 
 are y 
 said f 
 to the 
 the St 
 the sai 
 firm, a: 
 assume 
 and shi 
 the sec( 
 from th 
 Now 
 ment, ai 
 and seci 
 P., dotl 
 release, 
 right, ti 
 stock in 
 books, le 
 the said 
 wheresoe 
 interest i 
 now due 
 same be 1 
 and the s; 
 the said " 
 assigns, t( 
 all and se 
 mentioned 
 doth here 
 cutors, <fe( 
 debts and 
 ^' P.'fl nai 
 
 
OF ASSIGNMENTS. 
 
 127 
 
 are yet unpaid; and whereas it is agreed that the 
 said party of the second part shall assign and release 
 to the said party of the first part all his interest in 
 the stock in trade, goods, and efiects belonging to 
 the said firm, and in the debts now owing to the said 
 firm, and that the said party of the first part shall 
 assume all the debts and liabilities of the said firm, 
 and shall discharge and indemnify the said party of 
 the second part from all liabilities and losses arising 
 from the said partnership. 
 
 Now THEREFORE, in pursuauce of the said agree- 
 ment, and in consideration of the sum of paid 
 and secured to the said J. B. P., he, the said J. B. 
 P., doth hereby fully and obsolutely sell, assign, 
 release, and make over to the said W. S. P. all his 
 right, title, interest, and share in and to all the 
 stock in trade, goods, merchandise, machinery, tools, 
 books, leasehold premises, and effects belonging to 
 the said partnership, of whatever kind or nature, and 
 wheresoever situated; also, all his right, title, and 
 interest in and to all the debts and sums of money 
 now due and owing to the said firm, whether the 
 same be by bond, bill, note, or account, or otherwise ; 
 and the said J. B. P. doth hereby make and appoint 
 the said W. S. P., his executors, administrators, and 
 assigns, to be his attorney and attorneys, to receive 
 all and several the debts and sums of money above 
 mentioned, to his and their own use and benefit ; and 
 doth hereby authorize the said W. S. P., his exe- 
 cutors, ifcc, to demand, collect, and sue for the said 
 debts and sums of money, and to use his the said J. 
 B. P.'s name in any way or manner that the coUec- 
 
 
128 
 
 CANADIAN DOMESTIC LAWYER. 
 
 tion, recovery, and realization of the said debts and 
 demands may render necessary, as well in court as 
 out of court, but at their own proper costs and charges, 
 and without cost or damage to the said J. B. P. 
 And the said J. B. P. doth hereby further authorize 
 the said W. S. P. to convey and transfer to his own 
 name, and for his own use and benefit, any and all 
 sums of money and effects, real and personal estate, 
 which may be taken or received in the name of the 
 said firm, and to hold the same free from all claims 
 by the said J. B. P., his executors, administrators, or 
 
 assigns. 
 
 And these Presents further witnjess, that, in 
 pursuance of the said agreement, the said W. S. P., 
 ^ for himself, his executors and administrators, doth 
 
 hereby covenant to and with the said J. B. P., his exe- 
 cutors and administrators, that he, the said W. S. P., 
 and his, &c., shall pay and discharge, and at all 
 times hereafter save harmless and indemnify, th3 said 
 J. B. P., his, &c., from and against all and every the 
 debts, duties, and liabilities which, at the dissolution 
 and determination of the said partnership, were due 
 and owing by the said firm to any person or persons, 
 for any matter or thing touching the said partner- 
 ship, and of and from all actions, suits, costs, ex- 
 penses, and damages, for or concerning the said debts, 
 duties, and liabilities, unless the said J. B. P. shall 
 have contracted any debts or incurred any liabilities, 
 in the name and on account of the said firm, which 
 are unknown to the said W. S. P. and do not appear 
 in the books of the said firm ; for which, if any such 
 
 exist, 
 make 
 
 Aul 
 
 Knc 
 
 in cons 
 •by 
 
 of whi( 
 
 ► assign, 
 
 and dei 
 
 the said 
 
 pending 
 
 whatsoe 
 
 'And t 
 
 the said 
 
 attornev 
 
 and thei 
 
 suit or s 
 
 same, an 
 
 for any 
 
 ag 
 
 cution; , 
 
 aforesaid 
 
 on any r< 
 
 and the i 
 t 
 
 their own 
 on any re 
 the said 
 sell, and e 
 price or c( 
 and on s 
 
 # 
 
OF ASSIGNMENTS. 
 
 129 
 
 exist, the said W. S. P. does not hereby intend to 
 make himself responsible. 
 In Witness WHEREOF, <fcc. 
 
 Attignment of a Debt, with Power of Attorney, &o. 
 
 Know all Men by these Presents, that | 
 
 in consideration of the sum of dollars paid to 
 "by , of , in the county of (the receipt 
 
 of which is hereby acknowledged), do hereby sell, 
 assign, and transfer unto the said all claims 
 
 and demands against > of , for debts.due to 
 
 the said , and all actions against said now 
 
 pending in favor, and all causes of action 
 
 whatsoever against him.* 
 
 * And the said do hereby nominate and appoint 
 the said , his executors and administrators, 
 
 attorney or attorneys irrevocable ; and do give him 
 and them full power and authority to institute any 
 suit or suits against said « and to prosecute the 
 
 same, and any suit or suits which are now pending 
 for any cause or causes of action, in favor of said 
 against said , to final judgment and exe- 
 
 cution ; and any executions for the cause or causes 
 aforesaid to cause to be satisfied by levying the same 
 on any real or personal estate of the said " , 
 and the proceeds thereof to take and apply to his or 
 their own use ; and in case of levying said executions 
 on any real estate, the said hereby empower 
 
 the said , his executors and administrators, to 
 
 sell, and execute deeds to convey the same, for such 
 price or consideration, and to such person or persons, 
 
 and on such terms, as he or they shall deem ex- 
 6* 
 
 a 
 
130 
 
 CANADIAN D0ME8TI0 LAWYER. 
 
 •V 
 
 pcdient ; or, if ho or tlioy prefer it, to executo any 
 conveyances that may be necessary to vest the title 
 thereof in him or them, as his or their own property ; 
 but it is hereby expressly stipulated that all such acts 
 and proceedings are to be at the proper costs and 
 charges of the said , his executors and adminis- 
 
 trators, without expense to the said 
 
 And the said do further empower the said 
 
 , his executors and administrators, to appoint 
 such substitute or substitutes as he or they shall see 
 fit, to carry into effect the objects and purposes of 
 this authority, or any of them, and the same to re- 
 voke from time to time at his or their pleasure ; the 
 said hereby ratifying and confirming all the 
 
 lawful acts of the said , his, <&c., in pursuance 
 
 of the foregoing authority. 
 
 In Testimony, &c., this day of , a. d. 18 , 
 
 Signed, sealed, and delivered ) 
 in the presence of • . ) 
 
 Assignment of a Policy of Insurance by Indorsement. 
 
 Know all Men by these Pkesents, that I, the 
 within-named A. B., for and in consideration of the 
 sum of to me paid by C. D., of, &c, (the receipt 
 
 whereof is hereby acknowledged), have granted, sold, 
 assigned, transferred, and set - over, and by those 
 presents I do absolutely grant, sell, assign, transfer, 
 and set over, to him, the said C. D., all my right, 
 property, interest, claim, and demand in and to tho 
 within policy of insurance, which have already arisen 
 or which may hereafter arise thereon, with full power 
 to use my name so far as may be necessary to enable 
 
 him 
 signe 
 veyai 
 aro f< 
 CD. 
 
 Tin 
 
 in the 
 and 
 of the 
 first pa 
 forth a 
 said pa 
 of tho I 
 Kowi 
 anco o 
 the sum 
 by the 
 part o 
 delivery 
 hereby [ 
 part Ha 
 set over 
 assign, t 
 the secoi 
 assigns, 
 title, int( 
 ever, bot 
 ever, of 
 in, to, anc 
 
OF A88iaNMENT8. 
 
 131 
 
 him fully to avail himself of the Interest licrcin as- 
 Bignod, or hereby intended to be aasigned. TIio con- 
 veyance herein niade, "ind the powers hereby given, 
 are for myself and my legal representatives to said 
 C. D. and his legal representatives. 
 In Testimony wdbbeof, <fcc. 
 
 Aulgnment or Bill of Sale of Goods. 
 
 This Indentuhk, made the day of , 
 
 in the year of our Lord one thousand eight hundred 
 and , Between , of the first part, and , 
 
 of the second part : Whereas, the said part of the 
 first part is possessed of the hereinafter set 
 
 forth and enumerated, and hath contracted with tho 
 said part of the second part for the sale to 
 of tho same at the sum of : 
 
 Now THIS Indenture witnessetii that in pursu- 
 ance of the said agreement, and in consideration of 
 the sum of , of lawful money of Canada, paid 
 
 by the said part of the second part to the said 
 part of the first part, at or before the sealing and 
 delivery of these presents (the receipt wherec* is 
 hereby acknowledged), the said part of the first 
 part Ha bargained, sold, assigned, transferred, and 
 set over. And by these presents Do bargain, sell, 
 assign, transfer, and set ovei , unto the said part of 
 the second part, executors, administrators, and 
 
 assigns. All those, the said , And all the right, 
 title, interest, property, claim, and demand whatso- 
 ever, both at law and in equity, or otherwise howso- 
 ever, of , tho said part of the first part, of, 
 in, lo, and out of the same, and every part thereof. 
 
132 
 
 CANADIAN DOMESTIC LAWYER. 
 
 To HAVE AND TO HOLD the Said hereinbefore as- 
 signed premises, and every part thereof, with the 
 appurtenances, and all the right, title, and interest 
 of the said part of the first part therein as afore- 
 said, unto and to the use of the said part of the 
 second part, executors, administrators, and as- 
 
 signs, to and for sole and only use forever. 
 
 And the said part of the first part do hereby, 
 for heirs, executors, and administrators, cove- 
 
 nant, promise, and agree with the said part of the 
 second part, executors and administrators, in 
 
 manner following, that is to say : 
 
 That , the said part of the first part, now 
 rightfully and absolutely possessed of and entitled to 
 the said hereby assigned premises and every part 
 thereof, and that the said part of the first part 
 now ha in good right to assign the same 
 
 unto the said part of the second part, exe- 
 
 cutors, administrators, and assigns, in manner afore- 
 said and according to the true intent and meaning of 
 these presents ; And that the said part hereto of the 
 second part, executors, administrators, and as- 
 
 signs, shall and may from time to time and at all times 
 hereafter peaceably and quietly have, hold, possess, 
 and enjoy the said hereby assigned premises and 
 every part thereof to and for own use and 
 
 benefit, without any manner of hindrance, interrup- 
 tion, molestation, claim, or demand whatsoever, of, 
 from, or by , the said part of the first part, or 
 any person or persons whomsoever ; And that free 
 and clear and freely and absolutely released and dis- 
 charged or otherwise at the costs of the said part 
 
 of th 
 again 
 grant! 
 And, 
 first p[ 
 any es 
 said hi 
 shall a 
 ' hereaft 
 part 
 trators, 
 the saic 
 cute or 
 further 
 ually asi 
 premise! 
 executo] 
 aforesai( 
 ing of t 
 second 
 signs, or 
 and requ 
 In W 
 presents 
 day and 
 
 Signed, 
 in the pre 
 X. 
 
OF ASSIGNMENTS. 
 
 133 
 
 of the first part, effectually indemnified from and 
 against all former and other bargains, sales, gifts, 
 grants, titles, charges, and incumbrances whatsoever ; 
 And, moreover, that , the said part of the 
 
 first part, and all persons rightfully claiming or to claim 
 any estate, right, title, or interest of, in, or to the 
 said hereby assigned premises or any part thereof, 
 shall and will from time to time and at all times 
 hereafter, upon every reasonable request of the said 
 part of the second part, executors, adminis- 
 
 trators, or assigns, but at the costs and charges of 
 the said part of the second part, make, do, and exe- 
 cute or cause to be made, done, and executed all such 
 further acts, deeds, and assurances for the more effect- 
 ually assigning and assuring the said hereby assigned 
 premises unto the said part of the second part, 
 executors, administrators, and assigns, in manner 
 aforesaid and according to the true intent and mean- 
 ing of these presents, as by the said part of the 
 second part, executors, administrators, or as- 
 
 signs, or counsel, shall be reasonably advised 
 
 and required. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first above written. 
 
 Signed, sealed, and delivered ) 
 in the presence of ^) 
 
 X. Z. 
 
 A. B. [l. s.] 
 C. D. [l. s.] 
 
 #. 
 
 11/ 
 
 m 
 
 *•? 
 
 •' 1 
 
 'AM 
 
 m 
 
134 
 
 CANADIAN DOMESTIC LAWYER. 
 
 Canada : 
 
 Count of 
 
 to wit: 
 
 I, 
 
 ] in the within Bill of Sale named, make oath 
 and say, that the sale thereby made is bona fide and 
 for good consideration, namely : , and 
 
 not for the purpose of holding or enabling me, this 
 deponent to hold the goods mentioned therein against 
 the creditors of the said bargainer. 
 
 Sworn before me, at 
 this day of ,a.d. 18 
 
 :! 
 
 a Commissioner in B. R. in and for 
 
 Canada : • Count of , to wit : I, 
 
 , make oath and say, that I was personally 
 present and did see the annexed Bill of Sale duly 
 signed, sealed, and delivered by , the parties 
 
 thereto, and that I, this deponent, am a subscribing 
 witness to the same, and that the name , set 
 
 and subscribed as a witness to the execution thereof, 
 is ray handwriting. 
 
 Sworn before me, at 
 this day of 
 
 , at , ) 
 
 , A.D. 18 . ) 
 
 a Commissioner in B. R., &c. 
 
 another form. 
 
 This Indenture, made the day of , 
 
 in the year of our Lord one thousand eiglit hun- 
 dred and , Between , of the one part, 
 and , of the other part. Whereas, the said 
 
 ha contracted and agreed with the said 
 ^or the absolute sale to h of the , mentioned 
 
,«Til-a-».-MM>^. 
 
 OF ASSIGNMENTS. 
 
 135 
 
 and described in the Schedule hereto, at or for the 
 price or sum of : 
 
 Now THIS Indenture witnbsseth, that in pursu- 
 ance of the said agreement, and in consideration of 
 the said sum of , of lawful money of Canada, by 
 
 the said to the said ^ well and truly paid, as 
 
 or before the sealing and delivery of these presents 
 (the receipt of which said sum h , the said » 
 
 do hereby admit and acknowledge, and of and from 
 the same and every part thereof do hereby acquit, 
 release, and forever discharge the said , h • 
 
 executors, administrators, and assigns)," , the said 
 , Ha bargained and Fold and by these pre- 
 sents Do bargain and sell uuto the said , h 
 executors, administrators, and assigns, All 
 mentioned and described in the said Schedule, together 
 with all advantages, privileges, and emoluments to 
 arise, therefrom or thereunto in any wise appertain- 
 ing: To HAVE, HOLD, RECEIVE, AND TAKE the 
 
 said and all and singular other the premises 
 
 hereby bargained and sold or intended so to be, with 
 their appurtenances, unto the said , h exe- 
 
 cutors, administrators, and assigns, for h and their 
 absolute use and benefit; And the said do 
 
 hereby, for , h heirs, executors, and adminis- 
 
 trators, covenant, promise, and agree with and to the 
 said , h executors, administrators, and assigns, that 
 it shall be lawful for the said , h executors, 
 
 administrators, and assigns, at all times hereafter to 
 have, hold, use, occupy, possess, and enjoy the said 
 hereby assigned or intended so be, without 
 any let, suit, hindrance, disturbance, claim, or de- 
 
 
 
 u- 
 
136 
 
 CAN^ADIAN DOMESTIC LAWYER. 
 
 mand whatsoever of, from, or by any person or per- 
 sons whomsoever. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first within written. 
 
 Signed, sealed, and delivered by the 
 said in the presence of 
 
 the J 
 
 The Schedule to lohich the foregoing Indenture 
 refers, 
 
 Bb it remembered, that on the day of 
 
 , in the year first within written, a delivery 
 was made by the within mentioned to the within 
 
 mentioned for the within mentioned or 
 
 referred to ; a being delivered to the said , 
 
 in the name of the whole, in the presence of 
 Witness, 
 
 A. B., of, &Q. 
 
 {The two Affidavits the same as in the last Form.) 
 
 CHAPTER V. 
 
 Of Auctions and Auctioneers, 
 
 An auctioneer is a person who is authorized to 
 sell goods or merchandise at public auction or sale 
 for a recompense, or (as it is commonly called) a 
 commission. He cannot buy: he can only sell. Pri- 
 marily, he is deemed the agent of the seller of the 
 
 goods o 
 
 to be t] 
 
 tnockim 
 
 the higl 
 
 book or 
 
 of both 
 
 him will 
 
 sufficient 
 
 the statu 
 
 knockinjr 
 sively th( 
 ing down 
 and the ] 
 write do^ 
 has also a 
 and a liei 
 his comm 
 the sale in 
 his princij 
 money, ur 
 on credit, 
 An auctio; 
 other pers( 
 Auction 
 ness, and 
 Every bonj 
 ceeding to 
 read or ai 
 written or j 
 auctioneer 
 the written 
 Although 
 
AUCTIONS AND AUCTIONEEES. 
 
 137 
 
 goods only; but for certain purposes he is also deemed 
 to be the agent both of buyer and seller. Thus, by 
 knocking down the goods sold to the person who is 
 the highest bidder, and inserting his name in his 
 book or memorandum, he is considered as the agent 
 of both parties; and the memorandum so made by 
 him will bind both parties, as being a memorandum 
 sufficiently signed by an agent of both parties within 
 the statute of frauds before refe/r- "I *c Before the 
 knocking down of the goods, he is, indeed, exclu- 
 sively the agent of the seller; but after the knock- 
 ing down, he becomes also the agent of the purchaser, 
 and the latter is presumed to give him authority to 
 write down his name as purchaser. An auctioneer 
 has also a special property in the goods sold by him, 
 and a lien on the same and the proceeds thereof, for 
 his commission; and he may sue tho purchaser at 
 the sale in his own name, as well as in the name of 
 lyls principal. An auctioneer can sell only for ready 
 money, unless there be some usage of trade to sell 
 on credit, or unless the terms of sale are on credit. 
 An auctioneer cannot delegate his authority to an- 
 other person, not even to his own clerk. 
 
 Auction sales should be conducted' with rigid fair- 
 ness, and due notice of the sale ought to be given. 
 Every bona fide bid should be accepted. Before pro- 
 ceeding to sell, the conditions of sale ought to be 
 read or announced. Usually these conditions are 
 written or printed ; but the verbal declarations of the 
 auctioneer at the sale, where they do not contradict 
 the written particulars of the sale, are binding. 
 
 Although the entry by the auctioneer in his book 
 
138 
 
 % 
 
 CANADIAN DOMESTIC LAWYER. 
 
 is a sufficient memorandum to bind both seller and 
 buyer, yet in every sale of land it is usual to have 
 agreements of sale and purchase signed by auctioneer 
 and purchaser. 
 
 Forms of such agreements, and ordinary condi- 
 tions of sale, are subjoined. 
 
 Auction Agreement to be signed by an Auctioneer, after a 
 
 sale of Land. 
 
 I hereby acknowledge that A. B. has-been this day 
 declared by me the highest bidder, and purchaser of 
 [describe the land] at the sum of dollars [or 
 
 at the sum of dollars cents per acre, or 
 
 foot], and that he has paid into my han^s the sum 
 of . as a deposit, and in part payment of 
 
 the purchase money; and I hereby agree that the 
 vendor, CD., shall in all respects fulfil the conditions 
 of sale hereto annexed. 
 
 Witness my hand, at , on the day of 
 
 , A.D. 18 
 
 J. S., Auctioneer. 
 
 Auction Agreement to be signed by Purchaser. 
 
 I hereby acknowledge that I have this day pur- 
 chased at public auction all that [describe the land] 
 for the sum of dollars [or for the price of 
 
 dollars cents per acre, or per foot], and have 
 
 paid into the hands of J. S., the auctioneer, the sum 
 of as a deposit, and in part payment of the said 
 
 purchase money ; and I hereby agree to pay the re- 
 maining sum of unto C. D., the vendor, at , 
 on or before the day of , and in all 
 
iMHiM 
 
 # 
 
 AUCTIONS AND AUCTIONEERS. 
 
 139 
 
 Other respects on my part to fulfil the annexed con- 
 ditions of sale. 
 "Witness my hand, this day of , a. d. 18 
 
 A. B. ' 
 
 Conditions of Sale of Goods. 
 
 1. The highest bidder to be the purchaser; and, if 
 any dispute shall arise as to the last or best bidder, 
 the property shall be immediately put up again at 
 the former bidding. 
 
 2. No person to advance less than cents at 
 a bidding. 
 
 3. The purchasers to give in their names, and places 
 of residence {if required)^ and pay down a deposit of 
 
 per cent, in part payment of purchase money ; 
 in default of which, the lot or lots so purchased will 
 be immediately put up again and re-sold. 
 
 4. The lots to be taken away at the buyer's expense, 
 within three days after, and the remainder of the 
 purchase money to be paid on or before delivery. 
 
 5. Upon failure of complying with these con- 
 ditions, the deposit money shall be forfeited ; and all 
 lots uncleared within the time aforesaid shall be re- 
 sold by public auction or private sale, and the de- 
 ficiency, if any, on such re-sale shall be made good 
 by the defaulter. 
 
 Conditions of Sale of Land. 
 
 1. The highest bidder shall be declared the pur- 
 chaser ; and, if any dispute shall arise as to the last 
 or best bidder, the property shall be immediately put 
 up again at the former bidding. 
 
140 
 
 CANADIAN DOMESTIC LAWYER. 
 
 2. No person shall advance at any one bidding 
 less than dollars, or retract his or her bidding ; 
 and the vendors, by themselves or their agent, shall 
 be at liberty to bid once for the property. 
 
 3. The purchaser shall pay, immediately after the 
 sale, to the vendor's solicitor, a deposit of per 
 cent, in part of the purchase money, and sign an 
 agreement for the payment of the remainder on or 
 before the day of , 18 . The premises 
 will be sold subject to all defects or imperfections of 
 title subsisting before the commencement of the 
 
 title of the present vendors, and not occasioned 
 by any act done by .them or any person claiming 
 under or in trust for them (and subject also to the 
 several mortgages outstanding appearing on the cer- 
 tificate of the registrar of the county of , which 
 will be produced at the time of sale). 
 
 4. The purchaser shall accept a conveyance from 
 tfie vendors, to be prepared at his own expense, ou 
 payment of the remainder of the purchase money; 
 and possession will be given on completion of the 
 purchase: from which time the purchaser shall be 
 entitled to the rents and profits. But if, from any 
 cause, the remainder of the purchase money shall 
 
 not be paid on the 
 
 day of 
 
 18 
 
 the 
 
 purchaser shall pay interest for the same at the rate 
 of per cent, from that day to the day of pay- 
 
 ment ; but, nevertheless, this stipulation to be without 
 prejudice to the vendor's right to insist on the per- 
 formance of this last condition. 
 
 5. If any mistake be made in the description of 
 the property, or there be any other error in the par- 
 
«itUm , 
 
 AUCTIONS AND AUCTIONEERS. 
 
 141 
 
 ticulars of sale, the same shall not annul the sale, 
 but a compensation or equivalent shall be given, or 
 taken, as the case may require, according to the 
 average of the whole purchase money (on such error 
 or misstatement being proved) : such compensation or 
 equivalent to be settled by two referees or their um- 
 pire — one referee to be chosen by each party, within 
 ten days after notice given of the error, and the um- 
 pire to be chosen by the referees immediatety after 
 their appointment. 
 
 6. The purchaser shall not be entitled to the pro- 
 duction of any title desds other than such as are in 
 the vendor's hands, or in the hands of the several 
 mortgagees. 
 
 V. Lastly, upon failure of complying with the above 
 conditions, the deposit shall be forfeited, and the 
 vendors shall be at full liberty (with or without notice) 
 to re-sell the estate by public auction or private sale ; 
 and if, on such re-sale, there should be any deficiency 
 the purchaser shall make good such deficiency to the 
 vendors, and all expenses attending such re-sale; the 
 same to be recoverable as liquidated damages. 
 
 (Note. — /Special conditions may he necessary to meet 
 particular cases j hut the above conditions will 7neet 
 ordinary cases.) 
 
 Conditions of Sale of the Court of Chancery. 
 
 1. No person shall advance less than two pounds 
 at any bidding under one hundred pounds, nor less 
 than five pounds at any bidding over one hundred 
 pounds ; and no person shall retract his bidding. 
 
 2. The highest bidder shall be the purchaser j and, 
 
 
 mi 
 
142 
 
 CANADIAN DOMESTIC LAWYER. 
 
 il' any dispute arise as to the last or highest bidder, 
 the property shall be put up at a former bidding. 
 
 3. The parties to the suit, with the exception of 
 the vendor, are to be at liberty to bid. 
 
 4. The purchaser shall, at the time of sale, pay 
 down a deposit in the proportion of ten pounds for 
 every one hundred pounds of his purchase money to 
 the vendor or his solicitors, and shall pay the remain- 
 der of the purchase money on the day of 
 next, and upon such payment the purchaser shall be 
 entitled to the conveyance, and be let inte possession. 
 The purchaser at the time of such sale to sign an 
 agreement for the completion of the purchase. 
 
 6. The purchaser shall have the conveyance pre- 
 pared at his own expense, and tender the same for 
 execution. 
 
 6. If the purchaser shall fail to comply with the 
 conditions aforesaid, or any of them, the deposit and 
 all other payments made thereon shall be forfeited, 
 and the premises may be re-sold, and the deficiency, 
 if any, by such re-sale, together with all charges 
 attending the same or occasioned by the defaulter, 
 shall h? made good by the defaulter. 
 
OF BILLS OF EXCHANGE. 
 
 143 
 
 CHAPTER VI. 
 
 Of Bills of Exchange, 
 
 A Bill op Exchange (foreign or inland) is de- 
 fined to be an open letter of request from one man 
 to another, desiring him to pay a sum named therein 
 to a third person, on his account. 
 
 FoEEiGN bills are such bills as are drawn in any- 
 foreign country upon a person residing here or 
 abroad, or are drawn in this country upon a drawee 
 residing in a foreign territory, and are payable 
 abroad. >^, 
 
 Inland bills are those bills which are drawn in 
 Canada upon any person residing in any place within 
 the province. 
 
 Foreign bills bear so strong a resemblance in their 
 form to inland bills that there is no occasion to 
 notice them separately. The law affecting them is, 
 in general, identical with the rules regulating inland 
 bills. The leading distinctions are, that a formal 
 protest is necessary (as regards the drawer and in- 
 dorsers) if they be dishonored on presentment for 
 acceptance or payment. It is also observable that 
 the laws and customs of the foreign country in which 
 a foreign bill is payable, or in which the party to bo 
 charged resides, may, even in our courts, regulate 
 the time of payment, protest, &c. 
 
 - ^^ 
 
 ■. i 
 
 1 
 
144 
 
 CANADIAN DO.>IESTIC LAWYER. 
 
 It may also be mentioned, as a sliglit distinction 
 between a foreign and an inland bill, that the former 
 is, in general, drawn in sets ; that is, there are several 
 parts therfof. Therefore, the form of a foreign- l)ill 
 is, in general, "at after sight," or "date," «fcc., 
 
 "pay this \\\y first of exchange [second and third of 
 the same tenor and date not paid] to, tfcc." This 
 condition should be inserted in each part, and should 
 in each mention every other part of the sr . Each 
 part ought to be delivered to the payee. 
 • The custom of merchants requires that bills of 
 exchange, whether foreign or inland, should be in 
 
 writing. 
 
 It seems extremely doubtful at what period, or by 
 whom, foreign hills of exchange were first invented; 
 although it appears tolerably certain that they were 
 in use in the fourteenth century; and an inference 
 drawn from the statute 5 Rich. II. st. 1, c. 2 warrants 
 the conclusion that foreign bills were introduced into 
 England previous to the year 1381. 
 
 Inland bills of exchange (which were so called be- 
 cause they were drawn as well as payable in Eng- 
 land) did not originate at a much earlier peripd than 
 the reign of Charles II., — probably about the year 
 1C45, when banking began to be extensively carried 
 on by the goldsmiths. 
 
 1. Form of an Inland Bill of Exchange. 
 
 $100yVir-^'^ Toronto,^" 1 January, 1863.<« 
 Two months after date,^*^ pay to me,^^^ or order,'®' 
 {or "to my order," or "to E. F. or order"), at, 
 
^ 
 
 OF BILLS OF EXCHANGE. 
 
 14 
 
 o 
 
 tfec./^' the sum of one hundred dollars/*' value re- 
 
 ceived/'^ 
 
 A. B. (the drawei-y^^^ 
 
 To C. D., Esq. (the drawee), , 
 
 Montreal/"' 
 
 Accepted C. D./"* payable at Commercial Bank. 
 
 London/"* • 
 
 [Indorsed Y'*^ A. B. (or "E. P\") (first indorser.) 
 
 G. II. (second indorser.) 
 
 A 
 
 REMARKS ON THIS FORM. 
 
 (1) The place at which the bill is dated, or is 
 
 supposed to be drawn. " 
 
 (2) The date of the bill. 
 
 (3) The sum superscribed in figures. 
 
 (4) The statement of the time when payable. 
 
 (5) The description of the payee. », 
 
 (6) "Or order." , -^ 
 
 (7) "At," &c. 
 
 (8) Stat<?ment of the sum payable. 
 
 (9) " Value received." 
 
 (10) The drawer's signature. 
 
 (11) The direction to the drawee. 
 
 (12) The form of the acceptance. 
 
 (13) "Payable at," <fcc. 
 
 (14) Form of the indorsements. 
 
 
 1. The Plixce at which the Bill is dated, or is ^xx^- 
 i^os,QdL to he drawn. 
 
 It is usual to date the bill at the city or place 
 where it is drawn; but this is not necessary. No 
 
 !: i 
 

 146 
 
 CANADIAN DOMESTIC LAWYER. 
 
 place need be stated. If a place be stated, it will be 
 presumed that the drawer resides therein; and if 
 only a general description be given, as "London," 
 or " Montreal," it will be sufficient, in the absence 
 of information, or ready means of acquiring intel- 
 ligence, as to the particular street, &c. in which the 
 drawer resides, to give hitn notice of dishonor by 
 letter addressed to him merely "London," or "Mon- 
 treal." 
 
 2. The Date of the Bill. 
 
 This is not essential, although the bill be payable 
 after date. If there be no date, or an impossible 
 date, the time of drawing or issuing the instrument 
 will be reckoned the date, and will give the criterion 
 when the bill is due. 
 
 A bill of. exchange may legally be post-dated. 
 The restrictions against post-dating in England have 
 reference to stamp duties merely, and do not apply 
 to Canada. Even in England, although a penalty of 
 one hundred pounds is incurred by post-dating, yet the 
 bill will be good in the hands of a bona jide holder. 
 
 As against third persons the date is not even pre- 
 sumptive evidence that the bill was drawn on the day 
 expressed ; nor will it afford proof of the time of in- 
 dorsement. 
 
 A bill may legally be drawn and dated on a Sunday. 
 
 \ '& 
 
 3. The Sum superscribed in Figures. 
 
 This superscription is unnecessary, but usual. If 
 it were contradictory to the body of the bill, it would 
 
day. 
 
 OF BILLS OF EXCHANGE. 
 
 147 
 
 be rejected: on the other hand, if in the body of 
 the bill there were an omission of the word dollars^ 
 the superscription would aid the mistake by supplying 
 the word. 
 
 4. The Statement of the J^me when payable. 
 
 It is not necessary to state on the face of the bill 
 any time for payment of the amount. If no time be 
 mentioned, the bill is payable immediately, or on de- 
 mand, that is, on presentation to the drawer for pay- 
 ment. 
 
 K the* time of payment be fixed, it is not material 
 that the day is ever so distant; nor is it any objec- 
 tion that the bill or note is payable at a specified 
 time after notice from the holder. 
 
 But it is a rule that a bill or note is void, even 
 between the original parties thereto, if the payment 
 of the money is made, by the terms of the instrument 
 on the face of it, or by a written contemporaneous in- 
 dorsement on the instrument, dependent upon a con- 
 dition^ or upon the contingency/ of the happening of 
 an event which may never occur ; and the defect is 
 not cured by the fulfilment of the condition or the 
 occurrence of the event. 
 
 Thus, if an instrument be drawn or made for the 
 payment of a sum of money (being the price of 
 certain goods), ^^upon condition that if any dispute 
 should arise between, &c. respecting the goods, the / 
 note should be void;" or ^* provided the terms men- 
 tioned in certain letters shall be complied with ; " or 
 ^^ provided T. S. shall not pay;" or "provided D. M. - 
 shall not return to England, or his death be duly 
 
 
 % 
 
148 
 
 CAIfADIAN DOMESTIC LAWYER. 
 
 certified, before the appointed time for payment;" 
 or "when I am able;" or "when J. S. shall marry;" 
 or "when an estate, &c. shall be sold;" it is not 
 valid as a bill or note. 
 
 An instrument is not valid as a bill or note if the 
 sum specified is not payable at all events, but is ex- 
 pressed to be secured merely as a set-off" against, or 
 deduction from, another demand. 
 
 And the instrument is considered uncertain, con- 
 tingent, and void, as a. bill or note, if the money is 
 to be paid out of a specified fund, which may never 
 be realized or be adequate to the purpose ; as^ " out of 
 rents ; " or " out of money when received ; " or " out ' 
 of my growing subsistence ; " or " out of the produce 
 of goods when sold ; " or " out of drafts on a banker ; " 
 or " when they shall be paid." 
 
 But, however uncertain it may be when the event 
 on which the time for payment is made dependent 
 will occur, if it be certain that it must transpire at 
 some period, the bill or note will be good; as if the 
 payment is to be made within one month " after the 
 death^^ of a party; or "when J. S. shall come of 
 age^^ (naming the day); so that his death would not 
 discharge the liability. 
 
 ment, 
 will i 
 orB, 
 If,c 
 name 
 author 
 from t 
 name, 
 payabL 
 which 1 
 If th 
 payee, t 
 who ta] 
 parties i 
 shall noi 
 gularity 
 an innoc 
 payable 
 If the 
 son, pay 
 
 acceptor' 
 a bona f, 
 of the pe 
 
 6. The Description of the Payee. 
 
 The bill may be made payable to the drawer, or to 
 
 ^» third person. It is not essential that either should 
 
 be named, provided the bill be made payable to tlie 
 
 order of the drawer (when in effect it is payable to 
 
 him), or to bearer. 
 
 But alternative words on the face of the instru- 
 
 Bills ar 
 
 or payee, 
 
 to bearer 
 
 Great a 
 
 as the dist 
 
 lity— alto 
 
 press wor( 
 
»mm 
 
 OF BILLS OF EXCHANGE. 
 
 149 
 
 ment, as to the party to whom payment is to be made, 
 will invalidate the bill; as, if it be payable to A. 
 or B. 
 
 If, on framing a l>ill, a blank or space be left for the 
 name of the payee, the acceptor and drawer tacitly 
 authorize a bonajide holder, afterwards taking the bill 
 from the drawer or his transferee, to supply his own 
 name, so as to give effect to the instrument as a bill 
 payable to himself; and the objection of uncertainty, 
 which would otherwise prevail, is thus obviated. 
 
 If the name of a Jictitious person be introduced as 
 payee, the bilf is inoperative in the hands of a party 
 who takes it with knowledge of that fact; but the 
 parties to the b' v, ho were aware of the circumstance 
 shall not be pt . >^ ad to avail themselves of the irre- 
 gularity ; and against them the bill, in the hands of 
 an innocent holder for value, may be treated as a bill 
 payable to bearer. 
 
 If the bill be drawn in the name of a fictitious per- 
 son, payable to the order of the drawer, with the 
 acceptor's knowledge, the latter may be charged by 
 a bona fide holder as undertaking to pay to the order 
 of the person who signed as the drawer. , 
 
 . ^ 6. " Or Order;' &g. '_ J'^; ) .^ '^'; 
 
 Bills are generally payable to the order of the drawer 
 or payee, or they may be payable to him oj' bearer, or 
 to bearer generally. ii^ 
 
 Great attention is due to this part of the instrument, 
 as the distinguishing quality of a bill — its negotiabi- 
 lity — altogether depends upon the introduction of ex- 
 press words rendering it transferable. -, 
 
 
i^ 
 
 150 
 
 CANADIAN DOMESTIC LAWYER. 
 
 In this country it is now decided not to be essential 
 that a bill should be made negotiable. It may be pay- 
 able only to the drawer or a third party. 
 
 If the words "or order," or "bearer," be omitted, 
 the bill cannot be negotiated so as to become available 
 against the acceptor. It is available only against the 
 assignor who indorses it to the holder. It will there- 
 fore be remarked that the express assent of the ori- 
 ginal parties is necessary to attach to a bill its more 
 important and peculiar attribute. 
 
 7. "^C &c. 
 
 Although the bill be accepted payable at a particular 
 place in pursuance of the drawer's request, yet if the 
 acceptor do not use the restrictive words "and not 
 otherwise or elsewhere," according to the statute Cons. 
 St. U. C, c. 42, 8. 6, the acceptance is, as to him, 
 deemed to be general; and the acceptor is, it seems, 
 responsible, although no presentment be made at the 
 specified place. 
 
 But the drawer and indorsers are not liable in such 
 case, unless the bill be duly presented at the place de- 
 signated by the acceptor, in pursuance of the direction 
 in the body of the bill, confirmed and rendered specific 
 by the acceptance. 
 
 If the drawer, in the body of the instrument, makes 
 it payable, not at any specific place, but generally 
 in some town, the direction becomes inoperative, if 
 the bill be not accepted or the acceptance be general, 
 without mentioning any particular street or place in 
 such town. 
 
 Sometimes the drawer makes the bill payable at his 
 
 oton } 
 
 been i 
 
 that t 
 
 he is t 
 
 entitle 
 
 he rea] 
 
 This 
 figures 
 scriptio 
 sion in 
 Abil] 
 paymeni 
 There 
 there b( 
 horse," < 
 may be 
 any sum 
 any part 
 instrume 
 
 These 
 
 give vali( 
 
 exchange. 
 
 Conside 
 
 ing and l 
 
 that it doe 
 
 of the wor 
 
 a considon 
 
 The pre 
 
t^m 
 
 ■in 
 
 OF BILLS OF EXCHANGE. 
 
 151 
 
 mon house. This seems to be injudicious; it having 
 been held that the circumstance raises a presumption 
 that the bill was accepted for his accommodation, that 
 he is the party to pay, and consequently that he is not 
 entitled to notice of dishonor, unless he proves that 
 he really had effects with the drawee. 
 
 8. Statement of the Sum payable. 
 
 This is generally expressed in words at length ; but 
 figures would suflSce. We have seen that the super- 
 scription of the sum in the margin may aid an omis- 
 sion in the body of the bill of the word "dollars." 
 
 A bill, &c., is not valid unless it be solely for the 
 payment of a specific sum of money. 
 
 Therefore a bill "to pay A. B. 100/." is void if 
 there be added the words, "and to deliver up a 
 horse," &c. ; or the words, " and all other sums that 
 may be due to him;" or, "first deducting thereout 
 any sum J. J. may owe me." And uncertainty as to 
 any part of the amount to be paid will invalidate the 
 instrument as a note. 
 
 A' 
 
 
 - 9. " Value received.'** 
 
 These words (though usual) are not necessary to 
 give validity or force to the instrument as a bill of 
 exchange. 
 
 Consideration haing presumed hy law for the draw- 
 ing and indorsing a bill, no argument or inference 
 that it does not exist can be founded on the absence 
 of the words "value received:" the presumption that 
 a consideration existed still arises. 
 
 The precise meaning of these words, in reference 
 
[at 
 
 152 
 
 CANADIAN DOMESTIC LAWYER. 
 
 & 
 
 to the parties by whom and from whom the value was 
 received, depends upon the form of the bill. If it be 
 payable to the drawer or his order, the words " value 
 received " import that the drawee has received consi- 
 deration from the drawer ; if it be payable to a,third 
 person, they signify that the drawer has received value 
 from him to the amount drawn for. 
 
 The nature of the value or consideration may be 
 stated, without prejudice to the validity of the instru- 
 ment. 
 
 10. ITi" Draioer's Signature. 
 
 The bill would, evidently, be imperfect if the draw- 
 er's name did not appear on the face of the instru- 
 ment. A formal signature at the foot of the bill is 
 not essential. If the drawer himself writes the bill 
 in this shape, "Z, A, J?., request you to pay," &c., 
 no doubt the instrument would be good, although not 
 undersigned. 
 
 The signature may be in pencil ; or by a mark or 
 cross, by way of signature ; or it may be printed. 
 
 When an agent draws a bill for his principal, the 
 signature should be in the name of the latter; or in 
 the name of the agent, thus: "A. B." {the agent), "for 
 CD." (the principal); or thus: "C. D." {the prin- 
 cipal), ^^ -per ■procuration, A. B." {the agent). If an 
 agent merely sign his own name only, as drawer, he 
 will become personally liable on the bill, and the 
 principal will not incur any responsibility thereon. 
 
 If there be several drawers, and they be partners, 
 either the name of the firm may be subscribed by one 
 of the members or an agent of the firm, or the signa- 
 
 ture 
 by its 
 If 1 
 rately 
 him f 
 implii 
 
 This 
 case i] 
 drawee 
 only ^ 
 resided 
 liable 
 show t 
 althou^ 
 ment v 
 absence 
 . instrun 
 rative 
 Care 
 person 
 accept 
 or a sec 
 acceptai 
 " If, th( 
 acceptec 
 not liab 
 
 a 
 
 The 
 and it n 
 
 4 
 
 I**: 
 
OF BILLS OF EXCHANGE. 
 
 153 
 
 ture may be by the partner or agent "for" the firm 
 by its usual title. 
 
 If the drawers be not partners, each should sepa- 
 rately sign by himself or by an agent appointed by 
 him for the purpose. In this case one drawer has no 
 implied authority to sign for the others. 
 
 11. The Direction to the Drawee. 
 
 This formal direction is not necessary; for, in a 
 case in which instead of the usual address to the 
 drawee the words "payable at No. 1 Wilmot Street" 
 only were inserted, it was held that a person who 
 resided at that place and who accepted the bill was 
 liable thereon as acceptor. But this case does not 
 show that the instrument can be perfect, as a bill, 
 although it do not appear on the face of the instru- 
 ment who is the drawee. And it is clear that the 
 absence of such information, to be obtained from the 
 instrument itself, would render the instrument inope- 
 rative as a bill. 
 
 Care should be taken to address the bill to each 
 person (if more than one) who las undertaken to 
 accept the bill. There cannot be successive acceptors 
 or a second acceptor of the same bill after a perfect 
 acceptance, unless the second be an acceptor for honor. 
 
 If, therefore, a bill be directed to A. only and be 
 accepted by him, and B. afterwards accept it, he is 
 not liable thereon as acceptor. 
 
 12. The M)rm of the Acceptance. 
 
 The acceptance may be upon any part of the bill, 
 
 and it may be effected by the drawer merely writing 
 
 7* 
 
154 
 
 CANADIAN DOMESTIC LAWYER. 
 
 his name or the word " accepted ;" or, it seems, hy his 
 merely writing thereon " presented," or the day of the 
 month, or a direction to a third person to pay the 
 amount. 
 
 An acceptance may be in pencil, <3r by making a 
 mark in lieu of a signature with intent to accept. 
 
 The statute Cons. St. U. C, o. 42, s. 7, requires 
 -p# that bills shall be accepted in writing upon the bill 
 itself. But this statute does not require the signature 
 of the drawee. 
 
 The holder may insist, as against the drawer and 
 indorser, upon having the absolute acceptance of the 
 drawee to the full extent and i^ the very terms of 
 the bill as drawn, and, if refused, may treat the bill 
 as dishonored. But he may, if he please, waive such 
 acceptance, and take a conditional or partial or limited 
 acceptance, and it will be valid against the acceptor; 
 and if the other parties have notice of the acceptance 
 offered, and consent thereto, they also will be bound. 
 
 Here we may observe the distinction that, although 
 a bill cannot be drawn^ it may be accepted, payable 
 upon a condition or contingency. 
 
 The acceptance of a bill conditional as to the place 
 of payment will be considered under the next divi- 
 sion. 
 
 A bill may be accepted for part only of the sum 
 mentioned therein ; or the mode of payment may be 
 varied by making part of the amount payable in bills ; 
 or the time of payment may be altered by the accept- 
 ance. 
 
 A bill may be accepted after it has been dishonored, 
 and is then payable on demand. 
 
 *. 
 
OF BILLS OF EXOUANGE. 
 
 155 
 
 *4r^M 
 
 3d, 
 
 The acceptance may be revoked or cancelled by the 
 drawee at any time before it has been called for by 
 the holder and before the drawee has parted with it 
 or delivered it over to the holder. 
 
 We have seen that, if a bill is complete as to accept- 
 ance, that is, has been accepted by the party on whom 
 it is drawn, the custom of merchants does not authorize 
 any second or further acceptance by another person. 
 But, if the drawee before acceptance become insolvent, 
 &c., or if he refuse to accept, another person may 
 accept for the honor of any party to the bill ; which is 
 called an acceptance /<>/• honor ^ in the case of an inland 
 bill, and is termed an acceptance supra protest^ in the 
 case of a foreign bill, from the circumstance of a pro- 
 test in such instance preceding the acceptance. 
 
 If a party whose acceptance to a bill has been 
 forged, on the bill being presented to him by a third 
 person, with a request to know if the bill has been 
 accepted by him, answer (though bonajide) that such 
 is the case, he is liable as acceptor. 
 
 13. '^ Payable at/' &c. 
 
 The introduction of these words into an acceptance 
 led to great difference of opinion in the courts as to 
 their legal operation, before the passing of the English 
 Act 1 & 2 Geo. IV., c. V8 ( Canadian Act, Cons. St. 
 U. C, c. 42, founded on 7 Will. II., c. 6). 
 
 It is clear that the acceptor need not state where 
 the bill is to be presented for payment. He may 
 accept generally. The question which divided the 
 courts was, whether the acceptor, by using the words 
 " payable at," &c., incurred only a restricted and con- 
 
 4 
 
156 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ditlonal or qualified liability, that is, was not respon- 
 sible unless the bill were presented for payment at 
 the place specified ; or whether the words were a mere 
 notification to the holder that he might, if he pleased^ 
 there call for payment at his election^ without being 
 compelled to do so. 
 
 The 1 & 2 Geo. IV. provides that an acceptance 
 of a bill payable at a banker's or other specified place 
 shall be deemed merely a general (acceptance, unless 
 the acceptor state that it is payable there " only and 
 not otherwise or elsewhere/''' and the Canadian act is 
 in the same words. 
 
 14. Form^ cfcc, of (he Indorsements. 
 
 The indorsements may be upon the face or at the 
 back of the bill. They may be written in pencil. 
 
 The indorsement may be by the mere signature of 
 the party transferring, without any other words. This 
 is called an indorsement in blank. 
 
 Or before his signature the party may state, "Pay 
 A. B.," or, "Pay A. B., or order." This is termed 
 a special indorsement, or indorsement in full. 
 
 Bills and notes may be indorsed before they are 
 complete. And a bill may be indorsed before due, 
 so as to charge the drawer, &c., although he had 
 been discharged as to the indorser, by thie latter hav- 
 ing previoitsly presented the bill for acceptance and 
 omitted, on the non-acceptance, to give the drawer 
 notice thereof; provided the indorsee had no notice 
 of such fact by noting on the bill or otherwise, and 
 took it for value. So, if a bill 7iot due be paid, but 
 be left in the holder's hands, a person taking it be- 
 
 \ 
 
 fore i 
 
 there( 
 
 Anc 
 
 and h 
 
 dulyp 
 
 But 
 
 before, 
 be no*, 
 ever on 
 own int 
 of the 
 to suspi 
 after it 
 all the 
 any prei 
 with the 
 lating, as 
 matter. 
 
 I^j ther 
 
 sued the ; 
 
 "pon a sn 
 
 because it 
 
 the accept 
 
 was only J 
 
 cipal, <fcc.; 
 
 fraud, &C.J 
 
 become du 
 
 than the ai 
 
 the latter, 
 
 acceptor. 
 
 But if tl: 
 d«e bill mi^ 
 
 *' 
 
OF BILLS OF EXCHANGE. 
 
 157 
 
 fore it is due, bona fide and without notice, may sue 
 thereon. 
 
 And a bill may legally be indorsed after it is due^ 
 and has been dishonored; but not after it has been 
 duly paid by the acceptor. 
 
 But there' is this distinction between bills indorsed 
 before, and after ^ they are due. If a note indorsed 
 be not due at the time, it carries no suspicion what- 
 ever on the face of it, and the party receives it on its 
 own intrinsic credit. But, if it is over-due, it is out 
 of the common course of dealing, and does give rise 
 to suspicion. And therefore he who takes a bill 
 after it has arrived at maturity takes it subject to 
 all the legal defences that could have been made by 
 any previous holder, arising out of and connected 
 with the bill or note transaction itself, and not re- 
 lating, as in the case of a set-off, merely to collateral 
 matter. 
 
 If, therefore, the party transferring could not have 
 sued the acceptor upon the bill, because it was given 
 upon a smuggling, or other illegal, consideration ; or 
 because it had been paid or settled in account with 
 the acceptor; or because he (the party transferring) 
 was only an agent to receive the money for his prin- 
 cipal, &c.; or because he had obtained the bill by 
 fraud, &c.; the transfer, after the bill or note has 
 become due, will give the transferrer no better title 
 than the assignor possessed; and, in an action by 
 the latter, either of these defences will avail the 
 acceptor. - i^ ^ :;. - i^ ^<i- 
 
 But if the immediate party transferring an over- 
 due bill might have sued thereon, as if ^ took the 
 
 i 
 
 * 
 
158 
 
 *> 
 
 CANADIAN DOMESTIC LAWYEB. 
 
 bill by indorsement, &c bona ftde for value before it 
 was duo, the holder is invested with his rights ; and 
 it is no defence that the bill was accepted by the de- 
 fendant, <&c., upon a smuggling contract, <&o., between 
 him and the drawer. 
 
 A bill may be indorsed conditionally, thus: — "Pay 
 the within sum to A. B., or order, upon my name ap- 
 pearing in the Gazette as ensign in any regiment of 
 the line between the Ist and 64th, if within two 
 months from this date." Upon such an indorsement 
 neither A. B. nor his indorsees can acquire any right 
 to the money, unless the event specified has oc- 
 curred. ' 
 
 An indorsement cannot be made as to part only of 
 the sum due, so as to subject the acceptor to two 
 actions without his consent; but if the partial in- 
 dorsement be before the acceptance, and the drawee 
 accept generally, he is supposed to assent to the 
 double liability (that is, to one party as to one por- 
 tion, and to another as to the residue of the bill), and 
 the indorsement will be good. If part has been satis- 
 fied^ the bill may be indorsed for the remainder. . 
 
 An indorsement may be restrictive^ and stop the 
 negotiability of the bill; as, "Pay to my servant 
 for my use,''^ or, "Pay W. /S'., or order, for m.y use" 
 &c.; or it may be qualified (as "saws recours"), so 
 as to exempt the indorser from personal liability in 
 case of dishonor. 
 
 The mode in which an agent or partner should in- 
 dorse a bill is similar, in general, to that which should 
 be adopted on his drawing a bill. 
 
 A partner may transfer in his own name only, and 
 
 «r 
 
OF BONDS. 
 
 159 
 
 thereby charge the firm if suoh a mode of indoroO' 
 mcnt as beun usual. If there be several holders, 
 not partners, each should indorse. 
 
 ciiArTER vn. 
 
 Of Sontla* 
 
 A Bond, or obligation, is a deed, whereby th^ 
 maker (called the obligor) obliges himself, his heirs, 
 executors, and administrators, to pay a certain sum 
 of money to another (called the obligee) at an ap- 
 pointed day. Such a Bond is called a single bond. 
 A condition is, however, generally added, that if the 
 obligor performs some particular act the obligation 
 shall be void, otherwise it shall remain in full force 
 and virtue. 
 
 The penalty in a Bond is usually double the amount , 
 of the real debt, for the purpose of securing the full 
 debt with interest and costs, if necessary. 
 
 Whenever a specified sum is agreed upon hj 'h^ 
 parties for stipulated or liquidated damages^ in the 
 event of a failure to comply with the conditions of a 
 bond, such specific sum is the amount which the party 
 in fault is to pay. 
 
 All that can be recovered of a penalty in a bond 
 in addition to the amount of the debt is interest and 
 costs ; and, as the general inclination of courts is to 
 regard the sum mentioned as a penalty, care must be 
 exercised to state distinctly and unmistakably the 
 
160 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ^* 
 
 fact that the sum agreed upon is in the nature of 
 stipulated or liquidated damages, if the whole sum 
 mentioned is intended as a forfeiture in case of 
 failure. 
 
 Bond. ' 
 
 {Single. — Without Condition.) 
 
 Know all Men by these Presents, that I 
 [debtor], oi[suGh aplacel^ am held and firmly bound 
 to [creditor], of [such a place], in the penal sum of 
 1000?., of lawful money of Canada, to be paid to the 
 said [creditor], or to his certain attorney, executors, 
 administrators, or assigns, for which payment to be 
 well and truly made I bind myself, my heirs, execu- 
 tors, and administrators, and every of them, firmly by 
 these presents. Sealed with my seal. Dated this 
 
 1st day of January, 1848. 
 
 A. B. [l. s.] 
 Sealed and delivered in the ] 
 
 presence of • ) 
 
 C. D. 
 
 Money Bond. 
 
 Know all men by these Presents, that held 
 
 and firmly bound unto in the penal sum of 
 
 , of lawful money of Canada, to be paid to the 
 said , or to certain attorney, executors, ad- 
 
 ministrators, or assigns, for which payment, well and 
 truly to be made, bind heirs, executors, and 
 
 administrators, forever, firmly by these presents. 
 
 Sealed with seal. Dated this day of , 
 in the year of our Lord one thousand eight hundred 
 and , • - - 
 
OF BONDS. 
 
 161 
 
 • The Condition of . ^ above written Bond or obli- 
 gation is such, that if the above bounden , heirs, 
 executors, or administrators, do and shall well and 
 truly pay, or cause to be paid, unto , executors, 
 administrators, or assigns, the just and full sum of 
 , of lawful money of Canada, with interest there- 
 on, at the rate of per cent, per annum, on the 
 days and times and in the manner following, that is 
 to say: , without any deduction, defalcation, 
 or abatement whatsoever. Then the said Bond or 
 obligation to be void, otherwise to be and remain in 
 full force and virtue. 
 
 A. B. [l. s.] 
 Signed, sealed, and delivered ) 
 in the presence of . J ' 
 
 C. D. 
 
 H 
 
 m 
 
 
 Bond to Convey Land. 
 
 Know all Men by these Presents, that held 
 and firmly bound unto in the penal sum of , 
 
 of lawful money of Canada, to be paid to the said 
 , or to certain attorney, executors, admi- 
 
 nistrators, or assigns, for which payment, well and 
 truly to be made, bind heirs, executors, and 
 administrators, and every of them, forever, firmly by 
 these presents. Sealed with seal. Dated this 
 
 day of , in the year of our Lord one thou- 
 sand eight hundred and 
 
 Whereas the said ha contracted with the 
 
 above bounden , for the absolute purchase, in 
 
 fee simple, free from all incumbrances, of the follow- 
 ing parcel or tract of land, hereditaments, and 
 
162 
 
 CANADIAN DOMESTIC LAWYER. 
 
 premises, that is to say: And whereas the 
 
 said ha agreed to pay therefor the sum of 
 
 , of lawful money of Canada, at the times and 
 in manner following, that is to say : 
 
 Now, THE Condition of the above obligation is 
 such, that if the said , heirs, executors, adminis- 
 
 trators, or assigns, shall well and truly pay, or cause 
 to be paidj to the above bounden , executors, ad- 
 ministrators, or assigns, the sum of , at the 
 times and in manner aforesaid, then if the above 
 bounden , heirs and assigns, shall, by good and 
 sufficient Deed or Deeds of Conveyance, in fee sim- 
 ple, convey and assure, or cause to be conveyed and 
 assured, unto the said , heirs and assigns, for- 
 ever, the said premises hereinbefore described, free 
 from all incumbrances, then the above obligation 
 shall be void, otherwise to be and remain in full 
 force and virtue. 
 
 Signed, sealed, and delivered ) 
 in the presence of . } 
 
 Bond for Payment of Purchase Money. 
 
 Know all 3Ien by these Pkebents, that held 
 and firmly bound unto in the penal sum of 
 
 , of lawful moiicy of Canada, to be paid to the 
 said ,_.. , or to certain attorney, executors, ad- 
 ministrators, or assigns, for which payment, well and 
 truly to be made, bind heirs, executors, 
 
 and administrators, and every of them, forever, firmly 
 by these presents. , 
 
 Sealed with seal. Dated this day of , 
 
OF BONDS. 
 
 163 
 
 m 
 
 in the year of our Lord one thousand eight hundred 
 and . -"^v 
 
 Whereas the above bounden ha contracted 
 
 with the said for the absolute purchase, in fee 
 
 simple, free from all incumbrances, of the following 
 parcel or tract of land, hereditaments, and pre- 
 mises, that is to say: 
 
 And whereas the above bounden ha 
 
 agreed to pay therefor the sum of , of lawful 
 
 money of Canada, at the times and in manner follow- 
 ing, that is to say : 
 
 And whereas, upon the treaty for the said pur- 
 chase, it was agreed that the above bounden 
 should enter into the above Bond or obligation for 
 payment of the said purchase money, or the unpaid 
 part thereof, and interest, in manner aforesaid, and 
 be let into possession of the said lands and premises, 
 and receipt of the rents and profits thereof from the 
 day of the date hereof. 
 
 Now, the Condition of the above obligation is 
 such, that if the above bounden , heirs, execu- 
 tors, administrators, or assigns, shall well and truly 
 pay, or cause to be paid, to the said , executors, 
 administrators, or assigns, the whole of the said pur- 
 chase money and interest thereon as aforesaid, at the 
 times and in manner aforesaid, without making any 
 deduction, defalcation, or abatement thereout on any 
 account whatsoever, then the above obligation shall 
 be void, otherwise to be and remain in full force and 
 virtue. 
 
 Siirned, sealed, and delivered ) 
 in t J presence of . . | 
 
 % 
 
 >%v 
 
 
164 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ^P^r" 
 
 m 
 
 Bond of Indemnity. 
 
 Know all Men by these Presents, that held 
 and firmly bound unto in the penal sum of , 
 
 of lawful money of Canada, to be paid to the said 
 , or to certain attorney, executors, adminis- 
 trators, or assigns, for which payment, well and truly 
 to be made, binds heirs, executors, adminis- 
 
 trators, and every of them, forever, firmly by these 
 presents. Sealed with seal. Dated this 
 
 day of , in the year of our Lord one thousand 
 
 eight hundred and 
 
 The Condition of the above written Bond or 
 obligation is such, that if the above bounden obligor, 
 his heirs, executors, and administrators, do and 
 shall, from time to time, and at all times hereafter, 
 hold and keep harmless, and fully indemnified, the 
 said obligee, his heirs, executors, and administrators, 
 and his and their lands and tenements, goods, chat- 
 tels, and effects, of, from, and against all loss, costs, 
 charges, damages, and expenses which the said obli- 
 gee, his heirs, executors, or administrators, may at 
 any time hereafter bear, sustain, be at, or be put to, 
 for or by reason or on account of , or any thing 
 
 in any manner relating thereto. Then the above writ- 
 ten Bond or obligation to be void, otherwise to be 
 and remain in full force and virtue. 
 
 Signed, sealed, and delivered | 
 in the presence of • i ^ 
 
QF BONDS. 
 
 165 
 
 <«i 
 
 Bond from a Lessee and his Surety to pay Rent according 
 
 to Lease. 
 
 ♦ 
 
 Know all Men by these Presents, that we, C. 
 D., of , in the County of , and Province 
 
 of Canada, Carpenter, and E. F., of the same place, 
 Butcher, are held and firmly bound unto A. B., of 
 , in the County of , and Province of 
 
 Canada, Esquire, in the penal sum of , of law- 
 
 ful money of Canada, to be paid to the said A. B., 
 or to his certain attorney, executors, administrators, 
 or assigns, for which payment, well and truly to be 
 made, we bind ourselves, and each of us by himself, 
 our, and each of our, heirs, executors, and adminis- 
 trators, forever, firmly by these presents. Sealed 
 with our seals. Dated this day of , in the 
 
 year of our Lord one thousand eight hundred and 
 
 Whereas the above named A. B., by his Inden- 
 ture of Lease, bearing even date with and executed 
 before the above written obligation, for the considera- 
 tion in the said lease mentioned, hath demised to 
 the above bounden C. D. a certain saw-mill, situate 
 at, &c. To HOLD unto the said C. D., his executors, 
 administrators, and assigns, for the term of years 
 from thence next ensuing, determinable, nevertheless, 
 at the end of the first years of the said term, if 
 
 the said CD., his executors, administrators, or as- 
 signs, shall give months' notice thereof, in manner 
 therein mentioned, at and under the yearly rent of 
 , payable quarterly, in manner as therein ex- 
 pressed, as by the said lease will more fully appear. 
 Now, THE Condition of the above written obligation 
 
 m 
 
 ■ 
 
 I 
 
166 
 
 CANADIAN DOMESTIC LAWYER. 
 
 is snch, that if the above bounden C. D. and E. F., 
 or either of them, their, or either of their, heirs, exe- 
 cutors, or administrators, shall and do, during the 
 continuance of the said recited lease, well and truly 
 pay, or cause to be paid, the said yearly rent or sum 
 of unto him, the said A. JB., his heirs or as- 
 
 signs, by four equal quarterly payments of each, 
 
 on the several days following, that is to say, the 
 day of , the day of ' " , the day 
 
 of 
 
 and the 
 
 day of 
 
 in each and 
 
 every year during the said demise, or w^ithin 
 days next after every of the said days or times of 
 payment, according to the true intent and meaning 
 of the said recited lease, the first quarterly payment 
 to be made on the day of next, then the 
 
 above written obligations shall be void and of no 
 effect, but if default shall happen to be made of or in 
 any of the said quarterly payments, then the same 
 shall remain in full force. 
 Signed, sealed, &c. - 
 
 :'m 
 
 * 
 
 
OF CHATTEL MORTGAGES. 
 
 107 
 
 
 CHAPTER Vlllt 
 
 Of Chattel Mortgages, 
 
 A CHATTEL mortgage is a conveyance of movable 
 property, as household furniture, stock in trade, <fcc., 
 by way of security. A lengthy dissertat'.on upon 
 the laws affecting chattel mortgages would be inte- 
 resting to none but lawyers; but some enactments 
 regulating their registration, &c., must be noticed. 
 
 It often happened that chattel mortgages were 
 made use of in order to deprive a creditor of the 
 fruits of his execution. When a debtor became in- 
 volved, ar.d desirous of preventing the seizure of his 
 goods ana chattels by the bailiff, it was quite com- 
 mon for the debtor to make a fictitious conveyance 
 of them to some friend, by way of security for a 
 pretended loan. When a seizure was made, the 
 friend stepped in and claimed payment of the mort- 
 gage, which, being always for an amount equal to 
 the full value of the goods, had the effect of prevent- 
 ing the creditor from realizing any thing at all. 
 
 To remedy this evil, the Canadian Legislature, in 
 1857, passed an Act of Parliament (since consolid- 
 ated, and being now cap. 45 of the Consolidated 
 Statutes for Upper Canada), the sections of which, 
 so far as it is necessary to notice them here, are as 
 follows: — ' ^^ ; 
 
 1, Every mortgage of goods and chattels, made 
 
 m 
 
 m 
 
 , ■ 
 
Ife 
 
 168 
 
 CANADIAN BOMESTIO LAWYER. 
 
 -0- 
 
 m 
 
 in Upper Canada, which is not accompanied by an 
 immediate delivery and an actual and continued 
 change of possession of the things mortgaged, or a 
 true copy thereof, shall, within five days from the 
 execution thereof, be registered as hereinafter pro- 
 vided, together with the affidavit of a witness thereto, 
 of the due execution of such mortgage or convey- 
 ance, or of the due execution of the mortgage or 
 conveyance of which the copy filed purports to be a 
 copy, and also with the affidavit of the mortgagee or 
 his agent, if such agent be aware of all the circum- 
 stances connected therewith and properly authorized 
 in writing to take such mortgage (in which case ^ 
 copy of such authority shall be registered there- 
 with.) 
 
 2. Such last-mentioned affidavit, whether of the 
 mortgagee or his agent, shall state that the mort- 
 gagor therein named is justly and truly indebted to 
 the mortgagee in the sum mentioned in the mort- 
 gage, that it was executed in good faith, and for the 
 express purpose of securing the payment of money 
 justly due or accruing due, and not for the purpose 
 of protecting the goods and chattels mentioned 
 therein against the creditors of the mortgagor, or of 
 preventing the creditors of such mortgagor from ob- 
 taining payment of any claim against him. 
 
 3. In case such mortgage or conveyance and affi- 
 davits be not registered as hereinbefore provided, 
 the mortgage or conveyance shall be absolutely null 
 and void as against creditors of the mortgagor, and 
 against subsequent purchasers or mortgagees in good 
 fiiith for valuable consideration. , _ 
 
 jage 
 
^' 
 
 ^ 
 
 OP CHATTEL MORTGAGES. 
 
 1C9 
 
 affi- 
 [ided, 
 '■• null 
 [, and 
 Igood 
 
 6. In case of an agreement in writing for future 
 advances for the purpose of enabling the borrower to 
 enter into and carry on business with such advances, 
 the time of repayment thereof not being longer than 
 one year from the making of the agreement, and in 
 case of a mortgage of goods and chattels for securing 
 the mortgagee repayment of such advances, or in 
 case of a mortgage of goods and chattels for securing 
 the mortgagee against the indorsement of any bills 
 or promissory notes or any other liability by him 
 incurred for the mortgagor, not extending for a 
 longer period than one year from the date of such 
 mortgage, and in case the mortgage is executed in 
 good faith, and sets forth fully, by recital or other- 
 wise, the tferms, nature, and effect of the agreement, 
 and the amount of liability intended to be created, 
 and in case such mortgage is accompanied by the 
 affidavit of a witness thereto of the due execution 
 thereof, and by the affidavit of the mortgagee, or in 
 case the agreement has been entered into and the 
 mortgage taken by an agent duly authorized in 
 writing to make such agreement and to take such 
 mortgage, and if the agent is aware of the circum- 
 stances connected therewith, then, if accompanied 
 by the affidavit of such agent, such affidavit, whether 
 of the mortgagee or his agent, stating that the mort- 
 gage truly sets forth the agreement entered into 
 between the parties thereto, and truly states the ex- 
 tent of the liability intended to bo created by such 
 agreement and covered by such mortgage, and that 
 such mortgage is executed in good faith, and for the 
 express purpose of securing the mortgagee repay- 
 
 ^^ 
 
 I 
 
 I 
 
 '* 
 
 1 
 
 1 
 
 1 
 
 *^f 
 
« 
 
 170 
 
 CANADIAN DOMESTIC LAWYER. 
 
 #• 
 
 mcnt of his advances, or against the payment of the 
 amount of his liability for the mortgagor, as the 
 case may be, and not for the purpose of securing the 
 goods and chattels mentioned therein^ against the 
 creditors of the mortgagor, nor to prevent such cre- 
 ditors from recoverin:» any claims which they may 
 have against such mortgagor, and in case such mort- 
 gage is registered as hereinafter provided, the same 
 shall be as valid and binding as mortgages mentioned 
 in the preceding section of this act. 
 
 6. All the instruments mentioned in the act shall 
 contain such sufficient and full description of the 
 goods and chattels that the same may be thereby 
 readily and easily known and distinguished. 
 
 7. The instruments mentioned in the* preceding 
 sections shall be registered in the office of the clerk 
 of the county court of the county or union of coun- 
 ties where the mortgagor or bargainor, if a resident 
 in Upper Canada, resides at the time of the execu- 
 tion thereof, and if he be not a resident, then in the 
 office of the clerk of the county court of the county 
 or union of counties where the property so mort- 
 gaged or sold is at the time of the execution of such 
 instrument. 
 
 9. In the event of the permanent removal of goods 
 and chattels mortgaged as aforesaid from the county 
 or union of counties in which they were at the time 
 of the execution of the mortgage, to another county 
 or union of counties before the payment and dis- 
 charge of the mortgage, a certified copy of such 
 mortgage, under the hand of the clerk of the county 
 court in whose office it was first registered, and 
 
 
# 
 
 OF CHATTEL MORTGAGES. 
 
 171 
 
 under the seal of the said court, and of the affidavits 
 and documents and instruments relating thereto 
 filed in such office, shall be filed with the clerk of 
 the county. court of the county or union of counties 
 to which such goods and chattels are removed, within 
 two months from such removal, otherwise the said 
 goods and chattels shall be liable to seizure and sale 
 under execution, and in such case the mortgage 
 shall be null and void as against subsequent pur- 
 chasers and mortgagees for valuable consideration 
 as if never executed. 
 
 10. Every mortgage, or copy thereof, filed in pur- 
 suance of this act, shall cease to be valid as against 
 the crieditors of the persons making the same, and 
 against ^bsequent purchasers or mortgagees in good 
 faith for valuable consideration, after the expiration 
 of one year from the filing thereof, unless within 
 thirty days next preceding the expiration of the said 
 term of one year, a true copy of such mortgage, 
 together with a statement exhibiting the interest of 
 the mortgagee in the property claimed by virtue 
 thereof, and a full statement of the amount still duo 
 for principal and interest thereon, and of all pay- 
 ments made on account thereof, be again filed in the 
 office of the clerk of the said county court of the 
 county or union of counties wherein such goods and 
 chattels may be then situate, with an affidavit of the 
 mortgagee, or of his agent duly authorized in writing 
 for thiat purpose (which authority shall be filed 
 therewith), stating that such statements are true, 
 and that the said mortgage has not been kept on 
 foot for any fraudulent purpose. -- jt 
 
 '^- 
 
 
 
172 
 
 CANADIAN DOMESTIC LAWYER. 
 
 iw 
 
 12. All afKdavits and aftirmations required by this 
 act shall bo taken and administered by any judge or 
 commissioner of the Courts of Queen's Bench or 
 Common Pleas, or justice of the peace, in Upper 
 Canada ; and the sum of twenty cents shall be paid 
 for each and every oath thus administered. 
 
 The effect of these enactments may bo shortly 
 summed up thus: every chattel mortgage must bo 
 filed with the clerk of the county court within five 
 days after execution; the instrument must be ac- 
 companied by an affidavit of its due execution, and 
 another affidavit of the good faith of the transaction. 
 The last-mentioned affidavit may be made by an 
 agent, if he be specially appointed in writing for the 
 purpose. These affidavits may bo sworn to "before a 
 commissioner of the Queen's Bench, &c., or before a 
 justice of the peace. 
 
 If the mortgage is intended to secure future ad- 
 vances, or as collateral security against the indorse- 
 ment of accommodation bills or notes, the require- 
 ments of section 5 must be carefully observed. 
 
 Finally, every chattel mortgage requires to bo 
 renewed each year. Section 10 points out the mode. 
 A ptatement showing the interest of the mortgagee, 
 and the amount remaining due, must be filed within 
 thirty days of the expiration of the year. 
 
 The following forms will be found applicable to 
 most occasions : — 
 
 Chattel Mortgage. 
 
 I, 
 
 Tnis Indenture, made the day of ' » 
 
 in the year of our Lord one thousand eight hun- 
 
OP OUATTEL MORTGAGES. 
 
 173 
 
 dred and , Bktwekjc , of tho ono part, 
 
 and , of tho other part, Witnesskth, that tlio 
 
 said party of the first part, for and in oonBidoration 
 of tho sum of • , of lawful money of Canada, to 
 him in hand well and truly paid by tho said party 
 of the second part, at or before the sealing and de- 
 livery of those presents, the receipt whereof is hereby 
 acknowledged. Hath granted, bargained, sold, and 
 assigned, and by these presents doth grant, bargain, 
 sell, and assign, unto the said party of the second 
 part, his executors, administrators, and assigns, All 
 AND BiNOULAB the goods, chattels, furniture, and 
 household stuff hereinafter particularly mentioned 
 and expressed, that is to say : 
 
 To HAYB AND TO HOLD, all and singular, the said 
 goods and chattels hereinbefore granted, bar- 
 
 gained, sold, and assigned or mentioned, or intended 
 so to be, unto the said party of the second part, his 
 executors, administrators, and assigns, to the only 
 proper use and behoof of the said party of the second 
 part, his executors, administrators, and assigns, for- 
 ever: 
 
 - Provided always, and these presents are upon 
 this condition, that if the said party of the first part, 
 his executors or administrators, do and shall well 
 and truly pay, or cause to be paid, unto the said 
 party of the second part, his executors, adminis- 
 trators, or assigns, the full sum of , with legal 
 interest for the same from the date hereof , 
 then these presents, and every matter and thing 
 herein contained, shall cease, determine, and be 
 utterly void to all intents and purposes, any thing 
 
# 
 
 w 
 
 m 
 
 174 
 
 CAIS^ADIAN DOMESTIC LAWYER. 
 
 herein contained to the contrary thereof in any wise 
 notwithstanding. 
 
 And the said party of the first part, for exe- 
 
 cutors and administrators, shall and will warrant, 
 and forever defend, by these presents, all and sin- 
 gular the said goods, chattels, and property by 
 these presents unto the said party of the second 
 part, executors, administrators, and assigns, 
 
 against , the said party of the first part, exe- 
 
 cutors and administrators, and against all and every 
 other person and persons whomsoever. And the 
 said party of the first part doth hereby, for exe- 
 
 cutors and administrators, covenant, promise, and 
 agree to and with the said party of the second part, 
 executors, administrators, and assigns, that 
 , the said party of the first part, executors or 
 administrators, or some or one of them, shall and 
 will well and truly pay, or cause to be paid, unto the 
 said party of the second part, executors, ad- 
 
 ministrators, and assigns, the. said sum of money in 
 the above proviso mentioned, with interest for the 
 same as aforesaid, on the day and time and in 
 the manner above limited for the payment thereof. 
 
 And also, that in case default shall be made in 
 the payment of the said sum of money in the said 
 proviso mentioned, or the interest thereon, or any 
 part thereof, or in case the said party of the first 
 part shall attempt to sell or dispose of, or in any 
 way part with the possession of, the said goods and 
 chattels, or any of them, or to remove the same or 
 any part thereof out of the county of , with- 
 
 out the consent of the said party of the second part, 
 
 sale. 
 
 mgs. 
 
vIP 
 
 W 
 
 #i' 
 
 OF CHATTEL MORTGAGES. % 175 
 
 executors, administrators, or assigns, to such 
 sale, removal, or disposal thereof first had and ob- 
 tained in writing, then and in such case it shall and 
 may be lawful for the said party of the second part, 
 
 executors, administrators, or assigns, with 
 or their servant or servants, and with such other 
 assistant or assistants as may require, at any 
 
 time during the day to enter into and upon any 
 lands, tene'nents, houses, and premises, wheresoever 
 and whatsoever, where the said goods and chattels, 
 or any part thereof, may be, and for such persons to 
 break and force open any doors, locks, bolts, fasten- 
 ings, hinges, gates, fences, houses, buildings, en- 
 closures, and places, and any door, lock, bolt, fast- 
 ening, hinge, gate, fence, house, building, enclosure, 
 and place, for the purpose of taking possession of 
 and removing the said goods and chattels, and upon 
 and from and after the taking possession of such 
 goods and chattels as aforesaid, it shall and may be 
 lawful, and the said party of the second part, 
 executors, administrators, or assigns, and each or 
 any of them, is and are hereby authorized and em- 
 powered to sell the said goods and chattels, or any 
 of them, or any part thereof, at public auction or 
 private sale, as to them or any of them may seem 
 meet. And from and out of the proceeds of such sale 
 in the first place to pay and reimburse or them- 
 
 selves all such sums and sum of money as may then 
 be due by virtue of these presents, and all such ex- 
 penses as may hoivo been incurred, by the said party 
 of the second part, executors, administrators, or 
 
 assigns, in consequence of the default, uioglect, or 
 
 14 
 
m 
 
 176 
 
 CANADIAN DOMESTIC LAWYER. 
 
 failures of the said party of the first part, execu- 
 
 tors, administrators, or assigns, in payment of the 
 said sum of money with interest thereon as above 
 mentioned, or in consequence of such sale or removal 
 as above mentioned, and in the next place to pay 
 unto the said party of the first part, executors, 
 administrators, and assigns, all such surplus as may 
 remain after such sale, and after payment of all 
 such sum and sums of money and interest thereon 
 as may be due by virtue of these presents at the 
 time of such seizure, and after payment of the costs, 
 charges, and expenses incurred by such seizure and 
 sale as aforesaid. 
 
 Peovided always, nevertheless, that it shall not 
 be incumbent on the said party of the second part, 
 executors, administrators, and assigns, to sell 
 and dispose of the said goods and chattels, but that 
 in case of default in payment of the said sum of 
 money with interest thereon as aforesaid, it shall 
 and may be lawful for the said party of the second 
 part, executors, administrators, and assigns, 
 
 peaceably and quietly to have, hold, use, occupy, 
 possess, and enjoy the said goods and chattels, with- 
 out the let, molestation, eviction, hindrance, or 
 interruption of , the said party of the first part, 
 
 executors, administrators, or assigns, or any of 
 them, or any other persons or person whomsoever. 
 
 ^ND the said party of tlic first part doth hereby 
 further covenant, promise, and agree to and with 
 the said party of the second part, executors, 
 
 administrators, and assigns, that in case the sum of 
 money realized under any such sale as above men- 
 
 \ 
 
m 
 
 OF CnATTEL MORTGAGES. m 177 
 
 tioned shall not be sufficient to pay the whole amount 
 due at the time of such sale, that , the said party 
 of the first part, executors or administrators, 
 
 shall and will forthwith pay or cause to be paid unto 
 the said party of the second part, executors, ad- 
 
 ministrators, and assigns, all such sum or sums of 
 money, with interest thereon, as may then be remain- 
 ing due. 
 
 And the said party of the first part doth put the 
 said party of the second part in full possession of 
 the said goods and chattels by delivering to , 
 
 in the name of all the said goods and chattels at the 
 pealing and delivery hereof. 
 
 In Witness Whereof, the parties to these pre- 
 sents have hereunto set, their hands and seals, the day 
 
 and year first above written. 
 
 A. B. [l. s.] 
 Signed, sealed, and delivered ) 
 
 in the presence of j 
 
 . « C. D. 
 
 Affidavit of Mortgagee. 
 
 Canada. Count of , to wit: I, A. B., of 
 
 the of , in the Count of , in the 
 
 within Bill of Sale, by way of mortgage named, make 
 oath and say, that , the mortgagor in the an- 
 
 nexed Bill of Sale, by way of mortgaged named, is 
 justly and truly indebted to me, this deponent , 
 
 the mortgagee therein named, in the sum of , 
 
 mentioned therein. That the said Bill of Sale, by 
 way of Mortgage, was executed in good faith, and for 
 the express purpose of securing the payment of the 
 money so justly due as aforesaid, and not for the 
 
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 fiilr 
 
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 178 
 
 i 
 
 CANADIAN DOMESTIC LAWYER. 
 
 purpose of protecting the goods aud chattels men- 
 tioned in the said Bill of Sale by way of mortgage, 
 against the creditors of the said , the mortgagor 
 therein named, or preventing the creditors of such 
 mortgagor from obtaining payment of any claim 
 against him. A. B. 
 
 Sworn before me, at the • 
 of , in the Count of I 
 
 ) this day of 
 
 A. D. 186 
 
 E. F., 
 
 J. p., or, A Commissioner for taking Affidavits in the ^vbom^i Bench, in and 
 
 for the Count of . .* . \ 
 
 , AFFIDAVIT OF WITNESS. 
 
 * anada. Count of , to wit: I, C. D., of 
 
 the of , in the Count of , make 
 
 oath and say, that I was personally present, and did 
 see the annexed Bill of Sale, by way of mortgage, 
 duly signed, sealed, and delivered by • , the 
 
 parties thereto, and that the name , set and 
 
 subscribed as a witness to the execution thereof, is 
 of the proper handwriting of me, this deponent, and 
 that the same was executed at 
 Count of 
 
 Sworn before me, at the 
 of , in the Count of 
 
 , this day of , 
 
 A. D. 180 . ■ " 
 
 E. R, 
 
 J. p., or, A Commissioner for taking Affidavits in the Queen's Hcnch, in and 
 for the Count qf 
 
 , in the said 
 C. D. 
 
f' 
 
 
 OF CHATTEL MOETGAGES. 
 
 179 
 
 Chattel Mortgage. 
 
 ANOTHER FORM. 
 
 This Indenture, made the day of • , 
 
 in the year of our Lord one thousand eight hundred 
 and , Between , hereinafter called the 
 
 mortgagor, of the one part, and , hereinafter 
 
 called the mortgagee, of the other part. Whereas 
 [insert recitals] : ' - 
 
 Now this Indenture witnesseth, that in con- 
 sideration of the covenant hereinafter contained on 
 the part of the said mortgagee, and for the better 
 securing to him the payment of the sum of , and 
 
 interest thereon, as hereinafter mentioned. He, the said 
 mortgagor. Hath bargained, sold, and assigned, and 
 by these presents Doth bargain, sell, and assign, unto 
 the said mortgagee, his executors, administrators, 
 and assigns. All and every the goods, utensils, im- 
 plements, and things which are now in, about, and 
 belonging to , situate and being in the 
 
 County of , now in the occupation of the said 
 
 mortgagor, and which are hereinafter particularly 
 mentioned, enumerated, and described in the Sche- 
 dule hereunder written, and all his right, title, inte- 
 rest, property, claim, and demand in and to the said 
 goods, chattels, and premises, and every part and 
 parcel thereof. To havi:, take, receive, and enjoy 
 the said goods, chattels, and premises hereby as- 
 signed, or expressed and intended so to be, unto the 
 said mortgagee, his executors, administrators, and 
 assigns, as his and their own property and eftccts. 
 
 PjttoviDED nevertheless, and it is hereby de- 
 
 F'? 
 
 /qi 
 
 '4 
 
180 
 
 w "3K. 
 
 CANADIAN DOMESTIC LAWYER. 
 
 clared and agreed by and between the said parties to 
 these presents, that in case the said mortgagor, his 
 executors or administrators, shall and do well and 
 truly pay, or cause to be paid, unto the said mort- 
 gagee, his executors, administrators, or assigns, the 
 rtaid sJiH of , with interest thereon at the rate 
 
 cf six pounds per centum per annum, on the 
 dc.y of , one thousand eight hundred and , 
 
 or at sue A earlier day or time as the said mortgagee, 
 his executors, administrators, or assigns, shall appoint 
 fji ihc ruyment thereof, in and by a Notice in writ- 
 ing- to be given to the said mortgagor, his executors, 
 or administrators, or left at his or their last or usual 
 p^ace of abode, at least before the day or time 
 
 so to be appointed for jDayment as aforesaid. Then, 
 and in such case, these presents, and every article, 
 clause, and thing herein contained, shall cease, deter- 
 mine, and be absolutely void, any thing hereinbefore 
 contained to the contrary in any wise notwithstand- 
 ing. And it is hereby also declared and agree*' by 
 and between the said parties to these presents, that 
 after default shall be made by the said mortgagor, 
 his executors, or administratorr in payment of the 
 said sum of and intorest, or any part thereof, 
 
 contrary to the tenor and effect of the before men- 
 tioned proviso, then and in f.::ch case it shall be law- 
 ful for the said mortg; ^ee, his exr^Utors, adminis- 
 trators, or assigns, peaceably and quietly to receive 
 and take into his and tl-ch* possession, and thence- 
 forth to liold and enjoy, all and every the goods, 
 chattels, and premises hereby assigned, or intended 
 so to be. And also to sell and dispose of the same, 
 
OF CHATTEL MORTGAGES. 
 
 181 
 
 and every part thereof for such price or prices an 
 cau be reasonably had or gotten for the same, and 
 to receive and take the moneys to arise by such sale 
 thereof, and thereby and therewith in the first place 
 to retain and reimburse himself and themselves, the 
 said mortgagee, his executors, administrators, or as- 
 signs, all costs, charges, and expenses which he or 
 they may incur or be put unto in and about making 
 any such sale or sales, and also in and about the re- 
 ceipt and recovery of the said sum of and inte- 
 rest respectively, and in the next place to retain and 
 to reimburse himself and themselves, the said mort- 
 gagee, his executors, administrators, or assigns, the 
 said sum of and the interest thereon, or so 
 much and such part thereof as shall then remain un- 
 paid and unsatisfied, and from and after full payment 
 and satisfaction of such costs, charges, and expenses, 
 sum and sums of money as aforesaid, to render to 
 aad acconnt for the surplus (if any) of the money 
 ari^I^.g from such sale or sales as aforesaid unto the 
 said n orlgagor, his executors or administrators, 
 AisTD it is hert'oy declared and agreed, by and be- 
 tween iUti said parties to these presents, that until 
 default sbnll happen to be made in payment of the 
 
 said principal suli of 
 
 at the day or time 
 
 hereinbefore appointed for payment thereof, con- 
 trary to the te) or and effect of the proviso herein- 
 before coiitaiued, it shall be laAvful for the said mort- 
 gagor, his executors or adr.iinistrators, to hold, make 
 use cf and possess the said goods, chattels, and pre- 
 mises hereby assigned, or intended so to be, without 
 any manner of hindrance or disturbance of or by 
 
 ^ 
 
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 !4. 
 if 
 
 
 •^,;^,;V;v^ 
 
% 
 
 182 
 
 CANADIAN DOMESTIC LAWYER. 
 
 him, tho said mortgagee, his executors, administra- 
 tors, or assigns. And lastly, the said mortgagee, 
 in consideration of the premises, doth hereby, for 
 himself, his heirs, executors, and administrators, 
 covenant and agree with the said mortgagor, his 
 executors and administrators, that he, the said mort- 
 gagee, his executors or administrators, shall not, nor 
 will, until default shall be made in payment of the 
 said sum of and interest, or some part thereof, on 
 some or one of the days or times limited for payment 
 thereof, in and by the proviso for redemption herein- 
 before containe<J, bring, commence, or institute any 
 action, suit, or process against the said ^mortgagor, 
 his executors or administrators, for recovery of the 
 said debt, or any part thereof. ~" 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 
 day and year first above written. 
 
 A. B. [l. s.] 
 
 Signed, sealed, and delivered by ) 
 
 the said , in the presence of j 
 
 . CD. 
 
 TTie Schedule to which the foregoiiig Indenture 
 
 refers: 
 
 [The two affidavits the same as in the last Form.] 
 
 Chattel Mortgage. 
 
 rROMlSSORY NOTES. 
 
 Tuis Indenture, made the day of 
 
 lU 
 
 the year of our Lord one thousand ciglit hundred 
 and , Between , of the first part, and 
 
. i 
 
 OF CHATTEL MORTGAGES. 
 
 183 
 
 , of the second part : Whereas the said part 
 of the second part ha indorsed the Promissory 
 Note of the said part of the first part for the sum 
 of , of lawful money of Canada, for the accom- 
 
 modation of the said part of the first part, whicjj 
 Promissory Note is in the -words and figures follow- 
 ing, that is to say: And whereas the said 
 part of the first part ha agreed to enter into these 
 presents for the purpose of indemnifying and saving 
 harmless the said part of the second part of and 
 from the payment of the said promissory note, or any 
 part thereof, or any note or notes hereafter to be in- 
 dorsed by the said part of the second part, for the 
 accommodation of the said part of the first part, by 
 way of renewal of the said recited note, or otherwise 
 howsoever. 
 
 Now this Indenture witnesseth, that the said 
 part of the first part, for and in consideration of 
 the premises and of the sum of one dollar, of lawful 
 money of Canada, to in hand well and truly paid 
 by the said part of the second part, at or before the 
 sealing and delivery of these presents, the receipt 
 whereof is hereby acknowledged, ha granted, bar- 
 gained, sold, and assigned, and by these presents 
 do grant, bargain, sell, and assign, unto the said 
 part of the second part, executors, adminis- 
 
 trators, and assigns. All and singular the goods, 
 chattels, furniture, and household stufi" hereinafter 
 particularly mentioned and expressed, that is to 
 say: — . 
 
 To have and to hold, all and singular, the goods 
 and chattels hereinbefore granted, bargained, 
 
 
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 life 
 
184 
 
 CANADIAN DOMESTIC LAWYER. 
 
 sold, and assigned, or mentioned, or intended bo to 
 be, unto the said part of the second part, exe 
 cutors, administrators, and assigns, to the only proper 
 use and behoof of the said part of the second part, 
 ^ executors, administrators, and assigns, forever : 
 
 Provided always, and these presents are upon this 
 condition, that if the said part of the first part, 
 executors or administrators, do and shall well and 
 truly pay, or cause to be paid, the said promissory 
 note so as aforesaid indorsed by the said part of 
 the second part, a copy of which said promissory 
 note is set out in the recital to this Indenture, And 
 do and shall well and truly pay, or cause to be paid, 
 all and every other note, or notes, which may here- 
 after be indorsed by the said part of the second 
 part for the accomodation of the said part of the 
 first part, by way of renewal of the said note in the 
 said recital to this Indenture set forth, or otherwise 
 howsoever, and indemnify and save harmless the said 
 part of the second part from all loss, costs, charges, 
 damages, or expenses in respect of tlie said note or 
 renewals, , then these presents, and every 
 
 matter and thing herein contained, shall cease, deter- 
 mine, and be utterly void to all intents and purposes, 
 any thing herein contained to the contrary thereof 
 in any wise notwithstanding. Aisd the said part 
 of the first part, for executors and administrators, 
 shall and will warrant, and forever defend, by these 
 presents, all and singular the said goods, chattels, 
 and property unto the said part of the second part, 
 executors, administrators, and assigns, against 
 , the said part of the first part, executors 
 
OF CHATTEL MORTGAGES. 
 
 185 
 
 and adminiatrators, and against all and every other 
 person or persons whomsoever. And the said part 
 of the first part do hereby, for executors and 
 
 administrators, covenant, promise, and agree to and 
 with the said part of the second part, executors, 
 administrators, and assigns, that , the said part 
 of the first part, executors or administrators, or 
 some or one of them, shall and will well and truly 
 pay, or cause to be paid, the said promissory note in 
 the above recital and proviso mentioned, and all 
 future or other promissory notes which the said 
 part of the second part shall hereafter indorse for 
 the accommodation of the said part of the first part 
 as aforesaid, and indemnify and save harmless the 
 said part of the second part from all loss, costs, 
 charges, damages, or expenses in respect thereof. 
 
 And also, that in case default shall be made in 
 the payment of the said promissory note, or any 
 future note or notes, as in the said proviso men- 
 tioned, or the interest thereon, or any part thereof, 
 or otherwise as aforesaid, or in case the said part 
 of the first part shall attempt to sell or dispose of, or 
 in any way part with the possession of, the said goods 
 and chattels, or any of them, or remove the same or 
 any part thereof out of the Count of , 
 
 without the consent of the said part of the second 
 part, executors, administrators, or assigns, to 
 
 such sale, removal, or disposal thereof, first had and 
 obtained in w riting, then and in such case it shall 
 and may be lawful for the said part of the second 
 part, executors, administrators, or assigns, with 
 
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 CANADIAN DOMESTIC LAWYER. 
 
 or their servant or servants, and with such other 
 assistant or assistants as or they nlay require, at 
 
 any time during the day to enter into and upon any 
 lands, tenements, houses, and premises, wheresoever 
 and whatsoever, where the said goods and chattels, 
 or any j^art thereof, may be, and for such persons to 
 break and force open any doors, locks, bolts, fasten- 
 ings, hinges, gates, fences, houses, buildings, enclo- 
 sures, and places, for the purpose of taking possession 
 of and removing the said goods and chattels, and 
 upon, nnd from, and after the taking possession of 
 such goods and chattels as aforesaid, it shall andi 
 may be lawful, and the said part of the second 
 part, executors, administrators, or assigns, and 
 
 each or any of them, is and are hereby authorized 
 and empowered to sell the said goods and chattels, 
 or any of them, or any part thereof, at public auction 
 or private sale, as to or them, or any of them, 
 
 may seem meet, and from and out of the proceeds of 
 such sale in the first place to pay and reimburse 
 or themselves all such sums and sum of money as 
 may then be due by virtue of these presents on the 
 said promissory note, or any future note or notes, as 
 aforesaid, and all such expenses as may have been 
 incurred by the said part of the second part, 
 executors, administrators, or assigns, in consequence 
 of the default, neglect, or failures of the said part 
 of the first part, executors, administrators, or 
 
 assigns, in payment of the said promissory note or 
 notes as above mentioned, or in consequence of buch 
 sale or removal as above mentioned, and in the next 
 
 ««# 
 
 * 
 
OF CHATTEL MORTGAGES. 
 
 187 
 
 place to pay unto the said part of the first part, 
 executors, administrators, or assigns, all of 
 such surplus ad may remain after such sale, and after 
 payment of all such sum and sums of money, and in- 
 terest thereon, as , the said part of the second 
 part, shall be called upon to pay by reason of indors- 
 ing the said promissory note in the said recital and 
 proviso mentioned, or any future note or notes to be 
 indorsed by the said part of the second part for the 
 said part of the first part, as aforesaid, at the time 
 of such seizure, and after payment of the costs, 
 charges, and expenses incurred by such seizure and 
 sale, as aforesaid. 
 
 Peovided always, nevertheless, that it shall not 
 be incumbent on the said part of the second part, 
 executors, administrators, and assigns, to sell 
 and dispose of the said goods and chattels, but that 
 in case of default in payment of the said note or 
 notes as aforesaid, it shall and may be lawful for the 
 said part of the second part, executors, ad- 
 
 ministrators, and assigns, peaceably and quietly to 
 have, hold, use, occupy, possess, and enjoy the said 
 goods and chattels without the let, molestation, 
 eviction, hindrance, or interruption of , the said 
 part of the first part, executors, adminis- 
 
 trators, or assigns, or any of them, or any other per- 
 sons or person whomsoever. And the said part of 
 the first part do hereby further covenant, promise, 
 and agree, to and with the said part of the second 
 part, executors, administrators, and assigns, 
 
 that in case the sum of money realized under any 
 
 *■ 
 
18& 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ^ 
 
 Buch sale as above mentioned shall not be sufficient 
 to pay the whole amount due on and by the said 
 note or notes at the time of such sale, that , the 
 
 said part of the first part, executors or ad- 
 
 ministrators, shall and will forthwith pay, or cause 
 to be paid, unto the said part of the second part, 
 executors, administrators, and assigns, all such 
 sum or sums of money, with interest thereon, as 
 may then be remaining due upon or under the said 
 
 note or notes. And 
 
 the said part of the 
 
 first part, put the said part of the second part 
 in full possession of the said goods and chs^^els,! 
 by delivering to , in the name of , all 
 
 the said goods and chattels, at the sealing and de- 
 livCi'y hereof. 
 
 In Witness Wheebop, the parties to these presents 
 have hereunto set their hands and seals, the day and 
 year first above written. 
 
 ,v^ A. B. [l. s.] 
 
 Signed, sealed, and delivered ) 
 in the presence of ) 
 
 ., C. D. 
 
 t 
 
 AFFIDAVIT OP MOETGAGEB. 
 
 Canada, Count of , to wit: I, A. B., of 
 
 , in the within Bill of Sale by way of Mortgage 
 named, make oath and say that such mortgage truly 
 sets forth the agreement entered into between 
 and the said mortgagor therein named, and truly 
 states the extent of the liability intended to be created 
 by such agreement and covered by such mortgage, 
 
 • 
 
OF ODATTEL M0ETGAGE8. 
 
 189 
 
 m 
 
 and that the said bill of sale by way of mortgage was 
 executed in good faith und for the express purpose of 
 securing , the said mortgagee therein named, 
 
 against the payment of the amount of such liability 
 for the said mortgagor by reason of the said promis- 
 sory note therein recited, or any future note or notes 
 which may indorse for the accommodation of the 
 said part of the first part, whether as renewals of 
 the said recited promissory note or otherwise ; And 
 not for the purpose of securing the goods and chattels 
 mentioned therein against th^ creditors of the mort- 
 gagor , nor to prevent such creditors from recover- 
 ing any claims which they may have against such 
 mortgagor 
 
 A. B. 
 
 Sworn before me, at the of 
 
 , in the Count of , this 
 day of , A. D. 186 . 
 
 E. F., 
 
 J. p., or A Commissioner for taking Affidavits in the Queen's Bench in and 
 fortha Count qf 
 
 ; AFPIDAYIT OP WITNESS. 
 
 Canada, Count of : , to wit: I, C. D., of 
 , make oath and say that I was personally pre- 
 sent and did see the annexed Bill of Sale by way of 
 Mortgage duly signed, sealed, and delivered by , 
 the parties-thereto, and that I, this deponent, am a sub- 
 scribing witness to the same j that the name , set 
 and subscribed as a witness to the execution thereof, 
 is of the proper handwriting of me, this deponent, 
 
 m 
 
 
 m 
 
 yil 
 
 >■ ;•■ 
 
 'Si© 
 
 » 
 
190 
 
 CANADIAN DOMESTIC LAWYER. 
 
 and that the same was executed at 
 County of 
 
 of 
 
 , in the said 
 C. D. 
 
 Sworn before me, at the 
 , in the Count of , 
 
 this day of , a.d. 186 . 
 
 E. F., ^ 
 
 J. p., or A Ckmvmiaaioner for taking Affidavits in the Queen'a Bench in and 
 for the Ooumt qf 
 
 !.i.'^' ,f 
 
 '^. i. 
 
 \ 
 
 Chattel Mortgage. •* ^ 
 
 (future advances.) 
 
 This Indentueb, made the day of , 
 
 in the year of our Lord one thousand eight hundred 
 and , Between of the first part, and 
 
 , of the second part: Witnesseth, that 
 
 whereas [here insert recitals^ showing the terms^ na- 
 ture^ and effect of the agreement^ and the amount of 
 the liahility intended to he created^ Now, there- 
 PORE, the said party of the first part, for the consi- 
 deration hereinbefore recited and in pursuance of the 
 said agreement, hath granted, bargained, sold, and 
 assigned, and by these presents doth grant, bargain, 
 sell, and assign, unto the said party of the second part, 
 his executors, administrators, and assigns. All and 
 SINGULAR the goods, chattels, furniture, and household 
 stuff's hereinafter particularly mentioned and described 
 in the Schedule hereunto annexed, marked A. To 
 HAVE AND to HOLD all and singular the said goods and 
 chattels hereinbefore granted, bargained, sold, and as- 
 signed, or mentioned or intended so to bo, unto the said 
 
1#' 
 
 # 
 
 4 
 
 OP CHATTEL MORTGAGES. 
 
 191 
 
 party of the second part, his executors, administrators, 
 and assigns, to the sole and proper use and behoof of 
 the said party of the second part, his executors, admi- 
 nistrators, and assigns, forever. Provided always, 
 and these presents are upon this condition, that if the 
 said party of the first part, his executors or adminis- 
 trators, do and shall well and truly , and do and 
 shall well and truly save harmless the said party of 
 the second part from , then these presents and 
 every matter and thing herein contained shall cease, 
 determine, and be utterly void to all intents and- pur- 
 poses, any thing herein contained to the contrary there-'- 
 of in any wise notwithstanding. And the said party 
 of the first part, for himself, his executors and admi- 
 nistrators, all and singular the said goods, chattels, 
 and property by these presents unto the said party of 
 the second part, his executors, administrators, and 
 assigns, against him, the said party of the first part, 
 his heirs, executors, and administrators, and against 
 all and every other person and persons whomsoever, 
 shall and will warrant and forever defend by these 
 presents. And the said party of the first part doth 
 hereby, for himself, his heirs, executors, and adminis- 
 trators. Covenant, promise, and agree to and with 
 the said party of the second part, his executors, admi- 
 nistrators, and assigns, , or in case the said party 
 of the first part shall attempt to sell or dispose of or 
 in any way part with the possession of the said goods 
 and chattels or any of them, or to remove the same 
 or any part thereof out of the , without the 
 consent of the said party of th©- second part, his exe- 
 cutors, administrators, or assigns, to such sale, removal. 
 
 ^^^ 
 
 i "> 
 
 'I'' 
 
sf?f 
 
 ■m 
 
 192 
 
 CANADIAN DOMESTIC LAWYER. 
 
 or disposal thereof first had and obtained in writing, 
 then and in such case it shall and may be lawful for 
 the said party of the second part, his executors, admi- 
 nistrators, or assigns, with his or their servant or ser- 
 vants, and with such other assistant or assistants as ho 
 or they may require, at any time during the day to 
 enter into and upon any lands, tenements, houses, and 
 premises wheresoever the said goods and chattels or 
 any part thereof may be, and for such persons to 
 break and force open any doors, locks, bolts, fasten- 
 ings, hinges, gates, fences, houses, buildings, enclo- 
 sures, and places, for the purpose of taking possession! 
 of and removing the said goods and chattels ; and upon 
 and from and after the taking possession of such goods 
 and chattels as aforesaid, it shall and may be lawful, 
 and the said party of the second part, his executors, 
 administrators, or assigns, and each or any of them, is 
 and are hereby authorized and empowered to sell the 
 said goods and chattels, or any of them, or any part 
 thereof, at public auction or private sale, as to him or 
 any of them may seem meet, and from and out of the 
 proceeds of such sale in the first place to pay and re- 
 imburse him and them all such sums and sum of money 
 as may then be due by virtue of these presents, and 
 all such expenses as may have been incurred by the 
 said party of the second part, his executors, adminis- 
 trators, or assigns, in consequence of the default, neg- 
 lect, or failure of the said party of the first part, his 
 executors, administrators, or assigns, in payment of 
 the said sum of money, with interest thereon as above 
 mentioned, and in the next place to pay unto the said 
 party of the first part, his executors or administrators, 
 
 
OF CHATTEL MORTGAGES. 
 
 193 
 
 *, 
 
 all such surplus as may remain after such sale and 
 after payment of all such sura or suras of money, and 
 interest thereon, as may bo due by virtue of these 
 presents at the time of such seizure, and after the- 
 payment of the costs and charges and expenses in- 
 curred by such seizure and sale as aforesaid. 
 
 Pkovided always, nevertheless, that it shall not bo 
 incumbent on the said party of the second part, his 
 executors, administrators, or assigns, to sell and dis- 
 pose of the said goods and chattels, but that in case 
 of default , it shall and may be lawful for the 
 
 said party of the second part, his executors, adminis- 
 trators, or assigns, peaceably and quietly to have, hold, 
 use, occupy, possess, and enjoy the said goods and 
 chattels, without the let, molestation, eviction, hin- 
 drance, or interruption of him, the said party of the 
 first part, his executors or administrators, or any of 
 them, or any other person or persons whomsoever. 
 
 And the said party of the first part doth hereby 
 further covenant, promise, and agree to and with the 
 said party of the second part, his executors, adminis- 
 trators, and assigns, that in case the sum o. raoney 
 realized under any such sale as above mentioned shall 
 not be sufficient to pay the whole amount due at the 
 time of such sale, that he, the said party of the first 
 part, his executors or administrators, shall and will 
 forthwith pay or cause to be paid unto the said party 
 of the second part, his executors, administrators, or 
 assigns, all such sum and sums of money, with interest 
 thereon, as may then be remaining due. 
 
 And he, the said party of the first part, doth put 
 the said party of the second part in full possession of 
 
 vSt, ' 
 
 K*'~ 
 
 *S 
 
 
194 
 
 CANADIAN DOMESTIC LAWYER. 
 
 the saitl goods nnd clmttels by (Iclivering to him , 
 in the numu of all thu Miiid goods and chattels, at the 
 sealing and delivery hereof. 
 
 •^ Ijf Witness Wiikrbof, the parties to these prc-Bunts 
 have hereunto set their hands and seals, the day and 
 year first above written. 
 
 Signed, sealed, and dvlivored ) 
 in the presence of . f 
 
 UTie Schedule loUhin referred tOy marked A, 
 
 County of , to wit : I, , make oath and 
 
 say that the within mortgage truly sets forth th^ 
 agreement entered into between myself and , 
 
 therein named, and truly states the extent of the lia- 
 bility intended to lie created by such agreement and 
 covered by the within mortgage. ^ 
 
 That the within mortgage is executed in good faith, 
 and for the express purpose of securing me against 
 the payment of the amount of my liability as 
 That the within mortgage is no^ executed for the pur- 
 pose of securing the goods and chattels mentioned in 
 the Schedule attached hereto, marked A, against the 
 creditors of the said , or to prevent such cre- 
 
 ditors from recovering any claims which they may 
 have against the said « 
 
 Sworn before mo, at 
 this day of , A. D. 18 
 
 :} 
 
 a Oommiaatorur in B. R, 4«, 
 
 County of , to wit: T, , of , 
 
 make oath and say that I was personally present and 
 
OOLLECnOK OF DEBTS. 
 
 195 
 
 saw the annexed Chattel Mortgage duly signed, sealed, 
 and delivered by , the parties thereto, and that 
 
 the name , set and subscribed as a witness to 
 
 the execution thereof, is my proper handwriting. 
 
 Sworn before me, at , ] 
 
 this day of , a.d. 18 . ) 
 
 a Oommisaioner in B.B.,^0. 
 
 CIIAPTEll IX. 
 
 Of tlie Collection of Debts in the JDivlsion Courts, 
 
 In treating of the collection of debts, we shall con- 
 fine ourselves to such as are within the jurisdiction 
 of the division courts. The recovery of debts in the 
 higher courts cannot be satisfactorily accomplished 
 without the aid of professional men : we shall thercj;. 
 fore only remark that debts exceeding one hundred 
 dollars and not exceeding two hundred dollars, where 
 the amount is unliquidated and not ascertained by 
 the act or admission of the parties, and not exceed- 
 ing four hundred dollars, where it is liquidated or 
 so ascertained, must be sued for in the county court ; 
 and all debts of a higher amount must be sued for in 
 the Queen's Bench or Common Pleas. 
 
 Division courts have been established in every 
 county for the recovery of small debts. The number 
 of such courts varies in different counties ; but there 
 must never be less than three nor more than twelve, 
 
 *«t' 
 
''^ 
 
 196 
 
 CANADIAN DOMESTIC LAWYER. 
 
 and there must bo one court in every city and county 
 town. These courts are presided over by the county 
 judge; but in some largo counties deputy judges aro 
 appointed, and then the courts aro usually held by * 
 .such deputy. The authority of these courts is now 
 derived from the "act respecting the division courts," 
 Cons. Stat. U. C. cap. 19. Courts are to be holdcn 
 once in every two months, or oftcnor, in tho discre- 
 tion of tho judge ; and tho judge may appoint, and 
 from time to time alter, tho times and places within 
 such divisions when and at which such courts shall 
 be holden. • \ 
 
 The division courts have no jurisdiction in any 
 of the following cases: — 
 
 1. Actions for any gambling debt; or 
 
 2. For spirituous or malt liquors drunk in a tavern 
 or ale-house ; or 
 
 3. On notes of hand given wholly or partly in con- 
 sideration thereof; 
 
 4. Actions of ejectment, or actions in which the 
 right or title to any corporeal or incorporeal heredi- 
 taments, or any toll, custom, or franchise, comes in 
 question ; or 
 
 6. In which the validity of any devise, bequest, or 
 limitation under any will or settlement may be dis- 
 puted; or 
 
 6. For malicious prosecution, libel, slander, crimi- 
 nal conversation, seduction, or breach of promise of 
 marriage; or 
 
 7. Against a justice of the peace for any thing 
 done by him in the execution of his office, if he ob- 
 jects thereto. (S. 64.) ., 
 
 ■^f 
 
 ^■0^' 
 
'« 
 
 COLLECTION OF DEBTS. 
 
 107 
 
 The judge of every divit/ion court may hear and 
 determine in a Bummary way, — 
 
 1. All personal actions where the debt or damages 
 claimed do not exceed forty dollars; and "^ 
 
 2. All claims and demands of debt, account, or 
 breach of contract or covenant, or money demand, 
 whether payable in money or otlierwise, where the 
 amount or balance claimed does not exceed one hun- 
 dred dollars ; and, except in cases in which a jury is 
 legally demanded by a party, he shall be sole judge, 
 and shall determine all questions of law and fact, 
 and may make such orders, judgments, or decrees, 
 as appear to him just and agreeable to equity and 
 good conscience, and every order, judgment, and 
 decree shall be final and conclusive between the 
 parties. (S. 65.) 
 
 Upon any contract for the payment of a sum cer- 
 tain in labor, or in any kind of goods or commodi- 
 ties, or in any other manner than in money, the 
 judge, after the day has passed on which the goods 
 or commodities ought to have been delivered or the 
 labor or other thing performed, may give judgment 
 for the amount in money, as if the contract had been 
 so originally expressed. (S. 66.) 
 
 No privilege shall be allowed to any person to 
 exempt him from suing and being sued in a division 
 court, and any executor or administrator may sue or 
 be sued therein, and the judgment and execution 
 shall be such as in like cases would be given or issued 
 in the superior courts. (S. 67.) 
 
 A minor (that is, a person under twenty-one years 
 of age) may sue in a division court for any sum, not 
 
 ^-A-. 
 
 
198 
 
 CANADIAN DOMESTIC LAWYER. 
 
 exceeding one hundred dollars, due to him for wages, 
 in the same manner as if he were of full age. (S. 58.) 
 
 A cause of action shall not be divided into two or 
 more suits for the purpose of bringing the same 
 within the jurisdiction of a division court, and no 
 greater sum than one hundred dollars shall be reco- 
 vered in any action for the balance of an unsettled 
 account, nor shall any action for any such balance 
 be sustained where the unsettled account in the whole 
 exceeds two hundred dollars. (S. 69.) 
 
 A judgment of the court upon a suit brought for 
 the balance of an account is a full discharge of aU 
 demands in respect of the account of which such suit 
 was for the balance, and the entry of judgment shall 
 be made accordingly. (S. 60.) 
 
 The mode of procedure in these courts is very 
 simple. 
 
 The clerk issues all summonses properly filled np 
 and without blanks, either in date or otherwise, at 
 the time of delivery for service; 'he also furnishes 
 copies of the same with the notice thereon, according 
 to the form prescribed by rule of court. (S. 34.) 
 
 The plaintift* or defendant, respectively, must fur- 
 nish the clerk with the particulars of the plaintiff's 
 claim or demand or of the defendant's set-off (as the 
 case may fte), and the clerk will annex the plaintiff's 
 particulars to the summons, and furnish copies 
 thereof, or of the defendant's set-off, to the proper 
 person to servie the same. (S. 35.) 
 
 Any suit may be entered and tried in the court 
 holden for the division in which the cause of action 
 arose (that is, where the debt was contracted)^ or in 
 
% 
 
 COLLECTION OF DEBTS. 
 
 199 
 
 court 
 
 action 
 
 or in 
 
 which the defendant or any one of several defendants 
 resides or carries on business at the time the action 
 is brought, notwithstanding that the defendant or 
 defendants may at sudh time reside in a county or 
 division different from the one in which the cause of 
 action arose. (S. Yl.) 
 
 The places fixed for holding the sittings of the 
 courts, and the offices of the clerks thereof, being in 
 some instances situated at an inconvenient distance 
 from the place, of residence of certain parties residing 
 in such divisions, while a court is held in an adjacent 
 division, in the same, or in an adjoining county more 
 convenient for such parties, and it being desirable 
 that procedure in the division courts should be made 
 easy and inexpensive to suitors, therefore, in case 
 any person desires to bring an action in a division 
 other than that in which the cause of action has 
 arisen, or in whiclf the defendant resides, any county 
 judge may by special order authorize a suit to be 
 entered and tried in the court of any division in his 
 county adjacent to the division in which the defend- 
 ant or one of several defendants resides, whether 
 such defendant or defendants reside in the county of 
 the judge granting the order, or in an adjoining 
 county. (S. 12.) 
 
 The plaintiff must enter with the clerk a copy, 
 and, if more than one defendant, copies, of his account, 
 claim, pr demand in writing in detail (and in cases of 
 tort particulars of his demand), which shall be num- 
 bered according to the order in which the same are 
 entered, and on the trial of the cause no evidence 
 shall be given by the plaintiff of any cause of action, 
 
#' 
 
 200 
 
 #' 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 except such as is contained in the account, claim, or 
 demand so entered. (S. 74.) 
 
 The summons, with a copy of the account, or of 
 the particulars of the claim* or demand, attached, 
 requires to be served ten days at least before the 
 court day. (S. 75.) 
 
 In case noije of the defendants reside in the county 
 in which the action is brought, but one of them re- 
 sides in an adjoining county, the summons must be 
 served fifteen days, and in case none of the defend- 
 ants reside in the county within which the action is 
 brought, or in an adjoining county, then twenty 
 days at least, before the court day. (S. 76.) 
 
 When the claim exceeds eight dollars, the service 
 must be personal on the defendant; but where the 
 amount does not exceed eight dollars, the service 
 may be on the defendant, his wife or servant, or 
 some grown person being an inmate of the defend- 
 ant's dwelling-house or store. (S. 77.) 
 
 The bailiflTs of the court serve and execute all sum- 
 monses, orders, warrants, precepts, and writs, and so 
 soon as served return the same to the clerk of the 
 court of which they are bailiffs. (S. 79.) 
 
 The clerk prepares the aflSdavit of service of sum- 
 mons, stating how served, the day of service, and the 
 distance the bailiff necessarily travelled to effect ser- 
 vice, which is annexed to or indorsed on the sum- 
 mons; but the judge may require the bailiff to be 
 sworn in his presence, and to answer such questions 
 as may be put to him touching any service or mileage. 
 (S. 80.) ' • - 
 
 In case of a debt or demand against two or more 
 
 ^ 
 
COLLECTION OF DEBTS. 
 
 201 
 
 persons, partners in trade, or otherwise jointly liable, 
 but residing in different divisions, or one or more of 
 whom cannot be found, one or more of such persons 
 may be served with process, and judgment may be 
 obtained and execution issued against the person or 
 persons served, notwithstanding others jointly liable 
 have not been served or sued, reserving always to the 
 person or persons against whom execution issues, his 
 or their right to demand contribution from any other 
 person jointly liable with him. (S. 81.) 
 
 Whenever judgment has been obtained against any 
 such partner, and the judge certifies that the demand 
 proved was strictly a partnership transaction, the 
 bailiff, in order to satisfy the judgment and costs and 
 charges thereon, may seize and sell the property of 
 the firm, as well as that of the defendants who have 
 been served. (S. 82.) ' « ^^ 
 
 On the day named in the summons, the defendant 
 must in person, or by some person on his behalf, ap- 
 pear in the court to answer, and, on answer being 
 made, the judge in a summary way tries the cause 
 and gives judgment ; and in case satisfactory proof is 
 not given to the judge entitling either party to judg- 
 ment, he may nonsuit the plaintiff; and the plaintiff 
 may, before verdict in jury cases, and before judg- 
 ment pronounced in other cases, insist on being non- 
 suited. (S. 84.) 
 
 "When a plaintiff takes a nonsuit, he is at liberty to 
 
 bring his case again into court on a new summons, 
 
 but if a judgment against him be given, he cannot. 
 
 If on the day named in the summons the defendant 
 
 does not appear, or sufficiently excuse his absence, or 
 9* 
 
202 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ! I 
 
 if he neglects to answer, the judge, on proof of due 
 service of the summons and copy of the plaintiff's 
 claim, may proceed to the trial of the cause on the 
 part of the plaintiff only, and the order, verdict, or 
 judgment thereupon shall be final and absolute, and 
 as valid as if both parties had attended. (S. 85.) 
 
 The judge may adjourn the hearing of any cause 
 in order to permit either party to summon witnesses 
 or to produce further proof, or to serve or give any 
 notice necessary to enable such p^ty to enter more 
 fully into his case or defence, or for any other cause 
 which the judge thinks reasonable, upon such con- 
 ditions as to the payment of costs and admission of 
 evidence or other equitable terms as to him seems 
 meet. (S. 86.) 
 
 If the defendant desires to plead a tender, before 
 action brought, of a sum of money in full satisfaction 
 of the plaintiff's claim, he may do so on filing his 
 plea ywith the clerk of the court before which he is 
 summoned to appear, at least six days before the day 
 appointed for the trial of the cause, and at the same 
 time paying into coi rt the amount of the money men- 
 tioned in such plea. (S. 87.) V i * ;.!.^,^, 
 
 Such sura is to be paid to the plaintiff, less one 
 dollar, to be paid over to the defendant for his 
 trouble, in case the plaintiff do not further prosecute 
 his suit, and all proceedings in the action are to be 
 stayed, unless the plaintiff, within three days after 
 the receipt of notice of such pajTnent, signify to the 
 clerk of the said court his intention to proceed for 
 his demand, notwithstanding such plea; and in such 
 case the action shall proceed accordingly. (S. 88.) 
 
COLLECTION OF DEBTS. 
 
 203 
 
 If the decision thereon ),:; for the defendant, the 
 plaintiff pays the defendant his costs, to be awarded 
 by the court, and the amount thereof may be paid 
 over to him out of the money so paid in with the 
 said plea, or may be recovered from the plaintiff in 
 the same manner as any other money payable by a 
 judgment of the court; but, if the decision be in 
 favor of the plaintiff, the full amount of the money 
 paid into court will be applied to the satisfaction of 
 his claim, and a judgment may be pronounced against 
 the defendant for the balance due and the costs of 
 suit. (S. 89,) 
 
 The defendant may, at any time not less than six 
 days before the day appointed for the trial, pay into 
 court such sum as he thinks a full satisfaction for the 
 plaintiff's demand, together with the plaintiff's costs 
 up to the time of such payment. (S. 90.) 
 
 The sum so paid is to be paid to the plaintiff, and 
 all proceedings in the action stayed, unless within 
 three days after the receipt of the notice the plain- 
 tiff signify to the clerk his intention to proceed for 
 the remainder of the demand claimed, in which case 
 the action shall proceed as if brought originally for 
 such remainder only. (S. 91.) 
 
 If the plaintiff recovers no further sum in the 
 action than the sum paid into court, the plaintiff pays 
 the defendant all costs incurred by him in the action 
 after such payment, and such costs may be duly 
 taxed, and recovered by the defendant by the same 
 means as any other sum or"dered to be paid by the 
 court. (S. 92.) r 
 
 When a defendant desires to put in an offset, or to 
 
 % 
 
204 
 
 CANADIAN DOMESTIC LAWYER. 
 
 11 
 
 take advantage of the claim being outlawed, he must 
 at least six days before the trial give notice thereof 
 in writing to the plaintiff, or leave the same for him 
 at his usual place 'of abode if within the division, or, 
 if living without the division, deliver the same to the 
 clerk of the court in which the action is to be tried, 
 and in case of a set-off the particulars thereof must 
 accompany the notice. (S. 93.) - 
 
 No evidence of set-off can be given by the defend- 
 ant, except such as contained in the particulars of 
 set-off delivered. (S. 94.) 
 
 If the defendant's demand, as proved, exceeds the 
 plaintiff's, the court may nonsuit the plaintiff; or if 
 the defendant's set-off, after remitting any portion 
 of it he pleases, does not exceed twenty-five pounds, 
 the court may give judgment for the defendant for 
 the balance found in his favor. (S. 95.) > ' " 
 
 And where a set-off is set up, the judgment of the 
 court thereon will be a full discharge, as well of the 
 amount allowed to be set off as the amount by which 
 such claim of the defendant exceeded one hundred 
 dollars, and the judgment will be entered accordingly. 
 (S. 96.) ' "■■'-•>'• ' '- -. --.^ - V--- - 
 
 Any of the parties to a suit may obtain from the 
 clerk a subpoena with or without a clause for the 
 production of books, papers, and writings, requiring 
 any witness resident within the couiity, or served 
 with the subpoena therein, to attend court ; and the 
 clerk, when requested, shall give copies of such sub- 
 piBna. (S. 97.) '^ 
 
 Any number of names may be inserted in the sub- 
 poena, and service thereof may be made by any per- 
 
 w 
 
COLLECTION OF DEBTS. 
 
 205 
 
 son who can read and. write, and proof of the duo 
 service thereof, together with the tender or payment 
 of expenses, may be made by affidavit sworn before 
 any county judge or the clerk of any division court, 
 or before any person authorized to take affidavits in 
 any of the superior courts, and proof of service may 
 be received by the several judges of the said courts, 
 either orally or by affidavit. (S. 98.) 
 
 Every person served with a copy of a subpoena, 
 either personally or at his usual place of abode, and 
 to whom at the same time a tender of payment of his 
 lawful expenses is made, who refuses or neglects 
 without sufficient cause to obey the subpoena, and 
 also every person in court called upon to give evi- 
 denpe, who refuses to be sworn (or affirm where affirm- 
 ation is by law allowed) or to give evidence, shall 
 pay such fine, not exceeding eight dollars, as the judge 
 may impose, and shall, by verbal or written order of 
 the judge, be, in addition, liable to imprisonment for 
 any time not exceeding ten days ; and such fine shall 
 be levied and collected with costs in the same manner 
 as fines imposed on jurymen for non-attendance, and 
 the whole or any part of such fine, in the discretion 
 of the judge, after deducting the costs, shall be appli- 
 cable towards indemnifying the party injured by such 
 refusal or neglect, and the remainder thereof shall 
 form part of the general fee fund. (S. 99.) 
 
 Any party may obtain, from either of the superior 
 courts of common law, a subpoena requiring the 
 attendance at the division court, and at the time men- 
 tioned in such subpoena, of a witness residing or 
 served with such subpoena in any part of Upper 
 
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 11 
 
 Wk 
 
 ii 
 
 t^Sa, 
 
 il 
 
 ^m 
 
 1 
 
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 lolffr 
 
 Wii 
 
 HKiagl 
 
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 K'i! -^■H 
 
206 
 
 CANADIAN DOMESTIC LAWYER. 
 
 '•fr 
 
 Canada; and the witness shall obey such subpoena, 
 provided the allowance for his expenses, according to 
 the scale settled in the superior courts, be tendered to 
 him at the time of service. (8. 100.) 
 
 Neither plaintiff nor defendant can give evidence 
 on their own behalf; but either may be examined at 
 the instance of the opposite party or of the judge. 
 (S. 101.) 
 
 The judg6 may, whenever he thinks it conducive 
 to the ends of justice, require the plaintiff or defend- 
 ant to be examined. (S. 102.) 
 
 In any suit for a debt not exceeding five pounds, 
 the judge, on being satisfied of their general correct- 
 ness, may receive the plaintiff's books as testimony, 
 or in case of a defence of set-off or of payment, so 
 far as the same extends to five pounds, may receive 
 the defendant's books, and may also receive as testi- 
 mony the affidavit of any party or witness in the suit 
 resident without the limits of his county. (S. 103.) 
 
 All affidavits to be used in any division court may 
 be sworn before the judge, clerk, or deputy clerk, or 
 before any judge, or commissioner for taking affi- 
 davits in any of the superior courts. (S. 104.) 
 
 The judge shall, openly in court, and as soon as 
 may be after the hearing, pronounce his decision; 
 but if he is not prepared to pronounce a decision in- 
 stanter, he may postpone judgment and name a sub- 
 sequent day and hour for the delivery thereof in 
 writing at the clerk's office ; and the clerk shall then 
 road the decision to the parties or their agents, if pre- 
 sent, and forthwith enter the judgment. (S. 100.) 
 
 The judge may order the times and the proportions 
 
COLLECTION OF DEBT8. 
 
 207 
 
 in which any sum and costs recovered by judgment 
 of the court shall be paid, reference being had to the 
 day on which the summons was served, and, at the 
 request of the party entitled thereto, he may order 
 the same to be paid into court, and the judge, upon 
 the application of either party, within fourteen days 
 after the trial, and upon good grounds being shown, 
 may grant a new trial upon such terms as he thinks 
 reasonable, and in the mean time may stay proceed- 
 ings. (S. 107.) 
 
 Except in cases where a new trial is granted, the 
 issue of execution shall not be postponed for more 
 than fifty days from service of the summons without 
 the consent of the party entitled to the same, but in 
 case it at any time appears to the satisfaction of the 
 judge, by affidavit or otherwise, that any defendant 
 is unable, from sickness or other sufficient cause, to 
 pay and discharge the debt or damages recovered 
 against him, or any instalment thereof, ordered to be 
 paid as aforesaid, the judge may stay judgment or 
 execution for such time and on such terms as he 
 thinks fit. (S. 108.) 
 
 The judge may, in any case, with the consent of 
 both parties to the suit, or of their agents, order the 
 same, with or without other matters in dispute be- 
 tweenf such parties, being within the jurisdiction of 
 the court, to be referred to arbitration to such person 
 or persons, and in such manner and on such terms, as 
 he thinks reasonable and just. (S. 109.) 
 
 Such reference shall only be revocable, by either 
 party, with the consent of the judge. (S. 110.) 
 
 The award of the arbitrator shall be entered as the 
 
208 
 
 CANADIAN DUMEtiTIO LAWYER. 
 
 judgment in tho cauno, and shall bo as binding and 
 effectual as if given by tho judge. (S. 111.) 
 
 The judge, on application to him within fourteen, 
 days after the entry of such award, may, if he thinks 
 fit, set aside tho award, or may, with the consent of 
 both parties, revoke tho reference and order another 
 reference to bo made in the manner aforesaid. 
 (S. 112.) • • 
 
 Any of such arbitrators may administer an oath or 
 affirmation to tho parties, and to all other persons 
 examined before such arbitrator. (S. 113.) 
 
 The costs of any action or proceeding not other- 
 wise provided for shall be paid by or apportioned 
 between the parties in such manner as the judge 
 thinks fit, and in cases where the plaintiff does not 
 appear in person or by some person on his behalf, or 
 appearing does not make proof of his demand to the 
 satisfaction of tho judge, he may award to the de- 
 fendant such costs and such further sum of money, 
 by way of satisfaction for his trouble and attendance, 
 as he thinks proper, to be recovered as provided for 
 in other cases under this act ; and in default of any 
 special direction, tho costs shall abide the event of 
 the action, and execution may issue for the recovery 
 thereof in like manner as for any debt adjudged in 
 the court. (S. 114.) 
 
 Any bailiff or clerk, before or after suit com- 
 menced, may take a confession or acknowledgment 
 of debt from any debtor or defendant desirous of 
 executing tho same, and upon the production of such 
 confession or acknowledgment to the judge, and its 
 
COLLECTION OF DEBTS. 
 
 209 
 
 being proved by the oath of such bailiff or clerk, 
 judgment may be entered thereon. (S. IIV.) 
 
 Either party may require a jury, in actions for 
 damages where the amount sought to be recovered 
 exceeds ten dollars, and in all other actions where 
 such amount exceeds twenty dollars. (S. 119.) 
 
 In case the plaintiff requires a jury to be sum- 
 moned to try the action, he must give notice thereof 
 in writing to the clerk at the time of entering his 
 claim, and at the same time pay to the clerk the 
 proper fees for the expenses of such jury; and \n case 
 the defendant requires a jury, he must, within five 
 days after the day of service of the summons on him, 
 give to the clerk, or leave at his office, the like notice 
 in writing, and at the same time pay the proper fees 
 as aforesaid; and thereupon, in either of such cases, 
 a jury shall be summoned. (S. 120.) 
 
 Either of the parties to a cause is entitled to chal- 
 lenge three jurors. (S. 125.) 
 
 Five jurors shall be empanelled and sworn to do 
 justice between the parties whose cause they are re- 
 quired to try, according to the best of their skill and 
 ability, and to give a true verdict, according to the 
 evidence; and the verdict of every jury shall be una-, 
 nimous. (S. 131.) 
 
 The judge may, if he think proper, have*any dis- 
 puted fact in a cause tried by a jury; and in any case, 
 if the judge is satisfied that a jury cannot agree, he 
 may discharge them and adjourn the cause to the next 
 court: unless the parties consent to his pronouncing 
 a judgment. (Ss. 132, 133.) 
 
 If there be cross-judgments between the parties, the 
 
 ^Pw' 
 
m, 
 
 210 
 
 CANADIAN DOMESTIC LAWYER. 
 
 party only who has obtained judgment for the larger 
 sum shall have execution, and then only for the balance 
 over the smaller judgment; and if both sums are equal, 
 satisfaction shall bo euiered upon both judgments. 
 (S. 134.) 
 
 In case the judge makes an order for the payment 
 of money, and in case of default of payment of the 
 whole or of any part thereof, the party in whose favor 
 such order has been made may sue out execution 
 against the goods and chattels of the party in default. 
 '^ ' (S. 135.) 
 
 In case any person against whom a judgment hai^ 
 been entered up removes to another county without 
 satisfying the judgment, the county judge of the county 
 to which such party has removed may, upon the pro- 
 duction of a copy of the judgment duly certified by 
 the judge of the county in which the judgment has 
 been entered, order an execution for the debt and 
 costs awarded by the judgment to issue against such 
 party. (S. 137.) 
 
 „ If the party against whom an execution has been 
 awarded pays or tenders to the clerk or bailiflf of the 
 division court out of which the execution issued, before 
 an actual sale of his goods and chattels, the debt and 
 costs, or such part thereof as the plaintiff agrees to 
 accept iifcfull of his debt, together with the fees to be 
 levied, the execution shall thereupon be superseded, 
 and the goods be released and restored to such party. 
 (S. 138.) ^ ^ . ., 
 
 The clerk, upon the application of any plaintiff or 
 defendant (or his agent) having an unsatisfied judg- 
 ment in his favor, shall prepare a transcript of the 
 
or 
 the 
 
 V ' COLLFf^TlON OF DEBTS. 211 
 
 entry of siicli jiulgment, utkI Kond the same to tlio 
 clork of any otiier division court ih any other county, 
 with a certiticate a' the foot thereof signed by the 
 clerk who gives the same, and sealed with the seal of 
 the court of which he is clerk, and addressed to tlio 
 clerk of the court to whom it is intended to be deli- 
 vered, and stating the amount unpaid upon such judg- 
 ment and the date at which the same was recovered ; 
 and the clerk to Avhom such certificate is addressed* 
 shall, on the receipt of such transcript and certificate, 
 enter the transcript in a book to be kept in his office 
 for the purpose, and the amount due on the judgment 
 according to the certificate ; and all proceedings may 
 be taken for the enforcing and collecting the judgment 
 in suqji last-mentioned division court by the officers 
 thereof that could be had or taken for the like pur- 
 pose upon judgments recovered iu any division court. 
 (S. 139.) 
 
 • In case of the death of either or both of the parties 
 to a judgment in any division court, the party in whose 
 favor the judgment has been entered, or his personal 
 representative in case of his death, may revive such 
 judgment against the other party, or his personal 
 representative in case of his death, and may issue 
 execution thereon in conformity with any rules which 
 apply to such division court in that behalf. (S. 140.) 
 In case an execution be returned nulla ho7ia^ and 
 the sum remaining unsatisfied on the judgment amounts 
 to the sum of forty dollars, the plaintiff or defendant 
 may obtain a transcript of the judgment from the 
 clerk, under his hand and sealed with the seal of the 
 court. (S. 142.) . . 
 
 I 
 
 Hi 
 
 ^ 
 
 m 
 M 
 
 V 
 
 m 
 
A 
 
 212 
 
 CANADIAN DOMESTIC LAWYER. 
 
 P 
 
 Upon filing such transcript in the office of the clerk 
 of the county court in the county where such judg- 
 ment has been obtained, or in the county wherein the 
 defendant's or jDlaintiff's lands are situate, the same 
 shall become a judgment of such county court, and 
 the clerk of such county court shall file the same and 
 make the proper entries in his book on payment of 
 fifty cents. (S. 143.) 
 
 Upon such filing and entry, the plaintifi'or defendant 
 mjij, until the judgment has been fully paid and satis* 
 fied, pursue the same remedy for the recovery thereof 
 or of the balance due thereon as if the judgment had 
 been originally obtained in the county court. (S. 145.) 
 
 In case any bailiff employed to levy an execution 
 against goods and chattels, by neglect, connivance, or 
 omission, loses the opportunity of so doing, then upon 
 complaint of the party aggrieved, and upon proof by 
 the oath of a credible witness of the fact alleged to 
 the satisfaction of the court, the judge shall order th^ 
 bailiff to pay such damages as it appears the plaintiff 
 has sustained, not exceeding the sum for which the 
 execution issued, and the bailiff shall be liable thereto ; 
 and upon demand made thereof, and on his refusal to 
 satisfy the same, payment shall be enforced by such 
 means as are provided for enforcing judgments reco- 
 vered in the court. (S. 147.) 
 
 Goods taken in execution may not be sold until the 
 expiration of eight days at least next after the seizure 
 thereof, unless upon the request in writing under the 
 hand of the party whose .goods have been seized. 
 (S. 156.) 
 
 In case the judge be satisfied upon application on 
 
'J! 
 
 ^ 
 
 '^'u 
 
 COLLECTION OF DEBTS. 
 
 213 
 
 ifc 
 
 oath made to him by the party in whose favor a judg- 
 ment has been given, or be satisfied by other testimony, 
 that- such party will be in danger of losing the amount 
 of the judgment, if compelled to wait till the day 
 appointed for the payment thereof before any execu- 
 tion can issue, such judge may order an execution to 
 issue at such time as he thinks fit. (S. 158.) 
 
 Any party having an unsatisfied judgment may pro- 
 cure from the court wherein the judgment has been 
 obtained, or from any division court within the limits 
 of which the defendant dwells or carries on his busi- 
 ness, a judgment summons ; and if the defendant ap- 
 pears in pursuance thereof, he may be examined upon 
 oath touching his estate and effects and the manner 
 and circumstances under which he contracted the debt 
 or incurred the damages or liability which formed the 
 subject of the action, and as to the means and expecta- 
 tion he then had and as to the property and means 
 he still has of discharging the said debt, damages, or 
 liability, and as to the disposal he has made of any 
 property. (S. 160.) 
 
 If the party so summoned (1) does not attend as 
 required by the summons or allege a sufiicient reason 
 for not attending ; or (2) if he attends and refuses to 
 be sworn or to declare any of the things aforesaid; or 
 (3) if he does not make answer touching the same to 
 the satisfaction of the judge ; or (4) if it appears to 
 the judge, either by the examination of the party or 
 by other evidence, that the party obtained credit from 
 the plaintiff or incurred the debt or liability under 
 false pretences, or by means of fraud or breach of 
 trust, or that he wilfully contracted the debt or lia- 
 
 '■^ 
 
 ^ J* t' 
 
 t'J' 
 
 4 
 
 .i.- 
 
 \ A* 
 
 %■ 
 
»■ 
 
 m 
 
 214 
 
 CANADIAN DOMESTIC LAWTEB. 
 
 bility without having had at the time a reasonable 
 expectation of being able to pay or di«*charge the same, 
 or has made or caused to be made any gift, delivery, 
 or transfer of any property, or has removed or con- 
 cealed the same with intent to defraud his creditors 
 or any of them ; or (5) if it appears to the satisfaction 
 of the judge that the party had when summoned, 
 or since the judgment was obtained against him has 
 had, sufficient means and ability to pay the debt 
 or damages or costs recovered against him, either 
 altogether or by the instajments which the court in 
 Avhich the judgment was obtained has ordered, and if 
 he has refused or neglected to pay the same at th'e 
 time ordered, whether before or after the return of 
 the summons, the judge may, if he thinks fit, order 
 such party to be committed to the common gaol of the 
 county in which the party so summoned is resident, for 
 any period not exceeding forty days. (S. 163.)^^ 
 
 The judge before whom such summons is heard may 
 rescind or alter any order -for payment previously 
 made against any defendant so summoned before him, 
 and may make any further or other order, either for 
 the payment of the whole of the debt or damages 
 recovered and costs forthwith, or by any instalments, 
 or in any other manner that he thinks reasonable and 
 just. (S.167.) .. 
 
 In case the defendant has been personally served 
 with the summons to appear, or personally appears 
 at the trial, and judgment be given against him, the 
 judge at the trial may examine the defendant and the 
 plaintiff, and any other person, touching the several 
 things before mentioned, and may commit the de- 
 
« 
 
 m 
 
 m 
 
 erved 
 jpears 
 m, the 
 nd the 
 leveral 
 Ihe de- 
 
 COLLECTION OP DEBTS, 
 
 215 
 
 fendant to prison, "ftnd make an order in like manner 
 as in case the plaintiff had obtained a judgment sum- 
 mons. (S. 168.) 
 
 No imprisonment under the act shall extinguish 
 the debt, or protect the defendant from being sum- 
 moned anew and imprisoned for any new fraud or 
 other default, or deprive the plaintiff of any right to 
 take out execution. (S. 170.) 
 
 We have stated in the foregoing pages the sub- 
 stance of the enactments of the Division Court Act, 
 so far as they apply to proceedings for the collection 
 of an ordinary debt. We now proceed to notice the 
 mode of action where the debtor has absconded or 
 attempts to abscond. 
 
 In case any person being indebted in a sum not 
 exceeding cne hundred dollars, nor less than four 
 dollars, for Any debt or. damages, or upon any judg- 
 ment, (i) absconds from this province, leaving per- 
 sonal property liable to seizure under execution for 
 debt in any county in Upper Canada, or (2) attempts 
 to remove such personal property either out of Upper 
 Canada or from one county to another therein, or (3) 
 keeps concealed in any county of Upper Canada to 
 avoid service of process, and in -case any creditor of 
 such person, his servant or agent, makes and produces 
 an affidavit or affirmation in the form given at the end 
 of this chapter, and in case the said affidavit or affirm- 
 ation be filed with such clerk, then such clerk shall 
 issue a warrant, directed to the bailiff or to any con- 
 stable of the county, commanding such bailiff or con- 
 stable to attach, seize, take, and safely keep all the 
 personal estate and effects of the absconding, remov- 
 
 :1] 
 
 1^1 
 
 % 
 
m 
 
 216 
 
 CANADIAN DOMESTIC LAWYER. 
 
 # 
 
 $' 
 
 
 ing, or Concealed person within such county liable to 
 seizure under execution for debt, or a sufficient por- 
 tion thereof, to secure the sum mentioned in the war- 
 rant with the costs of the action, and to return the 
 warrant forthwith to the court out of which the same 
 issued. (S. 197.) 
 
 The judge, or a justice of the peace for the county, 
 may take the affidavit and issue the warrant under 
 his hand and seal. (S. 198.) 
 
 In case any person against w:hom an attachment 
 has issued, at any time prior to the recovery of judg- 
 ment in the cause, executes and tenders to the cre- 
 ditor who sued out the attachment, and files in couvM., 
 a bond with good sureties, to be approved of by the 
 judge or clerk, in double the amount claimed, that 
 the debtor will, in the event of the claim being proved 
 and judgment recovered, pay the same, or the value 
 of the j)roperty taken, to the claimant, or produce 
 such property whenever required, the clerk may 
 supersede the attachment, and the property attached 
 shall be restored. (S. 207.) 
 
 If within one month from the seizure the party 
 against whom the attachment issued does not appear 
 and give such bond, execution may issue as soon as 
 judgment has been obtained, and the property seized 
 upon the attachment, or enough thereof to satisfy the 
 judgment and costs, may be sold for the satisfaction 
 thereof; or if the property has been previously sold 
 as perishable, enough of the proceeds thereof may be 
 applied to satisfy the judgment and costs. (S. 208.) 
 
 In case any horses, cattle, sheep, or other perish- 
 able goods have been taken upon an attachment, the 
 
 - y-Ji 
 
 *-.*. 
 
 » 
 
 ■'■%- 
 
 ,./ 
 
^f ik 
 
 COLLECTION OF DEBTS. 
 
 217 
 
 # 
 
 clerk of the court may, at the request of the plaintiff, 
 sell the same at public auction to the highest bidder. 
 (S.211.) ' w >, • . 
 
 The rules framed under the provisions of the act 
 are almost as lengthy as the act itself: it will, how- 
 ever, only be necessary to refer to a few, the sub- 
 stance of which may be stated as follows : — 
 
 Every account or claim must show the names of 
 parties in full, and their residences, and must be 
 written in a legible manner. If the plaintiff is un- 
 acquainted with the defendant's Christian name, he 
 may be designated by the surname alone, or by in- 
 itials (R. 14); and every account must show the par- 
 ticulars in detail. (R. 15.) .^ : ^ 
 
 If a defendant desires to inspect any deed or docu- 
 ment in plaintiff's hands, he may give four days' 
 notice of his desire, by letter or otherwise, and the 
 plaintiff must appoint a place within the division 
 where defendant may see the document. If he neg- 
 lects or refuses to appoint a place, or allow inspec- 
 tion, within three days, the judge may adjourn the 
 case, and make any order he may think fit as to 
 costs. (R. 26.) ''-'-:' 
 
 If a plaintiff or defendant, with a view to save ex- 
 pense, gives notice to the opposite party that he will 
 admit on the trial any part of the claim or set-off, or 
 any facts which would otherwise require proof, no 
 costs of such proof shall be afterwards allowed. The 
 notice must be served six days before trial. (R. 30.) 
 
 Every affidavit must be entitled in the cause, stat- 
 ing Christian and surname of parties, and of the per- 
 son making the affidavit, and his place of abode and 
 
 10 
 
 .% 
 
 ■^1 
 
 i'& 
 
 
 % 
 
 
 i 
 
 m 
 
218 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ^- 
 
 W 
 
 •f^ 
 
 
 addition ; and if any affidavit be sworn by an illite- 
 rate person, the jurat must contain a certitieate of the 
 clerk or other person administering the oath, that it 
 was read over to, and apparently understood by, the 
 party making it; and there must be no erasure or 
 interlineation in the jurat. (R. 46.) 
 
 Where an excess is abandoned, it must be done in 
 the first instance on the claim or set-off. (R. 69.) 
 
 ■\ ■ - ,'■•: '"■- "' ■*■■ ■: -'' - "■, , ■ '" 
 ■-•'^ ' FORMS. ^^-^ 
 
 1. AFFIDAVIT FOR LEAVE TO SUE A PARTY RESIDING 
 
 IN AN ADJOINING DIVISION. 
 
 \ 
 
 In the Division Court for the County of 
 I, A. B.jOf, <fcc., yeoman, make oath and say: 
 1. That I have a cause of action against C. D., of 
 , yeoman, who resides in the Division 
 
 of the County of . 
 
 . 2. That I reside in the Division of the County 
 
 of 
 
 3. That the distance from my residence to the 
 place where this court is held is about miles, 
 and to the place where the court is held in the 
 Division of the County of is about 
 
 miles. 
 
 4. That the distance from the said C. D.'s residence 
 to the place where the court is held, in the Division 
 where he resides, is about miles, and to the 
 place where this court is held, about miles. 
 
 ^ 6. That the said Division and this Divi-i- i. adjoin 
 each other, and that it will be more easy and inex- 
 
 *^ '&jR^ --^ ■ - '- ■^■''- ■■■ - ■; - ^^ ■-- 
 
 t f\ 
 
 * 
 
 * 
 
 ..V 
 
COLLECTION OF DEBTS. 
 
 219 
 
 pensive for the parties to have this cause tried in this 
 Division than elsewhere. A. B. 
 
 Sworn before me, at / 
 
 in the County of , this) 
 
 day of , A. D.( 
 
 18 . 
 
 ' . E. F., 
 
 Clerk, or, OommUsioner, t^c, in B. B., for County , 
 
 2. PARTICULAES OP CLAIM. ' 
 
 A» B., of, &c., claims of C. D., of, &c., the sura of 
 dollars, the amount of the following account : 
 
 1863. Jan. 1. To 100 lbs. flour $2 00 
 
 " May 2. To 3 barrels apples . . , . "^O 00 
 To interest from to ... 
 
 ■V' was 
 
 ^■: 
 
 A. B. 
 
 3. NOTICE OF SET-OFF. 
 
 In the Division Court of the County of 
 
 Between A. B. plaintiff, pie,, , ^^ 
 
 and . , 
 
 ■ f» C. D., defendant. 
 
 Take notice that the defendant will set off the follow- 
 ing claim on the trial, viz. : 
 
 1863. Feb. 9. To one box stove $4 00 
 
 " Apl. 3. To &c. &c 
 
 Dated this 
 
 day of 
 
 ,18 
 
 
 To A. B., tlie plaintiff. 
 
 ¥' 
 
 C. D. 
 
 j'» 
 
 r?>i.. 
 
 mW 
 
 ■'! 
 
 m ii 
 
 m 
 
 if' 
 
% 
 
 220 
 
 CANADIAN DOMESTIC LAWYER. 
 
 .0 
 
 OTICB OP DEFENCE UNDER STATUTE. \, 
 
 In the Division Court for the County of 
 
 Between A. B. plaintiff, ' • 
 
 and " .■' . 
 
 C. D., defendant. '* 
 
 The plaintiff is required to take notice, that, upon the 
 
 hearing of this cause, the defendant intends to give 
 
 in evidence and insist upon the following ground of 
 
 defence, namely, that the claim for which he, the 
 
 defendant, has been summoned, has been barred by 
 
 the statute of limitations [or, as the case may be\. 
 
 Dated this day of , 18 . , 
 
 C. D. \ 
 To A. B., plaintiff. 
 
 N. B. — This notice may be embodied with notice of 
 
 set-off. 
 
 >j. NOTICE OP ADMISSION TO SAVE UNNECESSARY 
 EXPENSE OP PROOP. 'y 
 
 In the, &c.. 
 
 Between, <fcc., 
 The plaintiff is required to take notice that the de- 
 fendant will admit, on the trial of this cause, the first, 
 second, and third items of the plaintiff's particulars 
 to be correct. 
 
 Dated the day of , 18 
 
 CD. 
 
 6. AFFIDAVIT POR ATTACHMENT. 
 
 \Tf m,ade after suit commenced^ insert style of court 
 
 and cause.] 
 
 I, A. B., of, ifcc, yeoman, make oath and say: 
 
 1. That C. D., of [or late of] , in the county 
 
COLLECTION OF DEBTS. 
 
 221 
 
 of , is jnstly and truly indebted to me in the 
 
 sum of dollars, for goods sold and delivered by 
 
 me to the said.C.p. at his request [or other cause of 
 action stating the same in ordinary and concise lan- 
 guage']. 
 
 2. I have good reason to believe, and verily do 
 believe, that the said C. D. hath absconded from this 
 province, leaving personal property liable to seizure 
 under execution for debt in the comity of [or 
 hath attempted to remove his personal property 
 liable to seizure under execution for debt out of 
 Upper Canada {or from the county of to an- 
 other county in Upper Canada) {or from Upper to 
 Lower Canada), with intent and design to defraud me 
 of my said debt (or, as the case may he)"]. 
 
 3. This affidavit is not made, nor the process 
 thereon to be issued, from any vexatious or malicious 
 motive whatever. 
 
 A. B. 
 Sworn before me, at , in 
 
 the county of , this 
 
 day of , 18 . 
 
 E. F., 
 
 CUrk, 4c., or Judge, or Justice of the Peace (as the case may be). 
 
 \ 
 
 1. WARRANT OF ATTACHMEIfT. 
 
 County of * 
 {here insert the county.) 
 To A. B., bailiff of the Division Court of the said 
 
 county of [or to A. B., a constable of the 
 
 county of , as the ca^e may be]. 
 
 You are hereby commanded to attach, seize, take, 
 
 ;fi 
 
 it ~f [ j 
 
 '<) 
 
222 
 
 CANADIAN D0AIE8TI0 LAWYER. 
 
 aiifl safely keep ull iho pursonal estate and effects of 
 C. D. [namutff the debtor], an absconding, removing, 
 or concealed debtor, of what nature or kind soever, 
 liable to sei/.ure under execution for debt within the 
 county of [here mune the county'], or a sufficient por- 
 tion thereof to Hecuro A. II. [here name the creditor] 
 for the sum of [here utate the amount sworn to he due], 
 together with the costH of his suit thereupon, and to 
 return this warrant, with what you shall have taken 
 thereupon, to the clerk of the [here state the number 
 of the division] division court of the county aforesaid, 
 forthwith: and herein fail not. 
 
 Witness my han<l and seal, the day of 
 
 one thousand eight hundred and 
 
 E. F. [l. s.] 
 
 Judge, Clerk, or Juttke of *-^^ Peace (ag the case may be). 
 
 ? 
 
 Tariff of Division Court Fees, 
 
 1 
 
 m^ 
 
 Feb Fund, 
 
 Entering account nnd iHHulns unmmons 
 
 Hearing an uu(l«t'i<n<liM| (miiiho 
 
 Hearing a defenileil caiiHo, To bo In- 
 creased by the Judge, If ho nvx-n fit, to a 
 sum not exeoedliig two dolhim, what- 
 ever be the amount of the delit, duuiu- 
 ges, or sultject-matter of action 
 
 Every order or Judgment (not to be 
 cliarged when tlu* (h'fenditnt haH given 
 a confession of Judgment) ....,, 
 
 On every confesslou of Juilgmont 
 
 bO 
 
 M 
 « 
 
 I c. 
 07 
 10 
 
 20 
 
 05 
 05 
 
 
 a a 
 
 S " * S " * 
 
 w 
 
 $ c. 
 10 
 15 
 
 0,40 
 
 10 
 
 05 
 
 o' = o 
 
 bt '^S 
 
 V OS 
 
 
 $ c. 
 25 
 25 
 
 75 
 
 15 
 05 
 
 $ c. 
 
 40 
 60 
 
 1 00 
 
 25 
 10 
 
 o 
 bC 
 
 « 
 « 
 u 
 
 9 c. 
 60 
 60 
 
 1 50 
 
 40 
 10 
 
-f:. 
 
 COLLKCTION OF DEBTS. 
 
 223 
 
 Tariff of Division Court Fees,— {Continued.) 
 
 Clerk's Fees. 
 
 Entering every acnount and IsHuing Bnmmonn.. 
 
 Coity of Hummous, puitlculaia of denuind or set- 
 off, each 
 
 Every suinmous to witueaaes with any numher 
 of names 
 
 Pr«'.i)aring afUdavit, and administering oath to 
 Ituiliff of Horvlco of snranioua 
 
 Entering bailitf a returns to aiuumons to defend- 
 ant 
 
 Every copy of subpoena when made by the clerk 
 
 Entering set-oif or otlier defence requiring no- 
 tice to phiintiff 
 
 Adijourumont of any cause 
 
 Entering every judgment or order made at hear- 
 ing 
 
 Taking confession of Judgment 
 
 Every warrant, attachment, or execution 
 
 Every copy of judgment to an«»ther county 
 
 Transcript or certilicate of judgment for regis- 
 tration in the county registry oflice 
 
 Entering and giving notice of jury being ro- 
 qtiirea 
 
 Milking out summons to jury, for each jurjTnan 
 
 Eor every aihdavit taken, and drawing the same 
 
 Eeturna to treasurer, to be paid out of the fee 
 fund, including attendance on the judge to au- 
 dit the same, each, and to be retained Irom the 
 fee fuud in his hands 
 
 Every search on behalf of a person not a party 
 to a suit, to be paid by the applicant 
 
 Every search for a party to a suit when the pro- 
 ceedings are over a year old 
 
 Transmitting ])apors for service to another 
 county or division, in addition to the neces- 
 sary postage on transmission and return 
 
 Eoceivuig papers from another county or divi- 
 sion for service, entering same in a book, hand- 
 ing the same to the bailllf, and receiving his 
 return, to bo paid when the claim is filed or 
 defence entered 
 
 Eor returning a judge's jury 
 
 te 
 
 $ c. 
 
 SiO 
 
 10 
 
 10 
 
 15 
 
 05 
 05 
 
 15 
 iiO 
 
 15 
 15 
 25 
 25 
 
 025 
 
 20 
 10 
 20 
 
 4 00 
 10 
 10 
 
 20 
 
 20 
 25 
 
 c 
 
 1 1 
 
 I 0. 
 
 30 
 
 15 
 
 10 
 
 15 
 
 05 
 05 
 
 20 
 20 
 
 SO 
 15 
 30 
 25 
 
 025 
 
 25 
 10 
 20 
 
 4 00 
 10 
 10 
 
 20 
 
 20 
 25 
 
 I c. 
 
 40 
 
 SO 
 
 10 
 
 19 
 
 05 
 05 
 
 20 
 SO 
 
 025 
 15 
 40 
 as 
 
 085 
 
 030 
 10 
 SO 
 
 4 00 
 10 
 10 
 
 020 
 
 20 
 25 
 
 ^ 
 
 
 K 
 
 ... »,f''- 
 
224 
 
 CANADIAN DOMTSSTIO LAWTTTR. 
 
 Tariff of JDlvltilou Court Fees,— (^Continued.) 
 
 The Bailiff's Fkes. 
 
 Service of utimmonn, or other pnipced- 
 iiiff, except Hubpd'itn, on ouch iioi-huu.. 
 
 Fkjrvico of Hubpdtiiii on t<ii<-h witiit'HH 
 
 Fur taking confcHHion uf JiuIkiik'hI^ 
 
 Drawiiiji imtl att»>n«linjj to HW'ur to ev- 
 ery atttdiivit of Horvico of HummouH, 
 wfioii served out of the diviHion 
 
 Enforcing every warrant, cx«'«;ution, or 
 attachment, againnt tho floods or body 
 
 For every niilo ncc«wHurily travelled from 
 the clcrk'a otllce, to servo aumniouH or 
 Bubpteua, and in tioii\K to H«iizu on exe- 
 cution or attachment, where money 
 made or case settled after the levy 
 
 For every ,jury trial 
 
 For carrying delinquent to prison, in- 
 cluding all expenses and assistance, 
 per milo, twenty cents. 
 
 Every schedule of property seized, re- 
 turn, includinc afhdavit o'f appraisal.. 
 
 Every bond, including aflidavit of justi- 
 fication 
 
 Every notice of sale not exceeding three, 
 under execution, on attachment, ten 
 cents each. 
 
 That there be allowed to the bailiff upon 
 the sale of property binder any execu- 
 tion the sum of two and a half per cent, 
 upon the amount realized, and not to 
 apply to any ovoi-plus on the said exe- 
 I cution. 
 
 JuROBS' Fees. 
 
 Each juror sworn in any cause, out of the 
 money deposited with the clerk for ju- 
 
 to 
 
 I 
 
 4> 
 
 'A 
 
 rors' fees 
 
 Fees of Appraiseiis of Goods, ac, 
 
 SEIZED UNI>EK WAUKANT OF ATfACH- 
 
 ment. 
 
 To each appraiser, fifty cents per day 
 during the time actually employed in 
 appmisiiig goods, to be paid in first in- 
 stance by the plaintiff, and allowed in 
 <^03t8 of the cause, fifty cents. 
 
 I o. 
 
 07 
 07 
 07 
 
 20 
 30 
 
 08 
 
 J'SJ 
 
 I 0. 
 
 10 
 07 
 lU 
 
 SO 
 30 
 
 oe 
 
 10 
 
 50 
 50 
 
 10 
 
 I c. 
 
 15 
 
 07 
 10 
 
 20 
 40 
 
 08 
 15 
 
 50 
 50 
 
 10 
 
 « eg ^ 
 o « 
 
 l.'i 
 07 
 iS 
 
 20 
 GO 
 
 08 
 20 
 
 50 
 50 
 
 10 
 
 U) 
 
 W 
 
 $ 0. • 
 
 ttO 
 ('7 
 SU 
 
 30 
 75 
 
 118 
 30 
 
 1 00 
 
 17 
 
OF DEKDS. 
 
 225 
 
 ciiArrEU X. 
 
 Of JDeeilH. 
 
 A DEED IS a writing by which hiiuls, tenements, or 
 liereditamcnts arc conveyed, scaled, and delivered 
 by the parties. It mnst be written or printed on 
 paper or parchment. As a general rule, it is better 
 not to use figures in a deed ; and every word should 
 be written in full. The names, residences, and ad- 
 ditions of all the parties ;;o the deed should be care- 
 fully inserted. The description of the premises con- 
 veyed should be very accurate. If a whole lot be 
 conveyed, it may be sufficient simply to describe it 
 as lot No. 1 (as the case may be), such a concession 
 and township, containing so many acres. If a part 
 only is to be conveyed, the particular part intended 
 should be specified, — whether nortn or south half, or 
 northeast quarter, and so on. Wher it can be conve- 
 niently done, it is always better to describe a ioi by 
 metes and bounds, particularly where it is part of a 
 larger lot. If there are any alterations, interlinea- 
 tions, or erasures in a deed, made before signing, 
 they should be mentioned in the attestation, and the 
 witness should |>ut his initials opposite each altera- 
 tion, &c; After a deed has been signed, the parties 
 have no right to rnake the slightest alteration. An* 
 interlineation of a deed after execution sometimes 
 
 vitiates the deed. 
 10* 
 
 r, 
 
 '•■ nii 
 
! li 
 
 226 
 
 CANADIAN DOMESTIC LAWYER. 
 
 The maker of a deed is called the grantor; the 
 party to whom it is delivered, the grantee. If the 
 grantor of freehold land have a wife, she must join 
 in the deed with her husband, in order to bar her 
 dower ; or else after the death of the husband she 
 may claim her dower, or the use of one-third during 
 her life. 
 
 When a married woman desires to convey any 
 fi-eehold prop'erty to which she is entitled in her own 
 right, she must acknowledge the deed before a judge 
 of any of the superior courts, or before the judge of 
 a county court, or before two justices of the peace. 
 The judge or justices before whom the acknowledg- 
 ment is taken must sign a certificate of the acknow- 
 ledgment in the form prescribed by the " act respect- 
 ing the conveyance of real estate by married women," 
 cap. 85, Cons. Stat. U. C. 
 
 The formal mode of executing a deed is as follows. 
 The grantor, or party conveying, signs his name, in 
 the usual way in which he writes it, opposite the 
 seal, and then, placing a finger upon the seal, says, 
 " I deliver this as my act and deed." Tlie grantee, 
 or any other party signing the deed, will do so in 
 like manner. 
 
 When a deed is to be executed by a marksman, 
 
 that is, a person who cannot write his name, it is 
 
 done as follows. Some person — it matters not whom 
 
 — writes opposite the seal 
 
 A. B. 
 A. B., his mark (thus: -f ) [l. s.]; 
 
 ' his mark. 
 
 And then the person who is to make the mark 
 takes a pen, and with it makes a cross in the way 
 
OF DEEDS. 
 
 227 
 
 above shown. Before making his mark, however, 
 the deed should be read over and explained to him, 
 so that there may be no doubt about his knowing 
 perfectly well what he is doing. 
 
 The law of real property is much too intricate to 
 be treated of in this place ; nor shall we attempt a 
 popular definition of a "good title," or enter into the 
 question of title at all. If any purchaser of property 
 desires to be satisfied that. he is getting a good title 
 to that for which he is paying, he must have recourse 
 to the professional man. We may remark, however, 
 that registry offices have been 'Established in every 
 county in Canada, and that, in order to be safe, every 
 deed of land ought to be recorded. The fee for re- 
 cording a deed is one dollar and twenty-five cents, 
 but, if the memorial is over a certain length, an extra 
 charge may be made. A search may be made in 
 any registry ofl[ice to see how a title stands, or what 
 deeds are recorded against a lot. The fee for search 
 is twenty-five cents for every four deeds or entries 
 in the books, looked at. ^^ 
 
 Memorials are executed in the same way as deeds, 
 except that it is not necessary to put the finger on 
 the seal and say, "I deliver this as my act and 
 deed." Every memorial must be witnessed by tico 
 witnesses, one of whom must be the witness to the 
 deed, and this witness (the witness to both deed and 
 memorial) must make the aflfidavit. The afiidavit 
 may be sworn to before the registrar, or deputy 
 registrar, or before a judge of^he superior courts 
 or of a county court, or before a com::;issioner. 
 When a deed and memorial has been executed out of 
 
 i!*' 
 
 Pl4 
 
 V , 
 
 ir 
 
 1..t'ft: 
 
 
228 
 
 CANADIAN DOMESTIC LAWYER. 
 
 -k 
 
 Upper Canada, the affidavit may be sworn before any 
 of the persons aforesaid, or before the mayor or 
 chief magistrate of any city, town, or place in Great 
 Britain, certified under the corporate seal ; or before 
 a judge of the superior or circuit courts in Lower 
 Canada, or before a judge of the supreme/ court of 
 any colony belonging to Great Britain, or before the 
 mayor of any place in a foreign country, or any 
 British consul or vice-consul. In all cases, however, 
 where the affidavit is made out of Upper Canada, the 
 deed to be recorded must be identified by a certificate 
 indorsed on the deed, under the hand of the person 
 before whom the affidavit is made. The certificate 
 may be in the following form : — ' 
 
 "This is the deed referred to in the affidavit of 
 A. B. annexed to the memorial of this deed, sworn 
 before me, this day of , 186 . 
 
 " E. F., Judge, or Mayor, &c. &c." 
 
 A corporation executes a deed by affixing to it its 
 common seal, and signing by its head officer as mayor, 
 or president, &c. A memorial is executed in the 
 same way. No affidavit is necessary to prove the 
 execution of a memorial by a corporation ; the cor- 
 porate seal alone is sufficient evidence. 
 
 The ordinary mode by which real property is con- 
 veyed in Upper Canada is by deed called bargain 
 and sale. 
 
 A receipt for the purchase money should be in- 
 dorsed on every deed. 
 
 IS 
 
OF DEEDS. 
 
 229 
 
 Deed of Bargain and Sale. 
 
 ABSOLUTE COVENANTS. 
 
 This Indenture, made the day of , 
 
 in the year of our Lord one thousand eight hundred 
 and , Between , of the first part, , 
 
 wife of the said party of the first part, of the second 
 part, and , of the third part ; Witnesseth, that 
 
 the said part of the first part, for and in considera- 
 tion of the sum of , of lawful money of Canada, 
 to , by the said part of the third part, in hand 
 well and truly paid, at or before the sealing and 
 delivery of these presents (the receipt whereof is 
 hereby acknowledged), ha granted, bargained, sold, 
 released, conveyed, and confirmed, and by these pre- 
 stiits do grant, bargain, sell, release, convey, and 
 confirm, unto the said part of the third part, 
 heirs and assigns. All and singular th certain 
 parcel or tract of land and premises situate, lying, 
 and being in the , Together with all and 
 singular the houses, out-houses, edifices, barns, 
 stables, yards, gardens, orchards, trees, woods, 
 underwoods, fences, ways, waters, water-courses, 
 lights, liberties, privileges, easements, profits, com- 
 modities, emoluments, hereditaments, and appurte- 
 nances, whatsoever, to the said parcel or tract of 
 land and premises belonging, or in any wise apper- 
 taining, or therewith demised, held, used, occupied 
 and enjoyed, or taken or known as part or parcel 
 thereof; and also the reversion and reversions, re- 
 mainder and reniainders, yearly and other rents, 
 issues, and profits thereof, and of every part and 
 
 ^ 
 
 W 
 
 at ^ 
 
 ^ 
 
230 
 
 CANADIAN DOMESTIC LAWYER. 
 
 parcel thereof; and all the estate, right, title, inte- 
 rest, inheritance, use, trust, property, profit, posses- 
 sion, claim, and demand whatsoever, both at law and 
 in equity, of , the said part of the first part, in, 
 to, out of, or upon the said lands and premises, and 
 every part and parcel thereof, with their and every 
 of their appurtenances: To have and to hold the 
 same lands, tenements, hereditaments, and all and 
 singular other the premises hereby conveyed or in- 
 tended so to be, with their and every of their appur- 
 tenances, unto the said part of the third part, 
 heirs and assigns, to the sole and only use of the said 
 part of the third part, heirs and assigns, for- 
 ever. Subject, NEVERTHELESS, to the reservations, 
 limitations, provisoes, and conditions expressed in 
 the original grant thereof from the crown. 
 
 And this Indenture further witnesseth, that 
 the said party of the second part, with the privity and 
 full approbation and consent of her said husband, tes- 
 tified by his being a party to these presents, in consi- 
 deration of the premises, and also in consideration of 
 the further sum of five shillings of lawful money of 
 the Province of Canada aforesaid, to her by the said 
 part of the third part in hand well and truly paid 
 at or before the sealing and delivery of these presents 
 (the receipt whereof is hereby acknowledged), hath 
 granted and released, and by these presents doth grant 
 and release, unto the said part of the third part, 
 heirs and assigns, all Dower, and all right and title 
 thereto, which she, the said party of the second part, 
 now hath or in the event of surviving her said husband 
 
OF DEEDS. 
 
 231 
 
 might or would have in, to, or out of the lands and 
 premises hereby conveyed or intended so to be. 
 
 And the said part of the lirst part do hereby, 
 for , heirs, executors, and administrators, 
 
 covenant, promise, and agree with and to the said 
 part of the third part, heirs and assigns, in 
 
 manner following, that is to say : That , the said 
 part of the first part, now ha in good right 
 
 full power and absolute authority to convey the said 
 lands and other the premises hereby conveyed or in- 
 tended so to be, with their and every of their appurte- 
 nances, unto the said part of the third part, in 
 manner aforesaid and according to the true intent 
 and meaning of these presents: And that it shall be 
 lawful for the said part of the third part, heirs 
 and assigns, from time to time and at all times hereafter 
 peaceably and quietly to enter upon, have, hold, occupy, 
 possess, and enjoy the enid lands and premises hereby 
 conveyed or intended so to be, with their and every 
 of their appurtenances, and to have, receive, and take 
 the rents, issues, and profits thereof and of every part 
 thereof to and for and their use and benefit, with- 
 out any let, suit, trouble, denial, eviction, interrup- 
 tion, claim, or demand whatsoever of, from, or by , 
 the said part of the first part, or heirs, or any 
 other person or persons whomsoever : And that free 
 and clear, and freely and absolutely acquitted, exone- 
 rated, and forever discharged or otherwise by the said 
 part of the first part or heirs well and suffi- 
 ciently saved, kept harmless, and indemnified of, from, 
 and against any and every former and other gift, 
 grant, bargain, sale, jointure, dower, use, trust, entail, 
 
232 
 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 will, statute, recognizance, judgment, execution, ex- 
 tent, rent, annuity, forfeiture, re-entry, and any and 
 every other estate, title, charge, trouble, and incum- 
 brance whatsoever: And lastly, that , the said 
 part of the first part, heirs, executors, or ad- 
 ministrators, and all and every other person whomso- 
 ever having or claiming, or who shall or may hereafter 
 have or claim, any estate, right, title, or interest what- 
 soever, either at law or in equity, in, to, or out of the 
 said lands and premises hereby conveyed or intended 
 so to be, or any of them, or any part thereof, by, from, 
 under, or in trust for , them, or any of them, shall 
 and will from time to time and at all times hereafter, 
 upon every reasonable request, and at tte costs and 
 ^ charges of the said part ( i" the third part, 
 
 heirs or assigns, make, do, or execute, or cause to be 
 made, done, or executed, all such further and other 
 lawful acts, deeds, things, devices, conveyances, and 
 assurances in the law whatsoever, for the better, more 
 perfectly and absolutely conveying and assuring the 
 said lands and premises hereby conveyed or intended 
 so to be, and every part thereof, with their appurte- 
 nances, unto the said part of the third part, 
 heirs and assigns, in manner aforesaid, as by the said 
 part of the third part, heirs and assigns, 
 
 or their counsel in the law, shall be reasonably devised, 
 advised, or required;, so as no person who shall be 
 required to make or execute such assurances shall be 
 compellable, for the making or executing thereof, to 
 go or travel from his usual place of abode. 
 
 In Witness Whereof, the said parties to these pre- 
 
OF DEEDS. 
 
 233 
 
 sents have hereunto set their hands and affixed their 
 seals, the day and year first above written. 
 
 A. B. [l. s.] 
 C. D. [l. s.] 
 Signed, sealed, and delivered ) 
 in the presence of J 
 
 E. F. 
 
 e pre- 
 
 Receivkd, on the day of the within Indenture, the 
 sura of , of 1 iwful money of Canada, being the 
 
 full consideration therein mentioned. 
 
 A. B. 
 Signed in the presence of 
 E. F., 
 
 Deed of Bargain and Sale. 
 
 QUALIFIED COVENANTS. 
 
 This Indenture, made the day of , in 
 
 the year Oi our Lord one thousand eight hundred and 
 , Between , of the first part, , 
 
 wife of the said party of the first part, of the second 
 part, and , of the third part : Witnesseth, 
 
 that the said party of the first part, for and in consi- 
 deration of the sum of , of lawful money of 
 Canada, to him by the said part of the third part 
 in hand well and truly paid at or before the sealing 
 and delivery of these presents (the receipt whereof is 
 hereby acknowledged), hath granted, bargained, sold, 
 released, conveyed, and confirmed, and by these pre- 
 sents doth grant, bargain, sell, release, convey, and 
 confirm, unto the said part of the third part, 
 heirs and assigns. All and singular th certain 
 
 m 
 
 ' t 
 
234 
 
 CANADIAN DOMESTIC LAWYER. 
 
 * 
 
 ■ ifl 
 
 parcel or tract of land and premises situate, lying, 
 and being in the , Together with all and sin- 
 
 gular the houses, out-houses, edifices, barns, stables, 
 yards, gardens, orchards, trees, woods, underwoods, 
 fences, ways, waters, water-courses, lights, liberties, 
 privileges, easements, profits, commodities, emolu- 
 ments, hereditaments, and appurtenances whatsoever, 
 to the said parcel or tract of land and premises 
 belciiging or in any wise appertaining, or therewith de- 
 mised, held, used, occupied, and enjoyed, or taken or 
 known as part or parcel thereof, and also the rever- 
 sion and reversions, remainder and remainders, yearly 
 and other rents, issues, and profits thereof, and of 
 every part and parcel thereof; and all the estate, 
 right, title, interest, inheritance, use, trust, property, 
 profit, possession, claim, and demand whatsoever, both 
 at law and in equity, of him, the said party of the 
 first part, in, to, out of, or upon the said lands and 
 premises and every part and parcel thereof, with their 
 and every of their appurtenances: To have and to 
 HOLD the same lands, tenements, and hereditaments, 
 and all and singular other the premises hereby con- 
 veyed or intended so to be, with their and every of 
 their appurtenances, unto the said part of the third 
 part, heirs and assigns, to the sole and only use of 
 the said part of the third part, heirs and 
 
 assigns, forever. Subject, nevertheless, to the 
 reservations, limitations, provisoes, and conditions ex- 
 pressed in the original grant thereof from the Crown. 
 And this Indenture further witnesseth, that 
 the said party of the second part, with the privity and 
 full approbation and consent of her said husband, tes- 
 
OF DEEDS. 
 
 235 
 
 tified by his being a party to those presents, in consi- 
 deration of the premises, and also in consideration of 
 the further sum of five shillings of lawful money of 
 the Province of Canada aforesaid to her by the said 
 part of the third part in hand well and truly paid 
 at or before the sealing and delivery of these presents 
 (the receipt whereof is hereby acknowledged), hath 
 granted and released, and by these presents doth grant 
 and release, unto the said part of the third part, 
 heirs and assigns, all Dower, and all right and title 
 thereto, which she, the said party of the second part, 
 now hath or in the event of surviving her said hus- 
 band might or would have in, to, or out of the lands 
 and premises hereby conveyed or intended so to be. 
 
 And the said Party of the first Part doth 
 hereby, for himself, his heirs, executors, and adminis- 
 trators, covenant, promise, and agree with and to the 
 said part of the third part, heirs and assigns, in 
 manner following, that is to say : That for and not- 
 withstanding any act, deed, matter, or thing by the said 
 party of the first part done, executed, committed, or 
 knowingly or wilfully permitted or suffered to the 
 contrary, he, the said party of the first part, now hath 
 in himself good right, full power, and absolute autho- 
 rity to convey the said lands and other the premises 
 hereby conveyed or intended so to be, with their and 
 every of their appurtenances, unto the said part of 
 the third j art, in manner aforesaid, and according to 
 the true intent of these presents : And that it shall be 
 lawful for the said part of the third part, heirs 
 and assigns, from time to time, and at all times here- 
 after, peaceably and quietly to enter upon, have, hold, 
 
 if 
 
%■ 
 
 > 
 
 236 
 
 CANADIAN DOMESTIC LAWYER. 
 
 %■ 
 
 occupy, possess, and enjoy the said lands and premises 
 hereby conveyed, or intended so to be, with their and 
 every of their appurtenances, and to have, receive, 
 and take the renff<, issues, and profits thereof and of 
 every part thereof to and for and their use and 
 
 benefit, without any let, suit, trouble, denial, eviction, 
 interruption, claint, or demand whatsoever of, from, 
 or by him, the said l)arty of the first part, or his heirs, 
 or any person claiming or to claim by, from, under, or 
 in trust for him, them, or any of them: And that 
 free and ^lear, and freely and absolutely acquitted, 
 exonerated, and forever discharged or otherwise by 
 the said party of the first part, or his heirs, well and 
 suflUciently saved, kept liarmless, and indemnified of, 
 from, and against any and every former and other 
 gift, grant, bargain, sale, jointure, dower, use, trust, 
 entail, will, statute, recognizance, judgment, execu- 
 tion, extent, rent, annuity, forfeiture, re-entry, and 
 any and every other estate, title, charge, trouble, and 
 incumbrance whatsoever, made, executed, occasioned, 
 or suffered by the said party of the first part, or his 
 heirs, or by any person claiming or to claim by, from, 
 under, or in trust for him, them, or any of them: 
 And lastly, that he, the said party of the first part, 
 his heirs, executors, or administrators, and all and 
 every other person whomsoever having or claiming, 
 or who shall or may hereafter have or claim, any estate, 
 right, title, or interest whatsoever, either at law or 
 in equity, in, to, or out of the said lands and premises 
 hereby conveyed or intended so to be, or any of them, 
 or any part thereof, by, from, under, or in trust for 
 him, them, or any of them, shall and will from time 
 
 '^- 
 
OF DEEDS. 
 
 237 
 
 to time and at all times hereafter, upon every reason- 
 able request, and at the costs and charges of the said 
 part of the third part, heirs or assigns, make, 
 
 do, or execute, or cause to be made, done, or executed, 
 all such further and other lawful acts, deeds, things, 
 devices, conveyances, and assurances in the law what- 
 Bocvcr, for the better, more perfectly and absolutely 
 conveying and assuring the said lands and premises 
 hereby conveyed or intended so to be, and every part 
 thereof, with their appurtenances, unto the said part 
 of the third part, heirs and assigns, in manner-*; 
 
 aforesaid, as by the said part of the third part, 
 heirs and assigns, or their counsel in the law, shall 
 be reasonabb" aevised, advised, or required, so as no 
 such further assurances contain or imply any further 
 or other covenant or warranty than against the acts 
 and deeds of the person who shall be required to 
 make or execute the same and his heirs, executors, 
 or administrators only, and so as no person who shall 
 be required to make or execute such assurances shall 
 be compellable, for the making or executing thereof, 
 to go or travel from his usual place of abode. 
 
 In "Witness AVhereof, the said parties to these 
 presents have hereunto set their hands and affixed 
 their seals, the day and year first above written. 
 
 Signed, sealed, and delivered ) 
 in the presence of . f . ^ 
 
 TtECEiyED, on the day of the date of the within In- * 
 denture, the sum of , of lawful money of Canada, 
 being the full consideration therein mentioned. . 
 
 Signed in presence of , . #^ 
 
 < 
 
 W 
 

 *. 
 
 238 CANADIAN DOMESTIC LAWYER. 
 
 ■■■ . * 
 
 Deed of Bargain and Sale. 
 
 FROM TWO JOINT TENANTS, ON SALE IN LOTS. 
 
 This Indentuhe, made the day of , in 
 
 the year of onr Lord one thousand eiglit hundred 
 , Between A. B., of, &c., and C. D., his wife, 
 of the first part; E. F., of, «fcc., ol the second part; 
 and , of the third part. Whereas the said 
 
 A. B. and E. F. have contracted nd agreed with tho 
 said for the sale to of the parcel or 
 
 tract of land and premises hereinafter mentioned or 
 described, at or for the price or sum of . And 
 
 WHEREAS at the time of entering into such contract 
 it was agreed that the sum of should be paid 
 
 by the said to the said A. B. and E. F., in 
 
 part payment of the said purchase money, and that 
 the sum of , the residue thereof, should be 
 
 secured to them by a mortgage of the said land and 
 premises: And in pursuance of the said agreement 
 the said Hath paid to the said A. B. and 
 
 E. F. the said sum of , as they do hereby respect- 
 ively admit and acknowledge: And in further pur- 
 suance of the said agreement, an Indenture, by way 
 of mortgage of the said lands and hereditaments. 
 Hath already been prepared, and is intended to bear 
 even date with, but to be executed immediately after 
 the execution of, these presents, for securing the pay- 
 ment by the said to the said A. B. and E. F. 
 cf the said sum of , ^^ 
 
 Now this Indenture witnesseth, that in pur- 
 suance of the said agreement on the part of the said 
 
 ^ 
 
 #* 
 
 m. 
 
OF DEEDS, 
 
 239 
 
 A. B. ftn<l E. F., and for the consltleralions herciii- 
 beforo expressed, and also in consideration of five 
 shillings of lawful money of Canada to each of tliem, 
 the said A. B. and C. D. Ins wife, and E. F., paid by 
 the said at or immediately before the execution 
 
 of these presents, the receij)t whereof they do hereby 
 respectively acknowledge, they, the said A. B. and 
 C. D. his wife, and E. F. (and as to the said C. D., 
 for the purpose, and for the purpose only, of barring 
 and extinguishing her right and title to dower of and 
 in the said parcel or tract of land and premises), >. 
 Have, and each and every of them IIatii, granted, 
 bargained, sold, aliened, released, conveyed, assured, 
 and confirmed, and by these presents Do, and each 
 and every of them Doth, grant, bargain, sell, alien, 
 release, convey, assure, and confirm, unto the said 
 , his heirs and assigns. All and singulab 
 th certain parcel or tract of land and premises 
 situate, lying, and being in the , Together 
 
 with all and singular houses, out-houses, buildings, 
 yards, gardens, woods, ways, fences, waters, water- ^ 
 courses, easements, liberties, privileges, profits, emo- 
 luments, hereditaments, and appurtenances whatso- 
 ever, to the said parcel or tract of land and 
 premises belonging, or in any wise appertaining, or 
 therewith used and enjoyed, or known or taken as a 
 part or parcel thereof, or of any part thereof: And 
 the reversion and reversions, remainder and remain- 
 ders, yearly and other rents, issues, and profits there- 
 of, and all the estate, right, title, interest, dower, 
 and right and title to dower, and particularly the 
 dower, or right and title to dower, of her, the said 
 
 U 
 
 tiVl 
 
 •hi; i 
 
 a) J 
 
 m 
 
 ^m- 
 
240 
 
 CANADIAN DOMESTIC LAWYER. 
 
 1 
 
 C. D., use, trust, inheritance, property, claim, and 
 demand, both at law and in equity, of them, the said 
 A. B. and C. D. his wife, and E. F., and each and 
 every of them, of, in, to, or out of, the same parcel 
 or tract of land and hereditaments, and every part 
 and parcel thereof: To have and to hold the said 
 parcel or tract of land, hereditaments, and all and 
 singular other the premises hereby conveyed, or in- 
 tended so to be, with their and every of their rights, 
 members, and appurtenance, unto the said , his 
 
 *' heirs and assigns, to the sole and only use of the said 
 , his heirs and assigns, forever. Subject, nevek- 
 THELESS, to the reservations, limitations, provisoes, 
 and conditions expressed in the original grant thereof 
 from the Crown. And the said A. B., so far only as 
 concerns one undivided moiety or equal half part of 
 the said parcel or tract of land and hereditaments 
 hereby conveyed, or intended so to be, and the acts, 
 deeds, and defaults of the said A. B., and of those 
 claiming under him and the said E. F., so far only 
 as concerns the other undivided moiety or equal half 
 part of the said parcel or tract of land and pre- 
 mises, and the acts, deeds, and defaults of the said 
 E. F., and of those claiming under him, do hereb}^, 
 for themselves respectively, and for their respective 
 heirs, executors, and administrators, covenant, pro- 
 mise, and agree to and with the said , his heirs 
 and assigns, in manner following, that is to say: — 
 That they, the said A. B. and E. F., at the time of 
 the sealing and delivery of these presents, are, or 
 that one of them is, rightfully and lawfully seized of 
 a good, sure, perfect, absolute, and indefeasible estate 
 
 ( w 
 
OF DEEDS. 
 
 241 
 
 are, or 
 ir^ed of 
 estate 
 
 of inheritance, in fee simple, of and in the said 
 parcel or tract of land and hereditaments herein- 
 before described, and hereby conveyed, or intended 
 so to be, with their and every of their appurtenances, 
 and of and in every part and parcel thereof, without 
 any manner of reservation, limitation, proviso, or 
 condition, or any other matter or thing, to alter, 
 charge, incumber, or defeat the same, save and ex- 
 cept as appears by these presents: And also, that 
 they now have in themselves, or one of them now 
 hath in himself, good right, full power, and lawful 
 and absolute authority to grant, bargain, sell, con- 
 vey, and assure the said parcel or tract of land 
 and hereditaments hereby conveyed, or intended so 
 to be, and every part and parcel thereof, with the 
 appurtenances, unto the said , his heirs and 
 
 assigns, in manner aforesaid, according to the true 
 intent and meaning of these presents: And also, 
 TUAT it shall and may be la^vful to and for the said 
 , his heirs and assigns, peaceably and quietly 
 to enter into and upon, have, hold, use, occupy, pos- 
 sess, and enjoy, the said land and premises, with the 
 appurtenances, and to take the rents and profits 
 thereof to and for his and their own use, witliout any 
 eviction, interruption, hindrance, or denial whatso- 
 ever, from or by the said A. B. and E. F. respect- 
 ively, or any person or persons whomsoever, having, 
 or rightfully claiming or to claim, any estate, right, 
 title, or interest, at law or in equity, of, in, to, or out 
 of the saine land and hereditameiits, or any part 
 thereof, by, from, through, under, or in trust for 
 
 them, or either of them; And that free and clear, 
 11 
 
 I 
 
 if 
 
242 
 
 CANADIAN DOMESTIC LAWYER. 
 
 
 :»v 
 
 and freely and clearly acquitted, exonerated, and 
 discharged of and from all arrears of taxes and 
 assessments whatsoever, due or payable upon, or in 
 respect of, the said land and premises, or any part 
 thereof, and of and from all former conveyances, 
 mortgages, rights, annuities, debts, judgments, exe- 
 cutions, and recognizances, and all manner of other 
 charges and incumbrances whatsoever (save and ex- 
 cept a certain Indenture of Mortgage bearing date, 
 &c., and made between, &c., for securing the sum of 
 money in the same Indenture of Mortgage mentioned); 
 And also, that upon payment by tlie said , 
 
 his heirs, executors, administrators, or assigns, of 
 the said sum of , with interest for the same, dt 
 
 the rate, and on and at the respective days and 
 times, and in manner in and by the said herein- 
 before in part recited Indenture of Mortgage, of 
 even date with these presents, limited and appointed 
 for payment thereof, respectively, they, the said 
 A. B. and E. F., their heirs, executors, or adminis- 
 trators, shall and will cause and procure the said 
 lands and hereditaments hereinbefore described, and 
 hereby conveyed, or intended so to be, and every 
 part thereof, to be well and effectually released and 
 discharged by the said , his heirs, executors, 
 
 administrators, or assigns, of and from the said In- 
 denture of Mortgage, of the day of , 
 one thousand eight hundred and , hereinbefore 
 recited or referred to, so and in such manner as that 
 the same shall cease to be a charge or incumbrance 
 upon the same land and hereditaments, or any part 
 thereof, in any manner whatsoever, and shall and 
 
OF DEEDS. 
 
 243 
 
 ■will in the mean time well and sufficiently indemnify, 
 save harmless, and keep indemnified, the said , 
 
 his heirs and assigns, and his and their lands and 
 tenements, goods and chattels, and particularly the 
 lands and hereditaments hereby conveyed, or in- 
 tended so to be, and every part thereof, of, from, 
 and against the same Indenture of Mortgage, and 
 all payments, charges, covenants, stipulations, and 
 agreements therein contained, and on the part and 
 behalf of the said A. B. and E. F., their heirs, exe- 
 cutors, administrators, or assigns, or any of them, to 
 be made, executed, done, t)r performed : And lastly, 
 that they, the said A. B. and E. F., their heirs and 
 assigns, and all and every other person or persons 
 Wi -rasoever, having and lawfully claiming, or who 
 Gi. . ( • may have or lawfully claim, any estate, 
 rigJiG, title, trust, or interest, of, in, to, or out of the 
 said lands and premises hereby conveyed, or in- 
 tended so to be, or any part thereof, with their ap- 
 purtenances, by, from, under, or in trust for them, 
 the said A. B. and E. F., or either of them, their or 
 either of their heirs or assigns, shall and will, from 
 time to time, and at all times hereafter, at tlie proper 
 costs and charges in the law, of the said , his 
 
 heirs or assigns, make, do, suffer, and execute, or 
 cause or procure to be made, done, suffered, and exe- 
 cuted, but subject nevertheless, and without preju- 
 dice, to the said Indenture of Mortgage of even date 
 with these presents, and to the said mortgage to the 
 said ' , and the covenant hereinbefore contained 
 
 in relation tliertto, All such further and other rea- 
 sonable act and acts, deed and deeds, devices, con- 
 
 
WW 
 
 ■ I 
 
 244 
 
 CATSTADIATT DOMESTIC LAWYER. 
 
 veyances, and assurances in the law, for the farther, 
 better, and more perfectly and absolutely conveying 
 and assuring of the said lands and hereditaments, 
 with the appurtenances, unto the said , his 
 
 heirs and assigns, as by the said , his heirs 
 
 and assigns, or his or their counsel in the law, shall 
 be reasonably devised, advised, or required. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first above written. 
 
 Memorial to Deed of Bargain and Sale. 
 
 A Memorial (to be registered pursuant to the 
 Acts of Parliament in that behalf) of an Indenture 
 OF Bargain and Sale, bearing date the day 
 
 of , in tlie year of our Lord one thousand eight 
 
 hundred and , And made between , of 
 
 the first part, , wi of the said part of the 
 
 first part, of the second part, and , of tlie 
 
 third part: Whereby it is witnessed, that the said 
 part of the first part, in consideration of the sum 
 of , of lawful money of Canada (the receipt 
 
 whereof is thereby acknowledged). Did grant, bargain, 
 sell, release, convey, and confirm unto the said part 
 of the third part, heirs and assigns. All and 
 
 SINGULAR th certain parcel or tract of land and 
 premises situate, lying, and being in the , in 
 
 the County of , &g. To hold the same, with 
 
 all the privileges and appurtenances thereof, to the 
 said part of the tliird part, heirs and assigns, 
 to ■ and their own nse, forever: And the said 
 party of the second part thereby barred her Dower 
 
•» 
 
 OF DEEDS. 
 
 245 
 
 of and in the said lands and premises. Which said 
 Indenture is witnessed by 
 
 And this Memorial thereof is hereby required to 
 be registered by , the said therein men- 
 
 tioned. 
 
 M- 
 
 As Witness 
 of , 18 . 
 
 Signed and sealed in the 
 presence of • 
 
 hand and seal , this 
 
 ! 
 
 day 
 
 • .>^ 
 
 County of , to wit: , of , 
 
 maketh oath and saith, that he was present, and did 
 see the Deed to which the within Memoeial relates 
 duly executed by , therein named: And also >. 
 
 (together with another subscribing witness) that he 
 .did see duly execute the said Memorial, and 
 
 that he, deponent, is a subscribing witness to said 
 Deed and Memorial, and that both the said Instru- 
 ments were executed at , in the County of 
 
 Sworn before me, at 
 in the Count of 
 
 this day of ,186 
 
 A Commissioner for taking Affi.davit»-in the Queen's Bench, 
 
 in and for the Count of 
 
 Or, Jvdge, ifC., or Mayor, Consul, 4c. 
 
 I\"}<^. 
 
 
 h 
 
 Deed of Bargain and Sale, 
 
 SHORT FORM UNDER STATUTE. 
 
 This Indenture, made the day of 1 > 
 
 one thousand eight hundred and , in pursuance 
 
 of the act to facilitate the conveyance of real pro- 
 
 perty, Between 
 
 , of the first part, 
 
 % 
 
 H\ 
 
 ■^ 
 
246 
 
 '-m 
 
 CANADIAN DOMESTIC LAWYER. 
 
 wife of the said party of the first part, of the second 
 
 part, and 
 
 of the third part, Witnesseth, 
 
 that in consideration of , of lawful money of 
 
 Canada, now paid by the said party of the third 
 part to the said party of the first part (the receipt 
 whereof is hereby by him acknowledged), he, the 
 said party of the first part, doth grant unto the said 
 party of the third part, heirs and assigns, for- 
 
 ever, All and singular th certain parcel or 
 tract of land and premises situate, lying, and 
 being in the . 
 
 To HAVE AND TO HOLD unto the Said party of the 
 third part, heirs and assigns, to and for and 
 
 their sole and only use, forever. Subject, nevee-^ 
 THELESS, to the reservations, limitations, provisoes, 
 and conditions expressed in the original grant there- - 
 of from the Crown [And subject also to the payment 
 of a mortgage made by the party of the third part to 
 the party of the first part, for securing the sum of 
 , bearing date the day of , one 
 
 thousand eight hundred and ]. 
 
 The said party of the first part covenants with the 
 said party of the third part, that he has the right to 
 convey the said lands to the said party of the third 
 part, notwithstanding any act of the said party of 
 the first part. And that the said party of the third 
 part shall have quiet possession of the said lands, 
 free from all incumbrances. And that the said party 
 of the first part will execute such further assurances 
 of the said lands as may be requisite. And that he 
 will produce the title-deeds enumerated hereunder, 
 and allow copies to be made of them at the expense 
 
 
 • 
 
J, 
 
 OF DEEDS. 
 
 247 
 
 of the said party of tlie third part. And that the 
 said party of the first part has done no act to incum- 
 her the said lands. And the said party of the first 
 part releases to the said party of the third part all 
 his claims upon the said lands. And the said party 
 of the second part, wife of the said party of the first 
 part, hereby bars her Dower in the said lands. 
 
 In Witness Wueeeop, the said parties have here- 
 unto set their hands and seals. 
 
 Signed, sealed, and delivered ) 
 in the presence of . | 
 
 % 
 
 Received, on the date of this Indenture, the sum 
 
 of , of lawful money of Canada, being the full 
 
 consideration herein mentioned. 
 
 Witness. ]''''. " ' - 
 
 -'\^ ■ .4. ^^'< -■•■■' : '^^--:-- ■ . , .'.- ; ' .':' 
 
 Deed of Bargain and Sale under Statute. 
 
 ANOTHER FORM. 
 
 This Indenture, made the day of , 
 
 in the year of our Lord one thousand eight hundred 
 and , in pursuance of the act to facilitate the 
 
 conveyance of real property. Between , Wrr- 
 
 nesseth, that in consideration of , of lawful 
 
 money of Canada, now paid by the part of the 
 part to the part of the first part, the receipt whereof 
 is hereby acknowledged by , the said part of the 
 first part, , the said part of the first part. Do 
 hereby grant unto the said part of the .- 
 
 part, , heirs and assigns, forever. All and sin- 
 
 gular tha certain parcel or tract of land and 
 premises situate, lying, and being in the of 
 
 m 
 
 «r 
 
 ■>■». 
 
 i 
 
 .m 
 
 m 
 
 
 ;*■ 
 
 
 ■^ 
 
248 
 
 CANADIAN DOMESTIC LAWYER. 
 
 
 i 
 
 ¥ 
 
 »*■■ 
 
 * , in the county of , and province of 
 
 Canada, containing, by admeasurement, , and 
 
 which is composed of, comprises, and may be known 
 as follows, that is to say : — To have and to 
 
 HOLD unto the said part of the part, heirs 
 and assigns, to and for sole and only use, forever. 
 Subject, nevertheless, to the reservations, limita- 
 
 « tions, provisoes, and conditions expressed in the 
 original grant thereof from the Crown. And the 
 said part of the first part do covenant with the 
 said part of the part, that ha the right to 
 convey the before-mentioned land to the said part 
 of the part, heirs and assigns . And 
 
 that the said part of the part shall have quielj 
 
 possession of the said land, free from all incum- 
 brances, . And that the part of the first part 
 will execute such further assurances of the said land 
 as may be requisite. And that will produce the 
 title-deeds enumerated hereupon, and allow copies to 
 be made of them at the expense of the said part of 
 the part. And that the part of the first part 
 ha done no [other] act to incumber the said land. 
 And the said part of the first part release to the 
 said part of the part all claims upon the 
 said land. ■ 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, 
 upon the day and year first above written. 
 Signed, sealed, and delivered ) 
 
 ■^ 
 
 in the presence of 
 
 ' 1 
 
 i ■- 
 
 ..•ft 
 
 m 
 
 
 Tub part of the first part in the within deed 
 
 *« 
 
 
 •»> 
 
 ^^r" 
 
 # 
 
« 
 
 OF DEEDS. 
 
 249 
 
 named hereby acknowledge receipt of the full con- 
 sideration therein mentioned. 
 In presence of , '. *' .^ 
 
 Memorial to Bargain and Sale under Statute. 
 
 A Memorial, to be registered, of an Indenture 
 made the day of , one thousand eight 
 
 hundred and , in pursuance of the act to fa- 
 
 cilitate the conveyance of real property, Between 
 , of the first part, , wife of the said party 
 
 of the first part, of the second part, and , of 
 
 the third part : Whereby the said part of the first 
 
 part, in consideration of 
 
 of lawful money of % 
 
 Canada, then paid by the said part of the third 
 part to the said part of the first part (the receipt 
 whereof is thereby acknowledged), did grant unto the 
 said part of the third part, heirs and assigns, 
 forever, all and singular th certain parcel or 
 tract of land and premises situate, lying, and 
 being in the . To have and to hold the said 
 
 above granted premises unto the said part of the 
 third part, heirs and assigns, to and for and 
 
 their sole and only use, forever; Subject to the 
 reservations, limitations, provisoes, and conditions in 
 the original grant from the Crown. 
 
 And the said party of the second part thereby 
 barred her Dower in the said lands: which said 
 indenture is witnessed by . And this memorial 
 
 thereof is hereby required to be registered by , 
 
 the said grant therein named. 
 
 Witness hand and seal , the . day of 
 
 11* -r 
 
 # 
 
 
 
 •f' 
 
 ■m 
 
 
 
250 
 
 CANADIAN DOMESTIC LAWYER. 
 
 , in tho yuar of our Lord one thousand eight 
 hundred and t 
 
 Signed and scaled iu ) 
 the presence of . J 
 
 Count of , to wit: , above named, 
 
 maketh oath and saith, that he was present, and saw 
 the deed of wliich the within is a memorial, duly exe- 
 cuted by the therein named , and the said 
 memorial duly executed by the therein named 
 for registry thereof, and that he is one of the sub- 
 scribing witnesHCH both to the said deed and memo- 
 rial, and that the Hame were respectively executed 
 
 m 
 
 at 
 
 Sworn before nio, at ' 
 
 this day of , A. d. 18 
 
 :! 
 
 '^ 
 
 Judge, 40., or, a Commi«Honer for taking Affidavits in th9 
 Queen's Bench, in and /or the Count qf . 
 
 ■0 
 
 
 "^ , Deed of Bargain and Sale of Lands. 
 
 ON BALE BY MORTGAGEE. 
 
 This Indenturb, made the day of , 
 
 in the year, ifcc, 18 , Between A. B., of, &c., of 
 
 "^ the one part, and C. D., of, &c., of the other part. 
 Whereas, E. F., of, <feo., did, by a certain Indenture 
 of Mortgage, dated the day of , in the 
 
 year, ifcc, for tho consideration of , bargain and 
 
 sell unto the said A. B., and to his heirs and assigns, 
 
 '^ forever, all tlmt certain, &c. ; Together with all 
 and singulj^r tho hereditaments and appurtenances 
 **« * . ^ thereunto belonging : To have and to hold the said 
 
 #. 
 
 
 
 m 
 
 m^ 
 
 # 
 
OF l>E3fiD8. 
 
 251 
 
 granted and bargained premises, with the appurte- 
 nances, unto the said A. B., his lieirs and assigns, to 
 the only proper use and behoof of the said A. B., his 
 heirs and assigns, forever; Provided, neverthe- 
 less, and the said Indenture of Mortgage was there- 
 by declared to l^e upon condition, that if the said 
 K. F., his heirs, executors, or administrators, should 
 well and truly pay unto the said A. B., his executors, 
 administrators, or assigns, the just and full sum of 
 , with lawful interest for the same, on or be- 
 fore the day of , in the year, ifcc, 
 according to the condition of the said Indenture of . 
 Mortgage, that then, and in such case, the said 
 indenture should be void and of no effect: And the 
 said E. F. did, by the said indenture, for himself, 
 his heirs and assigns, agree with the said A. B., his 
 heirs, executors, administrators, and assigns, that in 
 case it should so happen that the said sum of , 
 and the interest for the same, should be due and un- 
 paid at the time limited for the payment thereof, in 
 the whole or in part thereof, that then it should and 
 might be lawful for the said A. B., his heirs or 
 assigns, at any time after default in payment, to 
 bargain, sell, and dispose of the said mortgaged pre- 
 mises, with the appurtenances, at public auction, ard 
 out of the moneys to arise from the sale thereof ti* 
 retain and keep the said sum of , and the in- 
 terest, or so much thereof as might be due, together 
 with the costs and charges of such sale or sales, 
 rendering the overplus money, if any, to the said 
 E. F., his heirs, executors, administrators, or assigns : 
 
 And whereas the said E. F. did not pay to the said 
 
 ,,.$. ^ • ^^ 
 
 ^ ' ■ ^ ?■' J 
 
 .^ 
 
 
 * 
 
 <t 
 
 **. 
 
252 
 
 CANADIAN DOMESTIC LAWYER. 
 
 1 1 
 
 m 
 
 
 
 ^■ 
 
 *. 
 
 
 A. B. the said sum of money, witli tlic interest, at 
 the time limited for paj'ment, or at any time since ; 
 and the said A B. hath, therefore, in pursuance of 
 the authority so given to him as aforesaid, caused 
 the premises to be advertised and sold at public 
 auction, and the same have been knocked down to 
 the said C. D., for , being the highest sum bid 
 
 for the same. 
 
 Now, THEREFORE, THIS INDENTURE WITNESSETH, 
 
 that the said A. B., in pursuance of the power afore- 
 said, and also for and in consideration of the said 
 sum of to him in hand paid by the said 
 
 C. D. at and before the ensealing and delivery 
 hereof, the receipt whereof is hereby acknowledged, 
 hath granted, bargained, sold, aliened, released, and 
 confirmed, and by these presents doth grant, bar- 
 gain, sell, alien, release, arid confirm, unto the said 
 C. D., and to his heirs and assigns, forever, all the 
 farm, piece, or parcel of land above mentioned, 
 together with the hereditaments and appurtenances, 
 as the same is described and conveyed by said Inden- 
 ture of Mortgage ; and all the estate, right, title, 
 interest, claim, and demand, at law and in equity, 
 of him the said A. B., and also of the said E. F., as 
 far as the said A. B. hath power to grant and convey 
 the same, of, in, and to the premises, and every part 
 and parcel thereof: To have and to hold the said 
 above granted and bargained premises, with the 
 appurtenances, unto the said C. D., his heirs and 
 assigns, to the sole and only proper use and behoof 
 of the said C. D., his heirs and assigns, forever. 
 In Witness Whereof, the parties have hereunto 
 
 :-5t; 
 
OB' DEEDS. 
 
 253 
 
 set their hands and seals, the day and year first 
 above written. 
 Signed, sealed, tfcc. ' 
 
 Deed of Gift of Lands. 
 
 This Indenture, nuide the day of 
 
 in the year of our Lord one thousand eight hundred 
 and , Between A. B., of the township 
 
 of 
 
 , in the eounty of 
 
 yeoman, of the 
 
 one part, and C. D. (eldest son and heir apparent of 
 the said A. B.), of the other part. "VVitnessetii, 
 that the said A. B., as well for and in consideration 
 of the natural love and affection which ho hath an«l 
 beareth unto the said C. D., as also for the better 
 maintenance, support, livelihood, and preferment of 
 him the said C. D., Hath given, granted, aliened, 
 enfeoffed, and confirmed, and by these presents P j ni 
 give, grant, alien, enfeoff, and confirm, unto the saiu 
 C. D., his heirs and assigns. All that parcel or 
 tract of land, &c. [describing the premises], together 
 with all and singular houses, out-houses, edifices, 
 buildings, barns, stables, courts, curtilages,, gardens, 
 orchards, woods, underwoods, ways, waters, water- 
 courses, advantages, and appurtenances, whatsoever, 
 to the said parcel or tract of land and premises be- 
 longing or in any wise appertaining, r'd the rever- 
 sion and reversions, remainder and reiiiinnders, rents, 
 issues, and profits of the same, and all the estate, 
 right, title, interest, property, rJaim, and demand 
 whatsoever of him the said A. B. of, in, and to the 
 said parcel or tract of land and premises, and of, in, 
 and to every part and parcel thereof, with their and 
 
 '% 
 
 # 
 
 ^ 
 
 11 ■ ( 
 
 "■i.'> 
 
 
 V 
 
254 
 
 CANADIAN DOMESTIC LAWYER. 
 
 every of their appurtenances, and all deeds, evi- 
 dences, and writings concerning the said premises. 
 To HAVE AND TO HOLD the Said parcel and tract of 
 land, and all and singular other the premises hereby 
 granted and confirmed, unto and to the only proper 
 use and behoof of the said O. D., his heirs and 
 assigns, forever. ' 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year above written. 
 
 Certificate of Acknowledgment by Married Woman. 
 
 I [or we, inserting the name or names^ <fec.] do 
 hereby certify that on this day of , at 
 
 , the within deed was duly executed in my 
 [or our] presence by A. B., of " , wife of 
 
 , one of the grantors therein named, and 
 that the said wife of the said , at the said 
 
 time and place being examined by me {or us) apart 
 from her husband, did appear to give her consent 
 to convey her estate in the lands mentioned in the 
 said deed freely and voluntarily, and without coer- 
 cion or fear of coercion on the part of her husband 
 or of any other person or persons whatsoever. 
 
 A. B., Judge^ or, 
 
 c. D., j:p. 
 
 
 v^ 
 
OF LmE-FENCES AND WATER-COUKSES. 255 
 
 CHAPTER XL 
 
 Of Line-Fences and Water-Courses, 
 
 We purpose noticing in this chapter the statutory 
 provisions affecting line-fences and water-courses, 
 for the guidance of owners of neighboring lots. The 
 statute which regulates these matters is cap. 57 of 
 the Cons. Stat. U. C. 
 
 Each of the parties occupying adjoining tracts of 
 land must make, keep up, and repair a just propor- 
 tion of the division or line-fence on the line dividing 
 such tracts, and equally on either side thereof. 
 
 (S. 1.) 
 Any fence coming within the meaning of a lawful 
 
 fence in any by-law of the municipal council in that 
 
 behalf, is to be considered a lawful fence ; and when 
 
 no such by-law exists, any fence-viewers, when called 
 
 upon, are to exercise their own judgment, and decide 
 
 what they consider to be a lawful fence. (S. 2.) 
 
 The owner of the whole or part of a division or 
 
 line-fence, wliich forms part of the fence inclosing 
 
 the occupied or improved land of another person, 
 
 may not take down or remove an; part of such fence : 
 
 1. Without giving at least twelve months' previous 
 notice of his intention to the owner or occupier of 
 such adjacent inclosure ; 
 
 2. Nor unless such last-mentioned owner or occu- 
 pier, after demand made upon him in writing by the 
 
 
 \2 
 
 
 
 t^.B 
 
 m 
 
 hi'- 
 
 i 
 
 i 
 
V ' 
 
 256 
 
 CANADIAN DOMESTIC LAWYER. 
 
 owner of such fence, refuses to pay therefor a sura 
 to be determined, as provided in the next sub- 
 section; 
 
 3. Nor, if such owner or occupier will pay to the 
 owner of such fence, or of any part thereof, such 
 sum as three fence-viewers, or a majority of them, in 
 writing, determine to be the reasonable value thereof. 
 (S. 3.) 
 
 When any land which has laid uninclosed or in 
 common is afterwards inclosed or improved, the 
 occupier must pay to the owner of the division or 
 line-fence standing upon the divisional line between 
 such land and the inclosure of any other occupant or 
 proprietor, a just proportion of the value thereof. 
 (S. 4.) 
 
 When a water-fence, or a fence running into the 
 water, is necessary, the same is also to be made in 
 equal parts, unless the parties otherwise agree. (S. 5.) 
 
 When lands belonging to or occupied by different 
 persons are divided from each other by any river, 
 brook, pond, or creek, which of itself is not a suiR- 
 cient barrier, and it is impracticable to fence upon the 
 true boundary-line, the fence shall be set up on one 
 side of the river, brook, pond, or creek, or partly on 
 one side and partly on the other, as may be just. 
 (S. 6.) 
 
 When it is the joint interest of parties resident 
 to open a <''itch or water-course for the purpose of 
 letting off surplus water from swamps or low miry 
 lands, in order to enable the owners or occupiers 
 thereof to cultivate or improve the same, such several 
 parties shall open a just and fair proportion of such 
 
4 
 
 OF LINE-FENCES ATfTD WATER-COURSES. 257 
 
 ditch, or water-course, according to their several inte- 
 rests. (S. 7.) 
 
 Tliree fence-viewers of the municipality, or a ma- 
 jority of them, may decide all disputes between the 
 owners or occupants of adjoining la ids, or lands so 
 divided or alleged to be divided as aforesaid, in regard 
 to their respective rights and liabilities under this 
 act, and also all disputes respecting the opening, 
 making, or paying for ditches and water-courses, 
 under this act. (S. 8.) 
 
 Every determination or award of fence-viewers shall 
 be ij^^riting, signed by such of them as concur 
 therein ; and they shall transmit the same (or a certi- 
 fied copy thereof) to the clerk of the municipality, 
 and shall also deliver a copy to every party requiring 
 the same, and such determination or award shall be 
 binding on the parties thereto. (S. 9.) 
 
 When the dispute is as to the commencement or 
 extent of the part of the fence to be made or repaired 
 by either party, or as to the opening of a ditch or 
 water-course, or as to the part, width, depth, or extent 
 that any person should open or make, either party 
 may by writing notify the fence-viewers of the dispute, 
 and name in the notice for the investigation thereof 
 the time and place of meeting, and shall also notify 
 the other party to appear at the same time and place. 
 (S. 10.) 
 
 On receiving such notice, the fence-viewers shall 
 attend at the time and place named, and, after being 
 satisfied that the other party has been alsodulynotifie J, 
 they shall examine the premises and hear the parties 
 and their witnesses, if demanded, and, according to the 
 
 m 
 
 t: 
 
 r: 
 
 1*1 
 
fin! 
 
 258 
 
 CANADIAN DOMESTIC LAWYER. 
 
 subject-matter of the reference, shall decide the com- 
 mencement or extent of the part of the fence which 
 either party claims to have made or repaired, or refuses 
 to make or repair, or shall divide or apportion the ditch 
 or water-course among the several parties, having due 
 regard to the interests of each in the opening thereof, 
 and shall fully determine the matters in dispute. 
 (S. 11.) 
 
 On any reference regarding the opening or making 
 of a ditch or water-course, the fence-viewers shall 
 decide what length of time each of the parties shall 
 have to open the share of the ditch or wate r-cou rse 
 which the fence-viewers decide each such parfll^wiall 
 open ; and if it appears to the fence-viewers that the 
 owner or occupier of any tract of land is not suffi- 
 ciently interested in the opening of the ditch or water- 
 course to make him liable to perform any part thereof, 
 and at the same time that it is necessary for the other 
 party that such ditch should be continued across such 
 tract, they may award the same to be done at the 
 expense of such other party; and after such award 
 the last-mentioned party may open the ditch or water- 
 course across the tract, at his own expense, without 
 being a trespasser. (S. 12.) 
 
 When, by reason of any material change of circum- 
 stances in respect to the improvement and occupation 
 of adjacent lots or parcels of land, an award pre- 
 viously made ceases, in the opinion of either of the 
 parties, to be equitable between them, such party 
 may obtain another award of fence-viewers by a like 
 mode of proceeding; and if the fence-viewers called 
 upon to make a subsequent award find no reason for 
 
OF LIKE-FENCES AND WATEU-COUKSES. 259 
 
 making an alteration, the whole cost of the reference 
 shall be borne by the party at whose instance it haa 
 been made. (S. 13.) 
 
 If any party neglects or refuses, upon demand made 
 in writing as aforesaid, to open or make and keep open 
 his sharfi or proportion of the ditch or water-course 
 allotted or awarded to him by the fence-viewers within 
 the time allowed by them, any of the other parties 
 may, after first completing his own share or proportion, 
 open the share or proportion allotted to the party in 
 default, and shall be entitled to recover not exceeding 
 forty cents per rod for the same from the party so in 
 default. (S. 14.) 
 
 If after an award of fence-viewers, or after being 
 required by a demand in writing by the party occu- 
 pying the adjoining tract or a tract separated therefrom 
 by a river, pond, or creek, a party in the occupation 
 of any tract of land neglects or refuses for a period 
 of thirty days to make or repair (as the case may 
 be) his proportion of the division or line-fence between 
 his tract and such adjoining or separated tract, or if 
 the party making the demand neglects or refuses for 
 the like period *o make or repair his own proportion 
 of the fence, either party, after first completing his 
 own proportion, may make or repair, in a substantial 
 manner and of good sound materials, the whole or 
 any part of the fence which ought to have been made 
 or repaired by the other party, and may recover from 
 him the value thereof. (S. 15.) 
 
 To ascertain the amount payable by any person who 
 under the . authority of this act makes or repairs a 
 fence, or makes, opens, or keeps open any ditch or 
 
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 ■ 
 
 -- 
 
 1 
 
 
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 • 
 
 
 
 
 260 
 
 OAITADIAN DOMESTIC LAWYEB. 
 
 
 water-course which another person should have done, 
 and to enforce the payment of such amount, the fol- 
 lowhig proceedings shall be taken: — 
 ' 1. Any of the persons interested may apply to a 
 justice of the peace residing within the municipality 
 or township in which any such fence is situated, and 
 if there be no such justice residing therein, then to 
 any justice of the peace residing in any adjacent 
 municipality or township, and thereupon such justice 
 shall issue a summons under his hand and seal, directed 
 by name to three fence-viewers of the municipality 
 in which the fence is situated, requiring them to 
 attend at the place and on the day and hour therein 
 mentioned, to view such fence and to appraise the same. 
 
 2. The justice shall at the same time issue a sum- 
 mons to the party so having neglected or refused to 
 make or repair his proportion thereof (who shall 
 thenceforth be considered the defendant in the case), 
 requiring him to appear at the same time and place 
 to show cause why the party claiming payment (who 
 shall thenceforth be considered the plaintiff in the 
 case) should not recover the same. 
 
 3. The fence-viewers shall be personally served with 
 the summons at least four days before the day named 
 for their attendance. 
 
 4. If either party desires to procure the attendance 
 of any person to give evidence before the fence- 
 viewers, the justice shall, upon the application of such 
 party, issue a summons to such witness or witnesses 
 to attend before the fence-viewers at the time and 
 place mentioned in the summons to the fence-viewers. 
 
 6. The fence-viewers, when met at the time and 
 
 M. 
 
 J-. 
 
OF LINE-FENCES AND WATEPt-COTJESES. 261 
 
 place api:)ointecl, shall, whenever desired by either 
 party, or wlienever they themselves think it proper, 
 may administer an oath to any witness, which oath 
 is to be in the following form: — 
 
 " You do solemnly swear that you will true answer 
 make to such questions as may be asked of you by 
 either of the fence-viewers now present, touching the 
 matters which they are now to examine and deter- 
 mine. So help you God." 
 
 6. The fence-viewers, or any two of them, being 
 present, shall, after having duly examined the fence 
 and received evidence, determine whether the plain- 
 tiff is entitled to recover any and what sum from the 
 defendant. 
 
 7. In case the commencement or extent of the part 
 of the division or line-fence which each should make 
 or repair had not been previously determined by the 
 award of fence-viewers, the fence-viewers named in 
 t^'^ summons, or any two of them, shall determine 
 the same ; and if they determine that the plaintiff is 
 entitled to recover from the defendant, they shall also 
 state what distance of fence the defendant should 
 have made or repaired. 
 
 8. The fence-viewers, if required by either party, 
 before they report, shall give to such party a copy 
 of their determination. 
 
 9. The fence-viewers shall report their determina- 
 tion in writing, under their hands, to the justice who 
 issued the summons ; and such determination thall be 
 final. 
 
 10. The justice to whom the determination of the 
 fence-viewers is returned shall transmit the same to 
 
 V'\ 
 
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 i 
 
 i. 
 
 % 
 
262 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ^ 
 
 the clerk of the division court having jurisdiction 
 over that part of the municipality, and shall certify 
 and transmit a copy thereof to the clerk of the muni- 
 cipality, to be entered in the book in "which the muni- 
 cipal proceedings are recorded. 
 
 11. After the expiration of forty days from the 
 time of the determination, the clerk of the division 
 court shall issue an execution against the goods and 
 chattels of the defendant in the same manner as if 
 the party in whose favor the determination has been 
 made had recovered judgment in the division court 
 for the sum which the fence-Tiewers have determined 
 him to be entitled to receive, with costs. (S. 16.) 
 
 Fees. (S. IV.) 
 
 To the Justice of the Peace. 
 
 For summons to fence-viewers, twenty-five cents. 
 
 For subpoena which may contain three names, 
 twenty-five cents. 
 
 For transmitting copy of fence-viewers' determina- 
 tion to division court and to clerk of the municipality, 
 twenty-five cents. 
 
 To the Fence -Yiewers, ^ 
 
 One dollar per day each ; if less than half a day 
 employed, fifty cents. ^ _ 
 
 lb the Bailiff or Constable employed.. 
 
 For serving summons or subpoena, twenty cents. 
 Mileage — per mile, six and two-thirds cents. 
 To witness — per day, each fifty cents. u 
 
 '% 
 
 ■ft- 
 
 -^t. 
 
LANDLORD AND TENANT. 
 
 263 
 
 Upon the party in whoso favor the dcterminiition 
 of the fence-viewers has been made making an affi- 
 davit that such fees have been duly paid and disbursed 
 to the persons entitled thereto, the clerk shall include 
 the amount thereof in the execution, and, when col- 
 lected, shall pay over the same to the party. (S. 18.) 
 
 CHAPTER XII. 
 
 Of Landlord and Tenant— Leases, <0c. 
 
 A Lease, or contract for the letting and hiring of 
 realty (as houses, farms, &c.), is a contract whereby 
 the temporary use and possession of a house or land 
 are granted by the owner to the hirer for a stipulated 
 or implied remuneration. He who grants the pos- 
 session and use of the property to be enjoyed for 
 hire, is called the lessor, or landlord; and he who 
 has the enjoyment of it, paying the rent or hire, is 
 called the lessee, or tenant. The stipulated or im- 
 plied remuneration is denominated rent. A lease 
 may be made for the life either of the landlord or the 
 tenant, or it may be made for any number of years, 
 or it may be at will, — that is, determinable at any 
 moment at the will either of the lessor or lessee. An 
 agreement for a lease must be in writing, as required 
 by the Statute of Frauds (29 Car. IT., c. 3, s. 4), before 
 referred to ; and all leases exceeding three years in 
 duration must now be authenticated by a deed. A 
 
 f! 
 
 f^.-. 
 
264 
 
 CANADIAN DOMEaTTO LAWYER. 
 
 lease in writing, 9iot under seal, for a term exceeding 
 three years in duration will amount only to an agree- 
 ment for a lease for the term speeified. 
 
 A letting and hiring of land for a year or any less 
 period may arise, by implication of law, from the re- 
 lative situations of the parties and the silent language 
 of their action.* 'ind conduct, as well as by express 
 words and stipulations. Whenever the house or 
 land of one man has been occupied and used by an- 
 other, the presumption is that 'the use and occupation 
 are to be paid for, and the landlord is entitled to 
 maintain an action to recover a reasonable hire and 
 reward for the use of the land, unless the tenant can 
 show that ho entered into possession of the property 
 under circumstances fairly leading to an opposite 
 conclusion. A landlord, on the other hand, who has 
 permitted a tenant to occupy property, and has re- 
 ceived rent from the latter for such use and occu- 
 pation, will be bound by his own acts, and cannot 
 afterwards treat such tenant as a trespasser, and turn 
 him out of possession, without a proper notice to quit. 
 
 Leases may be made to commence from a day that 
 is passed, or from a day to come, as well as from the 
 day of the making of the lease. 
 
 If a tenant hohls over after the expiration of his 
 lease, and the landlord receives from him rent which 
 has accrued due subsequently to the expiration of the 
 lease, ho becomes a tetiant from year to year upon 
 the terms of the original demise. 
 
 A tenancy from year to year is ordinarily implied 
 from the payment and acceptance of rent ; but this 
 prima facie presumption may, of course, be rebiitted 
 
 W 
 
LANDLORD AND TENANT. 
 
 265 
 
 by showing that the money was paid or received by 
 mistake. 
 
 If an annual rent is reserved, the holding is from 
 year to year, althougli the lease or agreement pro- 
 vides that the tenant shall quit at a quarter's notice. 
 Such a contract differs only from the usual letting 
 from year to year in the agreement by the parties to 
 reduce the ordinary six months' notice to quit to 
 three months. But if it is expressly agreed that the 
 tenant is always to be subject to quit at six months' 
 notice, given him at any time, this constitutes a Ualf- 
 yearly tenancy, and the lessee will be presumed to 
 liold from six months to six months from the time 
 that he entered as tenant. If he is to hold till one 
 of the parties shall give to the other three months' 
 notice to quit at the expiration of such notice, the 
 tenancy will be a quarterly tenancy. 
 
 The landlord's remedy for the non-payment of rent 
 is either by action or distress. Where the rent re- 
 served is a fixed ascertained rent, the landlord may 
 distrain. But if no certain ascertained rent has been 
 reserved or covenanted or agreed to be paid, there is 
 no right to distrain : the landlord can only recover a 
 fair compensation for the use and occupation of the 
 premises in an action at law. It is essential to the 
 lawful exercise of the power of distress that the dis- 
 trainor be the immediate landlord or owner of the 
 estate. K after the making. of the lease the landlord 
 has sold" and transferred his estate or interest to some 
 tliird party, he has no right or power to distrain. A 
 landlord cannot distrain twice for the same rent, un- 
 less the distress has been withdrawn at the instance 
 
 •'!!«' 
 
266 
 
 CANADIAN DOMESTIC LAWYER. 
 
 US' 
 
 or request of tlic tenant, or unless there has been 
 some niistuku as to the vahiu of the tliinys taken. 
 
 When an annual rent is reserved, it may bo nindo 
 payable monthly or quarterly, or at any period of 
 time that the parties may think fit to appoint, what- 
 ever may be the duration of the term of hiring. It 
 may also be made payable in advance, so as to entitle 
 the landlord to distrain for it at the commencement 
 instead of at the end of each quarter. There may 
 bo a yearly tenancy with an annual rent, payable 
 quarterly, or there may be a quarterly tenancy with 
 a quarterly rent, payable weekly or monthly, or at 
 any successive periods of time. ^, '-^^ , m 
 
 A distress by the landlord after tender of the rent 
 to him or to his bailiff, authorized to distrain, without 
 a fresh demand on the tenant, is illegal ; and if the 
 landlord distrains before the rent has become due, 
 the tenant may resist the entry and seizure by force, 
 and, after a seizure has been made, he may rescue his 
 goods at any time before they have been impounded ; 
 but when once the goods have been impounded they 
 are in the custody of the law, and the tenant cannot 
 then break pound and retake them. As soon as the 
 distrainor has made out and delivered to the tenant, 
 or has left upon the premises, an inventory of the 
 goods he has taken, they are said to be impounded. 
 
 Formerly the landlord could not have distrained 
 after the expiration of the terra for rent that accrued 
 due before the determination thereof; but now, by the 
 statute 8 Ann. c. 14, ss. 6, 7, landlords are authorized 
 to distrain, provided the distress be made within six 
 months after the determination of the lease, and 
 
LATTDLOTIT) AND TENANT. 
 
 267 
 
 cluring tlio contiimanco of tlie landlord's title or in- 
 terest, and during the possession of the tenant from 
 whom the arrears became duo. 
 
 The tenant has the whole day on which the rent 
 becomes duo to pay such rent ; and a distress, there- 
 fore, caimot bo made until the day after the day ap- 
 pointed for the payment of the rent. Unless tho 
 rent is made payable at some particular f^pecijied 
 place, the tenant is bound to seek out the landlord 
 and pay or tender him the money. A landlord or 
 liis bailitf cannot lawfully break open gates or break 
 down in closures, or force open tho outer door of any 
 dwelling-house, or building, in order to make a distress, 
 but he may draw a staple or undo fastenings which 
 are ordinarily opened from the outside of the house. 
 A distress cannot be made in the night, or"*after sun- 
 set, or before sunrise, nor upon land which docs not 
 form part or parcel of tho demised premises, and from 
 which the rent reserved does not issue, unless the 
 goods of the tenant have been removed thereto from 
 the demised premises within sight of the distrainor 
 coming to distrain, or unless they have been fraudu- 
 lently removed thereto by the tenant to avoid the 
 distress. If the tenant fraudulently or clandestinely 
 removes goods and. chattels from the demised pre- 
 mises, to prevent the landlord from distraining them 
 for rent in arrear, the landlord may within thirty 
 days after such removal take and seize them wher- 
 ever they may be found, unless they have in the 
 mean time been sold bona fide to some person ignorant 
 of the fraud. But if it be necessary to break open 
 any door in order to seize such goods, the landlord 
 
 'ij*^ 
 
 
268 CAl^ADIAN DOMESTIC LAWYER. 
 
 must call a constable to his assistance, and must force 
 the door in his presence and in the daytime. If 
 it appears that rent was due at the time of such 
 removal, and that the goods were taken away on 
 or after the day the rent became due, for the pur- 
 pose of putting them out of reach of a distress, the 
 removal is fraudulent. It is not necessary that the 
 rent should be in arrear and a right to distrain 
 exist at the time of the removal. Therefore, if the 
 goods are removed on quarter-day, they may be 
 followed, though the rent is not in arrear, and there 
 is no right to distrain, until the day after. If there 
 are sufficient goods on the demised premises, inde- 
 pendently of the goods removed, to satisfy the rent, 
 the removal is not fraudulent, and the landlord can- 
 not follow them. **, 
 
 Goods in the custody of a sheriff's officer or bailiff, 
 having been seized under an execution or attachment, 
 cannot be distrained ; but before such goods can be 
 removed the sheriff or bailiff must pay to the land- 
 lord one year's rent, or the rent for any less period 
 that may happen to be due at such seizure. And by 
 the Division Courts Act it is enacted that when goods 
 are taken in execution under the process of any divi- 
 sion court the landlord shall be entitled, by writing 
 under his hand, or under the hand of his agent, 
 stating the terms of holding, and the rent payable 
 for the same, and delivered to the bailiff making the 
 levy, to claim any rent in arrear then due to him 
 not exceeding the rent of four weeks where the tene- 
 ment has been let by the week, and not exceeding 
 the rent accruing due in two terms of payment where 
 
 togetj 
 of th 
 
LANDLORD AND TENANT. 
 
 269 
 
 the tenement has been let for any other term less 
 tliau a year, and not exceeding in any case the rent 
 accruing due in one year. 
 
 Property of third parties on the demised premises 
 in the possession and use of the owners, and not in 
 the possession or under the charge of the tenant, 
 cannot be distrained for r .it; Lor can the goods and 
 chattels of third parties placed upon the demised pre- 
 mises in the j)ossession and under the care of the 
 tenant in the ordinary course of trade ; nor the goods 
 and chr 'tels of travellers in hotels. Fixtures, im- 
 plements of trade and husbandry, and beasts of the 
 plough are privileged from distress so long as they 
 are in actual use, but not afterwards, or unless there 
 are other goods on the demised premises sufficient to 
 satisfy the rent without them. 
 
 It is not necessary, in order to make a distress for 
 rent, that the landlord or his agent should take cor- 
 poral possession of the things intended to be dis- 
 trained. It is sufficient if the landlord in person, or 
 by deputy, enters upon the demised premises and 
 announces the distress to the tenant or his servants, 
 or the persons in actual occupation of the property. 
 When the landlord distrains by an agent or bailiff, 
 he should give his agent authority in writing for the 
 purpose. This authority is called a Distress War- 
 rant. 
 
 As soon as the distress is made, whether by the 
 landlord or his bailiff, an inventory of the goods dis- 
 trained should be made and served upon tlie tefiant, 
 together with the notice of the distress. The notice 
 of the distress should set forth the amount of rent 
 
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 iH 
 
270 
 
 CANADIAN DOMESTIC LAWYER. 
 
 distrained for, and tlie particular things taken. If 
 the tenant, after he has received notice, neglects for 
 five days — to be computed inclusive of the last day 
 and exclusive of the day of seizure — to pay the rent 
 or replevy the goods, the landlord may sell them for 
 the best price that carf be got for them, and apply 
 the purchase-money in dischjirge of the rent and the 
 costs of the distress and sale, paying the overplus, 
 if any, to tlie tenant. 
 
 The costs of distresses under eighty dollars are regu- 
 lated by Cons. S. U. C, c. 123, and are as follows: — 
 
 Levying distress $1 00 
 
 Man keeping possession, per diem 75 
 
 AppraisenK^nt, whether hy one appraiser or more, two 
 
 cents in the dollar on the value of the goods. 
 If any printed advertisement, not to exceed in all . . 1 00 
 Catalogues, sale, and commission, and delivery of goods, 
 
 five cents in the dollar on the net produce of the sale. 
 
 Every broker or other person who shall make and 
 levy any distr^^5s is to give a copy of his charges, and 
 of all the costs and charges of the distress, signed by 
 him, io the person on whose goods and 'hattels any dis- 
 tress shall have been levied, althoug-h the rent demanded 
 may exceed the sum of eighty dollars. When the rent 
 distrained for exceeds eighty dollars, the costs are not 
 limited to any particular amount or fixed scale of 
 charge ; but they must be fair and reasonable. 
 
 When, in consequence of the rent not being fixed 
 and ascertained, the landlord has no right to distrain, 
 we iiave before seen that his only remedy is by action 
 at law, in wliich he can recover from the tenant a 
 proper compensation for the use and occupation of 
 
 1 
 
LANDLORD AND TENANT. 
 
 271 
 
 the premises. In such cases we must refer the land- 
 lord to his professional adviser, it being beyond the 
 Bcope of this work to detail an action at law : indeed, 
 it would be useless to do so. 
 
 With regard to repairs, we may say, generally, that 
 in the absence of an express covenant or agreement 
 to repair, there results from the demise and accept- 
 ance of the lease by the tenant an implie<l covenant 
 or promise to use the property demised in a tenant- 
 like and proper manner; to take reasonable care of 
 it, and restore it, at the expiration of the term for 
 which it is hired, in the same state and condition as it 
 was in when demised, subject only to the deteriora- 
 tion produced by ordinary wear and tear, and the 
 reasonable use of it for the purpose for which it was 
 known to be required. 
 
 When a lease is determinable on a certain event 
 or at a particular period', no notice to quit is neces- 
 sary, because both parties are equally apprized of the 
 determination of the term. If, therefore, a lease be 
 granted for a term of years, or for one year only, no 
 notice to quit is necessary at the end of the term. In 
 the case of a tenancy at will, no notice to quit is neces- 
 sary, but there must be a formal demand of possession, 
 or notice of the determination of the will, on the part 
 of the landlord, before any action of ejectment can 
 be brought. The tenant at will, too, in order to 
 discharge ^himself from his liability for rent or for 
 a reasonable compensation for use and occupation, 
 must give notice to the landlord of the fact of his 
 abandonment of the possession, and of his election to 
 rescind the contract and put an end to the tenancy. 
 
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 272 
 
 \\ 
 
 CAT^ABIAN DOMESTIC LAWYER. 
 
 If the holding is a general holding for a year, and 
 onwards from year to year so long as both parties 
 please, a half-year's notice must be given on either 
 side in order to determine the yearly hiring and 
 tenancy; and this notice may be given in the first 
 as well as any subsequent year of the tenancy. The 
 notice may be in writing or by word of mouth. In 
 the case of a yearly tenancy it must be a six months' 
 notice, to expire at that period of the year cor- 
 responding with the period at which the tenancy 
 commenced. 
 
 It xs better that a notice to quit should be served 
 upon the landlord or tenant (as the case may be) per- 
 sonally; but it is sufficient if served uj)on the wife^ 
 or servant at the dwelling-house of the party to be 
 served. 
 
 A landlord may recover possession of his property 
 by ejectment or proceedings under the " Overholding 
 Tenants Act : " in either case it will be necessary for 
 him to employ an attorney. 
 
 The following forms may be found useful : — 
 
 Distress Warrant. 
 
 To A. B., my bailiff in this behalf. Distrain the 
 goods and chattels liable to be distrained for rent, in 
 and upon the [house] now or lately in the tenure or 
 occupation of C. D., situate at , in the county 
 
 erf , and i^rovince of Canada, for the sum of 
 
 , being rent due to me for the same, 
 
 on the day of , in the year of our Lord 
 
 one thousand eight hundred and . And for the 
 
 purpose aforesaid, distrain, within the time, in the 
 
 m\ 
 
LANDLORD AND TENANT. 
 
 273 
 
 -m 
 
 manner, and with the forms prescribed by law, all 
 Buch goods and chattels of the said C. D., whereso- 
 ever they shall be found, as have been carried oft' the 
 said premises, but are nevertheless liable, by law, to 
 be seized as a distress for the rent aforesaid. And 
 proceed thereupon for the recovery of the said rent 
 as the law directs. And for your so doing this shall 
 be your sufficient warrant and authority. 
 
 Witness my hand and seal, this day of , 
 
 in the year of our Lord one thousand eight hundred 
 and 
 
 Witness, E. F. [l. s.] 
 
 Notice of Distress. 
 
 Notice is hereby given that the cattle, goods, and 
 chattels, distrained for rent, on the day of 
 
 ,18 , by me, , as bailiff to , 
 
 the landlord of the premises of , the tenant, will 
 
 be sold by public auction on the day of , 
 
 18 , at o'clock. Which cattle, goods, 
 
 and chattels are as follows, that is to say: 
 Stratford, day of ,18 
 
 A. B., Bailiff'. 
 
 a: 
 
 
 Inventory. 
 
 An Inventory of the several goods and chattels 
 distrained by me , the day of , in 
 
 the year 18 , in the house, out-houses, and lands 
 of , situate , by authority and on 
 
 behalf of , , your landlord, for the sum of 
 
 , being rent due to the said on 
 
 the 
 
 day of 
 
 12* 
 
 18 
 
 V 
 
 Vt 
 
VlJP' 
 
 'it^ 
 
 274 
 
 CANADIAN DOMESTIC LAWYER. 
 
 On the pre- 
 
 In the dwelling-house 
 mises 
 
 Mr. . Take Notice, that as the bailiff 
 
 to , your landlord, I have this day distrained, 
 
 on the premises above mentioned, the several goods 
 and chattels specified in the above inventory, for the 
 sum of , being rent due to the said 
 
 on the day of ,18 , for the said pre- 
 
 mises; and that unless yo^ pay the said rent, with 
 tlie charges of distraining for the same, or rcjilevy 
 within five days from the date hereof, the said goods 
 raid chattels will be appraised, and sold according to 
 law. 
 
 Given under my hand, the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and . 
 
 Witness^ 
 
 A. B., Bailiff. 
 
 Farming Lease, Agreement for. 
 
 This Agreement, made this dpy of , 
 
 in the year, &c., Between A. B., of , of tlic 
 
 one part, and C. D., of , of the other part, 
 
 WITNESSETH: That the t-aid A. B. t-hall, on or before 
 the first day of next, make and execute unto 
 
 the said C. D., his exenitors, administrators, md 
 assigns, a valid lease of all that piece or parcel of 
 laud situate, &;, with the .ippurtcnanccs thji'jimto 
 belonging, for tlie term of years, from the first 
 
 day of , pt *be yearly rent of , pay- 
 
 able half-yearly, clear of all deductions for taxes, or 
 on any other account whatever : the first payment of 
 
LANDLORD AND TENANT. 
 
 275 
 
 'Hk 
 
 said rent to be made on the first day of next; 
 
 and at and under the further yearly rent of 
 for every acre, and so in proportion for a less quan- 
 tity of meadow or pasture ground, which shall bo 
 ploughed or converted into tillage, contrary to a 
 covenant to be contained in said lease, as hereinafter 
 directed; the first payment of said last-mentioned 
 rent to be made on the first half-yearly day after 
 such conversion into tillage as aforesaid. And in the 
 said lease there sliall be contained covenants on the 
 part of the said O. D., his executors, adi^anistrators, 
 and assigns, to pay the aforesaid rents, and to pay 
 all taxes and assessments; for doing all manner of 
 repairs to the buildings, hedges, ditches, rail, and 
 other fences (the said A. B. providing upon the 
 premises, or within two miles thereof, rough timber, 
 bricks, tiles, and lime for the doing thereof, to be 
 conveyed by the said C. D., his executors, adminis- 
 trators, or assigns) ; for permission for the said A. B., 
 his heirs or assigns, at all seasonable times, to view 
 the state of the premises; that the said C. D., his 
 executors or administrators, shall not carry off from 
 the farm j ny hay, straw, or other fodder, and that 
 tho said C. D., his executors, administrators, or 
 assigns, shall spread on some part of the said lands, 
 in a husbaulUke manner, ul\ the manure and com- 
 post which sliall arise from the said farm, and shall, 
 in all respects, cultivate the same in a husbandlike 
 marner, and accordijig to the usual Qoursa of hus- 
 bandr) practised in tlio neighboi'hood, and shall leave 
 all the manure and compost of the last year, for chc 
 use of the landlord or succeeding tenants. That ihe 
 
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 276 
 
 CANADIAN DOMESTIC LAWYER. 
 
 said C. D., his executors, administrators, or assigns, 
 shall, in the summer immediately preceding the deter- 
 mination of the said term, to be granted as aforesaid, 
 prepare for seed, in a husbandlikc manner, such part 
 of the land as shall be in a course of fallow, and fit to 
 be sown with a crop the ensuing season, and lay down 
 with clover-seed and rye-grass acres of the 
 
 arable land which shall be then in tillage, sowing 
 , upon each acre thereof pounds of the best clover- 
 seed, and bushel of the best rye-grass seed. And 
 in the said lease there shall be contained a proviso 
 for re-entry by the said A. B., his heirs or assigns, 
 in case of the non-payment of rent for the space of 
 twenty days, or non-performance of the covenants. 
 And there shall be contained covenants on the part of 
 the said A. B., his heirs and assigns, for quiet enjoy- 
 ment. That the said A. B., his heirs and assigns, 
 shall permit the said C. D., his executors, adminis- 
 trators, or assigns, to have the use of the barns and 
 stables adjoining the said premises, and the stack- 
 yard and farm-yard, until one month after the expi- 
 ration or determination of the said term, for the con- 
 venience of threshing out the last year's crops of 
 corn and grain, and feeding his or their cattle with 
 the straw and fodder, so that the same may be made 
 into manure, to be left on the said premises, as afore- 
 said; and also some convenient room in the farm- 
 house for his or their servants to lodge and diet in, 
 until the time aforesaid, without any recompense being 
 made for tlie same respectively. 
 In Witness, <fcc. 
 
LANDLORD AND TENANT. 
 
 277 
 
 Lease of House. 
 
 This Indenture, made the , day of , 
 
 in the year of our Lord one thousand eiglit hundred 
 and , Between of the first part, and 
 
 , of the second part, Witnessetii, that in con- 
 sideration of the rents, covenants, and agreements, 
 hereinafter reserved and contained on the part of the 
 said part of the second part, executors, admi- 
 
 nistrators, and assigns, to be paid, observed, and per- 
 formed, , the said jjart of the first part. Ha 
 demised and leased, and by these presents Do demise 
 and lease, unto the said part of the second part, 
 executors, administrators, and assigns. All thxVT mes- 
 suage or tenement situate, lying, and being , 
 Together with all houses, out-houses, yards, and 
 other appurtenances thereto belonging, or usually 
 known as part or parcel thereof, or as belonging 
 thereto : To have and to hold the said pre- 
 mises for and during the term of , to be com- 
 puted from the day of , one thousand eight 
 hundred and , and from thenceforth next ensuing, 
 and fully to be comj)lete and ended. 
 
 Yielding and paying therefor yearly and every 
 year during the said term hereby granted unto the 
 said part of the first part, heirs, executors, 
 
 administrators, or assigns, the sum of , to be 
 
 payable on the following days and times, that 
 
 is to say, . the first of such payments to 
 
 become due and be made on the day of 
 
 next. 
 
 Provided always, and these presents are upon 
 
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 278 
 
 CANADIAN DOMEHTIC LAWYEll. 
 
 this cxprosH condition, that if the said yearly rent, 
 hereby reHorved, or any i)art thereof, sliail at any time 
 remain beliuid or unpaid for the space of twenty-ono 
 days next over or after any of the days on whuih 
 the same shall become duo and payable, then, and iu 
 every such case, it sliail bo lawful for the said part 
 of the first part, heirs, executors, administrators, 
 
 or assigns, into ami upon the said premises, or any 
 part tluu'eof, in the name of the whole, to re-enter, 
 and the same to have again, repossess, and enjoy, as 
 if these presents had never been executed. 
 
 And tlio said part of the second part, for , 
 
 neirs, executors, a<lmifiistrators, and assigns, do 
 hereby covenant, promise, and agree to and with the 
 said part of the iirst part, heirs, executors, 
 
 administrators, and assigns: 
 
 That , the sai<l part of the second part, 
 executors, .ulministratorw, and assigns, shall and will 
 well and truly pay, or cause to be paid, to the baid 
 part of the tirst part, heirs, executors, admhiis- 
 trators, or assigns, the said yearly rent hereby re- 
 served at the timos and in the manner hereinbefore 
 appointed for payment thereof. 
 
 And also shall and will, from time to time, and at 
 all times during the said term, keep in good and srili- 
 cient repair the said jn'emises hereby demised (rea- 
 sonable wear and tear and accident by fire excepted), 
 and the same so kept in repair shall and will, at the 
 end, expiration, or other sooner determination of the 
 said term, peacc^ably and quietly yield and deliver up 
 to the said jjart cf the first part, heirs, execu- 
 tors, admiuistrutorg, or assigns. 
 
LANDLORD AND TENANT. 
 
 279 
 
 And also shall and will well and truly pay, or 
 cause to be paid, all taxes, rates, levies, duties, 
 charges, assessments, and impositions whatsoever, 
 whether Parliamentary, local, or otherwise, which 
 now are, or which during the continuance of this 
 demise shall at any time be, rated, taxed, or im- 
 posed on or in respect of the said demised premises, 
 or any part thereof. 
 
 And also that it shall be lawful for the said part 
 of the first part, heirs, executors, administrators, 
 and assigns, and their agents respectively, either 
 alone or with workmen or others, from time to time 
 at all reasonable times in the daytime, during the 
 said term, to enter upon the said demised premises, 
 and every part thereof, to view and examine the 
 state and condition thereof; and in case any want of 
 reparation or amendment be found on any such exami- 
 nation, the said part of the second part, execu- 
 tors, administrators, or assigns, shall and will from 
 time to time cause the same to be well and suffi- 
 ciently repaired, amended, and made good, within 
 one month next after notice in writing shall have 
 been given to them or left at or upon the said 
 demised premises for that purpose. And if the said 
 part of the second part, executors, adminis- 
 
 trators, or assigns, fail in making the necessary re- 
 pairs in manner hereinbefore described, that it shall 
 be lawful for the said part of the first part, 
 heirs, executors, administrators, and assigns, and " 
 
 agent:^, to enter into and upon the said hereby 
 demised premises, and have the same repaired in a 
 proper manner, and to render the account for such 
 
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280 
 
 CANADIAN DOMESTIC) LAWYER. 
 
 repairs to the said part of the second part, exe- 
 cutors, administrators, and assigns, and demand pay- 
 ment for the same, and if default is made to sue for 
 the same in any court of law having jurisdiction over 
 the same. 
 
 And the said part of the second part, execu- 
 tors, administrators, or assigns, shall not, nor will at 
 any time or times during the continuance of this 
 demise, sell, assign, let, or otherwise part with this 
 present lease, or the said premises hereby demised, 
 or any part thereof, to any person or persons whom- 
 soever, for the whole or any part of the said term, 
 nor alter, change, or remove any part of the said 
 premises, yards, or offices, externally or internally, 
 without the license and consent in writing of the said 
 part of the first part, heirs, executors, adminis- 
 trators, or' assigns, from time to time, first had and 
 obtained. 
 
 And the said part of the first part, for , 
 
 heirs, executors, administrators, and assigns, cove- 
 nant with the said part of the second part, 
 executors, administrators, and assigns, that 
 , the said part of the second part, executors, 
 administrators, and assigns, well and truly paying 
 the r6nt hereinbefore reserved, and observing, per- 
 forming, and keeping the covenants hereinbefore 
 contained, shall and may, from time to time, and at 
 all times during the said term, peaceably and quietly 
 enjoy the said premises hereby demised, without mo- 
 lestation or hindrance. 
 
 In Witness Whereof, the said parties to these 
 
LANDLORD AND TENANT. 
 
 281 
 
 presents have hereunto set their hands and seals, the 
 day and year first above written. 
 Signed, sealed, and delivered ] 
 in the presence of , ) 
 
 m 
 
 Lease of House. 
 
 ANOTHER FORM. 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , Between , of the first part, and 
 
 , of the second part ; Witnesseth, that for and 
 in consideration of the rents, covenants, and con- 
 ditions in these presents contained and reserved, and 
 which are hereby declared to be incumbent upon the 
 said party of the second part, his executors, adminis- 
 trators, or assigns, to pay, do, and perform, he, the 
 said party of the first part, hath demised, leased, set, 
 and to farm let, and by these presents doth demise, 
 lease, set, and to farm let, unto the said party of the 
 second part, his executors and administrators. All 
 that parcel or tract of land, &c. &o. Together 
 with all buildings thereon erected and being, and all 
 privileges and appurtenances whatsoever to the same 
 premises belonging or in any way appertaining. To 
 have and to hold the said parcel of land, with the 
 appurtenances as aforesaid hereby demised, unto the 
 said party of the second part, his executors, adminis- 
 trators, and assigns, from the day of , in 
 the year one thousand eight hundred and , for 
 and during arid until the full end and term of 
 from thence next ensuing, and fully to be complete 
 and ended . Subject nevertheless to determina- 
 
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282 
 
 CANADIAN DOMESTIO LAWYER. 
 
 tion ov cesser of tlie said term before the expiration 
 thereof under the provisoes or conditions hereinafter 
 mentioned, yielding and paying therefor yearly, and 
 every year during the term hereby demised, unto the 
 said party af the first part, his heirs, executors, 
 administrators, and assigns, the yearly rent or sum 
 of , of lawful current money of Canada, to be 
 
 paid in manner following, that is to say, in 
 
 each and every year during the said term, with- 
 out any deduction or abatement thereout, for or by 
 reason or on account of any cause or pretence what- 
 soever. And the said part of the second part do 
 hereby, for , heirs, executors, administrators, 
 
 and assigns, covenant, promise, and agree to and 
 with the said part of the first part, heirs, 
 
 executors, adrimistrators, and assigns, in manner fol- 
 lowing, that is to say, that the said part of the 
 second part, heirs, executors, administrators, and 
 assigns, will well and truly pay, or cause to be paid, 
 unto the said part of the first part, heirs, execu- 
 tors, administrators, or assigns, the said yearly sum 
 or rent of of mOney as aforesaid, on or at the 
 
 days and times and in the manner hereinbefore men- 
 tioned and prescribed for payment thereof. And 
 ALSO, that the said part of the second part, heirs, 
 executors, administrators, or assigns, shall and will, 
 at or their own costs and charges, well and sufii- 
 ciently repair, and keep repaired, the now 
 
 being, or hereafter during the said term to be, erected 
 or situate upon the said premises, damage 
 
 happening by accidental fire, tempest, or other inevi- 
 table accident being always excepted. , ; 
 
LANDLORD AND TENANT. 
 
 283 
 
 And further, that at the expiration or other 
 legally premature determination of this lease, the 
 said part of the second part, heirs, executors, 
 administrators, or assigns, will and shall peaceably 
 and quietly leave, surrender, and yield up unto the 
 said party of the first part, his heirs, executors, 
 administrators, or assigns, the whole of the said pre- 
 mises hereby demised, in such good and sufficient 
 repair as aforesaid. 
 
 And also, that it shall and may be lawful to and 
 for the said party of the first part, his heirs or 
 assigns, after days' previous notice in writing, 
 
 if required, times, or oftener, in every year 
 
 during the said term, at seasonable hours of the 
 day, to enter and come into and upon the said 
 demised premises, or any part thereof, to view the 
 condition of the same, and of all defects and wants 
 of repair ar amendment which may then and there 
 be found to leave notice in writing at the said de- 
 mised premises to and for the said part of the 
 second part to repair and amend the same within a 
 reasonable time, not exceeding months. And the 
 said part of the second part do hereby, for 
 
 , executors, administrators, and assigns, fur- 
 ther covenant, promise, and agree, with and to the 
 said part of the first part, his heirs and assigns, 
 that , the said part of the second part, 
 
 heirs, executors, administrators, and assigns, will and 
 shall within the said space of months, next after 
 
 every and any ^uch notice being left as aforesaid, well 
 and sufficiently repair and amend tho same accord- 
 ingly. 
 
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 #: 
 
284 
 
 CANADIAN DOMESTIC LAWYER. 
 
 And moreover, that , the said part of 
 
 the second part, heirs, executors, administrators, 
 "and assigns, shall not, nor will at any time during 
 the said term, pull down, or make or permit to bo 
 made any alterations in any part of the said 
 without the written consent of the said part of the 
 first part, firstly had and obtained for such purpose. 
 And moreover shall not, nor will at -any time during 
 the continuance of this demise, bargain, sell, assign, 
 transfer, or set over this indenture of lease, or let, 
 set, demise, underlet, or underlease the whole or any 
 part of the said demised premises, or in any other 
 manner part with this indenture of lease, or the pos- 
 session or occupation of the whole or of any part or 
 portion of the premises hereby demised, without such 
 written consent and license as aforesaid. Provided 
 ALWAYS, NEVERTHELi;ss, and thcsc presents are upon 
 this express condition, that if the said rent or sum 
 of hereby reserved, or any part thereof, shall be 
 
 unpaid in part or in all for the space of next 
 
 after either of the days on which the same ought to 
 be paid, as aforesaid, having been lawfully demanded, 
 or in case the said part of the second part, heirs, 
 executors, administrators, or assigns, shall at any time 
 during the said term of lease hereby granted, without 
 such license as aforesaid, assign, transfer, or set over, 
 underlease or underlet, the whole or any part of the 
 .premises hereby demised, or in any other manner 
 part with the possession or occupation of the same, 
 or any part thereof, or if all or any of the covenants, 
 conditions, and agreements in these presents con- 
 tained and prescribed as incumbent upon the said 
 
 mi 
 
 
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 ■$ 
 
 LANDLOED AND TENANT. 
 
 285 
 
 of 
 
 ators, 
 .uring 
 to "be 
 
 of tho 
 irpose. 
 during 
 assign, 
 or let, 
 or any 
 r other 
 tie pos- 
 part or 
 fut such 
 
 tOVIDED 
 
 re upon 
 or sum 
 shall he 
 next 
 ught to 
 aiandcd, 
 heirs, 
 any time 
 without 
 feet over, 
 t of the 
 manner 
 he same, 
 )venants, 
 snts con- 
 the said 
 
 part of the second part, heirs, executors, adminis- 
 trators, and assigns, to do, observe, keep, fulfil, or 
 perform, shall not be done, observed, kept, fulfilled, 
 or performed, according to the true intent and mean- 
 ing of these presents, then and from thenceforth, in 
 any or in either of the said cases, it shall and may bo 
 lawful to and for the said part of the first part, 
 heirs, executors, administrators, and assigns, into and 
 upon the said demised premises, or any part thereof 
 in the name of the whole, wholly to re-enter, and 
 the same to have again, retain, repossess, and enjoy, 
 as in his and their first and former estate, and there- 
 out and from thence the said part of the second 
 part, heirs, executors, administrators, or assigns, 
 and all or any occupier or occupiers of the said pre- 
 mises, or any part thereof, to expel, put out, and 
 remove, this Indenture, or any matter or thing herein 
 contained, to the contrary thereof in any wise not- 
 withstanding. And the said part of the first part 
 doth hereby, for heirs, executors, administrators, 
 and assigns, covenant, promise, and agree, with and 
 to the said part of the second part, heirs, execu- 
 tors, administrators, and assigns, that , the said 
 part of the second part, heirs, executors, ad- 
 ministrators, and assigns, well and truly paying or 
 causing to be paid the said yearly rent hereby re- 
 served, on the days and in the manner hereinbefore 
 prescribed and appointed for payment thereof, and 
 observing, keeping, and performing all and singular 
 the covenants apd agreements in these presents con- 
 tained, and which on or their parts and be- 
 halves are and ought to be paid, kept, done, fol- 
 
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286 
 
 CANADIAN DOMESTIC LAWTER. 
 
 m> 
 
 filled, and performed, shsiU and lawfully may, peace- 
 ably and quietly have, hold, use, occupy, possess, 
 and enjoy the said demised premises, and every part 
 and parcel thereof, with the appurtenances, during 
 all the said term of hereby granted, without 
 
 any lawful let, suit, trouble, interruption, eviction, 
 molestation, hindrance, or denial of or by , the 
 
 said , heirs or assigns, or of, from, or by any 
 
 other person or persons claiming, or to claim, from, 
 by, or under him, them, or any or either of them. 
 In Witness, ifcc. 
 
 Lease of Land. 
 
 This Indenture, made the day of , 
 
 in the year of our Lord one thousand eight hundred 
 and , Between , of , of the first 
 
 part, and , of , of the second part, Wrr- 
 
 nesseth, that in consideration of the rent, covenants, 
 and agreements hereinafter reserved and contained, 
 and to be paid, observed, and performed by the said 
 part of the second part, executors, adminis- 
 
 trators, and assigns, , the said part of the first 
 
 part, Ha demised and leased, and by these presents 
 Do demise and lease, unto the said part of the 
 second part, executors, administrators, and assigns, 
 All th certain parcel or tract of land and pre- 
 mises situate, lying, and being , To have and 
 to hold the said parcel or tract of land, with the 
 appurtenances, unto the said part of the second part, 
 his executors, administrators, and assigns, from the 
 _^ day of , one thousand eight hundred 
 and , for the term of from thence next 
 
 
 W: 
 
 
LANDLORD AND TENANT. 
 
 287 
 
 eace- 
 ssesa, 
 r part 
 uring 
 ithout 
 Lction, 
 , the 
 )y any 
 , from, 
 sm. 
 
 lundred 
 the first 
 :t, Wn- 
 v^enants, 
 ntained, 
 the said 
 adminis- 
 the first 
 presents 
 of the 
 assigns, 
 and pre- 
 
 AVE AND 
 
 with the 
 !ond part, 
 from the 
 hundred 
 ence next 
 
 ensuing, and fully to be complete and ended, Yield- 
 ing AND PAYING thercfor, unto the said part of the 
 first part, executors, administrators, and assigns, 
 the yearly rent or sum of , of lawful money of 
 
 Canada, by equal payments, on the days 
 
 of the months of in each and every year 
 
 during the said term, the first payment to be made 
 on the day of next ensuing the date 
 
 hereof. 
 
 And the said part of the second part do hereby, 
 for , heirs, executors, administrators, and assigns, 
 covenant, promise, and agree with and to the said 
 part of the first part, heirs, executors, adminis- 
 trators, and assigns, that , the said part of the 
 second part, executors, administrators, and assigns, 
 shall and will well and truly pay, or cause to be paid, 
 to the said part of the first part, executors, ad- 
 ministrators, or assigns, the said yearly rent hereby 
 reserved, at the times and in manner hereinbefore 
 hientioned for payment thereof, without any deduc- 
 tion or abatement whatsoever thereout for or in re- 
 spect of any rates, taxes, assessment, or otherwise: 
 And also shall and will, on or before the day 
 
 of now next, at own costs and charges, 
 
 fence in the premises hereby demised in such manner 
 as will eflfectually protect the land adjoining thereto. 
 
 And it is hereby agreed, on the part of the said 
 part of the first part, heirs, executors, adminis- 
 trators, and assigns, that if at any time within the 
 said term of , the said part of the second part, 
 heirs, executors, administrators, or assigns, shall 
 desire to purchase the fee simple of the land hereby 
 
 .^v 
 
 • •'.ji 
 
 # 
 
288 
 
 CANADIAN DOMESTIC LAWYER. 
 
 doiniscd, shall be allowed to do so by paying the 
 
 sum of , of lawful money aforesaid, provided 
 
 the said rent shall have been regularly paid up to the 
 time when may so desire to purchase. 
 
 And it is hereby agreed, on the part of the said 
 part of the second part, executors, administrators, 
 and assigns, that if at any time or times during the 
 said term, the said rent, or any part thereof, shall bo 
 in arrear and unpaid for the space of thirty days after 
 any of the days or times whereon the same ought to 
 be paid, as aforesaid, then it shall bo lawful for the 
 said part of the first part, heirs, executors, ad- 
 ministrators, or assigns, "to enter into and take pos- 
 session of the premises hereby demised, whether the 
 same be lawfully demanded or not, and the same to 
 sell and dispose of, either by public auction or private 
 sale, as to may seem best, without the let, hin- 
 
 drance, or denial of , the said part of the second 
 part, heirs, executors, administrators, and assigns: 
 And further, that the non-fulfilment of the cove- 
 nants hereinbefore mentioned, or any of them, on the 
 part of the lessee or lessees, shall operate as a forfeit- 
 ure of these presents, and the same shall be consi- 
 dered null and void to all intents and purposes what- 
 soever ; And also, that the said part of the second 
 part, executors, administrators, and assigns, shall 
 not, nor will, during the said term, grant or demise, 
 or assign, transfer, or set over, or otherwise, by any 
 act or deed, procure or cause the said premises hereby 
 demised, or intended so to be, or any part thereof, or 
 any estate, term, or interest therein, to be granted, 
 assigned, transferred, or set over, unto any person or 
 
 '*■ 
 
LANDLORD AND TENANT. 
 
 289 
 
 persons whomsoever, nor carry on any offensive trade 
 or business on the premises, without the consent iu 
 writing of the said part of the first part, heirs 
 or assigns, first had and obtained. 
 
 In Witness Wheueop, the said parties to these 
 presents have hereunto set their hands and seals, 
 the day and year first above written. 
 
 Signed, sealed, and delivered I ' ' ' ' 
 
 in the presence of . J "^ 
 
 Lease of a House and Farm. 
 
 Tuts Indenture, made the day of , 
 
 in the year of our Lord 18 , Between A. B., of 
 , yeoman, of the one part, and C. D., of , 
 
 yeoman, of the other part, Witnessbth, that for and 
 in consideration of the rent, covenants, conditions, and 
 agreements hereinafter reserved and contained, and 
 which, on the part and behalf of the said C. D., his 
 executors, administrators, and assigns, are or ought 
 to be paid, done, and performed, the said A. B. Hath 
 demised, leased, set, and to farm let, and by these 
 presents Doth demise, lease, set, and to farm let, 
 unto the said C. D., his executors and administrators, 
 All that parcel or tract of land, &c. [describing the 
 lot], together with the frame dwelling-house, barns, 
 stables, and other out-houses thereupon erected, stand- 
 ing, and being, together with all ways, paths, passages, 
 waters, water-courses, privileges, advantages, and ap- 
 purtenances whatsoever, to the same premises belong- 
 ing or in_ any wise appertaining. To have and to 
 HOLD the said parcel or tract of land, dwelling-house, 
 buildings, and premises hereby demised unto the said 
 
 h 
 
 ■#■■ 
 
290 
 
 CANADIAN DOMESTIC LAWYER. 
 
 C. D., bis executors, administrators, and assigns, from 
 the day of the date of these presents, for, and during, 
 and until the full end and term of years from 
 
 thence next ensuing, and fully to be complete and 
 ended. Yielding and paying therefor yearly, and 
 every year during the said terra hereby granted, unto 
 the said A. B., his heirs and assigns, the yearly rent 
 or sum of , of lawful current money of Canada 
 
 (by two equal half-yearly payments, to be made on 
 the day of , and the day of ), 
 
 in each and every year during the said term, without 
 any deduction or abatCQient thereout for or upon any 
 account or pretence whatsoever. Provided always, 
 nevertheless, that if it shall happen that the said 
 yearly rent hereby reserved, or any part thereof, 
 shall be behind and unpaid for the space of twenty- 
 one days next over or afler either of the said days 
 hereinbefore mentioned and appointed for payment 
 of the same (being lawfully demanded) [or if the 
 said CD., his executors or administrators, shall 
 assign over, underlet, or otherwise depart with this 
 Indenture, or the premises hereby leased, or any part 
 thereof], to any person or persons whomsoever, with- 
 out the consent of the said A. B., his heirs or assigns, 
 first had and obtained in writing, under his or their 
 hands, for that purpose; then, and in either of the 
 said cases, it shall and may be lawful to and for the 
 said A. B., his heirs or assigns, into the said premises 
 hereby demised, or any part thereof, in the name of 
 the whole, to re-enter and the same to have again, 
 retain, repossess, and enjoy, as in his and their first 
 and "former estate or estates, any thing herein con- 
 
 lU 
 
LANDLORD AND TENANT. 
 
 291 
 
 from 
 ring, 
 from 
 and 
 , and 
 , unto 
 y rent 
 anada 
 de on 
 
 ithout 
 on any 
 
 LWAY8, 
 
 le said 
 hereof, 
 Lwenty- 
 id days 
 ayment 
 if the 
 , shall 
 lith this 
 iny part 
 >r, -with- 
 [assigns, 
 or their 
 of the 
 for the 
 iremises 
 ame of 
 le again, 
 ^eir first 
 •ein con- 
 
 tained to the contrary thereof in any wise notwith- 
 standing. And the said C. D. doth hereby, for him- 
 self, his heirs, executors, administrators, and assigns, 
 covenant, promise, and agree to and with the said 
 A. B., his heirs and assigns, in manner following 
 (that is to say), that he, the said 0. D., his executors, 
 administrators, and assigns, shall and will well and 
 truly pay, or cause to be paid, unto the said A. B., 
 his heirs and assigns, the said yearly rent of , 
 
 by equal half-yearly payments, on or at the days or 
 times and in the manner hereinbefore mentioned and 
 appointed for payment thereof. And also that ho, 
 the said C. D., his executors, administrators, and as- 
 signs, shall and will, at his and their own costs and 
 charges, well and sufficiently repair and keep repaired 
 the dwelling-house, buildings, fences, and gates now 
 erected, or which shall at any time or times hereafter 
 during the said term be erected, upon the said demised 
 premises, he, the said A. B., his heirs and assigns, 
 upon request and notice to them made, finding and 
 allowing on the said premises, or within miles' 
 
 distance thereof, all rough timber, brick, lime, tiles, 
 and all other materials whatsoever (except straw), 
 for doing thereof, to be carried to the said hereby 
 demised premises at the charge of the said C. D., his 
 executors, administrators, or assigns, or otherwise 
 permitting and allowing him or them, at their like 
 costs and charges, to cut and fell such and so many 
 timber-trees upon some part of the premises hereby 
 demised as shall be requisite and necessary for the 
 purpose (damage happening by accidental fire, tem- 
 pest, or other inevitable accident being always ex- 
 
 /ۥ 
 
292 
 
 CANADIAN DOMESTIC LAWYER. 
 
 cepted) : And further, that he, the said CD., his 
 executors, administrators, and assigns, shall and will 
 at all times during the said term cultivate and farm 
 such part or parts of the said lands and premises as 
 now are or shall hereafter be brought into cultivation 
 duiing the said term in a proper husbandlike manner. 
 And shall and will at the expiration or other sooner 
 determination of this lease peaceably and quietly 
 leave, surrender, and yield up unto the said A. B., 
 his heirs and assigns, the whole of the said premises 
 hereby demised in such good and sufficient repair as 
 aforesaid (reasonable use and wear thereof, and 
 damage by accidental fire, tempest, or other inevit- 
 able accident, as aforesaid, always excepted); And 
 also, that it shall and may be lawful to and for the 
 said A. B., his heirs and assigns, after six days' pre- 
 vious notice in writing, twice or oftener in every year 
 during the said term, at seasonable and convenient 
 times in the day, to enter and come into and upon 
 the said demised premises, or any part thereof, to 
 view the condition of the same, and of all defects and 
 wants of reparation and amendment which shall then 
 and there be found to leave notice in writing at the 
 said demised premises to or for the said C. D., his 
 executors, administrators, or assigns, to repair and 
 amend the same within the space of three calendar 
 months. And the said C. D. doth hereby, for him- 
 self, his executors, administrators, and assigns, cove- 
 nant, promise, and agree to and with the said A. B., 
 his heirs and assigns, that he, the said C. D., his exe- 
 cutors, administrators, or assigns, shall and will, 
 within three calendar months next after every and 
 
LANDLORD AND TENANT. 
 
 293 
 
 any such notice shall have been so given or left as 
 aforesaid, >vell and sufficiently repair and amend the 
 same accordingly (except as before excepted, and 
 upon being provided or allowed materials for the 
 same, as aforesaid), and also that he, the said C. D., 
 his executors, administrators, or assigns, shall not, 
 nor will at any time during the said term, pull down, 
 or cause or permit to be pulled down, or make, or 
 cause or permit to be made, any alteration by cutting 
 new door-ways or otherwise in the said dwelling- 
 house, or in any of the buildings upon the Kaid de- 
 mised premises, without the consent in writing of the 
 said A. B., his heirs or assigns, for that purpose first 
 had and obtained ; And moreover shall not, nor will 
 at any time during the continuance of this demise, bar- 
 gain, sell, assign, transfer, or set over this Indenture 
 of Lease, or let, set, demise, underlease, or underlet the 
 said dwelling-house and premises hereby demised, or 
 any part thereof, or in any other manner part with this 
 Indenture of Lease, or the possession or occupation 
 of the premises hereby demised, without such license 
 and consent as aforesaid. Provided always, never- 
 theless, and these presents are upon this express con- 
 dition, that if the said yearly rent or sum of , 
 hereby reserved, or any part thereof, shall be unpaid 
 in part or in all by the space of twenty-one days next 
 after either of the days on which the same ought to 
 be paid as aforesaid, being lawfully demanded ; or in 
 case the said C. D., his executors or administrators, 
 shall at any time during the said term hereby granted, 
 without such license as aforesaid, assign, transfer, or 
 set over, underlease or underlet, the premises hereby 
 
 i 
 
294 
 
 CANADIAN DOMESTIC LAWYER. 
 
 demised, or any part thereof, or in any other manner 
 part with the possession or occupation of the same, 
 or any part thereof; or if all or any of the cove- 
 nants, conditions, or agreements in these presents 
 contained, on the part and behalf of the said CD., 
 his executors, administrators, and assigns, shall not 
 be performed, fulfilled, and kept according to the 
 true intent and meaning of these presents, then and 
 from thenceforth, in any or either of the said cases, 
 it shall and may be lawful to and for the said A. B., 
 his heirs and assigns, into and upon the said demised 
 premises, or any part thereof, in the name of the 
 whole wholly to re-enter and the same to have again, 
 retain, repossess, and enjoy as in his or their first 
 and former estate, and thereout and from thence the 
 said C. D., his executors, administrators, and assigns, 
 and all other occupiers of the said premises, to expel, 
 put out, and amove, this indenture or any thing here- 
 inbefore contained to the contrary thereof in any 
 wise notwithstanding. And the said A. B. doth 
 hereby, for himself, his heirs, executors, adminis- 
 trators, and assigns, covenant, promise, and agree 
 with and to the said C. D., his executors, adminis- 
 trators, and assigns, that he, the said C. D., his exe- 
 cutors, administrators, and assigns, well and truly 
 paying the said yearly rent hereby reserved on the 
 days and in the manner hereinbefore appointed for 
 payment thereof, and observing, keeping, and per- 
 forming all and singular the covenants and agree- 
 ments in these presents contained, and which, on his 
 and their parts and behalves, are and ought to be 
 paid, kept, done, and performed, shall and lawfully 
 
LANDLORD AND TENANT. 
 
 295 
 
 may peaceably and quietly have, hold, use, occupy, 
 possess, and enjoy the said demised premises, and 
 every part and parcel thereof, with the appurte- 
 nances, during all the said term of years here- 
 by granted, without any lawful let, suit, trouble, 
 interruption, eviction, molestation, hindrance, or de- 
 nial of or by him, the said A. B., his heirs or assigns, 
 or of, from, or by any other person or persons claim- 
 ing or to claim from, by, or under him, them, or any 
 or either of them. 
 In Witness, &c.. 
 
 ■ I 
 
 ^\ 
 
 Indenture of Lease. 
 
 SHORT FORM UNDER STATUTE. , v ' 
 
 This Indenture, made the day of , 
 
 in the year of our Lord one thousand eight hundred 
 and , in pursuance of the act to facilitate the 
 
 leasing of lands and tenements. Between , of 
 
 the first part, and , of the second part; Wn- 
 
 nesseth, that in consideration of the yearly rents, 
 covenants, and conditions hereinafter respectively 
 reserved and contained by the said lessee, exe- 
 
 cutorsj administrators, and assigns, to be respectively 
 paid, observed, and performed, the said lessor Ha 
 demised and leased, and by these presents Do demise 
 and lease, unto the said lessee All th certain 
 parcel or tract of land and premises situate, lying, 
 and being in the , Together with all the 
 
 rights, members, and appurtenances whatsoever to 
 the said premises belonging or appertaining: To 
 HAVE AND TO HOLD the Said hereby demised premises. 
 
 n 
 
 
296 
 
 CANADIAN DOMESTIC LAWTEK. 
 
 with their appurtenances, unto the said lessee, 
 executors, administrators, and assigns, for the term 
 of , to be computed from the day of , 
 
 one thousand eight hundred and . Yielding 
 
 AND PAYING thcrcfor unto the said lessor, heirs 
 
 or assigns, the clear yearly rent or sum of , of 
 
 lawful money of Canada, in even portions, on 
 
 the days of in each and every year during 
 
 the continuance of the said term, without any de- 
 duction, defalcation, or abatement whatsoever — the 
 first payment to be made on the day of ; 
 
 And the said lessee, for heirs, executors, admi- 
 
 nistrators, and assigns, hereby covenants with the 
 said lessor, heirs and assigns, to pay rent, and 
 
 to pay taxes and to repair; And to keep up fences, 
 and not to cut down flmber ; And that the said lessor 
 may enter and view state of repair ; And that the 
 said lessee will repair according to notice ; And will 
 not assign or sub-let without leave; And will not 
 carry on any business that shall be deemed a nuisance 
 on the said premises ; And that will leave the 
 
 premises in good repair ; And also, that if the term 
 hereby granted shall be at ary time seized or taken 
 in execution or in attachment by any creditor of the 
 said lessee, or if the said ^lessee shall make any 
 assignment for the benefit of creditors, or, becoming 
 bankrupt or insolvent, shall take the benefit of any 
 act that may be in force for bankrupt or insolvent 
 debtors, the then current quarter's rent shall imme- 
 diately become due and payable, and the said term shall 
 immediately become forfeit and void, but the next cur- 
 rent quarter's rent shall nevertheless be at oiice due 
 
LAJNBLORD AND TENANT. 
 
 297 
 
 and payable. Peoviso for re-entry by the said lessor 
 on non-payment of rent, or on non-perfor- i'vice of 
 covenants, or seizure or forfeiture of the '-Vi'l term 
 for any of the causes aforesaid. The said lessor 
 covenants with the said lessee for quiet enjoyment. 
 
 In Witness Wheeeop, the eaid parties have here- 
 unto set their hands and seals. 
 
 Signed, sealed, and delivered ) 
 in the presence of . ) 
 
 Statutory Lease. 
 
 ANOTHER FORM. 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , in pursuance of the act to facilitate the 
 
 leasing of lands and tenements, . Between 
 [lessor], of the first part, and [lessee], of the 
 
 second part: Witnesseth, that in consideration of 
 the rents, covenants, and agreements hereinafter 
 reserved and contained on the part of the said lessee, 
 executors, administrators, and assigns, to be 
 paid, kept, and performed, , the said lessor, ha 
 demised and leased, and by these presents do de- 
 mise and lease, unto the said lessee, executors, 
 administrators, and assigns. All th Together 
 with the appurtenances: To have and to hold the 
 same unto the said lessee, executors, adminis- 
 trators, and assigns, from the day of- , one 
 thousand eight hundred and • , for and during 
 and unto the full end and term of from thence 
 next ensuing, and fully to be complete and ended; 
 Yielding and paying therefor unto the said lessor, 
 
 13* 
 
298 
 
 CANADIAN DOMESTIC LAWYER. 
 
 heirs, executors, administrators, or assigns, the clear 
 yearly rent or sum of , of lawful money of Ca- 
 
 nada , in each and every year during the said 
 
 term, without any deduction whatsoever— the first 
 payment to be made on the day of next 
 
 ensuing the date hereof. 
 
 And the said lessee covenant with the saia lessor 
 to pay rent, and to pay taxes, and to repair, and 
 to keep up fences, and not to cut down timber, and 
 that the said lessor may enter and view state of 
 repair ; and that the said lessee will repair according 
 to notice; and will not assign or sub-let without 
 leave; and that will leave the premises in good 
 repair ; and will not carry on any business that shall 
 be deemed a nuisance on said premises. Proviso 
 for re-etitry by the said lessor en non-payment 
 of rent or non-performance of covenants. 
 
 The said lessor covenant with the said lessee 
 for quiet enjoyment. 
 
 In Witness Whereof, the said parties have hereto 
 set their hands and seals. 
 
 Signed, sealed, and delivered ) 
 in the presence of . ' ) 
 
 Lease of Part of a House. 
 
 • 
 
 Memorandum of an agreement made and entered 
 into the day of ,18 , by and between 
 
 A. B., of , and C, D., of, <fcc., whereby the said 
 
 A. B. agrees to let, and the said C. D agrees to take 
 the rooms or apartments following, that is to say, 
 
 , being part of a house 
 and premises in which the said A. B. now resides, 
 
LAia)LORD A1?D TENANT. 
 
 299 
 
 situate and being No. 
 city of 
 
 ,in 
 
 Street, in the 
 
 , To HAVE AND TO HOLD the Said 
 rooms and apartments for and during the term of 
 half a year, to commence from the day of 
 
 , instant, at and for the yearly rent of , 
 
 lawful money of Canada, payable monthly, by even 
 and equal portions, the first payment to be made on 
 the day of next ensuing the date hereof; 
 
 and it is further agreed that, at the expiration of the 
 said term of half a year, the said C. D. may hold, 
 occupy, and enjoy the said rooms or apartments, from 
 month to month, for so long a time as the said C. D. 
 and A. B. shall agree, at the rent above specified; 
 and that each party be at liberty to quit possession 
 on giving the other a month's notice in writing. And 
 it is also further agreed that, when the said C. D. 
 shall quit the premises, he shall leave them in as 
 good condition and repair as they shall be in on his 
 taking possession thereof, reasonable wear excepted. 
 In Witness, &c. 
 
 Notice to Quit, by Landlord. 
 
 To A. B., Esq. 
 
 I hereby give you notice to quit and deliver up, on 
 or before the day of » 18 , the peaceable and 
 quiet possession of the premises you now hold of me. 
 
 with the appurtenances, situate at 
 township of , in the county of 
 
 province. 
 Dated this day of 
 
 , in the 
 , in this 
 
 Witness: E. F. 
 
 A. D. 18 . 
 
 Yours, &c. 
 
 C. D. 
 
300 
 
 CANADIAN DOMESTIC LAWYER. 
 
 Notice to Quit, by Tenant. 
 
 To C. D., Esq. 
 
 I hereby give you notice that it is my intention to 
 quit and deliver up to you, on or before the day 
 
 of » 18 , the peaceable and quiet possession of 
 
 the premises novir held by me, with the appurtenances, 
 situate at , in the township of , in the 
 
 county of , in this province. 
 
 Dated this day of , a. d. 18 . 
 
 Yours, &c. 
 
 A. B. 
 
 Witness: E. F. 
 
 CHAPTER XIII. 
 
 Of Master and Servant* 
 
 The relation of Master and Servant is so extensive, 
 entering into all the walks of life, that this work 
 would be incomplete without a chapter devoted to 
 the subject. 
 
 In order to constitute a contract of hiring and ser- 
 vice, the contract creating the relation of master and 
 servant, there must be either an express or an im- 
 plied mutual engagement, binding one party to em- 
 ploy and remunerate, and the other to serve, for some 
 determinate term or period. If the employer merely 
 agrees to pay so long as the servant continues to 
 
OF MASTER AND 8ERVANT. 
 
 301 
 
 serve, leaving it optional either with the servant to 
 serve or with the employer to employ, there is no 
 contract of hiring ,and service ; but if the servant 
 binds himself to serve for some determinate term, 
 and the employer, expressly or impliedly, agrees or 
 promises to retain the servant in his service for 
 the term, there is a contract of hiring and service. 
 
 A contract of hiring and service need not be au- 
 thenticated by writing unless the hiring exceeds a 
 year in duration. The Master and Servant Act 
 (Cons. St. U. C, cap. ITS, s. 3) provides that "a 
 verbal agreement shall not exceed the term of one 
 year." In the absence of an express contract be- 
 tween the parties, a hiring may be presumed from 
 the mere fact of the service, unless the service has 
 been with i*::ar relations. If a man, for example, 
 serves a stranger in the capacity of a clerk, or of 
 a domestic servant, or farm-servant, for a continued 
 period, the law presumes that the service has been 
 rendered in fulfilment of a contract of hiring and 
 service ; and if the party has served without any thing 
 being said as to wages, the law presumes that the 
 parties agreed for customary and reasonable wages. 
 But if the service has been with the parent or uncle, 
 or other near relation, of the party serving, a hiring 
 cannot be implied or presumed from it, but an ex- 
 press hiring must be proved in order to support a 
 claim for wages ; for the law regards services rendered 
 by near relations to one another as gratuitous acts of 
 kindness and charity, and does not presume that they 
 are to be paid for unless there is an express agree- 
 ment to that effect. 
 
802 
 
 CANADIAN DOMESTIC LAWYEB. 
 
 When the employment of a servant is of a per- 
 manent nature, and annual wages are to be paid, the 
 hiring is in all cases a yearly hiring; and when the 
 servant is not a household or domestic servant, the 
 hiring cannot be put an end to by either party, 
 without the consent of the other, before the ter- 
 mination of the current year. A general hiring of 
 household or domestic servants, where no time is 
 mentioned for the duration of the service, is a hiring 
 for a year, and so on from year to year, determinable 
 by custom and usage, at the option of either of the 
 parties, on giving a month's warning or tendering a 
 month's wages. When wages are to be paid weekly, 
 and there is nothing in the original contract import- 
 ing a different agreement, the hiring is a weekly 
 hiring, and may be terminated by a week's warning 
 or a week's wages. 
 
 It is the first duty of the master, after the contract 
 of hiring and service has been entered into, to take 
 the servant into his employ, and enable him to earn 
 the hire or reward agreed to be paid, and if he 
 neglects so to do, he renders himself liable forthwith 
 to an action for a breach of contract. Every servant, 
 on the other hand, impliedly undertakes to obey the 
 just and reasonable commands of the master, and to 
 be careful, diligent, and industrious in the perform- 
 ance of the work intrusted to him to execute. 
 He is not bound to fulfil the unjust and unreasonable 
 commands of a hard taskmaster, nor to perform work 
 and services not fairly coming within the scope of his 
 employment. 
 
 If a servant wilfully disobeys or habitually neglects 
 
or MASTER AND SEBVAKT. 
 
 303 
 
 per- 
 , the 
 I the 
 , the 
 arty, 
 I ter- 
 ig of 
 ne is 
 liring 
 inable 
 >f the 
 ring a 
 eekly, 
 nport- 
 veekly 
 arning 
 
 mtract 
 o take 
 
 earn 
 if he 
 thwith 
 ervant, 
 >ey the 
 and to 
 erform- 
 xecute. 
 sonahle 
 m work 
 
 of his 
 
 aeglects 
 
 the just and reasonable orders of the master, if he ab- 
 sents himself repeatedly from the service, or refuses 
 to perform his work or to submit to the domestic 
 regulations of the house, or is guilty of gross moral 
 misconduct, the contract may be dissolved by the 
 master, and the servant dismissed. 
 
 II' a household servant hired for a year or any 
 portion of a year is hurt or disabled, or falls sick, 
 whilst doing his master^s business, the master is not 
 entitled to make any deduction from the agreed wages 
 for the time that the servant was incapacitated for 
 the performance of his ordinary work. And if after 
 having taken the servant in his service he improperly 
 dismisses him, or prevents him by a continued system 
 of persecution from continuing in his service, he is 
 bound to make compensation to the servant for all 
 the damages sustained by the latter; for the law 
 implies, from a person who contracts to pay a salary 
 for services for a certain term, a contracf to permit 
 those services to be performed. 
 
 When the employer exercises some trade, craft, or 
 mystery, and it is made part of the agreement that 
 he shall teach as well as employ, and remunerate the 
 servant for some specific period in return for the 
 service rendered, the contract amounts to an appren- 
 ticeship. Contracts of apprenticeship, being usually 
 for mor^ than one year, require to be in writing. 
 An indenture of apprenticeship is sufficiently - exe- 
 cuted by the apprentice desiring a bystander to write 
 his name opposite the seal, and by his then taking 
 the deed and delivering it to his master. 
 
 As the contract of apprenticeship is invariably 
 
804 
 
 CANADIAN DOMESTIC LAWYER. 
 
 created by deed, the liabilitiea resulting therefrom 
 will depend upon the terms and covenants of the par- 
 ticular contract. The apprentice and his father, or 
 some one or more of his relations or friends, usually 
 covenant that he shall faithfully serve the master 
 during the term of the apprenticeship, keep his 
 secrets, obey his lawful commands, and preserve and 
 protect his property, and, generally, that he shall 
 behave himself in all things as a faithful apprentice. 
 
 The master usually covenants to take the appren- 
 tice into his service and teach him the art or trade he 
 himself exercises or carries on ; to find him in meat, 
 drink, and lodging, and sometimes with wearing-ap- 
 parel, washing, and all other necessaries, during the 
 term. The sickness of the apprentice, or his inca- 
 pacity to serve and to learn by reason of ill health, 
 or un accident, does not discharge the master from 
 his covenant to provide for him and to maintain him, 
 inasmuch %s the latter takes him for better and for 
 worse, and must minister to his necessities in sickness 
 as well as in health. 
 
 Voluntary contracts of service or indentures en- 
 tered into by any parties within Upper Canada are 
 not binding for a longer period than nine years from 
 the day of the 4ate of the contract. 
 
 There are two acts of Parliament bearing par- 
 ticularly upon the subject of this chapter, — tlie 
 "Master and Servant Act," Cons. St. U. C, cap. 75, 
 and the "Act respecting Apprentices and Minors," 
 Cons. St. U. C, cap. 1Q. f- 
 
 The forme 1 of these acts provides that if after 
 any engagement has been entered into, and during 
 
OF MASTER AND 8EKVANT. 
 
 805 
 
 5fi'0m 
 
 3 par- 
 
 er, or 
 
 Bually 
 
 nastor 
 
 ip his 
 
 vii and 
 
 ) shall 
 
 itice. 
 
 ippren- 
 
 rado he 
 
 [1 meat, 
 
 L*ing-ap- 
 
 ing the 
 
 lis inca- 
 health, 
 
 ■er from 
 
 lin him, 
 and for 
 sickness 
 
 ares en- 
 lada are 
 ars from 
 
 ing par- 
 ,er,— the 
 cap. V5, 
 Minors," 
 
 if after 
 d during 
 
 the period of such engagement, the servant refuses 
 to go to work, or without. permission or Jiisrhargo 
 leaves the employ of the mastc*, or rcfusi** to obey 
 his lawful commands, or neglecu the service or 
 injures the property of the master, the oftender, on 
 complaint of the master, shall be liable to the punish- 
 ment provided by the act; and that if any tavern or 
 boarding-house keeper, or other person, induces or 
 persuades any servants or laborers to confederate for 
 demanding extravagant or high wages, and prevents 
 their hiring, then, on due proof of offence, such 
 tavern-keeper shall forfeit his license, in addition to 
 any fine, and be subject to fine or imprisonment. 
 
 The penalty for contravention of the foregoing pro- 
 visions is a fine not exceeding twenty dollars, or im- 
 prisonment not exceeding one month nor loss than 
 one day. 
 
 If a master refuses to pay his servant's wages, or 
 ill uses him, or refuses to provide necessary food, the 
 servant may apply to a justice of the peace, who 
 may discharge the servant from the employ of such 
 master and may order payment of any wages found 
 due, not exceeding forty dollars. 
 
 Any person who thinks himself aggrieved by any 
 such conviction, or order for payment of wages, may 
 appeal to the Quarter Sessions against such con- 
 viction or order. 
 
 The act respecting apprentices and minors pro- 
 vides that where a minor (that is, a person under 
 twenty-one years of age) over the age of sixteen, 
 wh« has no parent or legal guardian, or who does not 
 reside with such parent or guardian, enters into an 
 
 'dttfc 
 
'^' 
 
 306 
 
 CANADIAN DOMESTIC LAWYER. 
 
 »' 
 
 engagement, written or verbal, to perform any service 
 or work, such minor shall be liable upon the same, 
 and shall have the benefit thereof in the same manner 
 as if of legal age. 
 
 A parent or other person having the care or charge 
 of a minor not under the age of fourteen years may, 
 with consent of the minor, put and bind him as an 
 apprentice, by indenture, to any master-mechanic, 
 farmer, or other person carrying on a trade or call- 
 ing, until such minor attains twenty-one. 
 
 When the father of an infant child abandons and 
 leaves the child with the mother, the mother, with 
 the approbation of two justices of the peace, may 
 bind the child as an apprentice until the child attains 
 twenty-one if a male, or eighteen if a female. The 
 mother and the justices must sign the indenture. No 
 child fourteen years old or upwards is to be so aj)- 
 prenticed without his or her consent. 
 
 The mayor, recorder, or police magistrate of any 
 city or town, and m a county the chairman of and 
 at the Quarter Sessions, may apprentice orphan chil- 
 dren, and children who have been deserted by their 
 parents, or whose parents have been committed to 
 gaol. 
 
 If the master of an apprentice dies, the apprentice, 
 by operation of law, and without any new writings, 
 becomes transferred to the person (if any) who con- 
 tinues the master's business. 
 
 A master may transfer his apprentice to any person 
 who is competent to receive or take an apprentice, 
 and who carries on the same kind of business. 
 
 Every master must provide to his apprentice suit- 
 
 able 
 there 
 also I 
 be tai 
 
 EV€ 
 
 obey , 
 self £ 
 sent. 
 
 A n 
 police 
 tice, of 
 provisi( 
 
■'^ 
 
 OP MASTER AND SERVANT. 
 
 307 
 
 able board, lodging, and clothing, or such equivalent 
 therefor as is mentioned in the indenture, and must 
 also properly teach and instruct him, or cause hini to 
 be taught and instructed, in his trade or calling. 
 
 Every apprentice must faithfully serve his master, 
 obey all his lawful commands, and not absent him- 
 self from his service, day or night, without con- 
 sent. 
 
 A master convicted before any justice, mayor, or 
 police magistrate, on the complaint of the appren- 
 tice, of any ill usage, cruelty, or refusal of necessary 
 provisions, is liable to a fine not exceeding twenty 
 dollars and costs, and to imprisonment in default for 
 a term not exceeding one month. 
 
 An apprentice convicted of refusal to obey lawful 
 commands, or of waste or damage to property, or of 
 any other improper conduct, may be imprisoned for a 
 term not exceeding one month. 
 
 An apprentice absenting himself before the time 
 of service expires may be compelled to make good 
 the loss by longer service or pecuniary satisfaction, • 
 and if he refuses or neglects to do so may be com- 
 mitted to gaol for a term not exceeding three months ; 
 but the master must proceed to enforce such service 
 or satisfaction within three years after the expiration 
 of the term for which the apprentice contracted to 
 serve. 
 
 Persons harboring or employing an absconding ap- 
 prentice are liable to pay the master the full value 
 of the apprentice's labor. 
 
 The apprenticeship indentures may be cancelled if 
 the apprentice become insane, or be convicted of 
 
 hi 
 m 
 
 Q 
 
 m 
 
308 
 
 CANADIAN DOMESTIC LAtTYEE. ^^ " 
 
 
 felony, or be sentenced to the provincial penitentiary, 
 or abscond. The master must, within one month, 
 give notice in writing to the other parties to the 
 indenture of his intention to cancel the indentures, 
 which notice must be served on the parties, or pub- 
 lished in the gazette or in a local county or city 
 newspaper. 
 
 Masters or apprentices may appeal to the Quarter 
 Sessions against any magistrate's decision. 
 
 » 
 
 Apprenticeship Indenture. 
 
 This Indenture, made the day of , 
 
 1 8 , Between William Jones, of the town of Strat- 
 ford, in the county of Perth and Province of Canada, 
 Esquire, of the first part, Henry Jones, his son, now 
 of the age of fifteen years, of the second part, and 
 Thomas Mcintosh, of the same place, printer, of the 
 third part, Witnesseth^ That the said William Jones, 
 with the consent of his said son Henry Jones (a 
 minor now of the age of fifteen years or thereabouts), 
 testified by, his being a party to and executing these 
 presents, doth hereby put, place, bind, and indent 
 him, the said Henry Jones, to the said Thomas 
 Mcintosh, to learn the art and trade of a printer, 
 and with him, the said Thomas Mcintosh, his execu- 
 tors, administrators, and assigns, after the manner 
 c" an apprentice to dwell and serve from the day of 
 the date hereof until the day of ? 18 j 
 
 being a period of years, when the said minor 
 
 will arrive at the age of twenty-one years. 
 
 And the said William Jones doth hereby, for hini- 
 Belf, his heirs, executors, and administrators, cove- 
 
•:t* 
 
 OF MASTER AND SERVANT. 
 
 309 
 
 nant, promise, and agree to and with the said Thomas 
 Mcintosh, his executors, administrators, and assigns, 
 
 that during the said term of 
 
 years the said 
 
 Henry Jones shalhwell and faithfully serve the said 
 Thomas Mcintosh, his secrets keep and lawful com- 
 mands at all times obey, and shall give and devote 
 to him his whole time and labor; that he shall not 
 marry during said term, nor use ardent spirits, nor 
 practice gaming or any other unlawful sports, nor 
 waste, injure, or destroy the property of his master, 
 but conduct himself in a sober, temperate, honest 
 manner, and as a good and faithful apprentice ought 
 to do, during all the time aforesaid. 
 
 And the said Thomas Mcintosh, for himself, his 
 heirs, executors, and administrators, doth hereby cove- 
 nant, promise, and agree to and with the said Wil- 
 liam Jones, his executors and administrators, that he, 
 the said Thomas Mcintosh, his executors and ad- 
 ministrators, shall and v/lll teach and instruct, or 
 cause to be taught and instructed, the said Henry 
 Jones in the art, trade, and mystery of a Printer, 
 and shall and will find and provide for the said 
 apprentice sufficient meat, drink, apparel, washing, 
 and lodging during the said term; and at the ex- 
 piration thereof shall and will give his said appren- 
 tice two suits of apparel {any other special terms may 
 he here inserted)] and the said Thomas Mcintosh 
 further agrees to pay to the said William Jones, 
 fiither of the said Henry Jones, the following sums of 
 money, to wit: for the first year's service, twenty- 
 five dollars; for the second year's service, seventy- 
 five dollars ; and for each and every subsequent year, 
 
 -M 
 
 
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 uU 
 
 
310 
 
 m 
 
 CANADIAN DOMESTIC LAWYER. 
 
 H^s* 
 
 € 
 
 ■»?V* 
 
 # 
 
 
 until the completion of his term, one hundred dollars; 
 which said payments are to be made on the first day 
 of May in each year. '*'• 
 
 And for the true performance t)f all and singular 
 the covenants and agreements hereinbefore contained, 
 4he said parties bind themselves each unto the other, 
 jointly by these presents. 
 
 In Witness Whereof, the said parties to these pre- 
 sents have hereunto set their hands and seals, the day 
 and year first above written. 
 
 " ^ William Jones. [l. s.] 
 
 Heney Jones. [l. s.] 
 
 Thomas McIntosh. [l. s.] 
 Signed and sealed in the presence of 
 Robert Johnson. 
 
 Indenture of Apprenticeship for a Girl to learn House- 
 work, etc. 
 
 This Indenture, made the day of , 
 
 18 , Between Mary Flannigan, of the township 
 of Elma, in the county of Perth, Widow, of the first 
 part, Sarah Flannigan, her daughter, now of the 
 age of fifteen years, of the second part, and Robert 
 Halifax, of the same township. Farmer, of the tliird 
 part, WITNESSETH that the said Sarah Flannigan, 
 by and with the consent of the said Mary Flannigan 
 her mother, testified by her execution of these pre- 
 sents, hatji bound and put herself, and by these pre- 
 sents doth bind and put herself, apprentice to tlie 
 said Robert Halifax, with him to dwell and serve 
 from the day of the date hereof until the full end of 
 the term of six years next ensuing, fully to be com- 
 
 plete( 
 
 Sarah 
 
 will s 
 
 powei 
 
 all thi 
 
 mastei 
 
 Ani 
 
 and in 
 
 the sai 
 
 wifery, 
 
 conned 
 
 be tan£ 
 
 readinof 
 
 coniraor 
 
 the said 
 
 meat, di 
 
 necessar 
 
 said shal 
 
 suits of 
 
 In Wj 
 
 Signec 
 Thomas 
 
 Know I 
 within nj 
 sent of 
 and Willi 
 parties tl 
 
 ir. 
 
 g 
 
OP MASTER AND SERVANT. 
 
 3ll 
 
 pleted and ended; during which term the said 
 Sarah Jlannigan her said master faithfully shall and 
 will serve in all lawful business, according to her 
 power and ability, and honestly and obediently in 
 all things demean and behave herself toward her said 
 master during the term aforesaid. 
 
 And the said Robert Halifax shall and will teach 
 and instruct, or cause to be taught and instructed, 
 the said apprentice in sewing, knitting, and house- 
 wifery, the management of the dairy, and all matters 
 connected with the calling of a farmer, properly to 
 be taught to her the said apprentice, together with 
 reading, writing, and the other usual branches of a 
 common school education ; and shall and will during 
 the said term find, provide, and allow her sufficient 
 meat, drink, clothing, lodging, washing, and all other 
 necessaries; and at the expiration of the term afore- 
 said shall and will give unto the said apprentice two 
 suits of apparel. 
 
 In Witness, &c. (Conclude as in last form). 
 
 Maey Flannigan. [l. s.] 
 Saeah Flannigan. [l. s.] 
 Robert Halifax. [l. s.] 
 
 Signed, &c., 
 Thomas Jones. . it. 
 
 ^1! 
 
 ,-^. 
 
 
 :|p 
 
 \fm?k 
 
 Assignment of an Indenture of Apprenticeship. 
 
 Know all Men by these Presents, that I, the 
 within named Thomas Mcintosh, by and with the con- 
 sent of Henry Jones, my within named apprentice, 
 and William Jones, his father {or as the case may be), 
 parties to the within Indenture, testified by their 
 
 
 'f !i'^' 
 
 
4^ 
 
 •i 
 
 312 
 
 CAN^ADIAN DOMESTIC LAWYER, 
 
 'mi- 
 
 signing and sealing these presents, for divers good 
 causes and considerations have assigned and set over, 
 and do hereby assign and set over, the within Inden- 
 ture, and the said Henry Jones, tho apprentice within 
 named, unto Joseph Thomson, of the City of London, 
 Canada West, Printer, his executors, administrators, 
 or assigns, for the residue of the within mentioned 
 term, he and they performing all and singular the 
 covenants therein contained on my part to be kept 
 and performed. ?^^ 
 
 And I, the said Henry Jones, do hereby covenant 
 on my part, with the consent of my father, the said 
 William Jones, faithfully to serve the said Joseph 
 Thomson as an apprentice for the residue of the term 
 within mentioned, and to perform toward him all and 
 singular the covenants within mentioned on my part 
 to be kept and performed. 
 .^^ And I, the said Joseph Thomson, for myself, my ex- 
 ecutor3, administrators, and assigns, do hereby cove- 
 nant to perform all and singular the covenants 
 within mentioned on the part of the said Thomas 
 Mclntosli to be kept and performed toward the said 
 apprentice. ' **s^,.-* . 
 
 Witness our hands and seals this day 
 
 of . • ,18 . 
 
 Th JMAS McIntosii. [l. s.] 
 Henry Jones. [l. s.] 
 
 William Jones. [l. s.] 
 
 Joseph Thomson. [l. s.] 
 
 Signed, sealed, <fcc., 
 James Smith. 
 
 t^ 
 
 "J 
 
 A 
 
 grants 
 
 transft 
 
 subject 
 
 a day i 
 
 the del 
 
 his lane 
 
 enjoy tJ 
 
 made. 
 
 is callec 
 
 is madel 
 
 scriptio^ 
 
 gaged 
 
 by the 
 
 If the di 
 
 niortgaf 
 
 the proj 
 
 of the n 
 
 session 
 give thel 
 within t\ 
 P'*ncipalj 
 the arpof 
 to I'evestI 
 »ary moi 
 
 % 
 
 m 
 
^■ 
 
 
 ill.* 
 
 OF MORTGAGES. 
 
 313 
 
 )od 
 
 rer, 
 
 len- 
 
 thin 
 
 ion, 
 
 tors, 
 
 oned 
 
 : the 
 
 kept 
 
 ^i 
 
 CHAPTER XIV. 
 
 Of Mortgages* 
 
 A Mortgage is a contract whereby a debtor 
 grants or conveys some estate or interest in land, or 
 transfers certain goods and chattels, to his creditor, 
 subject to a proviso that, if the debt is discharged by 
 a day named, the grant or transfer shall be void, and 
 the debtor shall be entitled to repossess himself of 
 his lanoo or of his goods and chattels, and hold and 
 enjoy them as if the grant or transfer had never been 
 made. The debtor who makes the grant or transfer 
 is called the Mortgagor^ and the creditor to whom it 
 is made, the Mortgagee. By a contract of this de- 
 scription the right of property in the thing mort- 
 gaged passes to the creditor, subject to be divested 
 by the payment of the debt at the appointed time. 
 If the debt be then paid, the property revests in the 
 ' mortgagor without any conveyance ; but if ^^^ PA^d 
 the property, at law, becomes the absolute property 
 of the mortgagee, and he may proceed to take pos- 
 session of it. The Court of Chancery will, however, 
 give the mortgagor liberty to redeem at any time 
 within twenty years, on payment of what is due for 
 principal and interest. When the debt is paid after 
 the appointed day, a reconveyance becomes necessary 
 to revest the property in the mortgagor. The ordi- 
 nary mortgage discharge operates as a reconveyance, 
 14 
 
 I 
 
 s 
 
 ■\ ; <^ 
 
« > i 
 
 ♦ 314 
 
 CANADIAN DOMESTIC LAWYEK. 
 
 .# 
 
 .,^ 
 
 and is sufficient, without any more formal instrument, 
 to restore the title to the mortgagor. ^ 
 
 It will not be expected that we should enter very 
 deeply into the law of mortgages : the subject is much 
 too voluminous and intricate to be discussed at large. 
 
 Mortgages require to be in writing, and must be 
 by deed under seal. The mode of executing a mort- 
 gage is the same as that of any other deed; and they 
 require to be registered in the County Registry Office. 
 
 There are several ways of enforcing payment of a 
 mortgage. The mortgagee may bring an action at 
 law, or he may foreclose or sell in chancery, or he 
 may proceed to sell, without any suit or action, where 
 the mortgage contains a power of sale. 
 
 Sometimes, though rarely now, instead of taking a 
 mortgage deed, the creditor takes an absolute convey- 
 ance and £ \ 'es back a bond to reconvey. The Court of 
 Chancery looks upon such a transaction in the same 
 light as a mortgage, and, notwithstanding the money 
 may not be paid at the time named in the bond, will 
 order the creditor to reconvey the land on payment of 
 principal and interest any time within twenty years. 
 
 The wife should be made a party to the mortgage, 
 in the same way as to a deed, in order to bar her 
 dower in the lands. 
 
 A mortgage may be made of a lease as well as of 
 any other property. We have already given the fern) 
 of a Chattel Mortgage : the following forms will ^ake 
 the list complete for all ordinary purposes. 
 
 Mortgage in Fee of Real Estate. 
 
 This Indenture, made the 
 
 # 
 
 day of 
 
 # 
 

 OF MORTGAGES. 
 
 315 
 
 in the year of our Lord" one thousand eight hun- 
 dred and , Between , of the first part, 
 , wife of the said party of the first part, of 
 the second part, and , of the third part, 
 WITNESSETH, that the said party of the first part, for • 
 and in consideration of the sum of , of lawful 
 money of Canada, to him by the said party of the 
 third part in hand well and truly paid (the receipt 
 whereof is hereby acknowledged). Hath granted, 
 bargained, sold, aliened, released, enfeoffed, con- 
 veyed, and confirmed, and by these presents Doth 
 grant, bargain, sell, alien, release, enfeoff", convey, 
 and confirm, unto the said party of the third part, 
 heirs and assigns, All and singular th cer- 
 tain parcel or tract of land and premises situate, 
 lying, and being in the of , in the 
 County of , of the Province of Canada, being 
 composed of , Together with all and sin- 
 gular the houses, out-houses, buildings, woods, ways, 
 water-courses, easements, profits, privileges, emolu- 
 ments, hereditaments, and appurtenances whatsoever 
 to the said parcel or tract of land, tenements, 
 hereditaments, and premises belonging, or in any 
 wise appertaining, or therewith used and enjoyed, or 
 known or taken as a part or parcel thereof, or any 
 part thereof, and the reversion and reversions, re- 
 mainder and remainders, rents, issues, and profits 
 thereof, and every part and parcel thereof, and all 
 the estate, right, title, interest, use, trust, claim, pro- 
 perty, and demand, both at law and in equity, of 
 him, the said party of the first part, of, in, to, or out 
 of the same, and every part and parcel thereof. To 
 
 <i'< 
 
 *■ 
 
316 
 
 CANADIAN DOMESTIC LAWYER. 
 
 HATB AND TO HOLD the Said lands, tenements, here- 
 ditaments, and premises, and all and singular other 
 the premises hereby conveyed or mentioned, or in- 
 tended so to be, with their and every of their appur- 
 tenances, unto the said party of the third part, 
 heirs and assigns, to the sole and only use of the said 
 party of the third part, heirs and assigns, forever, 
 Subject nevertheless to the reservations, limitations, 
 provisoes, and conditions expressed in the original 
 grant thereof from the Crown; And this Indenture 
 FURTHER WITNESSETH, that the Said party of the 
 second part, with the privity and consent of her said 
 husband, testified by his execution hereof, in 'con- 
 sideration of the premises, and also in consideration 
 of the further sum of five shillings, of lawful money 
 of Canada aforesaid, to her by the said party of the 
 third part in hand well and truly paid (the receipt 
 whereof is hereby acknowledged), hath remise "t, re- 
 leased, and forever relinquished and quitted claim, 
 and by these presents doth remise, release, and for- 
 ever relinquish and quit claim, unto the said party of 
 the third part, heirs, executors, administrators, 
 
 and assigns, all dower, and all right and title thereto, 
 which she, the said party of the second part, now 
 hath, or, in the event of surviving her said husband, 
 can or may or could or might hereafter in any wise 
 liave or claim, whether at common law or otherwise 
 howsoever, of, in, to, or out of the lands, tenements, 
 hereditaments, and premises hereby conveyed, or 
 hereinbefore mentioned or intended so to be con- 
 veyed, with the appurtenances, or of, in, to, or out 
 of the same, or any part thereof: Provided always. 
 
OF MORTGAGES. 
 
 ai7 
 
 and these presents are upon this express condition, 
 that if the said party of the first part, his heirs, exe- 
 cutors, or administrators, or any of them, do and 
 shall well and truly pay, or cause to be paid, unto 
 the said party of the third part, executors, admi- 
 nistrators, or assigns, the just and full sum of , 
 of lawful money of Canada, with interest thereon at 
 the rate of per cent, per annum, on the day and 
 time and in manner following, that is to say : 
 without any deduction or abatement out of the same 
 for or in respect of any taxes, rates, levies, charges, 
 rents, assessments, statute-labor, or other impositions 
 whatsoever, already rated, charged, assessed, or im- 
 posed, or hereafter to be rated, charged, assessed, or 
 imposed, by authority of Parliament or otherwise 
 howsoever, on the said lands, tenements, 'heredita- 
 ments, and premises, with their appurtenances, or on ^ 
 the said party of the third part, in respect of said 
 premises or of said money, or for or in respect of 
 any other matter or thing whatsoever; and, more- 
 over, until default shall happen to be made of or in 
 the payment of the said sum of money in this proviso 
 mentioned, or of or in the interest thereof, do and 
 shall well and truly pay, do, and perform, or cause 
 or procure to be paid, done, and performed, all the 
 taxes, rates, levies, charges, rents, assessments, sta- 
 tute-labor, and other impositions aforesaid; Then, 
 from and immediately after such payment, so made 
 as aforesaid, and the observance, performance, and 
 fulfilment of all and every of the provisions, agree- 
 ments, and stipulations in this proviso particularly 
 set forth, these presents, and every clause, covenant, 
 
 ¥ 
 
 Ml 
 
 
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 't '1 
 
 f^h 
 
 
 1 > . 
 
318 
 
 CANADIAN DOME8TI0 LAWYER. 
 
 matter, and thing herein contained, shall be abso- 
 lutely null and void to all intents and purposes what- 
 soever, as if the same had never been made : And 
 the said party of the first part doth hereby, for him- 
 self, his heirs, executors, and administrators. Cove- 
 nant, Promise, and Agkee to and with the said 
 party of the third part, heirs and assigns, in 
 
 manner following, that is to say : That lie, the said 
 party of the first part, his heirs, executors, or ad- 
 ministrators, or some or one of them, shall and will 
 well and truly pay, or cause to bo paid, unto the said 
 party of the third part, heirs, executors, adminis- 
 trators, or assigns, the said sum of money in the 
 above proviso mentioned, with interest for the same 
 as aforesaid, at the day and time and in manner 
 above limited for payment thereof, and shall and will 
 in every thing well, faithfully, and truly do, observe, 
 perform, fulfil, and keep all and singular the pro- 
 visions, agreements, and stipulations in the said above 
 proviso particularly set forth, according to the true 
 intent and meaning of these presents and of the said 
 above proviso : And also, that he, the said party 
 of the first part, at the time of the ensealing and de- 
 livery hereof, . is and stands solely, rightfully, and 
 lawfully seised of a good, sure, perfect, absolute, and 
 indefeasible estate of inheritance, in fee simple, of 
 and in the lands, tenements, hereditaments, ar.d all 
 and singular other the premises hereinbefove de- 
 scribed, with their and every of their appurtenances, 
 and of and in every part and parcel thereof, without 
 any n^anner of trust, reservations, limitations, pro- 
 visoes, or conditions, or any other matter or thing, to 
 
 alter, < 
 
 And a 
 
 now h}i 
 
 and ab 
 
 of the I 
 
 mises, ; 
 
 appurte 
 
 1 
 
OF MOKTGAGKS. 
 
 ai9 
 
 alter, charge, cliangc, encumber, or defeat the same: 
 AxD ALSO, THAT ho, the said party of the first part, 
 now hath in himself gooil right, full power, and lawful 
 and absolute authority, t'^ alien, convey, and dispose 
 of the said lands, tenenit its, hereditaments, and i)re- 
 niises, and every part and parcel thereof, with tho 
 appurtenances, unto the said party of the third part, 
 if" heirs and assigns, in manner and form afore- 
 said : And also, that from and after default shall 
 happen to bo made of or in the payment of the said 
 sum of money in the said above proviso mentioned, 
 or the interest thereof, or any part thereof, or of or 
 in the doing, observing, performing, fulfilling, or 
 keeping some one or more of the provisions, agree- 
 ments, or stipulations in the said above proviso par- 
 ticularly set forth, contrary to the true intent and 
 meaning of these presents and of the said proviso, 
 then and in every such case it shall and may be law- 
 ful to and for the said party of the third part, 
 heirs and assigns, peaceably and quietly to enter 
 into, have, hold, use, occupy, possess, and enjoy the 
 aforesaid lands, tenements, hereditaments, and pre- 
 mises hereby conveyed, or intended so to be, v'th 
 the appurtenances, without the let, suit, hindrance, 
 interruption, or denial of him, the said party of the 
 first part, his heirs or assigns, or any other person 
 or persons whomsoever, and -"hat free and clear, and 
 freely and clearly acquitted, exonerated, and dis- 
 charged of and from all arrears of taxes and assess- 
 ments whatsoever, due or payable upon or in respect 
 of the said lands, tenements, hereditaments, and pre- 
 mises, or any part thereof, and of and from all former 
 
 IS* 
 
 i 
 
 i\ 
 
 ill 
 
 
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 it 
 
 fW 
 
 
 wM 
 
 
 «•' 
 
320 
 
 OAIS-ADIAIT DOMESTIC LAWYER. 
 
 ■w 
 
 conveyances, mortgages, rights, annuities, debts, 
 judgments, executions, and recognizances, and of and 
 from all manner of other charges or incumbrances 
 ■whatsoever: And also, that from and after default 
 shall happen to be made of or in the payment of the 
 said sum of money in-the said proviso mentioned, or 
 the interest thereof, or any part thereof, or of or in 
 the doing, observing, performing, fulfilling, or keep- 
 ing some one or more of the provisions, agreements, 
 or stipulations in the said proviso particularly set 
 forth, contrary to the true intent and meaning of these 
 presents and of the said proviso, he, ♦he said party of 
 the first part, his heirs and assigns, and all and every 
 other person or persons whomsoever having or law- 
 fully claiming, or who shall or may have or lawfully 
 claim, any estate, right, title, interest, or trust of, in, 
 to, or out of the lands, tenements, hereditaments, or 
 premises hereby conveyed, as aforesaid, or intended 
 so to be, with their appurtenances, or any part thereof, 
 by, from, under, or in trust for him, the said party 
 of the first part, shall and will from time to time and 
 at all times thereafter, at the proper costs and charges 
 in the law of the said party of the third part, 
 heirs and assigns, make, do, suffer, and execute, or 
 cause or procure to be made, done, suffered, and exe- 
 cuted, all and every such further and other reason- 
 able act and acts, deed and deeds, devices, convey- 
 ances, and assurances in the law, for the further, 
 better, and more perfectly and absolutely conveying 
 and assuring* of the said lands, tenements, herejdita- 
 ments, and premises, with the appurtenances, unto 
 the said party of the third part, heirs and assigns, 
 
OF MORTGAGES. 
 
 321 
 
 and 
 mces 
 sfuult 
 f the 
 jd, or 
 or in 
 keep- 
 nents, 
 ly set 
 r tliese 
 irty of 
 , every 
 )r law- 
 iwfully 
 , of, in, 
 nts, or 
 tended 
 hereof, 
 I party 
 me and 
 charges 
 irt, 
 
 cute, or 
 ,nd exe- 
 
 reason- 
 
 convey- 
 
 further, 
 
 »nveying 
 
 lere^ita- 
 
 les, unto 
 
 assigns, 
 
 as by the said party of the third part, heirs and 
 assigns, or , or their counsel learned in the law, 
 
 shall be lawfully and reasonably devised, advised, or 
 required; And lastly, it is hereby declared and 
 agreed, by and between the said parties to these pre- 
 sents, that until default shall happen to be made of 
 or in the payment of the said sum of money io the 
 above proviso mentioned, or of or itfthe interest 
 thereof, or of or in the doing, observing, performing, 
 fulfilling, or keeping some one or more of the pro- 
 visions, agreements, or stipulations in the said above 
 proviso particularly set forth, contrary to the true 
 intent and meaning of the said above proviso, it shall 
 and may be lawful to and for the said party of the first 
 part, his heirs and assigns, peaceably and quietly to 
 have, hold,use, occupy, possess, and enjoy the said lands, 
 tenements, hereditaments, and premises, and every part 
 thereof, with the appurtenances above mentioned to be 
 hereby conveyed, as aforesaid, and receive and take the 
 rents, issues, and profits thereof, to his and their own 
 use and benefit, without the let, suit, hindrance, inter- 
 ruption, or denial of or by the said party of the third 
 part, heirs, executors, administrators, or assigns, or 
 of or by any other person or persons whomsoever law- 
 fully claiming, or who shall or may lawfully claim, by, 
 from, or under , them, or any or either of them. 
 
 In Witness Whereof, the parties to these presents 
 have hereunto set their hands and affixed their seals, 
 the day and year first above written. 
 
 Signed, sealed, and delivered | 
 
 in the presence of . J 
 
 14* - 
 
322 
 
 CANADIAN" DOMESTIC LAWYER. 
 
 • Received, on the day of the date of this Inden- 
 ture, the sum of , of lawful money of Canada, 
 beinor the full consideration therein mentioned. 
 
 4 
 
 Mortgage in Fee. 
 
 SHORTER FORM. 
 
 This Indbnture, made the day of , in 
 
 the year of our Lord one thousand eight hundred and 
 , Between * , of the first part, , 
 
 wife of the said party of the first part, of the second 
 part, and » o^* the third part, Witnesseth, 
 
 that the said party of the first part, in consideration 
 of the sum of , of lawful money of Canada, 
 
 to him by the said part of the third part in hand 
 paid at or before the sealing and delivery of these 
 presents (the receipt whereof is hereby acknowledged), 
 Doth grant, bargain, sell, release, convey, and con- 
 firm unto the said part of the third part, heirs 
 and assigns. All and singular th certain parcel 
 or tract of land and premises situate, lying, and 
 being 
 
 Together with the appurtenances, and the rever- 
 sion and reversions, remainder and remainders, rents, 
 issues, and profits thereof, and all the estate, right, title, 
 interest, use, trust, claim, property, and demand, both 
 at law and in equity, of him, the said party of the 
 first part, of, in, to, or out of the same. 
 
 To have and to hold the said lands, tenements, 
 hereditaments, and premises, and all and singular 
 other the premises hereby conveyed, or intended so 
 to be, with the appurtenances, unto the said part 
 
 # 
 
OF MORTGAGES. 
 
 323 
 
 in 
 
 of the third part, heirs and assigns, to the sole 
 and only use of the said part of the third part, 
 heirs and assigns, forever. Subject to the reserva- 
 tions, limitations, provisoes, and conditions expressed 
 in the original grant thereof from the Crown. 
 
 And this Indentueb fukther witnesbkth, that 
 the said party of the second part, wife of the said party 
 of the first part, with the privity and consent of her said 
 husband, testified by his being a party to and executing 
 these presents, in consideration of the premises and of 
 the sum of five shillings to her paid by the said part 
 of the third part, the receipt whereof is hereby acknow- 
 ledged. Doth hereby remise, release, and forever relin- 
 quish and quit claim unto the said part of the third 
 part, heirs, executors, administrators, and assigns, 
 all dower and .11 right and title thereto which she, the 
 said party of the second part, now hath or in the event 
 of surviving her said husband can or may hereafter 
 have or claim, whether at common law or otherwise, 
 of, in, to, or out of the said lairds, tenements, heredita- 
 ments, and premises, or any part thereof. 
 
 Provided always, and these presents are upon 
 this express condition, that if the said party of the 
 first part, his heirs, executors, administrators, or as- 
 signs, or some or one of them, do and shall well and 
 truly pay, or cause to be paid, unto the said part 
 of the third part, executors, administrators, or 
 
 assigns, the said sum of , , with interest there- 
 on, at per cent, per annum, at the times and in 
 manner following, that is to say : without 
 making any deduction, defalcation, or abatement 
 thereout in respect of any taxes, assessments, or 
 
 ■*♦! 
 
 m 
 
 >.»i 
 
824 
 
 CANADIAN DOMESTIC LAWYER. 
 
 otherwise, now or hereafter to be assessed or imposed 
 on the said lands, tenements, hereditaments, and pre- 
 mises, or any part thereof, by authority of Parlia- 
 ment or otherwise howsoever, then and from thence- 
 forth this Indenture, and every clause, matter, and 
 thing herein contained, shall absolutely cease, deter- 
 mine, and be void to all* intents an 1 purposes what- 
 soever, as if the same had never been made. 
 
 And the said party of the first part doth hereby, 
 for himself, his heirs, executors, administrators, and 
 assigns, Covenant, Promise, and Agree to and 
 with the said part of the third part, heirs and 
 
 assigns ; 
 
 That he, the said party of the first part, his heirs, 
 executors, administrators, or assigns, or some or one of 
 them, shall and will well and truly pay, or cause to 
 be paid, unto the said part of the third part, 
 executors, administrators, or assigns, the said prin- 
 cipal sum and interest in the above proviso men- 
 tioned, on the days and times and in manner above 
 limited for payment thereof, according to the true 
 intent and meaning of these presents. 
 
 And also, that he, the said party of the first part, 
 at the time of the sealing and delivery of these pre- 
 sents, is lawfully seised in fee of the said lands, 
 tenements, hereditaments, and premises, without any 
 manner of use, trust, reservation, limitation, or con- 
 dition, to alter, change, charge, incumber, or defeat 
 the same. 
 
 And also, that he, the said party of the first part, 
 now has in himself good right, full power, and lawful 
 and absolute authority to convey and assure the said 
 
 ■m!- 
 
OF MORTGAGES. 
 
 325 
 
 premises hereby conveyed, or intended so to be, unto 
 the said part of the third part, heirs and as- 
 
 signs, in manner aforesaid, and according to the true 
 intent and meaning of these presents. - • 
 
 And also, that from and after default shall happen 
 to be made in payment of the said principal sum, or 
 the interest thereof, in the above proviso mentioned, 
 it shaH^and may be lawful for the said part of 
 the third part, heirs and assigns, peaceably and 
 
 quietly to have, hold, use, occupy, possess, and 
 ENJOY the said lands, tenements, hereditaments, and 
 premises, without the let, suit, hindrance, interruption, 
 or denial of the said party of the first part, his heirs 
 or assigns, or any other person or persons whom- 
 soever, and that free and clear of and from all in- 
 cumbrances whatsoever. 
 
 And also, that from and after such default as 
 aforesaid, he, the said party of th*^, first part, his 
 heirs and assigns, and all other persons having or 
 lawfully claiming any estate, right, title, or interest 
 in the said lands, tenements, hereditaments, and pre- 
 mises, hereby conveyed, or intended so to be, by, 
 from, under, or in trust for the said party of the first 
 part, shall and will, from time to time, and at all times 
 hereafter, at the costs and charges of the said part 
 of the third part, heirs or assigns, make, do, and 
 
 execute, or cause and procure to be made, done, and 
 executed, all such further and other lawful and 
 reasonable conveyances and assurances in the law of 
 the said premises as by the said part of the third 
 part, heirs or assigns, or , their counsel in the 
 law, shall be reasonably devised, advised, and required. 
 
 m 
 
 ^'■i 
 
 ^'■'r* 
 
326 
 
 CANADIAN DOMESTIC LAWYER. 
 
 m 
 
 Pkovided always, and it is hereby declared and 
 agreed, that until default shall be made in payment 
 of the said sum and interest on the days and times 
 in the above proviso limited and appointed for the 
 payment thereof, it shall be lawful for the said party 
 of the first part, his heirs and assigns, peaceably and 
 quietly to hold and enjoy the said premises, and to 
 receive and take the rents and profits thereof to his 
 and their own use and benefit, without the let, suit, 
 hindrance, or interruption of the said part of the 
 third part, or any person or persons claiming, or to 
 claim, by, from, or under ^ 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, 
 the day and year first above written. 
 
 Signed, sealed, and delivered I r , 
 in the presence of V ;#; *j 
 
 Mortgage, in Fee, with Insurance Covenant ^ 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , Between , of the first part, , 
 
 wife of the said party of the first part, of the second 
 part, and , of the third part, Witnesseth, that 
 
 in consideration of the sum of , of lawful money 
 of Canada, to the said party of the first part paid by 
 the said part of the third part, the receipt whereof 
 is hereby acknowledged. 
 
 He, the said party of the first part. Doth grant, 
 bargain, sell, release, convey, and confirm, unto the 
 said part of the third part, heirs and assigns. 
 All th certain parcel or tract of land and pre- 
 
OF MORTGAGES. 
 
 327 
 
 mises situate, lying, and being in the . ^ 
 
 Together with the app rtenances, and all reversions, 
 remainders, rents, issues, and profits thereof, and all 
 the estate, right, title, interest, use, trust, property, 
 possession, claim, and demand of the said party of 
 the first part therein or thereto. ■ ,; 
 
 To HAVE AND TO HOLD the samc, with the appurte- 
 nances,. unto the said part of the third part, 
 heirs and assigns, to the sole and only use of the said 
 part of the third part, heirs and assigns, for- 
 
 ever; . '- ': . , • . , ^ . .■ '.,,■ ; ...■■. 
 
 Subject, nevertheless, to the reservations, limit- 
 ations, provisoes, and conditions expressed in the 
 original grant thereof from the Crown. i . 
 
 And this Indenture further witnesseth, that 
 the said party of the second part, with the privity 
 and consent of her said husband, testified by his 
 being a party to these presents, in consideration of 
 the premises and of the sum of five shillings to her 
 by the said part of the third part paid, at or 
 before the sealing and delivery of these presents, 
 the receipt whereof is hereby acknowledged. Doth 
 remise, release, and forever relinquish and quit claim 
 unto the said part of the third part, heirs, 
 
 executors, administrators, and assigns, all Dower, and 
 all right and title thereto, which she, the said party 
 of the second part, now hath, or in the event of sur- 
 viving her said husband can or may hereafter have 
 or claim, at common law or otherwise howsoever, 
 in, to, or out of the said lands and premises hereby 
 conveyed, or any part thereof. 
 
 Pbovidbd AiiWAYS, that if the said party of the 
 
328 
 
 CANADIAN DOMESTIC LAWYER. 
 
 first part, his heirs, executors, or administrators, do 
 and shall pay unto the said part of the third part, 
 executors, administrators, oi* assigns, the full 
 sum of , with interest for the same at 
 
 per cent, per annum, at the times and in manner 
 following, that is to say, , without any 
 
 deduction or abatement whatsoever, then these pre- 
 sents shall cease and be absolutely void to all in- 
 tents and purposes whatsoever as if the same had 
 never been executed. ' ? t \-.' 
 
 And the said party of the first part doth hereby, 
 for himself, his heirs, executors, and administrators, 
 covenant, promise, and agree to and with the said 
 part of the third part, executors, administra- 
 
 tors, and assigns. That he, the said party of the 
 first part, his heirs, executors, or administrators, 
 or some or one of them, will well and truly pay, 
 or cause to be paid, unto the said part of the third 
 part, executors, administrators, and assigns, 
 
 the said principal money and interest, at the times 
 and in manner hereinbefore appointed for payment 
 thereof, without any deduction or abatement what- 
 soever, and according to the true intout and mean- 
 ing of these presents. - - 
 
 And that the said party of the first part now hath 
 in himself good right to convey the said premises 
 unto the said part v of the third part in manner 
 aforesaid and according to the true intent and mean- 
 ing of these presents. 
 
 And that it shall be lawful for the said part of 
 the third part, heirs and assigns, after default in 
 
 payment of the said principal money and interest, 
 
 peac 
 hold 
 tern 
 first 
 all in 
 A? 
 heirs, 
 estate 
 times 
 at tht 
 third 
 signs, 
 assura 
 premis 
 heirs a 
 part 
 nistrat 
 Pbo^ 
 made i 
 in teres 
 for the 
 assigns, 
 take th( 
 mises, -r 
 ance of 
 heirs or 
 or them 
 
 And 
 for hims 
 lastly CO 
 said par 
 administ 
 
•^ 
 
 « 
 
 or MORTGAGES. 
 
 329 
 
 peficeably and quietly to enter into and upon and to 
 hold and enjoy the said premises, without any in- 
 terruption or disturbance by the said party of the 
 first pari or any other person whomsoever, free from 
 all incumbrances. 
 
 And that the said party of the first part and his 
 heirs, and all persons having or lawfully claiming any 
 estate or interest in the said premises, will at all 
 times hereafter, upon every reasonable request, and 
 at the costs and charges of the said part of the 
 third part, heirs, executors, administrators, or as- 
 signs, make, do, execute, and perfect such further 
 assurances for more effectually conveying the said 
 premises unto the said part of the third part, 
 heirs and assigns, in manner aforesaid, as by the said 
 part of the third part, heirs, executors, admi- 
 nistrators, or assigns, shall be required. 
 
 Provided always, that until default shall be 
 made iu payment of the said principal money and 
 interest as hereinbefore provided, it shall be lawful 
 for the said party of the first part, his heirs and 
 assigns, to hold, occupy, and enjoy, and receive and 
 take the rents and profits of, the said lands and pre- 
 mises, without any molestation, hindrance, or disturb- 
 ance of , the said part of the third part, 
 heirs or assigns, or any person claiming under 
 or them. 
 
 And THE SAID party of the first part doth hereby, 
 for himself, his heirs, executors, and administrators, 
 lastly covenant, promise, and agree with and to the 
 said part of the third part, heirs, executors, 
 
 administrators, and assigns, that he will forthwith 
 
830 
 
 CANADIAN DOMESTIC LAWYER. 
 
 insure, and during the continuance of this security- 
 keep insured, the said messuages and erections on 
 the said land and premises hereby conveyed, in the 
 sum of at the least, in some respectable insurance 
 office, to be approved of by the said part of the 
 third part, in the names of the said parties of the 
 first and third parts respectively, and from time to 
 time pay the premiums for keeping the said policy on 
 foot as the same shall become due, and produce the 
 receipts therefor when required by the said part 
 of the third part, and in case of fire shall and will 
 forthwith rebuild the said messuages and premises 
 and apply the money to be received from such insu- 
 rance office therefor or apply the same in payment 
 of the principal money and interest hereby secured, 
 so far as the same will extend; and that in case 
 the said party of the first part shall omit or neglect 
 to efiect or keep on foot such insurance, it shall be 
 lawful for the said part of the third part so to 
 do, and that the sums paid for such purpose shall 
 form a lien on the premises hereby conveyed, and 
 carry interest at the rate of six per cent, per annum, 
 from the times of such advancement until repay- 
 ment, and that the said premises shall not be re- 
 deemed or redeemable until repayment thereof. 
 
 In Witness Whereof, the parties to these presents 
 have hereunto set their hands and seals, the day and 
 year first above written. 
 
 Signed, sealed, and delivered 
 in the presence of » y 
 
 i 
 
 A I 
 Act oi 
 of Bar 
 date th 
 one the 
 Bet WE 
 »aid pa 
 
 Whe 
 
 the first 
 
 lawful 
 
 thereby 
 
 aliened, 
 
 contirme 
 
 their he 
 
 TRACT 
 
 beinof, 
 
 tenemen 
 
 in any wi 
 
 third pai 
 
 said part 
 
 forever, 
 
 visoes, ai 
 
 thereof f 
 
 And 
 sideratioi 
 part 
 
 forever re 
 unto the 
 executors 
 

 OF MORTGAGES. 
 
 I* 
 
 331 
 
 Memorial to Mortgage in Fee. 
 
 A Memorial (to be registered pursuant to the 
 Act of Parliament in that behalf) of an Indenture 
 of Bargain and Sale, by way of Mortgage, bearing 
 date the day of , in the year of our Lord 
 
 one thousand eight hundred and , and made 
 
 
 Between 
 
 , of the first part, 
 
 wife of the 
 
 baid party of the first part, of the second part, and 
 , of the third part. 
 Whereby it is Witnessed, that the said party of 
 the first part, for and in consideration of , of 
 
 lawful money of Canada (the receipt whereof is 
 thereby acknowledged), granted, bargained, sold, 
 aliened, released, transferred, conveyed, assured, and 
 confirmed, unto the said parties of the third .part, 
 their heirs and assigns. All th certain parcel or 
 tract op land and premises situate, lying, and 
 
 being. 
 
 Together with all and singular the 
 
 tenements, hereditaments, and appurtenances thereto 
 in any wise belonging : to hold to the said part of the 
 third part, heirs and assigns, to the use of the 
 
 said part of the third part, heirs and assigns, 
 
 forever, subject to the reservations, limitations, pro- 
 visoes, and conditions expressed in the original grant 
 thereof from the Crown. 
 
 And the said party of the second part, in con- 
 sideration of five shillings to her paid by the said 
 part of the third part, hath remised, released, and 
 forever relinquished her Dower in the said premises 
 unto the said part of the third part, heirs, 
 
 executors, administrators, and assigns. Subject, 
 
 Ai^ 
 
 'i''iil 
 
 
332 
 
 CANADIAN DOMESTIC LAWYER. 
 
 NEVERTHELESS, to a pi'oviso thcrcin contained, tliat 
 the said Indenture shall bo void on payment by the 
 said party of the first part, heirs, executors, or 
 
 administrators, to the said part of the third part, 
 executors, administrators, or assigns, of the sum 
 of , of lawful money of Canada, with interest 
 
 thereon at per cent., on the days and tiLies and 
 
 in manner following, that is to say • .. 
 
 Which said Indenture, as to the execution thereof 
 by the said ■ , is witnessed by . - And 
 
 this Memorial thereof is hereby required to bo regis- 
 tered by me, the said party of the part therein 
 mentioned. ' - 
 
 As Witness my hand and seal, this day 
 
 of , 18 . 
 
 Signed and sealed in the ) . 
 presence of ' ' • r 
 
 County of , to wit: , in the 
 
 within memorial named, maketh oath that he was 
 present and saw the said grantor duly execute 
 
 the deed to which the within memorial relates: 
 Also (together with another subscribing witness) saw 
 duly execute the said memorial; and that he, 
 Deponent, is a subscribing witness to said Deed and 
 Memorial, and that both the said instruments were 
 executed at 
 
 Sworn before me, at 
 this day of , a. d. 18 
 
 Commissioner for taking Affidavits, SfC i 
 
 :! 
 
 f ' 
 
 Tim 
 
 the ye, 
 
 of tho 
 and 
 Wit: 
 
 ,of 
 the firsi 
 said pa 
 said par 
 and of 
 said pai 
 adniinist 
 the first 
 released, 
 firmed, c 
 sell, aliei 
 firm, unt 
 heirs anc 
 land anc 
 conipose< 
 edifices, 
 waters, \ 
 privileges 
 lands, he 
 any wise 
 sions, yea 
 and in th 
 and all 
 possessior 
 
OF MORTGAGES. 
 
 833 
 
 Mortgage in Fee, with Power of Sale. 
 
 This Indenture, mado the day of , in 
 
 the year of our Lord one tliousand eight hundred and 
 
 , Between , of the first part, , wife 
 
 of the 8aid party of the first part, of the second part, 
 
 and , of the third part : 
 
 WiTNEssETHj that in consideration of the sum of 
 , of lawful money of Canada, to the said party of 
 the first part this day lent, advanced, and paid by the 
 said party of the third part, the receipt wher<5of the 
 said party of the first part do hereby acknoAvledge, 
 and of and from the same do hereby release the 
 said party of the third part, heirs, executors, 
 
 administrators, and assigns, , the said party of 
 
 the first part, IIa granted, bargained, sold, aliened, 
 released, transferred, conveyed, assured, and con- 
 firmed, and by these presents Do grant, bargain, 
 sell, alien, release, trahsfer, convey, assure, and con- 
 firm, unto the said party of the third part, and to 
 heirs and assigns, All th certain parcel or tract of 
 land and premises situate in the , being 
 
 composed of , Together with all houses, 
 
 edifices, buildings, yards, gardens, orchards, ways, 
 waters, water-courses, trees, woods, fences, liberties, 
 privileges, and appurtenances whatsoever, to the said 
 lands, hereditaments, and pi'.mises belonging, or in 
 any wise appertaining: And all remainders, rever- 
 sions, yearly and other rents, issues and profits, of 
 and in the same lands, hereditaments, and premises, 
 and all the estate, right, title, use, trust, property, 
 possession, claim, and demand whatsoever, of the said 
 
 m 
 
334 
 
 CANADIAN DOMESTIC LAWTEE. 
 
 party of the first part, of, in, or to the same lands, 
 hereditaments, and premises : To have and to hold 
 the said lands, tenements, and all and singular other 
 the premises hereby granted, sold, and released, or 
 intended so to be, with the appurtenances, unto and 
 to the use of the said party of the third part, 
 heirs and assigns, forever. Subject, nevertheless, 
 to the reservations, limitation^, provisoes, and con- 
 ditions expressed in the original grant thereof from 
 the Crown. And this Indenture further wit- 
 NESSETH, that the said party of the second part, with 
 the privity and full approbation and consent of her 
 said husband, testified by his being a party to these 
 presents, in consideration of the premises, and also in 
 consideration of the further sum of five shillings, of 
 lawful money of the Province of Canada aforesaid, to 
 her by the said party of the third part in hand well 
 and truly paid at or before the sealing and delivery 
 of these presents (the receipt whereof is hereby ac- 
 knowledged), hath remised, released, and forever re- 
 linquished and quitted claim, and by these presents 
 doth remise, release, and forever relinquish and quit 
 claim, unto the said party of the third part, heirs, 
 executors, administrators, and assigns, all dower, and 
 all righlr and title thereto, which she, the said party 
 of the second part, now hath, or in the event of 
 her surviving her said husband can or may or could 
 or might hereafter in any wise have or claim, whether 
 at common law or otherwise howsoever, of, in, to, 
 or out of the lands, tenements, hereditaments, and 
 premises hereby conveyed or hereinbefore mentioned 
 or intended to be conveyed, with the appurtenances, 
 
OF MORTGAGES. 
 
 335 
 
 or of, in, to, or out of any part thereof: Pbovided 
 ALWAYS, that if the said party of the first part, 
 heirs, executors, or administrators, do and shall pay 
 unto the said party of the third part, executors, 
 
 administrators, or assigns, the full sum of , with 
 
 interest for the same, in manner and at the times fol- 
 lowing, that is to say, , without any default 
 or abatement whatsoever, then these presents shall 
 cease and be void, to all intents and purposes what- 
 soever ; And the said party of the first part doth 
 hereby, for heirs, executors, and administrators, 
 covenant, promise, and agree to and with the said 
 party of the third part, executors, administrators, 
 and assigns, that , the said party of the first part, 
 heirs, executors, or administrators, some or one 
 of them, shall and will well and truly pay or cause to 
 be paid unto the said party of the third part, 
 executors, administrators, and assigns, the said prin- 
 cipal sum of and interest, at the times and in 
 manner hereinbefore appointed for payment thereof, 
 without any deduction or abatement whatsoever, ac- 
 cording to the true intent and meaning of these, 
 presents: ' And also, that the said party of the first 
 part now ha . in good right to grant, bargain, 
 sell, and convey the said lands, hereditaments, and 
 premises, unto the said party of the third part, 
 heirs and assigns, according to the true intent and 
 meaning of these presents: And further.^ that it 
 Bhall and may be lawful to and for the said party of 
 the third part; heirs and assigns, after default 
 shall be made in payment of the said sum of and 
 interest, contrary to the proviso hereinbefore con- 
 
^ m 
 
 336 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 tained, peaceably to enter into and upon said lands, 
 hereditaments, and premises, and to hold and enjoy 
 the same, without any interrwption or denial by the 
 said party of the first part, or any other person 
 whomsoever: And that free and clear of and from 
 all estates, titles, troubles, liens, charges, and incum- 
 brances whatsoever: And mobeovee, that , the 
 said party of the first part, and heirs, and all 
 
 persons whomsoever claiming any estate or interest 
 in the premises, shall and will, at all times hereafter, 
 during the continuance of the said sum of or 
 
 any part thereof, on this security, upon every reason- 
 able request of the said party of the third part, 
 heirs, executors, administrators, or assigns, but at the 
 costs and charges of the said party of the third part, 
 heirs, executors, and administrators^ make, exe- 
 cute, and perfect all such further conveyances and 
 assurances in the law whatsoever, for the further, 
 better, or more perfectly granting, conveying, or 
 otherwise assuring the said lands, hereditaments, and 
 premises, unto and to the use of the said party of the 
 third part, heirs and assigns, subject to the pro- 
 
 viso aforesaid, or the equity thereof, and for the 
 ends, intents, and purposes herein expressed, of and 
 concerning the same, according to the true intent 
 and meaning of these presents, as by the said party 
 of the third part, heirs, executors, administrators, 
 or assigns, or any of their counsel learned in the 
 law, shall be reasonably devised and required and 
 tendered to be made : And it is further declared 
 and agreed by and between the parties to these 
 presents, that if the said party of the first part, 
 
k.,; 
 
 OF MORTGAGES. 
 
 337 
 
 at the 
 
 part, 
 
 !, exe- 
 
 s and 
 
 rther, 
 or 
 
 Is, and 
 
 lof the 
 e pro- 
 r the 
 .f and 
 intent 
 party 
 rators, 
 in the 
 Id and 
 :laked 
 these 
 
 heirs, executors, or administrators, shall not pay to 
 the said party of the third part, executors, admi- 
 nistrators, or assigns, the said sum of , and 
 interest, or any part thereof, according to the true 
 intent and meaning of the proviso hereinbefore in 
 that behalf contained, and the said party of the third 
 part, executors, administrators, and assigns, shall, 
 after the time limited for such payment of principal 
 or interest has expired, have given to the said party 
 of the first part, heirs, executors, or adminis- 
 trators, or have left for or them, at , or 
 their last or most usual place of abode, in this 
 Province, notice in writing, demanding payment of 
 the said principal money or interest, and calen- 
 dar months &hh': u^ve elapsed from the delivery^or 
 leaving of su« . vtice, without such payment of 
 principal or interest having been made (of which 
 latter default in payment, as also of the continuance 
 of the said principal money and interest, or some 
 part thereof, on this security the production of 
 these presents shall be conclusive evidence), it shall 
 and may be lawful to and for the said party of the 
 third part, ~ heirs, executors, administrators, and 
 assigns, without any further consent or concurrence 
 of the said party of the first part, heirs and 
 assigns, to enter into possession of the said lands, 
 hereditaments, and premises, and to receive and take 
 tlie rents and profits thereof, and, whether in or out 
 of possession of the same, to make any lease or leases 
 thereof as ' shall think fit, and also to sell and 
 absolutely dispose of the said lands, hereditaments, 
 
 and premises, with the appurtenances, either by 
 15 
 
 f 
 
 ¥ 
 
 >'-ji 
 
 M 
 
 ^;^;!i 
 
« -# 
 
 338 
 
 CANADIAN DOMESTIC LAWYER. 
 
 public auction or private sale, and in such way and 
 manner as to shall seem meet, and to convey 
 
 and assure the same, when so sold, unto the pur- 
 chaser or purchasers thereof, his, her, and their 
 heirs and assigns, or as he, she, or they shall direct 
 and appoint: And it is hereby declaeed and 
 AGREED, that the said party of the third part, 
 heirs, executors, administrators, and assigns, shall 
 stand seised and be possessed of the said lands, tene- 
 ments, and hereditaments, and of the rents and profits 
 thereof, until sale, and, after sale, of the proceeds 
 therefrom arising, upon trust in the first place, to 
 deduct thereout all expenses which may be necessarily 
 incurred in and attending the execution of the trusts 
 and powers hereby created, together with interest 
 for the same, and after payment thereof do and shall 
 retain and pay unto and for themselves or the 
 
 said principal sum of , or so much thereof as 
 
 shall then remain unsatisfied, and all interest then 
 due, and in arrear, in respect thereof, and after such 
 payment in trust, to pay or transfer the surplus (if 
 any) of the said rents and profits, or proceeds of the 
 said sale, unto the said party of the first part, exe- 
 
 cutors, administrators, or assigns, and also to recon- 
 vey and assure such part of the said lands, heredita- 
 ments, and premises as shall remain unsold, for any 
 of the purposes aforesaid, unto the said party of the 
 first part, heirs and assigns, or as or they shall 
 direct or appoint : And it is hereby further de- 
 clared AND agreed, that the receipts of the said 
 party of the third part, heirs, executors, admi- 
 nistrators, and assigns, shall be good and sufficient 
 
 ,> 
 
•»J|r 
 
 OF MORTGAGES. 
 
 339 
 
 and 
 ivey 
 puv- 
 their 
 irect 
 
 AND 
 
 shall 
 tene- 
 )rofits 
 )ceeds 
 ce, to 
 ssarily 
 trusts 
 nterest 
 d shall 
 the 
 re of as 
 it then 
 jr such 
 •lus (if 
 of the 
 exe- 
 recon- 
 [eredita- 
 'or any 
 of the 
 ley shall 
 
 ;,he said 
 
 admi- 
 
 lufficient 
 
 discharges for all moneys therein expressed to have 
 been received, and that the person or persons paying 
 any moneys or taking such receipt shall not 
 afterwards be required to see to the application 
 thereof, nor be answerable or accountable for the 
 misapplication or non-application of the same: And 
 the said party of the third part doth hereby, for 
 heirs, executors, and administrators, covenant, pro- 
 mise, and agree to and with the said party of the 
 first part, heirs and assigns, that no sale or notice 
 of sale of the said lands, hereditaments, and premises 
 shall be made or given, or any lease made, or any 
 means taken for obtaining possession thereof, by the 
 said party of the the third part, until such time as 
 calendar months' notice, in writing, as aforesaid, shall 
 have been given to the said party of the first part, 
 heirs, executors, administrators, or assigns, or 
 have been left at last or most usual place of 
 
 abode, in this Province, demanding payment of the 
 principal and interest moneys which at the end of 
 that time shall be due, and the said party of the 
 first part, executors, administrators, and assigns, 
 shall have made default in payment of the same at 
 that time : And also, that , the said party of the 
 third part, heirs and assigns, shall and will, at the 
 expense of the said party of the first part, heirs, 
 
 executors, administrators, and assigns, at any time 
 before such sale or sales shall take place, on payment 
 or tender by the said party of the first part, heirs, 
 executors, or administrators, of the said principal 
 sum of and interest^ which, at the time of such 
 
 tender, shall be due and owing upon or by virtue of 
 
 /' 
 
 m 
 
 
 
340 
 
 CAITADIAN DOMESTIC LAWYER. 
 
 this security, with all costs as aforesaid, reconvey and 
 reassure the said lands, hereditaments, and premises, 
 or such parts thereof as shall then remain unsold, 
 with the appurtenances, unto the said party of the 
 first part, heirs or assigns, or as or they 
 
 shall direct or appoint, free from all incumbrances, 
 to be made or done by the said party of the third 
 part, heirs, executors, administrators, or assigns, 
 in the mean time: Provided always, that until 
 default shall be made in payment of the said sura of 
 and interest, after notice in writing, demanding 
 payment of the same, as hereinbefore provided, it 
 shall be lawful for the said party of the first part, 
 heirs and assigns, to hold, occupy, and enjoy 
 the said lands, hereditaments, and premises, with the 
 appurtenances, without any molestation, hindrance, 
 interruption, or denial of, from, or by the said party 
 of the third part, heirs, executors, administrators, 
 or assigns, or any person claiming by, from, through, 
 under, or in trust for , them, or either of them: 
 Provided lastly, that , the said party of the 
 
 third part, heirs, executors, administrators, and 
 
 assigns, shall not be answerable or accountable for 
 any more moneys than or they shall actually 
 
 receive by virtue of these presents, nor for any mis- 
 fortune, loss, or damage which may happen to the 
 said estate and premises in the execution of the 
 trusts aforesaid, save and except the same shall 
 happen by or through or their own wilful neg- 
 
 lect or default. 
 In Witness Whereof, the parties to these presents 
 
 of th( 
 the sal 
 
 the sf 
 
 ledge,l 
 
 the sal 
 
 admini 
 
 first pj| 
 
 leasedj 
 
 and b^ 
 
 release 
 
 the sail 
 
 assigns 
 
 premisi 
 
OF MORTGAGES. 
 
 341 
 
 have hereunto set their hands and seals, the day and 
 year first above written. 
 
 Signed, sealed, and delivered ) 
 in the presence of . ) . ,>. :;:v ;;.>•. 
 
 Received, on the day of the date of this Inden- 
 ture, the sum of , of lawful money of Canada, 
 being the full consideration therein mentioned. 
 
 Witness „ 
 
 *' 
 
 le 
 
 Mortgage, with Power of Sale and Insurance Clause. 
 
 This Indentuee, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , Between , of the first part, , wife 
 
 of the said party of the first part, of the second part, 
 and , of the third part: 
 
 WITNESSETH, that in consideration of the sum of 
 , of lawful money of Canada, to the said party 
 of the first part this day lent, advanced, and paid by 
 the said party of the third part, the receipt whereof 
 the said party of the first part do hereby acknow- 
 ledge, and of and from the same do hereby release 
 the said party of the third part, heirs, executors, 
 administrators, and assigns, , the said party of the 
 first part. Ha grantea, bargained, sold, aliened, re- 
 leased, transferred, conveyed, assured, and confirmed, 
 and by these presents Do grant, bargain, sell, alien, 
 release, transfer, convey, assure, and confirm, unto 
 the said party of the third part, and to heirs and 
 
 assigns, All th certain parcel or tract of land and 
 premises, situate in the , being composed of 
 
 '1 
 
842 
 
 CANADIAN DOMESTIC LAWYER. 
 
 , Together with all houses, edifices, build- 
 ings, yards, gardens, orchards, ways, waters, water- 
 courses, trees, woods, fen^-es, liberties, privileges, and 
 appurtenances whatsoever, to the said lands, heredita- 
 ments, and premises belonging, or in any wise apper- 
 taining: And all remainders, reversions, yearly and 
 other rents, issues, and profits, of and in the same 
 lands, hereditaments, and premises, and all the estate, 
 right, title, use, trust, property, possession, claim, 
 and demand whatsoever, of the said party of the first 
 part, of, in, or to the same lands, hereditaments, and 
 premises: To have and to hold the said lands, 
 tenements, and all and singular other the premises 
 hereby granted, sold, and released, or intended so to 
 be, with the appurtenances, unto and to the use of 
 the said party of the third part, heirs and assigns, 
 forever: Subject, nevertheless, to the reserva- 
 tions, limitations, provisoes, and conditions expressed 
 in the original grant thereof from the Crown : And 
 THIS Indenture further witnesseth, that the said 
 party of the second part, with the privity and full 
 approbation and consent of her said husband, testi- 
 fied by his being a party to these presents, in con- 
 sideration of the premises and also in consideration 
 of the further sum of five shillings, of lawful money 
 of the Province of Canada aforesaid, to her by the 
 said party of the third part in hand well and truly 
 paid at or before the sealing and delivery of these 
 presents (the receipt whereof is hereby acknowledged), 
 hath remised, released, and forever relinquished and 
 quitted claim, and by these presents doth remise, re- 
 lease, and forever relinquish and quit claim, unto 
 
OF MORTGAGES. 
 
 343 
 
 lild- 
 
 iter- 
 
 and 
 
 dita- 
 
 the Said party of the third part, heirs, executors, 
 administrators, and assigns, all dower, and all right 
 and title thereto, which- she, the said party of the 
 second part, now hath, or in the event of surviving 
 her said husband can, or may,* or could, or might 
 hereafter in any wise have or claim, whether at com- 
 mon law or otherwise, howsoever, of, in, to, or out of 
 the lands, tenements, hereditaments, and premises 
 hereby conveyed or hereinbefore mentioned or in- 
 tended so to be conveyed, with the appurtenances, or 
 of, in, to, or out of any part thereof: Provided al- 
 ways, that, if the said party of the first part, 
 heirs, executors, or administrators, do and shall pay 
 unto the said party of the third part, executors, 
 
 administrators, or assigns, the full sum of , 
 
 with interest for the same, in manner and at the 
 times following, that is to say, , without 
 
 any default or abatement whatsoever, then these pre- 
 sents shall cease and be void to all intents and pur- 
 poses whatsoever: And the said party of the first 
 part doth hereby, for heirs, executors, and ad- 
 
 ministrators, covenant, promise, and agree to and with 
 the said party of the third part, executors, ad- 
 
 ministrators, and assigns, that • , the said party 
 of the first part, heirs, executors, or administra- 
 
 tors, some or one of them, shall and will well and 
 truly pay, or cause to be paid, unto the said party of 
 the third part, executors, administrators, and as- 
 
 signs, the said principal sum of , and interest, 
 
 at the time and in manner h.ereinbefore appointed 
 for payment thereof, without any deduction or abate- 
 ment whatsoever, according to the true intent and 
 
 
 
844 
 
 CANADIAN DOMESTIC LAWYER. 
 
 
 meaning of these presents: And also, that he, 
 the said party of the first part, his heirs, executors, 
 administrators, or assigns, or some or one of tliem, 
 shall and will from time to time during the continu- 
 ance of the said sum of money and interest, or any 
 part thereof, on this security, insure and continue to 
 be insured upon the buildings now standing, or here- 
 after to be erected, upon the said premises, or upon 
 such of them as are specified in and by a certain 
 schedule to these presents prefixed, the sum of money 
 in and by the said schedule particularly stated and 
 set forth, and shall and will moreover in all things 
 well and truly perform, fulfil, and keep all and 
 singular other the covenants, agreements, and stipu- 
 lations in the said schedule contained, according to 
 the true intent and meaning of the paid schedule and 
 of these presents. And also, that the said party 
 of the first part now ha in good right to grant, 
 bargain, sell, and convey the said lands, heredita- 
 ments, and premises unto the said party of the third 
 part, heirs and assigns, according to the true 
 
 intent and meaning of these presents: And fur- 
 ther, that it shall and may be lawful to and for the 
 said party of the third part, heirs and assigns, 
 
 after default shall be made in payment of the said 
 sum of , and interest, contrary to the proviso 
 
 hereinbefore contained, peaceably to enter into and 
 upon the said lands, hereditaments, and premises, 
 and to hold and enjoy the same, without any in- 
 terruption or denial by the said party of tlie first 
 part, or any otlier person whomsoever: And that 
 free and clear of and from all estates, titles, troubles, 
 
 at 
 
 of the 
 
OF MORTGAGES. 
 
 845 
 
 lien8, charges, and incumbrances whatsoever: And 
 MOREOVER, that , the said party of the first part, 
 
 and heirs, and all persons whomsoever, claiming 
 
 any estate or interest in the premises, shall and will, 
 at all times hereafter, during the continuance of the 
 said sum of x , or any part thereof, on this secu- 
 
 rity, upon every reasonable request of the said party 
 of the third part, heirs, executors, administra- 
 
 tors, or assigns, but at the costs and charges of the 
 said party of the third part, heirs, executors, 
 
 and administrators, make, execute, and perfect all 
 such further conveyances and assurances in the law, 
 whatsoever, for the further, better, or more perfectly 
 granting, conveying, or otherwise assuring the said 
 lands, hereditaments, and premises unto and to the 
 use of the said party of the third part, heirs and 
 
 assigns, subject to the proviso aforesaid, or the equity 
 thereof, and for the ends, intents, and purposes 
 herein expressed of and concerning the same, ac- 
 cording to the true intent and meaning of these 
 presents, as by the said party of the third part, 
 
 heirs, executors, administrators, or assigns, or * 
 any of their counsel learned in the law, shall be 
 reasonably devised and required, and tendered to 
 be made : And it is further declared and agreed 
 by and between the parties to these presents that 
 if the said party of the first part, heirs, execu- 
 
 tors, or administrators, shall not pay to the said 
 party of the third part, executors, administra- 
 
 tors, or assigns, the said sum of , and 
 
 interest, according to the true intent and meaning 
 of the proviso hereinbefore in that behalf contained, 
 
 15* 
 
 M 
 
346 
 
 CANADIAN DOMESTIC LAWYER. 
 
 and the said party of the third part, executors, 
 
 administrators, and assigns, shall, after the time 
 limited for such payment has expired, have given to 
 the said party of the first part, heirs, executors, 
 or administrators, or have left for , or them, 
 
 at , or their last or most usual place of abode, 
 
 in this Province, notice in writing, demanding pay- 
 ment of the said principal money and interest, and 
 
 calendar months shall have elapsed from the 
 delivery or leaving of such notice, without such 
 payment having been made (of which latter default 
 in payment, as also of the continuance of the said 
 principal money and interest, or some part thereof, 
 on this security, the production of these presents 
 shall be conclusive evidence), it shall and may be 
 lawful to and for the said party of the third part, 
 
 heirs and assigns, without any further consent 
 or concurrence of the said party of the first part, 
 heirs and assigns, to enter into possession of 
 the said lands, hereditaments, and premises, and to 
 receive and take the rents and profits thereof, and 
 whether in or out of possession of the same, to make 
 any lease or leases thereof as shall think fit and 
 
 also to sell and absolutely dispose of the said lands, 
 hereditaments, and premises, with the appurtenances, 
 in such way and manner as to shall seem meet, 
 
 and to convey and assure the same, when so sold, 
 unto the purchaser or purchasers thereof, his, her, 
 and their heirs and assigns, or as he, she, or they shall 
 direct and appoint; And it is hereby declared 
 AND AGREED that the said party of the third part, 
 
 heirs, executors, administrators, and assigns, 
 
 € 
 
OP MORTGAGES. 
 
 347 
 
 shall stand seised and bo possessed of the said lands, 
 tenements, and hereditaments, and of the rents and 
 profits thereof, nntil sale, and, after sale, of the pro- 
 ceeds therefrom arising, npon trust in the iirst place, 
 to deduct thereout all expenses which may be neces- 
 sarily incurred, and attend the execution of the trust 
 and powers hereby created, together with interest for 
 the same, and after payment thereof do and shall 
 retain and pay unto and for the said principal 
 
 sum of , or so much thereof as shall th. n 
 
 remain unsatisfied, and all interest then due, aod 
 in arrear, in respect thereof, and after such pay- 
 ment in trust, to pay or transfer the surplus (it' 
 any) of the said rents and profits, or proceeds of 
 the said sale, unto the said party of the first part, 
 executors, administrators, or assigns, and also to 
 re-convey and assure such part of the said lands, he- 
 reditaments, and premises as shall remain unsold, for 
 any of the purposes aforesaid, unto the said party of 
 the first part, heirs and assigns, or as shall 
 
 direct or appoint: And it is hereby further de- 
 glared AND agreed, that the receipts of the said 
 party of the third part, heirs and assigns, shall 
 
 be good and sufficient discharges for all moneys 
 therein expressed to have been received, an<? .Kit 
 the person or persons paying any moneys and 
 
 taking such receipt shall not afterwards be required 
 to see to the application thereof, nor be I'lHwerable 
 or accountable for the misapplication or non-appli- 
 cation of the same: And the said party of the third 
 part do hereby, for heirs, executors, and ad- 
 
 ministrators, covenant, promise, and agree to and 
 

 I 
 
 I . 
 
 348 
 
 CAI^ADIAN DOMESTIC LAWYER. 
 
 with the said party of the first part, heirs and 
 
 assigns, that no sale or notice of sale of the said 
 lands, hereditaments, and premises shall be made or 
 given, or any lease made, or any means taken for 
 obtaining possession thereof, by the said party of 
 the third part, until such time as calendar 
 
 months' notice, in writing, as aforesaid, shall have 
 been given to the said party of the first part, 
 , heirs, executors, administrators, or assigns, or 
 have been left at last or most usual place of 
 
 abode, in this Province, demanding payment of the 
 principal and interest moneys which at the end of 
 that time shall be due, and the said party of the 
 first part, executors, administrators, and assigns, 
 shall have made default in payment of the same at 
 that time : And also, that, the said party of the 
 third part, heirs and assigns, shall and will, at 
 
 the expense of the said party of the first part, 
 heirs, executors, administrators, and assigns, at any 
 time before such sale or sales shall take place, on 
 payment or tender by the said party of the first part, 
 heirs, executors, or administrators, of the said 
 principal sum of , and interest, which at the 
 
 time of such tender shall be due and owing upon or 
 by virtue of this security, with all costs as aforesaid, 
 re-convey and re-assure the said lands, hereditaments, 
 and premises, or such parts thereof as shall then remain 
 unsold, with the appurtenances, unto the said party of 
 the first part, heirs or assigns, or as or they 
 
 shall direct or appoint, free from all incumbrances 
 to be made or done by the said party of the third 
 
 part, 
 
 heirs or assigns, in the mean time : Peo- 
 
 *. 
 
OF MORTGAGES. 
 
 349 
 
 at any 
 
 ice, on 
 part, 
 1 said 
 at the 
 
 ipon or 
 esaid, 
 
 iments, 
 remain 
 
 >arty of 
 or they 
 trances 
 e third 
 Pbo- 
 
 viDED ALWAYS, that, Until default shall be made 
 in payment of the said sum of , and interest, 
 
 after notice, in writing, demanding payment of the 
 same, as hereinbefore provided, it shall be lawful 
 for the said party of the first part, heirs and 
 
 assigns, to hold, occupy, and enjoy the said lands, 
 hereditaments, and premises, with the appurtenances, 
 without any molestation, hindrance, interruption, 
 or denial of, from, or by the said party of the third 
 part, heirs or assigns, or any person claiming 
 
 by, from, through, under, or in trust Cor , them, 
 
 or either of them; Pkovided, lastly, that , 
 
 the said party of the third part, heirs, executors, 
 administrators, and assigns, shall not be answerable 
 or accountable for any more moneys than or they 
 shall actually receive by virtue of these presents, nor 
 for any misfortune, loss, or damage which may hap- 
 pen to the said estate and premises in the execution 
 of the trusts aforesaid, save and except the same 
 shall happen by or through or their own wilful 
 
 neglect or default. 
 
 In Witness WHEREOP,'the parties to these presents 
 have hereunto set their hands and seals, the day and 
 year first above written. • 
 
 Signed, sealed, and delivered | . ^ , 
 in the presence of ts- ' > f^i . - : - 
 
 Received, on the day of the date of this Inden- 
 ture the sum of , of lawful money of Canada, 
 being the full consideration. . ^ 
 Witness, '-^ ' ■<:- 
 The /Schedule above referred to, , ' v 
 
350 
 
 CANADIAN DOMESTIC LAWYER. 
 
 II 
 
 I 
 
 ^ Mortgage, with Power of Sale and Insuranoe Clause. 
 
 SHOETEE FOEM. . ;^ 
 
 'i This Indentuee, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 
 and 
 
 Between 
 
 of the 
 
 of 
 
 in the county of , and Province of Canada, 
 
 of the first part, , the wife of the said 
 
 part of the first part, of the second part, and 
 • ' , of the third part, Witnesseth, that in con- 
 sideration of the sum of ■ , this day paid to the 
 said part of the first part by the said party of 
 the third part (the receipt whereof the said part 
 of the first part do hereby acknowledge), he, the 
 said part of the first part, do hereby grant, and 
 she, the said party of the second part, for the purpose 
 of releasing her right of dower in the hereditaments 
 and premises hereinafter described, and with the con- 
 currence of the said part of the first part, doth 
 hereby release, unto the said part of the third part, 
 
 heirs and assigns. All and singulae th 
 certain parcel or tract of land and premises situate 
 in the ^ , Togethee with all houses, 
 
 buildings, ways, lights, waters, water-courses, trees, 
 woods, fences, rights, privileges, easements, advan- 
 tages, and appurtenances whatsoever to the said here- 
 ditaments or any pirt thereof appertaining, or with 
 the same or any part thereof held, used, or enjoyed, 
 or reputed as part thereof or appurtenant thereto, 
 AND all the estate and interest of the said part of 
 the first part in the said premises: To hold the 
 said premises unto the said part of the third part, 
 
 i 
 
«n 
 
 OF M0ETGAGE8. 
 
 r 
 
 351 
 
 heirs and assigns, to the use of the said part 
 of the third part, heirs and assigns, forever. Sub- 
 ject, NEVERTHELESS, to the reservations, li'iiltations, 
 provisoes, and conditions expressed in the original 
 grant thereof from the Crown. Provided always, 
 and it is hereby agreed and declared, that, if the 
 said part of the first part, heirs, executors, ad- 
 ministrators, or assigns, shall pay unto the said 
 part of the third part, executors, administra- 
 
 tors, assigns, the sum of , together with 
 
 interest for the same, at the rate of six per cent, 
 per annum, in manner and at the times following: 
 that is to say, , without any deduction, 
 
 then these presents shall cease and be void to all 
 intents and purposes whatsoever. ,. 
 
 And the said part op the first part do 
 hereby, for heirs, executors, and administrators, 
 
 covenant with the said part of the third part, 
 executors and administrators, that , the said 
 
 part of the first part, heirs, executors, or ad- 
 ministrators, will pay to the said part of the third 
 part, executors, administrators, or assigns, the 
 
 said sum of , and interest, at the times and in 
 
 manner hereinbefore appointed for payment thereof, 
 without any deduction or abatement whatsoever, ac- 
 cording to the true intent and meaning of these 
 presents. 
 
 An'd it i& hereby declared that if default shall 
 be made in payment of the said principal money 
 hereby secured, or any part thereof, or the interest 
 thereof, or any part thereof, at the time hereinbefore 
 appointed for the payment of the same, contrary to 
 
 ^ 
 
352 
 
 CANADIAN DOJ^IESTIO LAWYER. 
 
 the true intent and meaning of the proviso and cove- 
 nant hereinbefore in that behalf contained, then, and 
 at any time thereafter, it shall and may be lawful for 
 the said part of the third part, executors, ad- 
 
 ministrators, or assigns, either with or without the 
 concurrence of the said part of the first part, 
 heirs or assigns, to sell the said premises herein- 
 before expressed to be hereby granted, or any part 
 or parts thereof, either together or in parcels, and 
 either by public auction or private contract, for such 
 price as may appear reasonable, and to buy in or 
 rescind any contract for sale, and re-sell, without 
 being responsible for loss occasioned thereby: And 
 to execute and do all such assurances and things for 
 effectuating any such sale as or they shall think 
 
 fit. Provided, nevertheless, that the said part 
 of the third part, executors, administrators, or 
 
 assigns, shall not execute the power of sale herein- 
 before contained until he or they shall have given 
 to the said part of the first part, heirs, executors, 
 administrators, or assigns, or left at , or their 
 
 last place of abode in Upper Canada, or upon the 
 said premises hereby granted, a notice in writing, to 
 pay off the moneys for the time-being owing upon 
 the security of these presents, and until default 
 shall have been made in payment of the whole, or 
 any part of such moneys for four calendar months 
 after giving or leaving such notice : Provided also, 
 that, upon any sale purporting to be made in pur- 
 suance of the aforesaid power, no purchaser shall be 
 bound to inquire whether the case mentioned in the 
 clause lastly hereinbefore contained has happened, 
 
OF MORTGAGES. 
 
 m 
 
 353 
 
 not whether any money remains upon the security 
 of these presents, nor as" to the propriety or regu- 
 larity of such sale; and, notwithstanding any im- 
 propriety or irregularity whatsoever in any such 
 sale, the same shall as regards the purchaser or 
 purchasers be deemed to be within the aforesaid 
 power, and be valid accordingly. And it is hereby 
 DECLARED, that the said part of the third part, 
 
 executors, administrators, or assigns, shall, out 
 of the moneys arising from any sale in pursuance of 
 the aforesaid power, in the first place, pay the ex- 
 penses incurred on such sale, or otherwise in relation 
 to the said premises : And, in the next place, apply 
 such moneys in or towards the satisfaction of the 
 said principal sum of , or so much thereof 
 
 as shall then remain undischarged, and all interest 
 then 'due in respect thereof, and all other moneys 
 then owing upon the security of these presents, and 
 then pay the surplus (if any) of the moneys to arise 
 from such sale unto the said part of the first part, 
 
 heirs or assigns : Provided always, that the 
 said part of the third part, executors, ad- 
 
 ministrators, or assigns, shall not be answerable for 
 any involuntary losses which may happen in the 
 exercise of the aforesaid power and trusts, or any 
 of them. 
 
 And the said part op the first part do 
 hereby, for heirs, executors, and administrators, 
 
 covenant with the said part of the third part, 
 heirs and assigns, that , the said part of the 
 first part, now ha power to grant all and singular 
 the said premises unto and to the use of the said 
 
 % 
 
 ■0- 
 
354 
 
 CANADIAN DOMESTIC LAWYER. 
 
 part of the third part, heirs and assigns, in 
 
 manner aforesaid, and free from incumbrances : And 
 THAT , the said part of the first part, and 
 heirs, and every other person lawfully or equitably 
 claiming any estate or interest in the premises, will, 
 at all times, at the request of the said part of the 
 third part, heirs, executors, administrators, or 
 
 assigns, but at the cost of the said part of the 
 first part, heirs, executors, or administrators, 
 
 execute and do all such assurances and acts, for 
 further or better assuring all or any of the said pre- 
 mises to the use of the said part of the third part, 
 heirs and assigns, in manner aforesaid, as by 
 him or them shall be reasonably required. 
 . Peovided lastly, and it is hereby declared and 
 agreed, that until default shall be made in payment 
 of the said principal money, secured by these pre- 
 sents,^ or the interest thereof, or any part thereof 
 respectively, contrary to the form and effect of the 
 proviso and covenant for payment of the same herein- 
 before contained, it shall be lawful for the eaid part 
 of the first part, heirs or assigns, to hold and 
 
 enjoy and to receive the rents and profits of the said 
 hereditaments and premises, without any eviction, 
 claim, or demand whatsoever from or by the said 
 part of the third part, heirs or assigns, or from or 
 by any person rightfully claiming under him or them. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and seals, the 
 day and year first above written. '^i \ 
 
 Signed, sealed, and delivered ) 
 in the presence of . ) • ^ 
 
OF MOETQAGES. 
 
 55 
 
 Received, on the day of the date of this mort- 
 gage, from the party thereto of the third part, the 
 sum of , being the full consideration money 
 
 therein mentioned. 
 
 "Witness. . , ,fv 
 
 (( 
 
 Covenant to he taken as part and parcel of the within 
 Indenture of Mortgage^ and to he treated and con- 
 strued in all respects as if inserted therein. 
 
 The within named part of the first part, for -■% 
 heirs, executors, and administrators, do hereby co- 
 venant to and with the within named part of the 
 third part, executors, administrators, and assigns, . 
 in manney following, that is to say, that , the 
 
 said part of the first part, executors, adminis- 
 
 trators, and assigns, will, so long as any money shall 
 remain on I '-is present security, keep all the mes- 
 suages and buildings upon the hereditaments and 
 premises hereby granted insured against loss or 
 damage by fire, in some reputable British or Ca- 
 nadian Insurance Ofiice, to be approved of by the said 
 part of the third part, executors, administra- 
 
 tors, or assigns, in the sum of pounds at least, 
 
 and will duly and punctually pay all premiums and 
 sums of money necessary for such purpose, and 
 will forthwith assign and deliver to the said part 
 of the third part, executors, administrators, and 
 assigns, the policy or policies of such insurance and 
 the receipt for every such payment. And also, 
 that if default shall be made in keeping the said 
 premises so insured, it shall be lawful for, but not 
 
356 
 
 CANADIAN DOMESTIC LAWYER. 
 
 incumbent on, the said part of the third part, 
 executors, administrators, or assigns, out of or 
 their own moneys to insure and keep insured the 
 said premises in any sum, not exceeding 
 pounds, and that the said part of the first part, 
 executors, administrators, or assigns, will repay 
 to the said part of the third part, executors, ad- 
 ministrators, or assigns, all moneys expended for 
 that purpose by or them, with interest thereon 
 
 at the rate aforesaid, from the time of the same 
 respectively having been advanced or paid, and 
 that until such repayment the same shall be a 
 further charge upon the said premises hereinbefore 
 expressed to be hereby granted. And it is hereby 
 declared that all sums of money to be received in 
 respect of such policy or policies of insurance shall 
 be received by the said part of the third part, 
 executors, administrators, or assigns, and be held 
 by him or them in trust, for better securing the 
 repayment of the said principal money, secured by 
 these presents, and the interest thereof, and any 
 moneys which shall have been paid or expended 
 by him or them in and about such insurance and 
 insurances, and interest thereon as aforesaid; and 
 subject thereto. In trust for the said part of the 
 first part, executors, administrators, and assigns. 
 
 In Witness Whereof, the said part of the first 
 part ha hereunto set hand and seal , this 
 day of , in the year of our Lord one 
 
 thousand eight hundred and *, \V 
 
 Signed, sealed, and delivered ) > -.*. h,5 
 in the presence of '. ) ^;^^•i ^is ) ^ 
 
 A 
 
 Acts 
 of mc 
 the yc 
 
 w 
 
OP MORTGAGES. 
 
 357 
 
 Mortgage Memorial, with Power of Sale. 
 
 A Memorial (to be registered pursuant to the 
 Acts of Parliament in that behalf) of an indenture 
 of mortgage, bearing date the day of , in 
 
 the year of our Lord one thousand eight hundred and 
 , and made Between , of the first part, 
 
 , the wife of the said party of the first part, 
 of the second part, and , of the third part ; 
 
 Whereby the said party of the first part, for and 
 in consideration of , of lawful money of 
 
 Canada, the receipt whereof is thereby acknowledged, 
 did grant, bargain, sell, release, convey, and confirm, 
 and the said party of the second part, for the purpose 
 of releasing her right of Doweb, did release, unto 
 the said party of the third part, heirs and assigns, 
 all and singular th certain parcel or tract of 
 land and premises situate in the , To hold 
 
 the same, with all the privileges and appurtenances 
 thereof, to the said party of the third part, heirs 
 
 and assigns, to and their own use forev6r ; Sub- 
 
 ject, NEVERTHELESS, to a proviso therein contained, 
 that the said Indenture, and every thing therein, 
 should be absolutely void on payment by the said 
 party of the first part, his heirs, executors, adminis- 
 trators, or assigns, to the said party of the third part, 
 executors, administrators,- or assigns, of the sura 
 of , of lawful money of the province of Ca- 
 
 nada, with interest thereon, on the day and time 
 and in manner following, that is to say , which 
 
 Indenture contains a power to the said party of the 
 third part to sell and dispose of the said lands and 
 
 » 
 
85§ 
 
 CANADIAN DOMESTIC LAWYER. 
 
 premises in case of default made in the payment 
 of the said sum of money and interest, or any part 
 thereof, contrary to the above proviso : And is wit- 
 nessed by , of . And this Memorial thereof 
 is hereby required to be registered by me, the said 
 party of the par; therein mentioned. 
 
 As Witness my hand and seal, this day of 
 
 , 18 . . 
 
 Signed and sealed in the ) 
 presence of , ) 
 
 County op , to wit : , of , 
 
 in the said County , in the within Memorial 
 
 named, maketh oath and saith, that he was present 
 and did see the Indenture to which the said memorial 
 relates, duly executed, signed, sealed, and delivered 
 by the therein named , and that he is a sub- 
 
 scribing witness to the execution of the said In- 
 denture: — that he, this deponent, also saw the said 
 memorial duly signed and sealed by the therein 
 named for registry thereof, which said memo- 
 
 rial was attested by him, this deponent, and another 
 subscribing witness, and that both said instruments 
 were executed at • 
 
 Sworn before me, at •, in 
 
 the county of , tl)is 
 day of , 18 . 
 
 A Commissioner in B. J?., ifC. 
 
 m^ 
 
OF MORTGAGES. 
 
 359 
 
 ment 
 ■ part 
 3 wit- 
 lereof 
 3 said 
 
 lay of 
 
 imorial 
 present 
 emorial 
 jlivered 
 8 a sub- 
 aid In- 
 ne said 
 therein 
 memo- 
 another 
 uments 
 
 Mortgage in Fee. 
 
 SHORT FORM UNDER STATUTE. 
 
 This Indenture, made day of , one 
 
 thousand eight hundred and , in pursuance of 
 
 the act to facilitate the conveyance of real property, 
 
 Between 
 
 of the first part, 
 
 wife of 
 
 the said party of the first part, of the second part, 
 and , of the third part, Witnesseth, that in 
 
 consideration of , of lawful money of Canada, 
 
 now paid by the said part of the third part to the said 
 party of the first part (the receipt whereof is hereby 
 acknowledged), he, the said party of the first part, 
 Doth grant unto the said part of the third part, 
 heirs and assigns forever. All and singular 
 th certain parcel or tract of land and premises 
 situate, lying, and being in the , To 
 
 HAVE AND TO HOLD unto the Said part of the third 
 part, heirs and assigns, to and for and their 
 
 sole and only use forever. Subject, nevertheless, 
 to the reservations, limitations, provisoes, and con- 
 ditions expressed in the original grant thereof from 
 the Crown. 
 
 Provided always, and these presents are upon 
 this express condition, that if the said party of the 
 first part, his heirs, executors, administrators, or 
 assigns, do and shall pay unto the said part of the 
 third part, heirs, executors, administrators, or 
 
 assigns, the full sum of , with interest thereon, 
 
 at the rate of. six per cent, per annum, in manner 
 following, that is to say, , without any de- 
 
 duction, defalcation, or abatement out of the same, 
 
SCO 
 
 CANADIAKT DOMESTIO LAWYER. 
 
 for or in respect of any taxes, rates, levies, charges, 
 rents, assessments, statute labor, or other iniposi- 
 tions whatsoever, now or hereafter to be rated, 
 cliargecl, assessed, or imposed, by authority of Parlia- 
 ment, or otherwise howsoever, on the said lands and 
 premises, or any part thereof, or on the snid sum of 
 money and interest, or any part thereof, or on the 
 said part of the third part, heirs, executors, 
 
 administrators, or assigns, in respect thereof, or for 
 or in respect of any other matter or thing what- 
 soever; and, moreover, until default shall be made 
 in payment of the said sum of money in this pro- 
 viso mentioned, or the interest thereof, do and shall 
 well and truly pay, do, and perform all the taxes, 
 rates, levies, charges, rents, assessments, statute 
 labor, and other impositions aforesaid ; Then, from 
 and immediately after such payment so made as 
 aforesaid, and the observance, performance, and ful- 
 filment of the provisions, agreements, and stipulations 
 in this proviso particularly set forth, these presents, 
 and every clause, covenant, matter, and thing herein 
 contained, shall be absolutely null and void, to all 
 intents and purposes whatsoever, as if the same had 
 never been made; And the said party of the first 
 part doth hereby, for himself, his heirs, executors, and 
 administrators. Covenant, PROMist, and agree, to 
 and with the said part of the third part, heirs, 
 executors, administrators, and assigns. That he, the 
 said party of the first part, his heirs, executors, or 
 administrators, shall and will pay unto the said part 
 of the third part, executors, administrators, or 
 
 assigns, the said sum of money in the above proviso 
 
 men 
 
 at tl 
 
 for I 
 
 thiuii 
 
 fulfil^ 
 
 menti 
 
 parti( 
 
 and r 
 
 provh 
 
 part, 
 
 theref 
 
 covenj 
 
 that h 
 
 the sai 
 
 from a 
 the paj 
 proviso 
 paynier 
 thereo: 
 one or 
 pulatio] 
 the tru( 
 forth th 
 possess] 
 brances 
 ever an 
 
^i 
 
 OF MORTGAGES. 
 
 3G1 
 
 mentioned, with interest for the same as aforesaid, 
 at the days and times and in manner above limited 
 for payment thereof; And shall and will in every 
 thing well, faithfully, and truly do, observe, perform, 
 fulfil, and keep all and singular the provisions, agree- 
 ments, and stipulations in the said above proviso 
 particularly set forth, according to the true intent 
 and meaning of these presents and of the said above 
 proviso, and indemnify the said part of the third 
 part, heirs, executors, administrators, and assigns, 
 therefrom; And the said party of the first part, 
 covenants with the said part of the third part, 
 that he iiatii the right to convey the said lands to 
 the said part of the third part, 
 
 ; And that 
 from and after default shall happen to bo made in 
 the payment of the said sum of money in the above 
 proviso mentioned, or any part thereof, or in the 
 payment of the interest thereon, or of any part 
 thereof, or in the doing, performing, or keeping some 
 one or more of the covenants, agreements, and sti- 
 pulations in this Indenture contained, contrary to 
 the true intent and meaning thereof, then and thence- 
 forth the said part of the third part shall have quiet 
 possession of the said land, free from all incum- 
 brances of what nature or kind soever and whenso- 
 ever and by whomsoever made, done, or suffered; 
 and also free from all manner of taxes, rates, 
 and assessments, and free from all judgments; And 
 ALSO, that the siaid party of the first part hath done 
 no act to incumber the said land ; And also, that 
 
 after default as aforesaid, the said party of the first 
 16 
 
 (( 
 
 i * 
 
 /-" 
 
365 
 
 CANADIAN DOMESTIC LAWYER. 
 
 part will execute such further assurances of the said 
 land as may be requisite; And the said party of 
 the second part, wife of the said party of the first 
 part, hereby bars her Dower in the said lands. Pno- 
 viDED LASTLY, that Until default shall be made in 
 payment of the said sum of money in the above pro- 
 viso mentioned, or the interest thereof, or of or in 
 the doing, observing performing, fulfilling, or keep- 
 ing some one or more of the provisions, agreements, 
 or stipulations in this Indenture contained, contrary 
 to the true intent and meaning of the said Indenture, 
 it shall and may be lawful to and for the said party 
 of the first part, his heirs and assigns, peaceably and 
 qiietly to have, hold, use, occupy, possess, and enjoy 
 the said lands, tenements, hereditaments, and pre- 
 mises, with the appurtenances, and receive and take 
 the rents, issues, and profits thereof, to his and their 
 own use and benefit, without the let, suit, hindrance, 
 interrujition, or denial of or by the said part of the 
 third part, heirs, executors, administrators, or as- 
 
 signs, or of or by any other person or persons whom- 
 soever lawfully claiming, or who shall and may law- 
 fully claim, by, from, or under , them, or any or 
 either of them. 
 
 In Witness Whereof, the said parties hereto have 
 hereunto set their hands and seals. 
 
 Signed, sealed, and delivered ) 
 in the presence of . j 
 
 the 
 ther 
 
 . Th 
 
 the 3 
 and 
 conve 
 the fi] 
 
 fil'St p; 
 
 the th 
 the fir 
 of law 
 said p; 
 hereby 
 
 Received, on the day of the date of the above 
 Indenture, of and from the part of the third part, 
 
It 
 
 <^ 
 
 •IK'' 
 
 OF MORTGAGES. 
 
 363 
 
 iaid 
 
 of 
 
 first 
 
 i*RO- 
 
 B in 
 
 pro- 
 
 )!• in 
 
 keep- 
 
 lents, 
 
 itrary 
 
 iture, 
 
 party 
 
 [y and 
 
 enjoy 
 i pve- 
 d take 
 1 their 
 irance, 
 
 of the 
 or as- 
 
 whom- 
 
 ly law- 
 any or 
 
 Ito have 
 
 above 
 Ird part, 
 
 the sum of , being the full consideration 
 
 therein mentioned . -* 
 
 ' Witness. 
 
 rjf . Mortgage in Fee, under Statute. 
 
 SHORTER FORM. 
 
 This Indenture, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , in pursuance of the act to facilitate the 
 
 conveyance c " real property, Between , of 
 
 the first part, , wife of the said party of the 
 
 first part, of the second part, and , of 
 
 the third part, Witnesseth, that the said party of 
 the first part, in consideration of the sum of , 
 
 of lawful money of Canada, now paid to him by the 
 said party of the third part (the receipt whereof is 
 hereby acknowledged), Doth grant unto the said 
 party of the third part, his heirs and assigns for 
 ever. All and singular th certain parcel or 
 tract of land and premises situate, lying, and being 
 in tlie of , in the County of , in the 
 
 Province of Canada, and being composed of , 
 
 To have and to hold unto the said party of the 
 third part, his heirs and assigns, to and for his and 
 their sole and only use forever. Subject, never- 
 theless, to the reservations, limitations, provisoes, 
 and conditions expressed in the original grant thereof 
 from the Crown. Provided, always, and these 
 presents are upon this express condition, that if the 
 said party of the first part, his heirs, executors, ad- 
 ministrators, or assigns, shall pay, or cause to be 
 paid, unto tlie said party of the third part, his exe- 
 
 
 1. 'Al 
 
 » 
 
w 
 
 1i^ > 
 364 
 
 •* 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ciitors, administrators, or assigns, the full and just 
 sum of , with interest for the same, at the 
 
 rate of six per cent, per annum, at the times and in 
 the manner following, that is to say, ; 
 
 And also in case of default in the payment of the 
 principal or interest, or of any part or instalment 
 thereof, within one month after any of the days or 
 times when the same is payable, shall immediately 
 thereafter pay the whole of the principal and interest 
 then remaining due, then these presents shall be 
 void, but otherwise shall remain in full force and 
 virtue. Provided also, and it is hereby declared 
 and agreed by and beHceen the parties hereto^ that in 
 default of s^ich pay^nent of j^rincipal and interest^ or 
 of any part thereof it shall and may be lawful for 
 the said party of the third part^ his heirs^ executors^ 
 administrators^ or assigns^ after one calendar month^s 
 notice in writing given to the said party of the first 
 part, his heirs or ass'gns, or left at his or their last 
 place of abode, absolutely to sell and dispose of the 
 said lands and tenements, or any part thereof either 
 by public auction or private contract, and out of 
 the money arising from such sale, to pay and re- 
 imburse himself or themselves all the principal money 
 and interest then remaining unpaid, and all costs, 
 charges, and expenses that may have been incurred, 
 and to 2^ciy over .the surplus thereof {if any) to the 
 said party of the first poi^t, his heirs or assigns; 
 And any purchaser at such sale shall not be bound 
 to see to the application of the purchase-money, 
 nor to inquire into the propriety or regularity of any 
 sale. 
 
 Ar 
 
 the s 
 
 s,aid 
 
 times 
 
 same, 
 
 one n 
 
 same 
 
 whole 
 
 mainh 
 
 said la 
 
 he wil 
 
 quisite 
 
 lands : 
 
 mortg£ 
 
 j^arty ( 
 
 the sai( 
 
 ALWAY 
 
 of the 
 
 said, it 
 
 part p 
 
 and enj 
 
 the salt 
 
 iiig unc 
 
 releases 
 
 Dower 
 
 InW 
 
 hereuut 
 
 Signe 
 
 in the p 
 
^ 
 
 m 
 
 
 '^ 
 
 OF MORTGAGES. 
 
 305 
 
 '•'»!r 
 
 And the said party of the first part covenants with 
 the said party of the tliird part, that he will pay the 
 s,aid principal money and interest on the days and 
 times aforesaid, and in default of payment of the 
 same, or of any part or instalment thereof, within 
 one month after any of the days or times when the 
 same is payable, that he will immediately pay the 
 whole of the principal money and interest then re- 
 maining due: That he has the right to convey the 
 said lands to the said party of the third part : That 
 he will execute such further assurances as may be re- 
 quisite : That he has done no act to incumber the said 
 lands : And that after default in payment of the said 
 mortgage money and interest as aforesaid, the said 
 party of the third part shall have quiet possession of 
 the said lands, free from all incumbrances : Peovided, 
 ALWAYS, that until default be made in the payment 
 of the said mortgage money and interest as afore- 
 said, it shall be lawful for the said party of the first 
 part peaceably and quietly to have, hold, occupy, 
 and enjoy the said lands, without the interruption of 
 the said party of the third part, or any person claim- 
 ing under him ; And the said party of the second part 
 releases to the said party of the third part all her 
 Dower in the said lands. 
 
 In Witness Whebeof, the said parties hereto have 
 hereunto set their hands and seals. 
 
 Signed, sealed, and delivered ) 
 in the presence of . ) 
 
m 
 
 366 
 
 CANADIAIT DOMESTIC LAWYER. 
 
 m 
 
 >^ 
 
 Mortgage In Fee, under Statute. /., 
 
 ANOTHER SHORT FORM, 
 
 This Indenture, made the day of , 
 
 '*► A. D. one thousand eight hundred and , in 
 
 pursuance of the act to facilitate the conveyance of 
 real propsrty, Between A. B., of , of the 
 
 first part, CD., wife of the said party of the first 
 part, of the second part, and E. F., of , of the 
 
 third part, Witnesseth, that the said party of the 
 first part, In consideration of , already advanced 
 
 to him by the said party of the third part, doth, for 
 himself, his heirs, executors, and administrators, co- 
 venant with the said party of the third part, his exe- 
 cutors, administrators, and assigns, that the said 
 party of the first part, his executors, administrators, 
 or assigns, will pay unto the said party of the third 
 part, his executors, administrators, or assigns, the said 
 sum of , on the day of , a. d. 18 , 
 
 and interest after the rate of per cent, per annum 
 on the said sum of , from the day of , 
 
 now last past, on every day of and day 
 
 of , until the said principal money shall be paid. 
 
 And the said party of the first part doth hereby 
 grant and convey unto the said party of the third 
 part, and his heirs and assigns, all the hereditaments, 
 lands, and premises described in the Schedule hereto, 
 with their actual and reputed appurtenances, and all 
 the estate and interest of the said party of the first 
 part therein. To hold the said hereditaments, 
 
 lands, and premises, unto and to the use of the said 
 party of the third part, his heirs and assigns, forever. 
 
.#' 
 
 uB^ 
 
 4{ 
 
 . w 
 
 OF MORTGAGES. 
 
 H» 
 
 367 
 
 Provided, that if the said principal and interest 
 moneys should be respectively paid according to the 
 foregoing covenant, the said party of the third part, 
 his heirs or assigns, shall thereupon on the request 
 and at the costs of the said party of the first part, jj 
 his heirs or assigns, re-convey the said hereditaments 
 and premises to him or them, and his or their heirs,'"* 
 or as he or they shall direct. And that until breach 
 of the said covenant, the said party of the first part, -^ 
 his heirs or assigns, may occupy or receive the profits 
 of the said hereditaments, lands, and premises, but 
 subject to the several mortgages or other incum- 
 brances now charged or existing on the same. But ' 
 that after breach of the said covenant, may sell the 
 said hereditaments, lands, and premises, or any part 
 thereof, together or in lots, by public auction, or 
 private contract, and subject to any special or other ^ 
 stipulations as to title, evidence of title, or otherwise; 
 And may buy in and re-sell the same, or rescind or 
 vary any contract relating thereto, and, after pay- 
 ment of all moneys hereby secured, any surplus of 
 the proceeds of such sale shall be paid to the said 
 party of the first part, his heirs or assigns. 
 
 Provided, that any person who shall exercise the 
 foregoing power of sale after the full payment of all 
 moneys hereby secured or before the expiration of 
 months from the date hereof, without the 
 written consent of the said party of the first part, 
 his heirs or assigns, shall be answerable to the said 
 party of the first part, his heirs or assigns, as for a 
 breach of trust, and also in damages, but no pur- 
 chaser shall be concerned to ascertain that any money 
 
 % 
 
 .* 
 
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 V 
 
 «■ " «" 
 
 .** 
 
 
 ^ .' ♦' 
 
 ^ 
 
 "iS' 
 
 368 
 
 ^r^j 
 
 CANADIAN DOMESTIC LAWYEE. 
 
 is owing on this security, or that such time has ex- 
 pired, or be affected by notice that such sale is irre- 
 gular or unauthorized. 
 
 Provided always, and it is further agreed by and 
 % between the said parties of the first and third parts, 
 that rpon any sale being made by the said party of the 
 first part, his heirs or assigns, during the said period 
 of months from the date thereof, or before fore- 
 
 closure or sale by the said party of the third part, 
 his heirs, executors, administrators, or assigns, of any 
 i L t or portion of the said lands and premises hereby 
 conv,3yed or intended s-o to be, for the full value 
 thereof, and upon payment thereof, by the said party 
 of tli-j first part, his heirs or assigns, to the said 
 party of the third part, his heirs, executors, adminis- 
 trators, or assigns, or upon security being giAcn 
 therefor to the said party of the third part, his 
 heirs, executors, administrators, or assigns, to his 
 or their entire satisfaction, not only as to security, 
 but as to time for payment thereof, then he, the 
 said party of the third part, his heirs or assigns, 
 shall thereupon, at the request and at the costs of 
 the said party of the first part, his ]hAt^ or as- 
 signs, release such part or p^^rtion uo sold as afore- 
 said to the purchaser or purchasers thereof freed 
 and absolutely disch i -ged from this mortgage se- 
 curity, but not in discharge of ^ht other heredita- 
 ments, lands, and pre r^ses comprised in tliis security, 
 or of the said party of the first part, his heirs, exe- 
 cutors, or admin istrator*?, from the residue of the 
 moneys hereby secured. 
 
 And the said party of the first part, for himself, 
 
# 
 
 -* 
 
 •igns 
 
 OF MORTGAGES. 
 
 ** 
 
 369 
 
 bis heirs, executors, administrators, and assigns (but 
 so as in any action which may be brought after 
 foreclosure or sale of all or any part of the said 
 hereditaments, lands, and premises, to render him 
 or them liable only for the acts and defaults of 
 himself and all persons claiming or to claim through, 
 under, or in trust for him), covenants with the said 
 l^arty of the third part, his heirs, executors, adminis- 
 trators, and assigns, that the said party of the 
 first part hath power hereby to assure the said he- 
 reditaments, lands, and premises, in manner afore- 
 said, free from incumbrances, except those parti- 
 cularly mentioned in the said Schedule hereto. 
 And that the same shall be held and enjoyed accord- 
 ingly, and shall at any time or times, at the costs 
 of the said party of the first part, his heirs, execu- 
 tors, administrators, or assigns, before foieclosure or 
 sale and conveyance thereof and afterwards at the 
 costs of the person or persons requiring the same, 
 be further and more effectually or satisfactorily as- 
 sured to t^d use of the said party of the third part, 
 his heirs or a,f iigns, or otherwise by such acts, deeds, 
 or assurances ai the said party of the third part, 
 his heirs, executors, administrators, or assigns, shall 
 reasonably require and tender to be done, executed, 
 or made. Aid the said party of the second part, 
 M'ife of the said party of the first part, hereby bars 
 her dower in the said land and premises. 
 ' In Witness, &c. 
 Signed, &c, 
 The Schedule above referred to. 
 
 16* 
 
 •.* 
 
 # 
 
 is 
 
 " /tL 
 
 ^'VVt*, 
 
370 
 
 CANADIAN DOMESTIC LAWYEB. 
 
 a. 
 
 Mortgage of Lease. 
 
 This Txdenture, made the day of , 
 
 in the year of our Lord one thousand eight hundred 
 and . 
 
 Between ., of the first part, and , of 
 
 the second part. Whereas, by an Indenture of 
 Lease, bearhig date on or about the day of , 
 
 in the year of our Lord one thousand eight hundred 
 and , and made between ; The said lessor 
 
 therein named did demise and lease unto the said 
 lessee therein named, executors, administrators, 
 and assigns, All and singular th certain parcel 
 or tract of land and premises situate, lying, and 
 being in the , To hold the same, with their 
 
 appurtenances unto the said lessee, executors, 
 
 administrators, and assigns, from the day of 
 
 ^ , in the year of our Lord one thousand eight 
 
 hundred and , for and during the term of 
 
 years from thence next ensuing, and fully to be com- 
 plete and ended, at the yearly rent of , and 
 under and subject to the lessee's covenants and 
 agreements in the said Indenture of Lease rererved 
 and contained . n 
 
 Now THIS Indenture witnesseth, that in con- 
 sideration of the sum of , of lawful money of 
 Canada, now paid by the said part of the second 
 part to the said part of the first part (the receipt 
 whereof is hereby acknowledged), , the said 
 part of the first part. Do hereby grant, bargain, 
 sell, assign, transfer, and set over unto the said part 
 of the second part, executors, administrators, and 
 
 « 
 
.^ 
 
 OF MORTGAGES. 
 
 371 
 
 assigns, All and singular the said parcel or 
 tract of land, and all other the premises comprised 
 in and demised by the said hereinbefore in part re- 
 cited Indenture of Lease: Together with the said 
 Indenture of Lease, and all benefit and advantage to 
 be had or derived therefrom : To have and to hold 
 the same, together with all houses and other buildings, 
 easements, privileges, and appurtenances thereunto 
 belonging, or in any wise appertaining, unto the said 
 part of the second part, executors, administra- 
 tors, and assigns, from henceforth for and during all 
 the residue of the said term granted by the said In- 
 denture of Lease, and for all other the estate, term, 
 right of renewal (if any), and other the interest of 
 the said part of the first part ther^n. Subject 
 to the payment of the rent and the observance and 
 performance of the lessee's covenants and agreements 
 in the said Indenture of Lease reserved and con- 
 tained. ' , .' 
 
 Provided always, that if the said part of the 
 first part, heirs, executors, or administrators, do 
 
 and shall well and truly pay, or cause to be paid, unto 
 the said part of the second part, executors, ad- 
 ministrators, or assigns, the full sum of \ / » , with 
 interest for the same, at .• per cent, per annum, 
 on the days and times and in manner following, that 
 is to say, # , without making any deduction, 
 
 defalcation, or abatement thereout, on any account 
 whatsoever, then these presents, and every clause, 
 covenant, matter, and thing herein contained, shall 
 cease, determine, and be absolutely void to all intents 
 
 Hb 
 
 v 
 
 u'^i^ 
 
 t 
 
372 
 
 CANADIAN DOMESTIC LAWYER. 
 
 # 
 
 « 
 
 and purposes whatsoever, as if the same had never 
 been executed. 
 
 And the said part of the first part do hereby, 
 for heirs, executors, and administrators, covenant, 
 promise, and agree to and with the said part of the 
 second part, executors, administrators, and assigns, 
 in manner following, that is to say, '. 
 
 That , the said part of the first part, 
 
 heirs, executors, and administrators, or some or one 
 of them, shall and will well and truly pay, or cause 
 to bo paid, unto the said part of the second part, 
 executors, administrators, or assigns, the said 
 principal sum and interest in the above proviso 
 mentioned, at the times and in manner hereinbefore 
 appointed for payment thereof, without any deduction 
 or abatement whatsoever, and according to the true 
 igi intent and meaning of these presents. 
 
 And that the said hereinbefore in part recited In- 
 denture of Leabe is, at the time of the sealing and 
 delivery of these present, a good, valid, and subsist- 
 ing lease in the law, and not surrendered, forfeited, 
 or become void or voidable; and that the rent and 
 covenants therein reserved and contained have been 
 duly paid and performed by the said part of the 
 first part, up to the day of the date thereof. '■ 
 
 And that the said part of the first part now ha 
 kl. good right, full power, and lawful and absolute 
 authority to assign the said lands and premises in 
 manner aforesaid, and according to the true intent 
 and meaning of these presents. 'v. * ' .; : 
 
 And that in case of default in payment of the said 
 principal money or interest, or any part thereof, 
 
 sales, 
 Ani 
 heirs, 
 other 
 
 surincr 
 
 '« 
 
 H 
 
OF MORTGAGES. 
 
 373 
 
 contrary to tho proviso and covenant aforesaul, it 
 shall bo lawful for tho said part of the second 
 part, executors, administrators, and assigns, to 
 
 enter into and upon and hold and enjoy the said pre- 
 mises for tho residue of the term granted by the said 
 Indenture of Lease, and any renewal thereof (if any), 
 for their own use and benefit, without the let, suit, 
 hindrance, interruption, or denial of the said part 
 of the first part, executors, administrators, or as- 
 signs, or any other persons whomsoever; "and that 
 free and clear, and freely and clearly acquitted, 
 exonerated, and discharged, or otherwise, by and at 
 the expense of the said part of the first part, 
 heirs, executors, and administrators, well and effect- 
 ually saved, defended, and kept harmless of, from, and 
 against all former and other gifts, grants, bargains, 
 sales, leases, and other incumbrances whatsoever. 
 
 And that the said part of the first part, 
 heirs, executors, administrators, and assigns, and all 
 other persons claiming any interest in the said pre- 
 mises, shall and will, from time to time, and at all 
 times hereafter, so long as the said principal sum or 
 any part thereof shall remain due and owing on 
 this security, at the request and costs of the said 
 part of the second part, executors, administra- 
 tors, or assigns, make, do, and execute, or cause 
 and procure to be made, done, and executed, all such 
 further assignments and assurances in the law of the 
 said premises for more effectually assigning and as- 
 suring the said premises for the residue of the said 
 term, and any renewal thereof (if any), subject to the 
 proviso aforesaid, as by the said part of the second 
 
 
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 (716) 173-4503 
 
374 
 
 CANADIAN DOMESTIC LAWYER. 
 
 # 
 
 .% 
 
 part, executors, administrators, or assigns, or 
 counsel in the law, shall be reasonably advised or re- 
 quired. 
 
 And that the said part of the first part, 
 executors, administrators, or assigns, shall and will, 
 from time to time, until default in payment of the 
 said principal sum or the Interest thereof, and until 
 the said part of the second part shall enter into 
 possession of the said premises as aforesaid, well and 
 truly pay, or cause to be paid, the said yearly rent 
 by the said Indenture of Lease reserved, and all taxes 
 payable on the said premises, and perform and keep 
 all the lessee's covenants and agreements in the said 
 lease contained, and indemnify and save harmless 
 the said part of the second part therefrom, and 
 from all loss, costs, charges, damages, and expenses 
 in respect thereof. 
 
 And also shall and will, from time to time, and 
 at all times hereafter, so long as the said principal 
 money and interest, or any part thereof, shiall remain 
 due on this security, insure and keep insured the 
 buildings erected or to be erected on the land hereby 
 assigned, or any part thereof, against loss or damage 
 by fire, in some one of the public Fire Insurance 
 Offices (English or Canadian), in the full amount 
 hereby secured, at the least, and, at the expense 
 of the said part of the first part, immediately as- 
 sign the Policy, and all benefit thereof, to the said 
 part of the second part, executors, administra- 
 tors, and assigns, as additional security for the pay- 
 ment of the principal money and interest hereby 
 secured; and that in default of such insurance it 
 
 m. 
 
Co MORTGAGES. 
 
 375 
 
 ir re- 
 
 will, 
 f the 
 
 until 
 r into 
 sll and 
 y rent 
 I taxes 
 i keep 
 he said 
 irmless 
 m, and 
 xpenses 
 
 shall be lawful for the said part of the second part, 
 executors, administrators, or assigns, to effect 
 the same, and the premium or premiums paid there- 
 for shall be a charge or lien on the said premises 
 hereby assigned, which shall not be redeemed or re- 
 deemable until payment thereof, in addition to the 
 said principal money and interest as aforesaid. 
 
 Provided, lastly, that until default in payment 
 of the said principal money and interest hereby 
 secured, it shall be lawful for the said part of the 
 first part, executors, administrators, or assigns, 
 
 to hold, occupy, possess, and enjoy the said lands and 
 premises hereby assigned, with the appurtenances, 
 without any molestation, interruption, or disturbance 
 of, from, or by the said part of the second part, 
 executors, administrators, or assigns, or any person 
 or persons claiming or to claim by, from, through, 
 under, or in trust for him, them, or any of them. 
 
 In Witness Whereof, the said parties to these 
 presents have hereunto set their hands and affixed 
 their seals, the day and year first above w^ritten. 
 
 Signed, sealed, and delivered ) • ^ 
 
 vh- 
 
 in the presence of 
 
 f 
 
 K i* 
 
 Received on the date hereof, the sum of 
 being the full consideration above mentioned. 
 In Presence OP r. - < 
 
 r.f- 
 
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 t ;=- 
 
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 .,' i^' 
 
 m: 
 
876 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ■m 
 
 Release of Mortgage. 
 
 UNDER STATUTE. 
 
 To the Registrar of the County of 
 
 I, A. B,, of , Do Certify that C. D., of , 
 hath satisfied all money due upon a certain mortgage 
 made by "the said C. D. to me, bearing date the 
 day of , one thousand eight hundred and , 
 
 and registered at of the clock in the forenoon of 
 
 the day of following, and that such mort- 
 
 gage is therefore discharged. 
 
 As Witness my hand, this 
 
 E. F., of 
 G. H., of 
 
 day of , 18 
 (Signed) A. B. 
 
 ;(wi 
 
 Witnesses. 
 
 ! 
 
 'I'KM >i: 
 
 Affidavit of Mcecution, 
 
 Canada, 
 County of 
 
 to wit. 
 
 E. F., above named and described, maketh oath 
 and saith that he and the other subscribing witness 
 to the foregoing certificate of discharge of mortgage 
 were present and saw the same duly executed by the 
 therein named ; and that he is one of the 
 
 subscribing witnesses to the same; and that the 
 same was executed as aforesaid, at . 
 
 Sworn before me, at 
 in the county of , this 
 day of , 18 . 
 
 dk A OommieaUmer, ^e., in and for the County of 
 
^ OF NATUEALIZATION. 
 
 377 
 
 CHAPTER XV. 
 
 Of Naturalization* 
 
 Naturalization is the act by which an alien, or 
 foreigner, becomes invested with the rights and pri- 
 vileges of a native-born subject. In Canada a per- 
 son duly naturalized is entitled to all the privileges, 
 rights, and -citpacities which a natural-born subject 
 of the British ^rown can enjoy or transmit. 
 
 The. law relating to aliens is to be found in the 
 Cons. St. Canada, cap. 8. That act provides that 
 every alien residing in any part of Canada imme- 
 diately bef jre the 18th day of January, 1840, or who 
 at any time thereafter came or comes to reside in any 
 part of Canada, with intent to settle therein, and 
 who, after a continued residence therein for a period 
 of three years or upwards, has taken the oaths or 
 affirmations of residence and allegiance (or the oath 
 or affirmation of residence only, if a female), and 
 procured the same to be filed of record as therein- 
 after prescribed, so as to entitle him or her to a cer- 
 tificate of naturalization as thereinafter provided, 
 shall thenceforofa enjoy and may transmit all the 
 rights and ca mcities which a natural-born subject 
 of Her Majest y can enjoy or transmit. 
 
 The iirst s ,ep for a foreigner to take for the pnr- 
 
 * 
 
 ■^ 
 
378 
 
 CANADIAN DOMESTIC LAWYEII. 
 
 pose of getting naturalized is to take the oaths of 
 residence and allegiance. These oaths must be taken 
 before a justice of the peace within the city, town, 
 parish, village, or township in which the alien resides. 
 When taken, the justice will grant a certificate 
 setting forth that such alien has taken and subscribed 
 the said oath or affirmation, and (if the fact is so) 
 that such justice has reason to believe that such alien 
 has been so resident within the province for a period 
 of three years or upwards, that he or she is a person 
 of good character, and th/it there exists to the 
 knowledge of the justice no reason why the alien 
 should not be granted all the rights and capacities of 
 a natural-born British subject. This certificate must 
 then be presented to the Court of Quarter Sessions 
 or to the Recorder's Court of the county or city 
 within the jurisdiction of which he resides in Upper 
 Canada, or to the Circuit Court in and for the circuit 
 within which he resides in Lower Canada, in open 
 court, on the first day of some general sitting thereof. 
 The court will thereupon order the certificate to be 
 openly read ; and if the facts mentioned in the cer- 
 tificate are not controverted, or any other valid ob- 
 jection made to the naturalization of such alien, the 
 court will, on the last day of such general sitting, 
 direct that such certificate be filed of record in the 
 court, and thereupon the alien will be admitted and 
 confirmed in all the rights and privileges of British 
 birth, to all intents whatever, as if he or she had 
 been born within the province. 
 
 These formalities having been gone through, the 
 a^^n will be entitled to receive from the court a 
 
 certil 
 
 court 
 
 copy 
 
 party 
 
 count 
 
 and a 
 
 dence 
 
 Ay 
 
 subjec 
 
 ralized 
 
 BritisI 
 
 malitie 
 
 The 
 
 or aflir 
 
 receive 
 
 clerk o: 
 
 of resic 
 
 of nati 
 
 titled t 
 
 the re^ 
 
 ralizati< 
 
 cents, a 
 
 search 
 
 I, A. 
 
 allotned 
 that I 
 with in 
 during 
 country. 
 
 >#: 
 
OF NATURALIZATION. 
 
 379 
 
 certificate of naturalization under the seal of the 
 court and the signature of the clerk thereof. A 
 copy of this certificate may, at the option of the 
 party, be registered in the registry office of any 
 county or registration division within the province, 
 and a certified copy of such registry is sufficient evi- 
 dence of such naturalization in all courts. * 
 
 A woman alien married to a natural-born British 
 subject or naturalized alien becomes herself natu- 
 ralized and entitled to all the rights of a natural-born 
 British subject; without going through any legal for- 
 malities whatever. 
 
 The justice of the peace who administers the oaths 
 or affirmations of residence or allegiance is entitled to 
 receive a fee of twenty-five cents, and no more ; and the 
 clerk of the court, for reading and filing the certificate 
 of residence, and preparing and issuing the certificate 
 of naturalization under the seal of the court, is en- 
 titled to receive twenty-five cents, and no more; and 
 the registrar, for recording the certificate of natu- 
 ralization, is entitled to receive a fee of twenty-five 
 cents, and a further fee of twenty-five cents for every 
 search and certified copy of the same, and uo more. 
 
 Oath of Residence. 
 
 I, A. B., do swear (or, being one of the persons 
 alloined by law to affirm in judicial cases, do affirm) 
 that I have resided three years in this province, 
 with intent to settle therein, without having been 
 during that time a stated resident in any foreign 
 country. So help me God. 
 
 *#■ 
 
 
 
4 
 
 880 
 
 CANADIAN* DOarESTIO LAWYER. 
 
 Otth of Allegiance. 
 
 I, A. B., do sincerely promise and swear (or, beinff 
 one of the persons allowed by law to affirm in Judicial 
 caseSf do affirm) that I will be faithful and bear true 
 allegiance to Her Majesty Queen Victoria, as lawful 
 Sovereign of the United Kingdom of Great Britain 
 and Ireland, and of the Province of Canada, depend- 
 ent on and belonging to the said United Kingdom, 
 and that I will defend her to the utmost of my power 
 against all traitors, conspiracies, and attempts what- 
 ever which shall be made against Her Person, Crown, 
 and Dignity; and that I will do my utmost en- 
 deavor to disclose and make known to Her Majesty, 
 Her Heirs and Successors, all treasons and traitor- 
 ous conspiracies and attempts wliich I shall know to 
 be against Her or any of them; and all this I do 
 swear Without any equivocation, mental evasion, or 
 secret reservation, and renouncing all pardons and 
 dispensations from any person or persons whatever to 
 the contrary. So help me God. * . 
 
 4 
 
 \* 
 
 .«*(« 
 
* ik ^^ PARTNEESHIP. 
 
 381 - 
 
 CHAPTER XVI. 
 
 « O/ Partnership, 
 
 A Partnership is an association of two or more 
 persons contributing, in equal or unequal proportions, 
 money, labor, skill, care, attendance, or services in 
 the prosecution of some trade or manufacture, or tho 
 accomplishment of any other common object, upon 
 the express or implied understanding that the profit 
 or loss attending the transaction is to be shared 
 among the parties in l^ertain proportions. The con- 
 tract of partnership is founded wholly on the consent 
 of parties, and may be created by their acts and 
 deeds, and their common participation in the profit 
 and loss of a trade or business, or of a particular 
 speculation or adventure, as well as through the 
 medium of an express contract. If pa. ..i',3 are not 
 to share the profit and loss, there can be no partner- 
 ship as between themselves, whatever may be their 
 apparent situation and position as regards the public. 
 If one man joins another in the furtherance of a 
 particular undertaking, and contributes work and 
 labor, services and, skill, towards the attainment of 
 thfe common Object, upon the understanding that the 
 remuneration is to depend upon the realization of 
 profits, so that, if the business is a losing business, 
 
 »'4t 
 
882 
 
 CANADIAN DOMESTIC LAWYER. 
 
 he is to get nothing, lio stands in the position of a 
 partner in the undertaking, and not in that of a la- 
 borer or servant for liire. But a person who merely 
 receives out of the profits the wages of labor, or a 
 commission as a liirod servant or agent, such as a 
 factor, foreman, clerk, or manager, and who has no 
 interest or property in the capital stock of the busi- 
 ness, is not a partner in the concern, although his 
 wages may be calculated according to a fluctuating 
 standard and may rise and fall with the accruing 
 profits. 
 
 A partner in a private commercial partnership 
 (not being a public joint-stock company with trans- 
 ferable shares) cannot introduce a stranger into the 
 firm as a partner without the consent of all the 
 members of the co-partnership. 
 
 Every person who stipulates with another for a 
 share of the profits of a business is a partner in the 
 business as regards the public and third parties, and 
 liable as such, whatever may be the private stipu- 
 lations and agreements between him and the parties 
 who appear to the world as the managers and con- 
 ductors of the business, the profits forming a portion 
 of the fund on which the creditors have a right to 
 rely for payment. 
 
 A general partnership is "one formed for trade or 
 business generally, without limitations; a special 
 partnership is one in which the joint interest extends 
 only to a particular concern, as, for example, in the 
 erection of a hotel; a limited partnership is one in 
 which one or more of the partners put in a certain 
 amount of capital, which is liable for the contracts 
 
OF PARTNERSHIP. 
 
 883 
 
 of tho firm, but beyond tbat amount the party ad- 
 vancing is not liable. 
 
 A person who lends his name as a partner, or who 
 suffers his name to continue in the firm after he has 
 actually ceased to bo a partner, is still responsible 
 to third persons as a partner. 
 
 A partner may buy and sell partnership effects; 
 make contracts in reference to the business of the 
 firm ; pay and receive money ; draw and indorse and 
 accept bills and notes; and all acts of such a nature, 
 even though they be upon his own private account, 
 will bind the other partners, if connected with mat- 
 ters apparently having reference to the business of 
 the firm, and transacted with other parties, ignorant 
 of the fact that such dealings are for the particular 
 partner's private account. So also the representation 
 or misrepresentation of any fact made in any part- 
 nership transaction by one partner, or the commis- 
 sion of any fraud in such transaction, will bind the 
 entire firm, even though the other partners may have 
 no connection with or knowledge of the same. 
 
 Dormant and secret partners, whose names do not 
 appear to the world, may be made responsible for the 
 engagements of a trading firm of which they are 
 members. 
 
 Persons may become clothed with the ' legal liabili- 
 ties and responsibilities of partners as regards the 
 public and third parties, by holding themselves out 
 to the world as partners, as well as by contracting the 
 legal relationship of partners among themselves. If 
 a man, therefore, allows himself to be published to the 
 world as a member of a particular firm, if he permits 
 
 # 
 
 :* 
 
* 
 
 884 
 
 CANADIAN DOMESTIC LAWYER. 
 
 his name to appear in tho partnership nanio or to bo 
 UHod in thu buHincss, if ho suffers it to bo exhibited 
 to tho ptiblio over a shop-window, or to bo written or 
 printed in invoices or bills of parcels or prospectuses, 
 or to be published in advertisements, as tho name of 
 n member of the firm, he is an ostensible partner and 
 is chargeable as a partner, although he is not in point 
 of fact a partner in the concern, and has no share or 
 interest in the profits of the business. But if a man's 
 name is used without his knowledge and consent, and 
 ho is represented by others to be a partner without 
 his attthority or permission, he cannot of course be 
 made responsible as a partner upon the strength of 
 Buch false and fraudulent representation. I 
 
 An incoming partner cannot be made responsible 
 for tho non-performance of contracts entered into by 
 tho firm before he became an actual or reputed mem- 
 ber of it. 
 
 Dormant and secret partners may release them- 
 selves from all further liability by a simple relin- 
 quishment of their share in the profit and loss of the 
 business; but, if they are not strictly secret as well 
 us dormant partners, notice of the termination of 
 their connection with the co-partnership must be 
 given. A general notice is sufficient as to all but 
 actual customers: these must have some kind of 
 actual notice. 
 
 If no time has been limited for the dissolution 
 of a general trading partnership, it is a partner- 
 Hhip at will, and may be dissolved at any time at the 
 pleasure of any one or more of the partners. If 
 the pHrtnership was established by deed, the renun- 
 
OF PARTNERSHIP. 
 
 885 
 
 ciation and discliiimcr of it by the party who with- 
 draws from the firm ought to bo inado by deed. But 
 if the partnership was contracted without deed, or, 
 ^s it is technically called, by parol, it may be re- 
 nounced in the same manner. If the partners have 
 agreed that the partnership shall continue for a de- 
 finite period, it cannot be dissolved before the ex- 
 piration of the term limited, except on the mutual 
 consent of all the parties, or by the outlawry, felony, 
 or death of any one or more of them, or by the de- 
 cree of a court of equity. If a partnership for a 
 definite term has been created by deed, the mutual 
 agreement of the parties, to dissolve it, must be by 
 deed also. The partnership is dissolved by the death 
 or insolvency of one of the partners, or by an assign- 
 ment by any partner of his share and interest in the 
 business. A dissolution by one partner is a dissolu- 
 tion as to all. u> 
 
 An executor, administrator, or personal represent- 
 ative continuing in the business after the death of a 
 partner, is personally responsible as partner for all 
 debts contracted. • ^ 
 
 Immediately after a dissolution, a notice of the 
 same should be published in the public papers, for 
 general information, and a special notice sent to 
 every person who has had dealings with the firm. If 
 these precautions be not taken, each partner will still 
 continue liable for the acts of the others to all per- 
 sons who have had no notice of the dissolution. » : 
 
 Under the "Act respecting Limited Partner- 
 ships," Const. St. Can. cap. 60, limited partnerships 
 
 for the transaction of any mercantile, mechanical, or 
 17 
 
m. 
 
 386 
 
 CANADIAN DOMESTIC LAWYER. 
 
 % 
 
 manufacturing business within the province of Canada 
 may be formed by two. or more persons, upon certain 
 terms and conditions ; but the provisions of the act 
 are not to be construed to authorize any partnership 
 for the purpose of banking or insurance. 
 
 Such partnerships are to consist of one or more 
 persons, called "general partners," and of one or 
 more persons who contribute in actual cash payments 
 a specific sum as capital to the common stock, and 
 who are styled "special partners." General part- 
 ners are jointly and severally responsible for all 
 debts and engagements of the partnership, in the 
 same manner as ordinary partners in any trade or 
 business; but special partners are not liable for any 
 debts beyond the amounts contributed by them to the 
 capital. All business is to be transacted by the gene- 
 ral partners alone, and they only are authorized to 
 sign for and bind the partnership. 
 
 Persons desirous of forming a limited partnership 
 must make and sign a certificate which is to contain, 
 firstly, the name or firm under which the partner- 
 ship is to be conducted^ secondly, the general nature 
 of the business intended to be transacted; thirdly, 
 the names of all the general and special partners 
 interested therein, distinguishing which are general 
 and Avhich are special partners, and their usual places 
 of residence ; fourthly, the amount of capital stock 
 which each special partner has contributed; fifthly, 
 the period at which the partnership is to commence, 
 and the period at which it will terminate. 
 
 The certificate is to be in tlie form given in the act, 
 and which will be found hereafter, and must be signetl 
 
OF PARTNERSHIP. 
 
 387 
 
 by the several persons forming such partnership, be- 
 fore a notary public, who will duly certify the same. 
 The certificate so signed and certified must, in Upper 
 Canada, be filed in the ofiice of the clerk of the 
 county court of the county in which the principal 
 place of business of the partnership is situate, and in 
 Lower Canada in the ofiice of the prothonotary of 
 the district and of the registrar of the county, and is 
 to be recorded by him at large in a book kept for 
 the purpose and open to public inspection. 
 
 No partnership will be deemed to have been formed 
 until such certificate has been made, certified, filed, 
 and recorded ; and if any false statement be made in 
 such certificate, all the persons interested in the part- 
 nership will be liable for all the engagements thereof 
 as general partners. 
 
 If it is desired to renew or continue the partner- 
 ship beyond the time originally fixed for its duration, 
 a new certificate must be made, certified, filed, and 
 recorded in the manner required for its original form- 
 ation ; and every partnership otherwise renewed or 
 continued will be deemed a general partnership. 
 
 If any alteration be made in the names of the 
 partners, in the nature of the business, or in the 
 capital or shares thereof, or in any other matter 
 specified in the original certificate, it will be deemed 
 a dissolution of the partnership ; and every partner- 
 ship in any manner carried on after any such alter- 
 ation has been made will be deemed a general partner- 
 ship, unless renewed as a special partnership in the 
 way above mentioned. 
 
 The business of the partnership is to be conducted 
 
388 
 
 CANADIAN DOMESTIC LAWYER. 
 
 under a name or firm in which the names of the gene- 
 ral partners, or some or one of them, only shall be 
 used ; and if the name of any special partner is used 
 in such firm with his* privity, he will be deemed a 
 general partner. 
 
 No part of the sum which any special partner has 
 contributed to the capital stock can be withdrawn by 
 him, or paid or transferred to him in the shape of 
 dividends, profits, or otherwise, at any time during 
 the continuance of the partnership; but any partner 
 may annually receive lawful interest on the sum con- 
 tributed by him, if the payment of such interest does 
 not reduce the original amount of the capital; and 
 if after the payment of such interest any profits re- 
 main to be divided, he may also receive his portion 
 of such profits. If, however, it should afterwards 
 appear that by the payment of any interest or profits 
 to any special partner the original capital has been 
 reduced, the partner receiving such interest or profits 
 shall be bound to restore the amount necessary to 
 make good his share of the deficient capital with 
 interest. 
 
 S'pecial partners are at liberty at all times to 
 examine inter the state and progress of the partner- 
 ship concerns, and may advise as to their manage- 
 ment; but they must not transact any business on 
 account of the partnership, nor be employed for 
 that purpose as agents, attorneys, or otherwise ; and 
 if any special partner interferes in that manner, 
 he will be deemed a general partner, and become 
 liable as such. 
 . General partners are liable to account to each 
 
OF PARTNEBSHIP. 
 
 389 
 
 other, and to the special partners, for their manage- 
 ment of the concern, in the same manner as partners 
 in any other trade or business. 
 
 A limited partnership may be dissolved before the 
 expiration of the term specified in the original cer- 
 tificate, by filing a notice of dissolution in the office 
 in which the original certificate was recorded, and 
 publishing such notice once a week for three weeks 
 in a newspaper published in the county or district 
 where the partnership has its principal place of busi- 
 ness, and for the same time in the Canada Gazette. 
 
 The fee for filing and recording every certificate is 
 fifty cents. 
 
 Partnership Deed. 
 
 Articles of Agreement, made the day of , 
 in the year of our Lord one thousand eight hundred 
 and , Between A. B., of, &c., C. D., of, <fcc., 
 
 E. F., of, ifcc, and G. H., of, &c. 
 
 Whereas the said parties hereto respectively are 
 desirous of entering into a co-partnership in the busi- 
 ness of , at , for the term and 
 subject to the stipulations hereinafter expressed. 
 
 Now THEREFORE THESE PRESENTS WITNESS that each 
 
 of them, the said parties hereto respectively, for him- 
 self, his heirs, executors, and administrators, hereby 
 covenants with the other of them, his executors and 
 administrators, in manner following; that is to say: 
 
 First. That the said parties hereto respectively 
 shall henceforth be and continue partners together 
 
 ,0 each 
 
 in the said business of 
 of 
 
 for the full term 
 
 , to be computed from the day of 
 
390 
 
 CANADIAN DOMESTIC LAWYER. 
 
 one thousand eight hundred and 
 
 if the said 
 
 partners shall so long live, subject to the provisions 
 hereinafter contained for determining the said part- 
 nership. 
 
 Second. That the said business shall be carried 
 on under the firm of • 
 
 Third. That the said partners shall be entitled to 
 the profits of the said business in the proportions fol- 
 lowing; that is to say, > ; and that all 
 losses in the said business shall be borne by them in 
 the same proportions, unless the same shall be occa- 
 sioned by the '.vilful neglect or default of either of 
 the said partners, in which case the same shall be 
 made good by the partner through whose neglect the 
 same shall arise. - '' 
 
 Fourth. That the said partners shall each be at 
 liberty, from time to time during the said partnership, 
 to draw out of the said business, weekly, any sum 
 or sums, not exceeding for each the sum of per 
 
 annum ; such sums to be duly charged to each of them 
 respectively, and no greater amount to be drawn by 
 either of the said partners, except by mutual consent. 
 
 Fifth. That all rents, taxes, salaries, wages, and 
 other outgoings and expenses incurred in respect to 
 the said business,, shall be paid and borne out of the 
 profits of the said business. 
 
 Sixth. That the said partners shall keep, or cause 
 to be kept, proper and correct books of account of 
 all the partnership moneys received and paid, and all 
 business transacted on partnership account, and of 
 all other matters of which accounts ought to be kept, 
 ACCordiQ^ to the usual and regular course of the said 
 
 busii 
 speei 
 ' tives 
 accoi 
 betw 
 on th 
 and 
 Se\ 
 just t 
 nershi 
 thereo 
 respec: 
 businei 
 thereto 
 engage 
 And th 
 contini 
 either 
 viduall 
 or bills 
 surety 
 wilfull 
 thing, 
 nership 
 taken 
 fiiil or n 
 agreeme 
 far as th 
 the oth 
 partner 
 and in ( 
 to be sp 
 
 II 
 
OF PARTNERSHIP. 
 
 391 
 
 said 
 iona 
 )art- 
 
 •ried 
 
 id to 
 sfol- 
 at all 
 !m in 
 occa- 
 ler of 
 ill be 
 ct the 
 
 be at 
 
 prship, 
 
 T sum 
 
 per 
 
 them 
 wn by 
 sent. 
 js, and 
 pect to 
 
 of the 
 
 business; which said ""^^.^a shall bo open to the in- 
 spection of both partntis, or their legal representa- 
 tives. A general balance or statement of the said 
 accounts, stock in trade, and business, and of accounts 
 between the said partners, shall bo made and taken 
 on the day of in each year of the said term, 
 
 and oftener, if required. 
 
 Seventh. That the said partners shall be true and 
 just to each other in all matters of the said co-part- 
 nership, and shall at all times during the continuance 
 thereof diligently and faithfully employ themselves 
 respectively in the conduct and concerns of the said 
 business, and devote their whole time exclusively 
 thereto, and either of them shall not transact or be 
 engaged in any other business or trade whatsoever: 
 And the said partners, or either of them, during the 
 continuance of the said co-partnership, shall not, 
 either in the name of the said partnership, or indi- 
 vidually in their own names, draw or accept any bill 
 or bills, promissory note or notes, or become bail or 
 surety for any person or persons, or knowingly or 
 wilfully do, commit, or permit any act, matter, or 
 thing, by which, or by means of which, the said part- 
 nership moneys or effects shall be seized, attached, or' 
 taken in execution; and in case either partner shall 
 fail or make default in the performance of any of the 
 agreements or articles of the said partnership in so 
 far as the same is or are to be observed by him, then 
 the other partner shall represent in writing to such 
 partner offending in what he may bo so in default; 
 and in case the same shall not be rectified by a time 
 to be specified for that purpose by the partner so 
 
392 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ^ 
 
 representing, the said partnership shall thereupon at 
 once, or at any other time to be so specified as afore- 
 said by the partner offended against, be dissolved and 
 determined accordingly. 
 
 Eighth. That in c. le either of the said partners 
 shall die before the expiration of the term of the 
 said co-partnership, then the surviving partner shall, 
 within six calendar months after such decease, settle 
 and adjust with the representative or representatives 
 of such deceased partner, all accounts, matters, and 
 things relating to the said co-partnership; and that 
 the said survivor shall continue to carry on thence- 
 forth, for his sole benefit, the said co-partnership 
 business. 
 ^, In Witness Whereof, the said parties have hereto 
 
 set their hands and seals, the day and year first above 
 written. 
 
 Signed, sealed, and delivered ) 
 in the presence of . f 
 
 Partnership Deed. 
 
 ^ ANOTHER FORM. . 
 
 Articles op Agreement, made the day of , 
 . in the year of our Lord one thousand eight hundred 
 and , Between , of the first part, and 
 
 , of the second part. 
 
 Whereas the said parties of the first and second 
 part are desirous of becoming partners in their said 
 trade or business of ; and whereas the 
 
 said party of the first part hath, by application and 
 assiduity, established a considerable share of business 
 in his profession ; and whereas the said parties of 
 
 the 
 
 entc 
 
 ' on t 
 
 and 
 
 parti 
 
 date 
 
 inafti 
 
 ship; 
 
 part 
 
 first ] 
 
 sents 
 
 receip 
 
 ation 
 
 businc 
 
 to one 
 
 and di 
 
 Nov 
 
 each o 
 
 part, 
 
 trators 
 
 his exd 
 
 Tha^ 
 
 shall h( 
 the tra( 
 of 
 
 present 
 to the I 
 ing the 
 That 
 the firm 
 
OF PARTNERSHIP. 
 
 393 
 
 the first and second part have mutually agreed to 
 enter into co-partnership, and to practise and carry- 
 on the profession of as joint practisers, for 
 and during the term of years, if both the said 
 parties shall so long live, to be computed from the 
 date of these presents, subject to the provisions here- 
 inafter contained for determining the said partner- 
 ship; AND WHBBEAS the Said party of the second 
 part hath agreed to and with the said party of the 
 first part to pay him on the execution of these pre- 
 sents the sum of , lawful money of Canada (the 
 receipt whereof is hereby acknowledged), in consider- 
 ation of being admitted into partnership in the said 
 business so acquired as aforesaid, and of being entitled 
 to one-half the profits arising from their joint labor 
 and diligence during the term of years aforesaid. 
 
 Now THEREFORE THESE PRESENTS WITNESS that 
 
 each of them, the said parties of the first and second 
 part, for himself, his heirs, executors, and adminis- 
 trators, hereby covenants with the other of them, 
 his executors and administrators, in manner follow- 
 ing ; that is to say : 
 
 That the said parties of the first and second part 
 shall henceforth be and continue partners together in 
 the trade or business of , for the full term 
 
 of years, to be computed from the date of these 
 
 presents, if the said parties shall so long live, subject 
 to the provisions hereinafter contained for determin- 
 ing the said partnership. 
 
 That the said business shall be carried on under 
 the firm of , in such messuage or house in 
 
 as from time to time may be agreed upon. 
 
 It* 
 
 M 
 
 i- 
 
 
394 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ■€ 
 
 That the said parties of the first and second part 
 shall be entitled to the profits of the said business 
 equally, and that all losses happening in the course 
 of the said business shall be borne by them in the same 
 proportion, unless the same shall be occasioned by the 
 wilful neglect or default of either of the said partners, 
 in which case the same shall be made good by the 
 partner through whose neglect the same shall arise. 
 
 That the expenses of the partnership for rent, 
 maintenance of clerks and apprentices, as well those 
 now employed by the said party of the first part as 
 those which may hereafter be engaged, and all other 
 incidental expenses, shall be paid out of the profits 
 of the business, or equally borne by both parties. ^ 
 
 That no apprentice, clerk, or servant shall be 
 taken, engaged, or employed in or about the said 
 business by either of the said partners, without the 
 consent of the other of them. 
 
 That the apprentice fees or premiums to be paid 
 with any apprentice or other person to be received 
 into the service of the said firm during the continuance 
 thereof, shall be considered as the profit of the partner 
 to whom the said apprentice or person shall be articled. 
 
 That the said party of the first part shall take the 
 charge and management of, and also assist, as far as 
 he conveniently can, in the general business of the office, 
 and in giving instructions to assistants and apprentices. 
 
 That the said party of the second part shall take 
 charge of all matters appertaining to , and keep 
 
 the accounts thereof, and give directions and instruc- 
 tions generally to the apprentices and assistants. 
 
 That the said accounts, heretofore mentioned to 
 
 ^ 
 
OF PARTNERSHIP. 
 
 395 
 
 be kept, shall be properly kept in writingj of all 
 moneys received and paid on account of the partner- 
 ship business, according to the usual and regular 
 course of the said business; and which accounts, 
 together with all deeds, securities for moneys, and 
 papers belonging to the said business, shall be kept 
 where the said business shall be carried on, and not 
 elsewhere, and shall, at reasonable times, be open to 
 the inspection of bpth the said partners. > 
 
 That the said partners shall be true and just to 
 each other in all their contracts, sales, reckonings, 
 receipts, payments, and dealings, and shall at all 
 times, during the continuance of the said partnership, 
 diligently and faithfully employ themselves respect- 
 ively in the conduct and management of the said 
 business as heretofore respectively allotted to them. 
 
 That neither of the said partners shall use the 
 name of the firm to transact any business or enter 
 into any contract or agreement with, or give credit 
 to, any person, or lend or advance any sum or sums 
 of money out of the said partnership funds to any 
 person or persons, after he shall be required by the 
 other of the said partners not to do the same. And 
 that neither of the said partners, without the con- 
 sent of the . other of them, shall, using the name of 
 the firm, draw or accept any bill of exchange, or 
 promissory note, or contract any debt on account of 
 the said partnership, except in the usual and regular 
 course of business of the said partnership and for 
 the benefit thereof. 
 
 That both parties shall pay into the Bank of 
 all moneys received by them on account of the busi- 
 
 ^ 
 
896 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ness of the firm, to be placed to the credit of the firm 
 account. 
 
 That the several books of accounts, hereinbefore 
 stated to bo kept, shall, in the months of and 
 in each and every year during the continuance of the 
 said partnership, or as often as it shall from circum- 
 stances be found convenient, be made up between 
 the said parties, so that each of the said parties may 
 f be enabled to ascertain the true value of his estate 
 and interest therein and receive the same; which 
 •g, statement shall be final and conclusive, except some 
 
 manifest error shall appear therein. 
 
 That in the case of either of the said partners 
 dying before the expiration of the said partnership, 
 then the surviving partner shall, within six calendar 
 months next after the decease of the partner so 
 dying, settle and adjust with the representative or 
 representatives of the deceased partner all accounts, 
 ' matters, and things relative to the said partnership 
 up to the day of such decease, giving and receiving 
 such balance as may be due on such settlement to 
 either party. 
 
 That on the determination of the said partnership 
 in any way, the office-furniture, books, and other 
 partnership property accumulated during and at the 
 expense of the said firm, shall be equally divided 
 between the said partners, or their representatives. 
 
 In Witness WnBRBOP, the said parties to these pre- 
 sents have hereunto set their hands and seals, the 
 day and year first above written. . .^ 
 
 Signed, sealed, and delivered ) 
 in the presence of . j 
 
-« #• 
 
 OF PARTNERSHIP. 
 
 397 
 
 DIuolutlon of Partnership. 
 
 BY INDORSEMENT. 
 
 We, the undersigned, do hereby mutually agree 
 that the partnership heretofore subsisting between 
 us as Wholesale Grocers, under the within articles of 
 co-partnership, be, and the same is hereby, dissolved, 
 except for the purpose of the final liquidation and 
 settlement of the business thereof; and upon such 
 settlement wholly to cease and determine. 
 
 In Witness Whereof, we have hereunto set our 
 hands and seals, this day of , a. d. 18 
 
 A. B. [l. b.] 
 
 Signed, sealed, and delivered ) 
 in the presence of X. Z. f 
 
 0. D. 
 
 E. F. 
 G. H. 
 
 [l. s.] 
 [l. s.] 
 [l. s.] 
 
 NOTICE thereof. 
 
 Notice is hereby given that the partnership 
 heretofore subsisting between us, the undersigned, as 
 Wholesale Grocers, has been this day dissolved by 
 mutual consent. All debts owing to the said part- 
 nership are to be paid to A. B., at , and all 
 claims against the said partnership are to be present- 
 ed to the said A. B., by whom the same will be settled. 
 
 Dated at 
 
 , this day of 
 
 Witness, 
 X. Z. 
 
 A. D. 18 
 
 A. B. 
 
 C. D. 
 
 £. F* 
 
 G. H. 
 
808 
 
 CANADIAN DOMESTIC LAWYKR. 
 
 KOTICB WHEN BUSINESS TO BB CONTINUED. 
 
 Notice is hereby given that the partnership here- 
 tofore subsisting between us, the undersigned, A. B., 
 C. D., E. F., and G. H., as Wholesale Grocers, was 
 this day dissolved by mutual consent, so far as regards 
 the said A. B. All debts due to the said partnership 
 ttro to bo paid, and those due from the same discharged, 
 at , where the business will be continued by 
 
 the laid C. D., E. F., and G. H., under the firm of 
 
 "2>. cfeCo." 
 , this day of 
 
 Dated at 
 
 , A. D. 18 
 
 A. B. 
 CD. 
 E. F. 
 G. H. 
 
 Witness, 
 X. Z. 
 
 Limited Liability Certificate. 
 
 We, the undersigned, do hereby certify that we have 
 entered into co-partnership, under the style or "firm 
 of B. D. (& Co., as ( Grocers and Commission Mer- 
 chants)^ which firm consists of A. B., residing 
 usually at , and C. D., residing usually at , 
 
 as general partners; and E. F., residing usually at 
 , and G. H., residing usually at , as 
 
 special partners, the said E. F. having contributed 
 $4000 and the said G. H. $8000 to the capital 
 stock of the said partnership. Which said co-part- 
 nership commences on the day of , 
 Anno Domini one thousand eight hundred and , 
 
 
 ■*■- 
 
w- 
 
 OF PROMISSOKY NOTES. 
 
 399 
 
 and terminates on the day of , Anno Domini 
 one thousand eight hundred and 
 
 Dated this day of , Anno Domini one 
 
 thousand eiglt hundred and ,. 
 
 , • . ' (Signed) A. B. 
 
 Signed in the ) 
 presence of mo. » 
 L. M. 
 
 Notary PuUie. 
 
 CD. 
 E. F. 
 
 G.n. 
 
 » < 
 
 
 t*. 
 
 CHAPTER XVII. 
 
 Of Fromi88ory Notes* 
 
 A Promissory Note may be defined to be a pj'o- 
 mise or engagement in writing to pay a specified 
 sum of Aoney, at a time therein limited, or on 
 demand, or at sight, to a person therein named, or 
 his order, or to the bearer. 
 
 Form of a Promissory Note. 
 
 Toronto/') 1 January, 1864.i») 
 
 $ioo.oo.<») 
 
 Two months after date,^*^ I promise to pay^*' to C. 
 D. {the payee)\^^ ororder,<^attheCityBank,Toronto,<'^ 
 the sum of one hundred doUars,^^ value received.^^"^ 
 . ^ , . , A. B. {the maker)P^^ 
 
 [Indorsed] C. D. {Jirst indorser), ) ^uy 
 ^- E. F. (second indorser). f 
 
^■ 
 
 400 CANADIAN DOMESTIC LAWYER. 
 
 ¥fy 
 
 ■m 
 
 BEMABKS ON THIS FORM. 
 
 (1) The place at which the note is dated or sup- 
 posed to be made. 
 
 (2) The date of the note. 
 
 (3) The sum superscribed in figures. 
 
 (4) The time when payable. 
 
 (5) " I promise to pay." 
 
 (6) To whom payable. 
 
 (7) Or order. 
 
 (8) The place where mentioned in the body to be 
 payable. 
 
 (9) The sum payable. 
 
 (10) Value received. i 
 
 (11) The maker. 
 
 (12) The form of the indorsements. 
 
 1, The Place at which the Note is dated or supposed 
 
 to be made. 
 
 The observations we have made on the correspond- 
 ing part of a bill of exchange equally apply here. 
 
 2. The Date of the Note. 
 
 The remarks before made on the date of a Jiill are 
 equally applicable to the date of a Note. 
 
 3, 4. See the observations (ante^ 4 and 6) on the 
 corresponding parts of a bill of exchange. 
 
OF PROMISSORY NOTES. 
 
 401 
 
 6. ^^ J promise to pay " 
 
 No particular or precise form or set of words is 
 ' necessary to constitute a valid promissory note. 
 Neither the word promise nor the word pa]/ is indis-' 
 pensable; but there must be equivalent expressions. 
 
 But there must be words importing a j^omise to 
 pay. A mere "I. O. U." such a sum, is not, there- 
 fore, valid as a promissory note. 
 
 Where a note is signed by several persons as 
 makers, it is usually joint and several, so as to give 
 the holder a right of action against all of them 
 jointly, or each separately, at his election; although 
 of course the note is satisfied by being once paid by 
 all or either of the parties. The words then are, 
 "We jointly and severally promise," &c. But where 
 a note began, "I promise," &c., and was signed by 
 several makers, it was held, the note was several as 
 well as joint. ^ 
 
 If a note purport to be made, and be signed, by 
 A. only, JB. cannot be sued thereon^ although he was, 
 jointly with A.^ liable for the debt for which the note 
 was given. But if a note begin, "I promise to pay," 
 &c., and A. and J5. be partners in trade, and A. 
 sign the note as for himself and JS., on the face of 
 the instrument, the note is several against A. and 
 joint against the firm. * 
 
 "^W 
 
 I 
 
 I' si 
 
 6, 'I. See the observations {ante, 6, 7) on the 
 corresponding parts of a bill of exchange, and which 
 are equally appropriate to the case of a promissory 
 note. 
 
402 
 
 CANADIAN DOMESTIC LAWYER. 
 
 >« 
 ^ 
 
 8. The place inhere mentioned in the body of the 
 Note to he payable. 
 
 The place of payment need not be stated in the 
 body or other part of the note. 
 
 But where the maker desires that he should not be 
 responsible unless presentment fo.' payment has been 
 previously made at a particular house or bank, at 
 which he intends that the money should be ready, 
 he should introduce these words in the body of the 
 instrument, adding after them, "and not otherwise 
 or elsewhere." By so doing he will render a pre- 
 sentment for payment at the specified place essential 
 to complete his liability. 
 
 9. The sum payable; and 10, The words "value 
 received." It is only necessary to refer to the re- 
 marks made on these parts of a bill. 
 
 11. The Maker. 
 
 Nor is there any thing to distinguish the form of 
 the signature of the maker of a note from that of 
 the drawer's signature to a bill. We may here again 
 advert to the cases relative to the effect of the signa- 
 ture to a note by or for several makers, where the 
 note begins, " I promise to pay," &c. If the maker, 
 instead of subscribing his name, address the note to 
 himself, and then write "accepted" across it, and 
 sign his name thereto, the instrument may be treated 
 as a note. 
 
 ^' 
 
OF PATENTS. 
 12. The Form of the Indorsements. 
 
 403 
 
 The law on this subject affectmg notes is the same 
 as in the case of bills. 
 
 CHAPTER XVIIL 
 
 Of Patents, 
 
 A PATENT is the name usually given to a grant 
 from the Crown, by letters-patent, of the exclusive 
 privilege of making, using, exercising, and vending 
 some new invention. The granting of such letters- 
 pateit is an ancient prerogative of the Crown, — a 
 prerogative which was stretched far beyond its due 
 limits in the reign of Queen Elizabeth and her suc- 
 cessor, and the monopolies thus created formed one 
 of the grievances which King James was at last 
 obliged to remedy. 
 
 The granting of patents for inventions — to which 
 our attention will be confined — is now regulated by 
 the "Act respecting Patents for Inventions," Cons. 
 St. Can. cap. 34. 
 
 Any British subject resident in Canada, being the 
 discoverer or inventor of any new and useful art, 
 machine, manufacture, or composition of matter, or 
 any new and useful improvement thereon, may obtain 
 a patent therefor, which will secure to him the exclu- 
 sive property therein for a period of fourteen years 
 
 I 
 
 I 
 
 
 I 
 
 :l}| 
 
404 
 
 CANADIAN DOMESTIC LAWYER. 
 
 from the granting of the patent. This exclusive 
 right may, on certain conditions, be extended for a 
 further period of seven years. Similar rights may 
 also be obtained by the inventor or producer of any 
 new or original design for a manufacture of metal or 
 other material, or for the printing of woollen, silk, 
 cotton, or other fabrics, or of any new or original 
 design for a bust, statute, or has relief, or composi- 
 tion in alto or basso relievo, or any new or original 
 impression or ornament in marble or other material, 
 or any new or useful pattern, or print, or picture, to 
 be either worked into, or worked on, or printed, or 
 painted, or cast, or otherwise fixed, on any article 
 of manufacture. 
 
 The application for a patent must be made by 
 petition to the Governor-General. The art, &c., in re- 
 spect of which the patent is desired must have been 
 unknown and unused in the province before the peti- 
 tioner discovered, invented, designed, or produced 
 it. The fact of a patent having issued for the same 
 invention in a foreign country will not, however, de- 
 prive the original and true inventor of the right to a 
 patent in this province. 
 
 Before receiving a patent, the inventor must make 
 a declaration that he verily believes that he is the 
 true inventor or discoverer of the art, machine, or 
 improvement for which he solicits a patent. This 
 declaration may be made before a justice of the 
 peace, or, when the applicant is not residing in the 
 province, before any minister plenipotentiary, charge- 
 d"* affaires, consul, or agent of Great Britain, or 
 notary public of the country in which such appli- 
 
OF PATENTS. 
 
 405 
 
 cant happens to be at the time of making the same. 
 He must deliver a written description or specilication 
 ^in duplicate of his invention or improvement, and of 
 the manner or process of compounding the same. 
 This specification must bo full, clear, and exact in 
 its terms, so as to distinguish the invention from all 
 other things before known, and to tniablo any person 
 skilled in the art or science of which it is a branch, 
 or with which it is most nearly connected, to make, 
 compound, and use the same. In the case of a 
 machine, he must fully explain the principle and the 
 several modes in which he has contoinijlated the 
 application of that principle or character by which 
 it may be distinguished from other inventions. He 
 must accompany the whole with drawings and written 
 references, made in duplicate^ where the nature of 
 the case admits of drawings, or with specimens of 
 the ingredients, or of the composition of matter, 
 sufficient in quantity for the purpose of experiment. 
 The description or specification must be signed by 
 himself, and attested by two witnesses, and tiled in 
 the office of the Minister of Agriculture. Whenever 
 the case admits of drawings, the same must be fur- 
 nished in duplicate, one to be deposited in the office 
 of the Minister of Agriculture, and the other an- 
 nexed to the patent and to be considered a part of 
 the specification thereof; and a copy of the specifi- 
 cation will, in all cases, be annexed to the patent. 
 When the patent is for a machine, the inventor must 
 deliver a model of such machine to the Minister of 
 Agriculture, if he deems such model to be necessary. 
 Before a patent can be available to a patentee, it 
 
 
 
 J :■*■ 
 
 ■■ u 
 
« 
 
 * 
 
 406 
 
 CANADIAN DOMESTIC LAWYER. 
 
 must be recorded in a book to be kept for that jDur- 
 pose in the office of the Minister of Agriculture. As 
 soon as recorded, it is to be delivered to the patentee, 
 or his order. 
 
 The rights and privileges granted to inventors and 
 discoverers under the Patent Act are extended to any- 
 British subject resident in Canada, who, whilst tra- 
 velling in any foreign country, may have discovered 
 or obtained a knowledge of any new and useful art, 
 machine, manufacture, or composition of matter not 
 known or not in use in Canada; but inventions and 
 discoveries made or used in the United States, or 
 any of the British dominions in Europe or America, 
 are protected. 
 
 A person desiring to introduce into Canada any 
 invention discovered by him in a foreign country 
 must, previous to obtaining a patent for the same, 
 make a solemn declaration, in the manner prescribed 
 in the case of inventors and discoverers, that he be- 
 lieves himself to be the first introducer or publisher 
 of such invention, art, machine, manufacture, or com- 
 position of matter in Canada, and that he discovered 
 or obtained a knowledge thereof while on his travels 
 in some foreign country, not being one of the United 
 States of America, or any of the British dominions 
 in Europe or America. 
 
 Patents are assignable, either in whole or in part, 
 and the patentee may grant to any person the exclu- 
 sive right to use and sell the patented invention or 
 discovery in any county or otbci 'ocality. Assign- 
 ments and grants of exclusive rights must be in writ- 
 ing, and must be recorded in the office of the Minis- 
 
 ter 
 
 cutio 
 
 , the if 
 
 ■ Wj 
 inga 
 
 to 8U( 
 
 nistra 
 *they ^ 
 of the 
 If t 
 invent 
 mitted 
 one tc 
 tlie thi 
 cision ( 
 be final 
 an arbi 
 of Agr 
 party; 
 <ipj)licai 
 in appo 
 culture 
 Paten 
 years, 
 in writii 
 upon w 
 ^orth, an 
 three tii 
 other n 
 French '. 
 which tl 
 the time 
 
OF PATENTS. 
 
 407 
 
 part, 
 exclu- 
 
 Lion ov 
 Lssign- 
 
 [n writ- 
 Minis- 
 
 ter of Agriculture within two months from the exe- 
 cution thereof. When an assignment is made before 
 the issuing of the patent, it may issue to the assignee. 
 
 When an inventor or discoverer dies before obtain- 
 ing a patent for his invention or discovery, the right 
 to such patent will devolve on his executor or admi- 
 nistrator, or other legal, personal representative ; but 
 *they will take such patent in trust for the heir-at-law 
 of the deceiised, if he died intestate. 
 
 If two persons apply for a patent for the same 
 invention or discovery, the application will be sub- 
 mitted to the arbitration of three skilled persons, 
 one to be chosen by each of the applicants, and 
 the third by the Minister of Agriculture. The de- 
 cision of the arbitrators or any two of them is to 
 be final. If either applicant refuses or fails to choose 
 an arbitrator when required so to do by the Minister 
 of Agriculture, the patent will issue to the opposite 
 party ; and when there are more' than two interfering 
 applicants, and the parties applying do not all unite 
 in appointing three arbitrators, the Minister of Agri- 
 culture may appoint the three. 
 
 Patents may be renewed and extended for seven 
 years. The application for extension must be made 
 in writing to the Governor-General, and the grounds 
 upon which the api^lication is based must be set 
 forth, and notice of the application must be published 
 three times each in the Canada Gazette and in two 
 other newspapers published in the English and 
 French languages in that section of the province in 
 which the applicant resides. The notice must state 
 the time when the application will be made, so that 
 
 »* 
 
 iiT, 
 
408 
 
 CANADIAN DOMESTIC LAWYER. 
 
 any person may appear and show cause why the ex- 
 tension should not be granted. 
 
 The application will be heard before a Board, com- 
 posed of the President of the Council, the Attorney- 
 General for that part of the province in which the 
 applicant resides, and the Finance Minister, who will 
 sit for that purpose at the time designated in the 
 published notice at the Bureau of Agriculture. The 
 patentee must make a statement upon oath of the as- 
 certained value of the invention, and of the receipts 
 and expenditure in detail, exhibiting a true and faith- 
 ful account of the loss or profit in any manner ac- 
 cruing from the same; and if upon the hearing of 
 such application it appears to the Board, having due 
 regard to the public interest, that the term ought to 
 be extended by reason of the patentee, without fault 
 on his part, having failed to obtain from the use and 
 sale of his invention a reasonable remuneration for 
 the time, ingenuity, and expense bestowed thereon, 
 and in the introduction thereof into use, the patent 
 will be extended for seven years; but no extension 
 will be granted after the expiration of the term 
 sought to be extended, nor unless the petition or ap- 
 plication therefor be presented six months at least 
 before the expiration of such term. 
 
 Whenever a patent becomes inoperative or invalid 
 by reason of some accidental error in the description 
 or specification, the patent may be surrendered, and 
 a new one issued. 
 
 If by accident or mistake the patentee has made 
 his specification too broad, and has claimed to be the 
 inventor or discoverer of more than that of wlich he 
 
 was i 
 
 those 
 
 , a wri 
 
 and I 
 
 cultur 
 
 Al 
 action 
 costs. 
 All 
 gravec 
 any pe 
 guilty 
 or imp 
 court. 
 
 The] 
 dollars, 
 first ma 
 
 To HI 
 
 Stan 
 Briti 
 Th 
 Shewei 
 That 
 proved 
 has not 
 prior to 
 and thai 
 in the 
 and alio 
 Your 
 
OF PATENTS. 
 
 409 
 
 was in fact the first inventor, he may disclaim, as to 
 those parts of which he was not the first inventor, by 
 , a writing signed by him, and attested by one witness, 
 and recorded in tlie office of the Minister of Agri- 
 culture. 
 
 A person infringing patent rights is liable to an 
 action for damages and to the payment of treble 
 costs. 
 
 All patented articles must bear stamped or en- 
 graved upon them the date of the patent thereof; and 
 any person neglecting this regulation will be deemed 
 guilty of a misdemeanor, and will be liable to fine 
 or imprisonment, or both, at the discretion of the 
 court. 
 
 The fees payable on taking out a patent are twenty 
 dollars, which must be paid when the application is 
 first made. 
 
 ,.f 
 
 
 
 M. 
 
 m 
 
 i^h 
 
 I 
 
 ;i« 
 
 Petition for Patent. 
 
 To His Excellency the Right Honorable Charles 
 Stanley, Viscount Monck, Governor- General of 
 British North America^ <£•<?. cfec. c&c. 
 The Humble Petition of A. B., of , &c. <fcc., 
 Sheweth : 
 
 That your petitioner has invented a new and im- 
 proved Thrashing-Machine, which he truly believes 
 has not been known or used in the province of Canada 
 prior to the invention thereof by your petitioner; 
 and that the same is not now in public use or on sale 
 in the said province with your petitioner's consent 
 and allowance. 
 
 Your petitioner therefore humbly prays that letters- 
 is 
 
 ^ 
 
 n 
 
410 
 
 CANADIAN DOMKSTIO LAWYEK. 
 
 m 
 
 patent under the great seal of the Province of 
 Canada may issue to your petitioner, granting to him, 
 his heirs, lawful representatives and assigns, for the 
 period of fourteen years, the full and exclusive right 
 and liberty of making, constructing, using, and vend- 
 ing to others to be used, the said invention. 
 And your petitioner will ever pray, «fcc. 
 
 (Signed) A. B. 
 
 Speoifloation. 
 
 To ALL WHOM IT MAY CoNCBRN: 
 
 Be it known that I, A. B., of , &o. &c., have in- 
 vented a new and useful machine for chraffhing grain 
 [stating the use and title of the maahine; and if the 
 application is for an improvement^ it should read thus: 
 a new and useful improvement on a (or, on the) ma- 
 chine, <&c.], and I do hereby declare that the following 
 is a full, clear, and exact description of the con- 
 struction and operation o'' the same ; reference being 
 had to the annexed drawings, making a part of this 
 specification, in which figure 1 is a.perspective view; 
 figure 2, a longitudinal elevation; figure 3, a trans- 
 verse sections, &c. [thus describing all the sections of 
 the drawings, and referring to the parts by letters. 
 Then should follow the description of the construction 
 and operation of the machine^ and the principle upon 
 which it is formed^ and the several modes in which 
 the inventor has contemplated the application of that 
 principle or character by which it may be distin- 
 guished from other inventions/ and, lastly, the claim, 
 which should express the nature and character of the 
 invention, and identify the parts claimed sepavatcly 
 
 #■ 
 
OF PATENTS. 
 
 411 
 
 or in combination. If the specification is for an 
 improvement the original invention thereof should 
 be disclaimed, and the claim confined to the im- 
 provement.] 
 
 Witness my hand, this day of , a. d. 18 
 
 A. B. 
 
 Signed in the ) 
 presence of f 
 
 C. D., of 
 
 E. F., of • 
 
 Declaration. 
 
 rit: '1 
 
 County of 
 
 to wit; 
 
 I, A. B., of , do solemnly and sincerely 
 
 declare that I verily believe that I am the true in- 
 ventor or discoverer of the [Thrashing-Machine, or as 
 the case may be] for which I am now soliciting a 
 patent, and that I do not know or believe the same 
 to have been ever before known or used in the Pro- 
 vince of Canada. 
 
 A. B. 
 Declared before me, at 
 in the county 
 day of 
 
 C. D. 
 
 J. p. for the taid county. 
 
 before me, at , ) 
 
 jr of , this S" 
 
 , A. D. 18 . ) 
 
 r if 
 
 
• . 
 
 412 
 
 CANADIAN DOMESTIC LAWYER. 
 
 Surrender for Re-letue. 
 
 3h His Excellency the Right Honorable Charles 
 
 Staxlky, Viscount Monck, Governor- General of 
 
 British North America^ dbc. dbc. «Jtc, 
 
 Tub IIumblb Petition of A. B., of, <fcc. &c., 
 humbly shcweth: 
 
 That your petitioner did obtain letters -patent 
 under the great seal of the Province of Canada for a 
 now thrashing-machine, which letters-patent are dated 
 the day of , a. d. 18 
 
 That your petitioner now believes that the same 
 letters-patent are inoperative, or invalid, by reason 
 of a defective description or specification, which defect 
 has arisen from inadvertence, accident, or mistake, 
 and without any fraudulent or deceptive intention. 
 
 Your petitioner therefore humbly prays that he 
 may bo allowed to surrender the said letters-patent, 
 and that new letters-patent may issue to him for the 
 same invention for the residue of the period for which 
 the original patent was issued, in accordance with 
 the corrected description and specification herewith 
 presented. 
 
 And your petitioner will ever pray, <fcc. 
 
 (Signed) A. B. 
 
 {A corrected specification and declaration must ac- 
 company this petition.) 
 
 Disclaimer. 
 
 Know all Men by these presents, That I, A. B., 
 of, &Q. &C.J to whom letters-patent under the great 
 
OP PATENTS. 
 
 4 
 
 413 
 
 peal of the Province of Canada, for a new thrasliing- 
 machinc, did issne on the day of , a. d. 
 
 18 , did by mistake, accident, or inadvertence, and 
 without any wilful default, or intent to defraud or 
 mislead the public, make my spocifieation of claim 
 too broad, claiming more than that of which I was 
 the original or first inventor, — some material and 
 substantial part of the said thrashing-machine being, 
 nevertheless, truly and justly my own invention 
 [or, claiming to be the original and first inventor or 
 discoverer of a material and substantial part of the 
 said thrashing-machine, of which I was not the first 
 and original inventor, and which I have no legal or 
 just right to claim]. Now Know ye. That I, the said 
 A. B., do hereby disclaim that part of the specification 
 and claim which is in the following words, to wit : [In- 
 sert here that part which is disclaimed^ in the words 
 of the original. State also the extent of the interest 
 lohich the disclaiming parti/ has in t?ie patent^ whether 
 an entire or partial ititerest.] 
 
 Witness my hand, this day of , a. d. 1 8 
 
 A. B. 
 
 Signed in the presence of 
 C. D., of, <fcc. &c. 
 
 Petition for Patent for Design. 
 
 To J2'u JEhicellency the Hight Honorable Charles 
 Stanley, Viscount Monck, Governor- General of 
 BriU'Ji North America^ cfcc. <fec. 
 
 The Humble Petition of A. B., of, <fcc., 
 
 Sheweth : 
 That your petitioner has invented or produced a 
 
 .V ^i 
 
 W- 
 
 ii'"ll 
 
414 
 
 CANADIAN DOMESTIC LAWYER. 
 
 new and original design for a bust {or as the case 
 may 5e), which he truly believes has not been known 
 or used in the Province of Canada prior to the inven- 
 tion thereof by your petitioner. 
 
 Your petitioner therefore humbly prays that let- 
 ters-patent under the great seal of the Province of 
 Canada may issue to your petitioner, granting to 
 him, his heirs, lawful representatives, and assigns, 
 for the period of fourteen years, the exclusive pro- 
 perty or right therein, to make, use, sell, and vend 
 the same, or copies of the same, to others, to be by 
 them made, used, sold, or vended. 
 
 And your petitioner will ever pray, <fcc. \ 
 
 (Signed) A. B. 
 
 {JJie petition rrmst be accompanied by a specijication 
 and declaration^ in the form already given^ which 
 may be altered to suit the circumstances,) 
 
 Assignment of an Entire Interest in a Patent. 
 
 To ALL TO WHOM THESE PbESEXTS SHALL COME, 
 
 A. 6., of, &Q. <&c., SENDS Greeting: 
 
 Whereas the said A. B. has invented a certain 
 thrashing-machine, and has applied for and obtained 
 letters-patent under the great seal of the Province 
 of Canada, granting to him and to his assigns the 
 exclusive right to make and vend the same; which 
 letters-patent are dated on the day of , A. d. 
 
 18 . 
 
 And Whereas C. D., of, <fcc. &c., has agreed to 
 purchase from the said A. B. all the right, title, and 
 interest which he, the said A. B., now hath in the said 
 
OF PATENTS. 
 
 415 
 
 invention under the said letters-patent, for the price 
 or sura of dollars. 
 
 Now THESE Presents witness that for and in 
 consideration of the said sura of dollars, by 
 
 the said CD. paid to the said A. B. at or before 
 the sealing and delivery of these presents (the receipt 
 whereof is hereby acknowledged), he, the said A. B., 
 hath assigned and transferred, and by these presents 
 doth assign and transfer, unto the said CD., his 
 executors, administrators, and assigns, the full and 
 exclusive right to the invention made by him, and 
 secured to him by the said letters-patent, together 
 with the said letters-patent, and all his interest 
 therein or right thereto. 
 
 In Witness Whebeop, the said A. B. hath hereunto 
 set his hand and seal, this day of , a. d. 
 
 18 . A. B. [l.s.] 
 
 Signed, sealed, and delivered 
 in the presence of 
 X. Y. 
 
 (Afi assignment of a partial interest mat/ be readily 
 framed from tJie foregoing.) 
 
 \ 
 
 ./"tii 
 
416 
 
 CANADIAN DOMESTIC LAWYER. 
 
 ■li' 
 
 - - *W I!, 
 
 ^iH.- 
 
 CHAPTER XIX. 
 
 
 Of Receipts and JReleases, 
 
 A RECEIPT is an acknowledgment in writing that 
 the party giving the same has received from the per- 
 son therein named the money, or whatever n\ay be 
 specified in the receipt. 
 
 A creditor receiving money from his debtor is not 
 bound to give a receipt therefor, although it is usual 
 to do so. If the debtor wants a receipt, he ought to 
 have one ready-written for the creditor to sign, and 
 should be provided with pen and ink for the use of 
 the creditor. But*, although it may be legal for a 
 creditor to refuse to give a receipt for money paid to 
 him, it would be very unfair, and legal rights should 
 in such cases be waived, unless there be some good 
 reason for acting strictly. , 
 
 A receipt in full of all demands is only prima facie 
 evidence of what it purports to be. Evidence may 
 be given to show that it was obtained by fraud, or 
 given by mistake or in ignorance of law; so that, 
 if such a receipt be given unintentionally, and with- 
 out a knowledge of all the facts, the whole debt, or 
 so much of it as may remain unpaid, may yet be 
 recovered, notwithstanding tlie giving of such receipt. 
 
 A release is the discharge of a right of action 
 which a man has or may claim against another, and 
 
OF RECEIPTS AND RELEASES. 
 
 417 
 
 is commonly given where parties have had numerous 
 dealings together, and, on closing up their connec- 
 tion, give and take mutual discharges. There is this 
 difference between a receipt and a release, that if a 
 receipt be given in full, as we have seen, the whole 
 debt being in fact not paid, the unpaid portion may, 
 under certain circumstances, be recovered ;^ whereas 
 if a release be given, it, being under seal, operates as 
 a total discharge, notwithstanding a very small por- 
 tion, or, indeed, none at all, of the debt may have 
 been paid. 
 
 :i\ 
 
 Receipt for Rent. 
 
 London, C. W., Ist Sept., 1863. 
 
 Received from Mr. John Smith the sum of one 
 hundred dollars, for half-year's rent of store on 
 Dundas Street, due this day. 
 
 $100t?i 
 
 vv 
 
 Robert Jones. 
 
 Receipt In Full. 
 
 Received the day of , a.d. 18 , from 
 
 Mr. William Brown, the sum of fifty dollars, in full of 
 all demands. 
 
 $50/j^. Hknrt Pipes, 
 
 Reeeipt on Account. 
 
 Stratford, C. W., 12th Oct., 1863. 
 
 Received from Mr. Thomas Hintoff the sum of 
 ninety-six. dollars and fifty cents, on account of pur- 
 chase-money of horse and buggy sold to him this 
 day. 
 
 |96jVTr« William Purcbll. 
 
 18* 
 
 m 
 
418 
 
 CANADIAN DOMESTIO LAWYER. 
 
 _tr r Receipt to Executor. ^ - 
 
 Received, the day of "^ , a. d. 1863, from 
 
 Joseph Creighton and William Thomson, Esquires, 
 executors of the last will and testament of Aaron 
 Creighton, deceased, the sum of one thousand dollars, 
 in full of all demands against the estate of the said 
 Aaron Creig' ton. 
 
 $1000^. ' John Huntingdon. 
 
 Releate of all Demands. 
 
 This Indentuke, made the day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , Between A. B., of, <&c., of the first part, 
 
 and C. D., of, <&c., of the second part. 
 
 Whereas there have been divers accounts, deal- 
 ings, and transactions between the said parties hereto 
 respectively, all of which have now been finally ad- 
 justed, settled, and disposed of, and the said parties 
 hereto have respectively agreed to give each other the 
 mutual releases and discharges hereinafter contained, 
 in manner hereinafter expressed. * 
 
 Now thebefobe these Pbesents wn:c7Ess that in 
 consideration of the premises and of the sum of five 
 shillings of lawful money of Canada to each of them, 
 the said parties hereto respectively, paid by the other 
 of them, at or before the sealing and delivery hereof 
 (the receipt whereof is hereby acknowledged), each 
 of them, the said parties hereto respectively, doth 
 hereby, for himself and herself respectively, his and 
 her respective heirs, executors, administrators, and 
 assigns, remise, release, and forever acquit and dis- 
 charge the other of them, his and her heirs, execu- 
 
OF BEOEIFTS AITD RELEASES. 
 
 419 
 
 tors, administrators, and assigns, and all his, her, and 
 their lands and tenements, goods, chattels, estate, and 
 effects respectively, whatsoever and wheresoever, of 
 and from all debts, sum and sums of money, accounts, 
 reckonings, actions, suits, cause and causes of action 
 and suit, claims and demands whatsoever, either at 
 law or in equity, or otherwise howsoever, which either 
 of the said parties now have or has, or ever had, or 
 might or could have, against the other of them, on any 
 account whatsoever, of and concerning any matter, 
 caus^, or thing whatsoever between them, the said 
 parties hereto respectively, from the beginning of the 
 world dowr to the day of the date of these presents. 
 
 In Witness WHEBEOF,the said parties to these pre- 
 sents have hereunto set their hands and seals, the day 
 and year first above written. A. B. [l.8.] 
 
 CD. [L.S.] 
 
 Signed, seabd, and delivered ) 
 in the presence of • ) 
 
 X.Z. 
 
 '>^ 
 
 'V,- J- 
 
420 
 
 CANADIAN DOMESTIC LAWYER. 
 
 t" ^> 
 
 m. 
 
 CHAPTER XX. 
 
 -k- 
 
 f» i'l. 
 
 Of Wills and Intestacy, 
 
 A WILL is the instrument by which the owner of 
 property declares the mode in which he desires that 
 property to be disposed of after his death. When a 
 man makes a will, he is called a testator ; and when a 
 woman makes a will she is called a testatrix. When 
 movable property i^s given by will, it is said to be 
 bequeathed^ and the property given is called a legacy ^ 
 on the other hand, when land is given, it is said to 
 be devised^ and the property given is called a devise. 
 The person taking a legacy is called a legatee^ but he 
 to whom land is given is called a devisee. 
 
 Any person of sound mind may make a will ; but 
 the will of a married woman is subject to some restric- 
 tions, to be noticed presently. No person under the 
 full age of twenty-one years can make a will of lands, 
 but a will of personalty may be made by males at the 
 age of fourteen, or by females at the age of twelve, 
 if of sufficient discretion. What may amount to suffi- 
 cient discretion cannot be defined here : it must remain 
 for the decision of the proper tribunal, whenever a will 
 is impeached on that ground. The right to dispose of 
 landed property by will was first given by an act of 
 Parliament called the Statute of Wills, passed in the 
 
 f <-*f-':€' 
 
OF WILLS AND IKTESTACY. 
 
 421 
 
 reign of Henry VIII. Personal or movable pro- 
 perty was always subject to such a disposition, but 
 not to its present extent. Anciently, by the general 
 common law, a man who left a wife and children could 
 not deprive them by his will of more than, one equal 
 third part of his personal property; if, however, he 
 left a wife and no children, or children and no wife, 
 he was then enabled to dispose of one-half, leaving 
 the other half for the wife, or for the children. At 
 the pres* nt day, however, there is no such limitation. 
 A man may, if sufficiently devoid of all natural affec- 
 tion,- bequeath the whole of his property to strangers, 
 and leave his wife and children penniless. 
 
 All wills require to be in writing, except the wills 
 of soldiers, made when on actual military service, 
 and of seamen, when at sea. A will of lands must 
 not only be in writing, but must also be signed by the 
 testator or testatrix, in the presence of two witnesses ; 
 and these two witnesses must subscribe their names 
 in the presence of each other. A will of vcn vable 
 or personal property does not require the p ..ae for- 
 malities, although in practice it is usual to observe 
 them. It is neither necessary that the writing should 
 be signed, nor, as a consequence, that it should: 'be 
 witnessed. A writing, however, it must be, thouglii ft 
 does not require signing or attesting. If a man 
 should give instructions to his lawyer to prepare his 
 will, and those instructions are in writing, or a dmft 
 will prepared from them, it is sufficient. Such a 
 writing operates as a will of movables, although it 
 may be informally drawn up and neither signed nor 
 attested. Notwithstanding, however, that such is the 
 
 r 
 
 
422 
 
 CANADIAN DOMESTIC LAWYER. 
 
 case, it is highly desirable that all wills should be 
 signed and attested, if for no other reason, yet for 
 this, — that a will so signed and attested is more sus- 
 ceptible of easy and satisfactory proof. . 
 
 In every will of personality there should be an 
 appointment of some person or persons as executor 
 or executrix. Any person may be appointed ; but if 
 an infant — that is, a person under twenty-one — be 
 appointed, he will not be allowed to exercise his office 
 during his minority; but during this time the ad- 
 ministration of the goods of the deceased will be 
 granted to the guardian of the infant, or to such 
 other person as the surrogate court may think fit. 
 If a married woman should be appointed an executrix, 
 she cannot accept the office without the consent of 
 her husband; and, having accepted it, with his con- 
 sent, she is unable, without his concurrence, to per- 
 form any act of administration which may be to his 
 prejudice; for, as the general rule of law is that a 
 husband and wife are but one person, the power, 
 and, with it, the responsibility, are vested in the 
 husband. 
 
 There is this difference between a will of lands 
 and a will of personal property. Under the former, 
 the devisee, or person to whom the land is given, 
 takes the land direct, without the intervention of 
 any executor; while, on the other hand, a legatee 
 of. personal property can only get the same through 
 the executor. The moment a testator dies, the ex'e- 
 i cutor becomes entitled to the possession of the whole 
 of the personal property, and is bound to see that 
 all the testator's debts are paid, before he pays a 
 
 
 \ •' 
 
ands 
 
 4 
 OP WILLS AND INTESTACY. 
 
 423 
 
 single legacy, or parts with any of the property to 
 the legatees to whom it may be given. 
 
 Before an executor can act, he must get himself 
 lawfully clothed with the necessary authority. This 
 he does by proving the will. Wills must be proved 
 in the surrogate court of the county where the tes- 
 tator had, at the time of his death, his fixed place of 
 abode; and if he had no fixed place of abode in, or 
 resided out of. Upper Canada, at the time of his 
 death, then in the court of any county in which he 
 had any personal or landed property. The first 
 thing, then, for an executor to do is, to take the will 
 10 the clerk of the surrogate court, who is generally 
 the same individual as the clerk of the county court; 
 there the necessary affidavits and documents will be 
 filled up and the will proved in due form. A surro- 
 gate clerk will be found in every county town. 
 
 When the will has been proved, it is the duty of 
 the executor to pay the testator's debts out of the 
 personal estate, to which such executor becomes en- 
 titled by virtue of his office. For this purpose the 
 executor has reposed in him by the law the fullest 
 powers-of disposition over the personal estate of the 
 deceased, whatever may be the manner in which it 
 has been bequeathed by the will. When the debts 
 have been paid, the legacies left by the testator are 
 then to be discharged. In order to give the executor 
 sufficient time to inform himself of the state of the 
 assets and to pay the debts of the deceased, he is 
 allowed a twelvemonth from the date of the death 
 of the testator, before he is bound to pay any legacies. 
 Notwithstanding the lapse of a year from the tes- 
 
 [:i> ! 
 
 
 -f 
 
 i 
 
 i\ 
 
 iiiiiiit 
 
 
 
 Pi 
 
 i 
 
 m 
 
 m 
 

 424 
 
 • , ■ • ^^ 
 
 CANADIAN DOMESTIC LAWYER. 
 
 tator's death, the executor is still liable to any cre- 
 ditor of the deceased to the amount of the property 
 which may hdve come to the executor's hands ; and 
 if hb should have paid any legacies in ignorance of 
 the claims of the creditor, his only remedy is to 
 apply to the legatees to refund their legacies, which 
 they will be bound to do, in order to satisfy the debt. 
 From this liability to creditors an executor cannot be 
 discharged, unless he throw the property into chan- 
 cery, in which case the court undertakes the adminis- 
 tration, and the executor is consequently exonerated 
 from all risk. The executor, however, is of course 
 not answerable to the testator's creditors beyond the 
 amount of property which has come to his hands, 
 unless he should, for a suilicicnt consideration, have 
 given a written promise to pay personally, or should 
 do any act amounting to an admission that he has 
 property of the testator sufficient for the payment of 
 the debts. 
 
 After payment of the testator's debts and legacies, 
 the residue of his personal estate must be paid over 
 to the residuary legatee, if any, named in the will; 
 and if there be no residuary legatee, their to the 
 testator's next of kin. 
 
 When a person dies without making a will, he 
 is said to die intestate, and his property is then dis- 
 tributed according to the provisions of the acts of 
 Parliament passed to regulate such matters. The 
 lands of a person dying intestate descend first to 
 all his children, sons and daughters, equally, and 
 if any child should be dead leaving children, these 
 grandchildren will stand in their parent's place. 
 
 Ms 
 
m 
 
 "ji^' 
 
 OF WILLS AND INTESTACY. 
 
 425 
 
 ki vUl 
 
 and be entitled to the share which would have fallen 
 to their parent had such parent been alive. Fail- 
 ing children, the lands will go to the intestate^s 
 father; and if the father be dead, then to the mo- 
 ther ; and if thie mother be dead, then to the brothers 
 and sisters and collateral relatives. If, however, 
 the land came tO the intestate in right of his mo- 
 ther, then upon his death without children such 
 land will revert to the mother if living, and if dead, 
 to the father for life, and then to the brothers and 
 sisters. 
 
 We have not pretended to give the whole law of 
 descent of real property : we have only given an out- 
 line of the way in which land of an intestate will go 
 in an ordinary and simple case. It would be useless 
 to do more, and would swell the limits of this work 
 far beyond our design. The law of descent of real 
 property is much too intricate to warrant any attempt 
 to popularize it. w 
 
 The application of an intestate's personal property, 
 after payment of all his debts, is now regulated by 
 statutes of the reign of Charles II. and James II., 
 commonly called the Statutes of Distribution, by 
 which statutes the rights of the relations of the de- 
 ceased appear to have been first definitely ascer- 
 tained and rendered legally available. Under these 
 statutes, if the intestate leave a widow and any child 
 or children, the widow shall take a third part of the 
 surplus of his effects. If he leave no child or de- 
 scendant of a child, she takes one-half. If the in- 
 testate leave children, two-thirds of his efiects if he 
 leove a widow, or the whole if he leave no widow, 
 
 
 J -f 
 
.«f 
 
 ^ 
 
 420 
 
 CANADIAN DOMESTIC LAWYER. 
 
 shall be equally divided among his childien, or, if 
 but one, to such child. If the intestate leave no 
 children or representatives of them, his father, if 
 living, takes the whole; or, if the intestate should 
 have left a widow, then one-half. If the father 
 be dead, the mother, brothers, and sisters of the 
 intestate shall take in equal shares, subject, as be- 
 fore, to the widow's right to a moiety. If there be 
 no brother or sister, th mother shall I'ike IIjc whole, 
 or, if the widow be living, a moiety only, as before ; 
 but a stepmother can take nothing. The children 
 of brothers or sisters who are dead stand in their 
 parent's place. 
 
 If a married woman is possessed of property, real 
 or personal, in her own separate right, she may 
 dispose of the same by her will to or among her 
 children, and, failing children, then to her husband. 
 Such will must be in writing, and signed by the tes- 
 tatrix in the presence of two witnesses, neither of 
 whom, however, must be the husband. The separate 
 personal property of a married woman dying in- 
 testate is to be distributed in the same proportions 
 between her husband and children as the personal 
 property of a husband dying intestate is to be dis- 
 tributed between his wife and children. 
 
 When a pierson dies intestate, any of the next of 
 kin may obtain letters of administration from the 
 surrogate court, which will clothe the party obtaining 
 such letters with the same authority that an execu- 
 tor has. An administrator's duties and liabilities 
 are precisely the same as those of an executor, so 
 that it is unnecessary to refer to them again. 
 
OF WILLS AND INTESTACY. 
 
 427 
 
 A codicil is a eupplement or addition made to a 
 will by the testator, to be taken as part of the same,— 
 being intended for its explanation or alteration, or 
 to make some addition to, or subtraction from, the 
 former disposition of the testator. It should be exe- 
 cuted in the same manner and with the same formality 
 as the original v(i\\. 
 
 No precise form of words is essential to the 
 validity of a will ; but great care should be exercised 
 that the wishes of the testator are clearly expressed 
 in proper terms. 
 
 Wills are revoked by the marriage of the testator 
 or testatrix, and by subsequent wills and codicils, so 
 far as such subsequent wills and codicils are incon- 
 sistent or incompatible with the original will. 
 
 Short form of Will. 
 
 'V. 
 
 This is thb Last Will and Testament of me, 
 A. B., of, &c. <&c., made this day of , in 
 
 the year of our Lord one thousand eight hundred 
 and , as follows: , . 
 
 I Give, Devise, and Bequeath all my messuages, 
 lands, tenements, and hereditaments, and all my 
 household furniture, ready money, securities for mo- 
 ney, money secured by life assurance, goods and 
 chattels, and all other my real and personal estate 
 and effects whatsoever and wheresoever, unto C. D., 
 his heirs, executors, administrators, and assigns, to 
 and for his and their own absolute use and benefit, 
 according to the nature and quality thereof respec- 
 tively; Subject only to the payment of my just debts, 
 funeral and testamentary expenses, and the charges 
 
 m 
 
 '''■.■V . 
 
 'J '\ 
 
 i 
 
 vC 
 
 '% 
 
 4 
 
•.. '^- 
 
 428 
 
 CANADIAN DOMESTIC LAWYER. 
 
 of proving and registering this my will. And I 
 appoint E. F., of , executor of this my will; 
 
 And hereby, revoking all other wills, I declare this 
 only to be my last will and testament. 
 
 In Witness Whereof, I have hereunto set my 
 hand and seal, the day and year above written. 
 
 A. B. [l. s.] 
 
 Signed, sealed, published, and 
 declared by the said A. B., the 
 testator, as and for his last will 
 and testament, in the presence ' »' 
 
 of us, who at his request, and in 
 the presence of each other, have \ 
 
 hereunto subscribed our names, ■ 
 
 as witnesses to the due execution 
 thereof. R. S. 
 
 X. Z. 
 
 General form of a Will disposing of Real and Personal 
 Estate, in Legacies. 
 
 I, T. T., of , in the county of , gentle- 
 
 man, being in good health [or in ill health, as the 
 case may be\ and of sound and disposing mind and 
 memory, do make and publish this my last will and 
 testament, hereby revoking all former wills by me at 
 any time heretofore made. •» 
 
 First. I hereby constitute and appoiht my wife, 
 E. T., to be sole executrix of this my last will, 
 directing my said executrix to pay all my just debts 
 and funeral expenses, and the legacies hereinafter 
 given, out of my estate. • 
 
J 
 
 
 a:' 
 
 OP WILLS AND INTESTACY. 
 
 429 
 
 if-r. 
 
 Second, After the payment of my said debts and 
 funeral expenses, I give to each of. my children 
 the sum of ,^ ^.s dollars, to be paid to each of them 
 as soon after my decease, but within one year, as con- 
 veniently may be done. . . 
 
 Third. And for the payment of tlie legacies afore- 
 said, I give and devise to my said executrix all the 
 personal estate owned by me at my decease (except 
 my household furniture and wearing-apparel), and so 
 much'of my real estate as will be sufficient, in ad- 
 dition to the said personal estate herein given, to pay 
 the said legacies. 
 
 Fourth, I give to my said executrix all my house- 
 hold furniture and wearing apparel, for her sole use. 
 
 Mfth, I devise to my said executrix all the rest 
 and residue of my real estate, as long as she shall 
 remain unmarried, and my widow, with remainder 
 thereof, on her decease or marriage, to my said chil- 
 dren and their heirs respectively, share and share alike. 
 
 Ix "Witness Wherbop, I hereunto set my hand 
 and seal, this day of , in the year of our 
 
 Lord one thousand eight hundred and 
 
 T. T. [L.S.] 
 
 Signed, sealed, published, and ^' -' 
 
 declared by the said T. T., as « ^^ r 
 
 and for his last will and testa- 
 ment, in the presence of us, 
 who in the presence of each 
 other, and at his request, have 
 subscribed our names as wit- 
 nesses hereto. X. Z. 
 
 R, S. * * \ 
 
 
 m 
 
'V 
 
 430 
 
 CANADIAN DOMESTIC LAWYER. 
 
 \y 
 
 ' ' " Codicil to a Will. 
 
 This is a codicil to the last will and testament of 
 me, A. B., of, &c. <fec., bearing date the day 
 
 of A. D. 18 (the date of the will). 
 
 I do hereby revoke the bequest of all my house- 
 hold furniture to my son John, and do give and be- 
 queath the same to my daughter Jane, to and for her 
 own absolute use and benefit forever. 
 
 I give and bequeath to my daughter Mary, in 
 addition to the legacy bequeathed to her by my said 
 will, the further sum of $400. 
 
 In all other respects I do confirm my said will. \ 
 
 In Witness Whereof, I have hereunto set my 
 hand and seal, this day of , a. d. 1 8 
 
 A. B. [l. s.] 
 
 Signed, sealed, published, and 
 declared by the said A. B., the 
 testator, as and for a codicil to 
 his last will and testament, in 
 the presence of us, who at his 
 request, and in the presence of 
 each other, have hereunto sub- 
 Bcribed our names as witnesses ' 
 
 to the due execution hereof. 
 
 R. S. 
 ^'■- X. z. 
 
 ■V 
 
 
"Wk 
 
 INSOLVENT ACT. * 
 
 431 
 
 It of 
 day 
 
 ouse- 
 a be- 
 •r her 
 
 Ti in 
 f said 
 
 1. \ 
 et my 
 
 .. s.] 
 
 CHAPTER XXI. 
 
 Insolvent Act, 
 
 This act applies in Upper Canada to all persons, 
 whether traders or non-traders. 
 
 Of Voluntary Assignments. 
 
 Any person unable to meet his engagements, and 
 desirous of making an assignment of his estate, 
 may call a meeting of his creditors at his usual place 
 of business, or, at his option, at any other place which 
 may be more convenient for them ; and such meeting 
 shall be called by advertisement (form "A" hereto an- 
 nexed), stating in such advertisement the object of 
 such meeting; and at such meeting he shall exhibit 
 statements showing the position of his affairs, and 
 particularly a schedule {form " B" hereto annexed) con- 
 taining the names and residences of all his creditors, 
 and the amount due to each, distinguishing between 
 those which are overdue, or for which he is directly 
 liable, and those for which he is only liable indirectly 
 as indorser, surety or otherwise, and which have not 
 become due at the date of such meeting, and also the 
 particulars of any negotiable paper bearing his name, 
 the holders of which are unknown to him: the sched- 
 ule is to be sworn to by the insolvent and may be 
 corrected by him under oath at the meeting: and he 
 
 mp 
 
 
 l::;ir 
 
 **! 
 
 ;!«:;■; 
 
 >* 
 
V. 
 
 432 CANADIAN DOMESTIC LAWYER. 
 
 shall also produce his books of account if required to do 
 so by any creditors. Notice of meeting to be sent 
 by post. At the meeting an assignee may be ap- 
 pointed by the creditors, and if a vote is taken each 
 creditor shall only represent in such vote the amount 
 of direct liabilities of the insolvent to him: and the 
 insolvent shall make an assignment of his estate and 
 effects to the assignee so chosen. 
 
 If no assignee be appointed by the creditors at 
 such meeting, or at any adjournment thereof, the insol- 
 vent may assign his estate to any solvent creditor 
 resident within this province, not related to him, and 
 being a creditor for a sum exceeding $500 ; or if he 
 has no such creditor for so large a sum who will 
 accept such assignment, then he may assign to the 
 creditor, otherwise competent and willing to accept, 
 representing the largest claim upon him ; or he may 
 assign to any official assignee resident within the 
 county within which insolvent has his place of business. 
 In case of any dispute at the first meeting of creditors 
 as to the amount which any one creditor is entitled to 
 represent in the nomination of an assignee at such 
 meeting, such dispute shall be decided by the votes of 
 the majority in number of the creditors present, or 
 represented by agents or proxies ; but no neglect or 
 irregularity in any of the proceedings antecedent to 
 the appointment of the assignee shall vitiate an as- 
 signment subsequently made to ar assignee competent 
 to receive it under the act. 
 
 The deed of assignment may be in the form" C," and 
 be executed in duplicate, and shall convey and vest in 
 the assignee all vouchors, accounts, letters and other pa- 
 
INSOLVENT ACT. 
 
 433 
 
 pers and documents relating to his business, except only 
 such as are exempt from seizure and sale under exe- 
 cution; a duplicate thereof shall bo forthwith de- 
 posited in the office of the proper court, and a list of 
 creditors shall accompany the deed so deposited. 
 
 If the insolvent possesses real estate the deed of 
 assignment may be enregistered in the Registry Office 
 for the county in which such real estate is situate. 
 
 Compultory Llqufdation. 
 
 A debtor shall be deemed insolvent and his estate 
 shall become subject to compulsory liquidation if he 
 absconds, or is immediately about to abscond, from 
 this province with intent to defraud any creditors, 
 or to defeat or delay the remedy of any creditor, 
 or to avoid being arrested or served with legal pro- 
 cess, or if being out of the province he so remains 
 with a like intent, or if he conceals himself within 
 this province with a like intent, or if he secretes any 
 part of his estate and effects with intent to defraud 
 his creditors or to defeat their demands, or if he 
 assigns, removes, or disposes of any of his property 
 with intent to defraud, defeat, or delay his creditors, 
 or if with such intent he has procured it to be seized 
 in execution, or if he has been imprisoned in a civil 
 action, or if he wilfully neglects or refuses to appear 
 on any rule or order requiring his appearance to be 
 examined as to his debts, or to obey orders for pay- 
 ment of his debts, or any decree in Chancery for 
 payment of money, or assigning generally, except 
 under the said act. If a trader ceases to meet his 
 commercial liabilities generally as they become due, 
 
 19 
 
 m 
 
 
 m 
 
 [/.■<M 
 
 'I 
 
 hi 
 ' '' 
 
 I'll 
 
 Is 
 
 lo 
 
 111 
 
«fr 
 
 434 
 
 CANADIAN DOMESTIC LAWYER. 
 
 any two or more creditors for sums exceeding in the 
 aggregate five hundred dollars may make a demand 
 upon him requiring him to make an assignment of 
 his estate for the benefit of his creditors. 
 
 If the trader contends thii u the claims of such cred- 
 itors do not together amount to five hundred dollars, 
 or that the stoppage of paynient was only temporary, 
 Judge to decide. If such petition be rejected or 
 none presented, liquidation to be compulsory, but pro- 
 ceedings must be taken within three months. In case 
 any creditor, by affidavits of himself or any other 
 individual, shows to the satisfaction of the Judge 
 that he is a creditor of the insolvent for a sum <^f 
 not less than two hundred dollars, and also shows, 
 by the affidavit of two creditable persons, such facts 
 and circumstances as satisfy such Judge that the 
 debtor is insolvent and that his estate has become 
 subject to compulsory liquidation, such Judge may 
 order the issue of a writ of attachment against 
 his estate and effects, addressed to the sheriff of 
 the county in which such writ issues, requiring such 
 sheriff to seize and attach his estate and to sum- 
 mons him to appear before the court within such time 
 as is usual therein, which writ shall be accompanied 
 by a declaration setting forth such facts and circum- 
 stances as are necessary to be proved to maintain the 
 issue thereof. 
 
 Immediately upon issue of writ the sheriff shall 
 give notice by advertisement, and shall seize all the 
 estate of the insolvent, and shall return the writ with 
 a report under oath of his action thereon, and shall 
 place the estate attached in the hands of the official 
 
INSOLVENT ACT. 
 
 435 
 
 assignee, when he is appointed, who shall make an In- 
 ventory and file the same in Court on the return day 
 of the writ. 
 
 Of Assignees. 
 
 The Board of Trade at any place may name official 
 assignee, and shall declare what security shall be 
 given, and a copy of the resolution certified by the 
 Secretary of the Board shall be transmitted to the 
 Clerk of the Court in the county within which 
 assignee resides. The assignee shall call meetings of 
 creditors v \enever required in writing so to do by 
 five creditors or by the Judge, or whenever he shall 
 require instructions from the creditors, and he shall 
 be subject to all rules, and shall deposit weekly at in- 
 terest, in the name of the estate, all moneys received 
 by him in the bank, and attend all meetings of cred- 
 itors, and keep a correct register of all proceed- 
 ings, and shall wind up the afiairs of the insolvent by 
 the sale, in a prudent manner, of all his estate ; but in 
 all such respects shall be guided by the direction of 
 the creditors. 
 
 The assignee in his own name, as such, may sue for 
 the recovery of all' debts due to the insolvent, and 
 may take, both in the prosecution and defence of suits, 
 all the proceedings that the insolvent might have 
 taken with respect to the estate. The assignee may 
 sell the real estate of the insolvent, but only after ad- 
 vertisement thereof, for the same time and in the same 
 manner as is required for the actual advertisement of 
 sales of real estate by the sheriff; but the period of ad- 
 vertisement may be shortened to not less than two 
 
 IP hi 
 
 m 
 
 ji;«'M I 
 
 M 
 
486 
 
 CANADIAN DOMESTIC LAWYER. 
 
 months, by a resolution of the creditors passed at a 
 meeting called for the purpose and approved by the 
 Judge ; if the price offered is too small he may with- 
 draw such real estate and sell afterwards. The sale 
 of real estate so made by the assignee shall have the 
 same effect as if made by the sheriff under a writ of 
 execution, but he may grant such term of credit as he 
 may deem expedient, and as is approved of by the 
 creditors, for any part of the purchase money. 
 
 Of Dividends. 
 f 
 
 Two months after the advertisement giving notice 
 of an assignment, or of the appointment of an official 
 assignee, and afterwards from time to time at intervals 
 of not more than six months, the assignee shall pre- 
 pare and keep constantly accessible to the creditors, 
 accounts and statements of his doing as such assignee, 
 and shall prepare dividends of the estate of the insolv- 
 ent. The creditors that may grant a discharge to 
 the debtor under this act may allow the insolvent any 
 sum of money or any property they may think proper, 
 which shall be inserted in the dividend sheet. No 
 costs incurred in suits against insolvent after notice 
 of assignment, or of the issue of a writ of attachment, 
 shall be allowed ; but all the taxable costs incurred in 
 proceedings against him up to the time shall be added 
 to the demand for the recovery of which such pro- 
 ceedings were instituted, and shall rank upon the 
 estate as if they formed part of the original debt. 
 Clerks and other persons in the employ of the insolv- 
 'ent, in and about his business or trade, shall be collo- 
 cated in the dividend sheet by special privilege for 
 
INSOLVENT ACT. 
 
 437 
 
 any arrears of salary or wages, due and unpaid to 
 them at the execution of deed of assignment, or issue 
 of writ of attachment, not exceeding three months 
 of such arrears. 
 
 So soon as a dividend sheet is prepared, notice 
 shall be given by advertisement, and after six days 
 all dividends which have not been objected to shall 
 be paid. 
 
 If any balance remains of the estate of the insolv- 
 ent after payment in full of all debts, it shall be paid 
 over to the insolvent upon his petition to that effect, 
 duly notified to the creditors and granted by the 
 Judge. , , 
 
 Of Appeal. 
 
 There shall be an appeal to the Judge from the 
 award of an assignee by petition, of which notice 
 shall be given to the opposite party and to the as- 
 signee ; and if any parties to such appeal are dissatis- 
 fied with such order of the Judge, they may appeal 
 from his judgment to either of the Superior Common 
 Law Courts, or to the Court of Chancery, or to any 
 one of the Judges of the said Courts, first obtaining 
 the allowance of such appeal by a Judge of any of 
 the Courts to which such appeal may be made ; but 
 the Judge may order it to be referred on a special 
 case to be settled in the full Court, and on such terras 
 as he may think just. Notice of such appeal shall be 
 given within five days from the day on which judg- 
 ment of the Judge is recorded, security to be given 
 that ho will duly prosecute such appeal. 
 
 n 
 
 III 
 
 
 i 
 
 
438 
 
 CANADIAN DOMESTIC LAWYER. 
 
 Of Frautf and Fraudulent Preferences. 
 
 All gratuitous contracts or conveyances, or con- 
 tracts or conveyances without consideration, made by 
 a debtor within three months preceding the date of 
 the assignment, or of the isi»ue of the writ of attach- 
 ment in compulsory liquidation, and all contracts by 
 which creditors are injured, with a person knowing 
 such inability, are presumed to be made with intent 
 to defraud his creditors ; and a contract or conveyance 
 for consideration, by which creditors are injured, made 
 by a debtor unable to meet his engagements with a 
 person ignorant of such inability, and before it hap 
 become public, but within thirty days next before the 
 execution of a deed of assignment or of a writ of at- 
 tachment, is voidable, and may be set aside by any 
 Court of competent jurisdiction; and all fraudulent 
 contracts or conveyances by insolvents are null and 
 void. 
 
 Every payment made within thirty days next before 
 the execution of a deed of assignment or the issue of 
 a writ of attachment by a debtor unable to meet his 
 engagements in full to a person knowing such, is void, 
 and the amount paid may be received back by suit. 
 Provided, that if any valuable security be given upon 
 consideration of such payment, such security, or the 
 value thereof, shall be restored to the creditor before 
 the return of such payment can be demanded. Trans- 
 fer of debts by insolvent to be void in certain cases. 
 Any person who purchases goods on credit or pro- 
 cures advances of money, knowing or believing him- 
 self to be unaBIe to meet his engagements, and con- 
 
INSOLVENT ACT. 
 
 439 
 
 cealing the facta with intent to defraud such person, 
 or who by any false pretence obtains a term of credit 
 for the payment of any advance or loan of money, or 
 of the price or any part of the price of any goods, 
 with intent to defraud the person becoming his cred- 
 itor, shall be guilty of a fraud and be liable to impris- 
 onment for such time as the Court may order, not 
 exceeding two years, unless the debt or costs bo 
 sooner paid. . . v , ", .• ^ '* : • : ' ; 
 
 
 I.I 
 
 , Of Composition and Disoliarge. 
 
 A deed of composition and discharge, executed by 
 the majority of creditors who are creditors for the sum 
 of one hundred dollars and upwards, and who repre- 
 sent at least three-fourths in value of the liabilities of 
 the insolvent, shall have the same effect with regard 
 to the remainder of his creditors, and be binding to 
 the same extent upon him and them as if they were 
 also parties to it, and such deed may be validly made 
 either before, pending, or after proceedings upon an 
 assignment. 
 
 If the insolvent procures a deed of con.t)Osition and 
 discharge to be duly executed, and depoi its it with 
 the assignee, pending the proceedings upoi\ a volun- 
 tary assignment, or for compulsory liquidation, the as- 
 signee, after the period fixed as that after which divi- 
 dends may be declared has elapsed, shall give notice 
 of such deposit by advertisement; and if no opposi- 
 tion is made within six days, the assignee shall act 
 upon such deed of composition according to its terms ; 
 if opposition is made thereto, he shall abstain from 
 taking any action upon it. The consent in writing of 
 
 m 
 
440 
 
 CANADIAN DOMESTIC LAWYER. 
 
 th^ said proportion of creditors to the discharge of a 
 debtor ailter an assignment absolutely frees and dis- 
 charges him from all liabilities whatsoever, except 
 certain debts. A discharge shall not apply to any 
 debt enforcing the payment of which imprisonment 
 of the debtor is permitted by this act, nor to any debt 
 as dambges for personal wrongs, or as a penalty for 
 any offence of which the insolvent has been con- 
 victed, or as the balance of account due by the insolv- 
 ent, as an assignee, tutor, curator, trustee, executor, 
 or public officer ; nor shall such debts, nor any privi- 
 leged debts, nor the creditor thereof, be computed in 
 ascertaining whether a sufficient proportion of the 
 creditors of the insolvent have done, or consented to, 
 any act, matter or thing under this act, but the credit- 
 ors may accept the dividend without being affected by 
 any discharge obtained by the insolvent. An insolv- 
 ent who has procured a consent to his discharge, or 
 the execution of a deed of composition and discharge, 
 may file in the office of the Court the consent or deed 
 of composition and discharge, and may then give 
 notice to the Judge, on a day named in such no- 
 tice, for a confirmation of the discharge effected there- 
 by, and notice in the Canada Gazette for two months, 
 and in one newspaper for the same period, and upon 
 such meeting any creditor may oppose such confirm- 
 ation. If the insolvent does not apply to the Court 
 or Judge for a confirmation of such discharge within 
 two months, proceedings may be taken to annul the 
 discharge ; the confirmation of such discharge, if not 
 reversed in appeal, shall render the discharge final and 
 oonolusive. The insolvent may apply to the Judge by 
 
INSOLVENT ACT. 
 
 441 
 
 petition to grant him his discharge after the expira- 
 tion of one year from date of assignment. Every 
 discharge obtained by fraud shall be null and void. 
 
 i; i\ 
 
 «■,.<■ J' 
 
 Examination of Insolvent and Others. 
 
 Immediately upon the expiracy of two months from 
 the first insertion of the advertisement giving notice 
 of an assignment or of the eppointmcnt ot an official 
 assignee, the assignee may cal; a n eeting ot ihe credit- 
 ors for the examination of tae insolvent, and shall 
 summon him to attend such meeting, ana the iusolv nt 
 may be examined on oath, sworn before the . 'signee, 
 which shall be reduced to writing by the at. *t;nee and 
 signed by the insolvent; he may also '^o examined ? . 
 fore the Judge. Any person who if bei'.3ved to pos- 
 sess information respecting the estate or effects of the 
 insolvent may also be examined before the Judge. 
 Any person who is believed to possess information 
 respecting the estate or effects of the insolvent may 
 also be examined before the Judge to that effect. The 
 insolvent shall also attend all meetings of his creditors 
 when summoned to do so by the assignee. Any per- 
 son summoned for examination shall be subject to pro- 
 ceedings and punishment tiiuilar to which may be 
 taken against or inflicted upon ordinary witnesses, 
 and the Judge may order an allowance of a like amount 
 to that allowed to v itnesses in civil cases. 
 
 I 
 
 A 
 
 ;» 
 
 I 
 
 HI 
 
 i. 
 
 FORM A. 
 
 .^ Insolvent Act of 18Q4. -^ 
 
 The creditors of the undersigned are notified to 
 
 19* 
 
442 
 
 CANADIAN DOMESTIC LAWYER. 
 
 meet at , in , on , the day 
 
 of , at o'clock , for the purpose of receiv- 
 
 ing statements of his affairs, and of naming an as- 
 signee to whom he may make an assignment under 
 the above act. 
 
 [Domicile of debtor, and date.l 
 
 [Signaturei] 
 
 (The following is to he added to the notices sent by post.) 
 
 The creditors holding direct claims and indirect 
 
 claims maturing before the meeting, for one hundred 
 
 dollars each and upwards, are as follows \names of 
 
 creditors and amount due"]; and the aggregate of 
 
 claims under one hundred dollars is $ . 
 
 [Domicile of debtor^ and date."] 
 
 [SignaifUre.l 
 
 FORM B. , 
 
 Insolvent Act of 1864. 
 Schedule of Creditors. 
 
 1. Direct liabilities. 
 
 Name. Besidence. Nature of Debt. Amount. Total. 
 
 2. Indirect liabilitieSj maturing before the day fixed 
 for the first meeting of creditors. 
 
 Name. 
 
 Kesidence. I Nature of Debt. 
 
 [ 
 
 Amount. 
 
 Total. 
 
 3. Indirect liabilities, maturing after the day fixed 
 
 for the first meeting of creditors. 
 
 Name. 
 
 Residence. I Nature of Debt. 
 
 Amount. 
 
 Total. 
 
INSOLVENT ACT. 
 
 443 
 
 4. Negotiable paper, the holders of which are un- 
 known. 
 
 Date. 
 
 Name of 
 Maker. 
 
 Names liable 
 to lusolveut. 
 
 When due. 
 
 Amount. 
 
 Total. 
 
 Insolvent Act o/^ 1864. 
 
 Province of Canada, ) 
 County of . f 
 
 I, A. B., the above named insolvent, being duly 
 sworn, depose and say : 
 
 1. That to the best of my knowledge and belief, 
 and according to my books, the above schedule con- 
 tains a true and correct list of my liabilities, accord- 
 ing to its purport, and that each of such liabilities is 
 correctly classified therein. 
 
 2. That all of the above-mentioned liabilities are 
 honestly due by me, and that none of them were 
 created or have been increased with the intention of 
 giving to the creditor thereof any advantage either of 
 voting at meetings of creditors, or in ranking on my 
 estate. And I have signed. 
 
 Sworn before me at , this day of ,18 
 
 A ll 
 
 I'! 
 
 *' i 
 
 
 B 
 
 n 
 
 FORM C. 
 
 Insolvent Act of \%Q^. 
 
 This Assignment made between , of the 
 
 first part, and , of the second part, witnesses: 
 
 That under the provisions of the "Insolvent Act of 
 1864," the said party of the first part, being insolvent^ 
 has voluntarily assigned, and hereby does voluntarily 
 assign, to the said party of the second part, accepting 
 thereof as assignee, under the said act, iot the pur- 
 
 ?"il 
 
 
i» 
 
 444 
 
 CANADIAN DOMESTIC LAWYER. 
 
 poses therein provided, all his estate and effects, real 
 and personal, of every nature and kind whatsoever. 
 
 To HAVE AND TO HOLD, to the party of the second 
 part, as assignee, for the purposes and under the act 
 aforesaid. And a duplicate of the list of creditors 
 exhibited at the first meeting of his creditors, by the 
 said party of the first part is hereto annexed. 
 
 In Witness Wheeeop, &c. 
 
 CHAPTER XXII. 
 
 Statute Labor* 
 
 1. For empowering aiiy person, (resident or non- 
 resident) liable to statute labor within the munici- 
 pality, to compound for such labor, for any term not 
 exceeding five years, at any sum not exceeding one 
 dollar for each day's labor: 
 
 2. For providing that a sum of money, not exceed- 
 ing one dollar for each day's labor, may or shall be 
 paid in commutation of such statute labor: 
 
 S. For increasing or. reducing the number of days' 
 labor, to which the persons rated on the assessment 
 roll or otherwise shall be liable, in proportion to the 
 statute labor to which such persons are, in respect of 
 the amounts at which they are assessed or other .se, 
 respectively liable : 
 
STATUTE LABOR. 
 
 4^ 
 
 445 
 
 V 4. For enforcing the performance of statute labor, 
 or payment of a commutation in money in lieu thereof, 
 when not otherwise provided by law : 
 
 5. For regulating the manner and the divisions in 
 which statute labor or commutation money shall be 
 performed or expended. ( Cotia. Statutes^ IT, G.) 
 
 Ko person in Her Majesty's naval or military ser- 
 vice, on full pay or on actual service, shall be liable to 
 perform statute labor or to commute therefor. (16 V. 
 c. 182, 8, 6, No. 8, iSith section.) Every other male in- 
 habitant of a city, town, or village, of the age of 
 twenty-one years and upwards, and under sixty years 
 of age (and not otherwise exempted by law from per- 
 forming statute labor), who has not been assessed upon 
 the assessment rolls of the city, town, or village, or 
 whose taxes do not amount to two dollars, shall, in- 
 stead of such labor, be taxed at two dollars yearly 
 therefor, to be levied and collected in the same man- 
 ner as other local taxes. (16 V. c. 182, s. 35, *I9th 
 section.) 
 
 No such person shall be exempt from the tax in 
 the last preceding section named by reason of his pro- 
 ducing a certificate of his having performed statute 
 labor or paid the said tax elsewhere, unless he was 
 actually domiciled out of the limits of the city, town, 
 or village, at the time he so performed statute labor 
 or paid the tax. (16 F. c. 182, s. 35.) 
 
 Every male inhabitant of a township, between the 
 ages aforesaid who is not otherwise assessed to any 
 amount, and who is not exempt by the seventy-eighth 
 section of this act or otherwise, shall be liable to two 
 
 ■'I 
 
 ri 
 
 
 m 
 
446 
 
 CANADIAN DOMESTIC LAWYER. 
 
 days of statute labor on the roads and highways in 
 the township. (16 V. c. 182, s. 36, 81st section.) 
 
 Every person assessed upon the assessment roll of 
 a township shall, if his property is assessed at not 
 more than $200, be liable to two days' labor. 
 
 <« 
 
 M 
 M 
 
 ri 
 i< 
 «« 
 u 
 
 u 
 
 u 
 
 $400, to 
 
 3 days' 
 
 600, 
 
 4 
 
 800, 
 
 5 
 
 1,200, 
 
 6 * 
 
 1,600, 
 
 7 
 
 2,000, 
 
 8 
 
 2,400, 
 
 9 
 
 3,200, 
 
 10 
 
 4,000, 
 
 12 
 
 4,000, 
 
 1 
 
 labor. 
 
 400, 
 
 600, 
 
 800, 
 1,200, 
 1,600, 
 2,000, 
 2,400, . 
 
 3,200, " 4,000, 12 " \ 
 
 And for every 800 above 
 
 ;. But the Council of any township, town, or village, 
 by a by-law, operating generally and ratably, may 
 reduce or increase the number of days' labor to which 
 all the parties rated on the assessment roll or other- 
 wise, shall be respectively liable, so that the number 
 of days' labor to which each person is liable shall be 
 in proportion to the amount at which he is assessed. 
 (16 V.c. 182, s. 36;— 22 V. c. 99, s. 409.) 
 
 The Council of any township, town, or village, may 
 by by-law direct that a sum, not exceeding one dollar 
 per day, shall be paid in commutation of statute labor, 
 in which case the commutation tax shall be added in 
 a separate column in the collector's roll, and shall be 
 collected and accounted for like other taxes. (20 V. 
 C, 6, 8. 1, — 16 V. €. 182, 8. 36.) 
 
 Any local Municipal Council may, by a by-law passed 
 for that purpose, fix the rate at which parties may 
 commute their statute labor at any sum not ex- 
 
{R 
 
 U'S- 
 
 STATUTE LAUUU. 
 
 447 
 
 ceeding one dollar for each day*s labor, and the 
 Bum so fixed shall apply to residents, to all persons 
 subject to statute labor, and to non*residents in re- 
 spect to their property. (20 F. c. 6, 8. 1; — 22 V. c. 
 99, 8. 317. 
 
 Where no such by-law has been passed, the statute 
 labor in the townships, against persons in respect of 
 property hereinbefore designated as lands of non- 
 residents, shall be commuted at the rate of fifty cents 
 for each day's labor. (16 V. o. 182, 8. 38.) 
 
 K the collector be not able to collect the sum of 
 two dollars, named in the seventy-ninth section, or 
 the tax in lieu of statute labor, named in the eighty- 
 first section, and no sufficient distress to satisfy the 
 sum due can be found, then the head of the municipa- 
 lity or a Justice of the Peace having jurisdiction in the 
 locality, upon complaint showing that the person ap- 
 pears upon the collector's roll to be rated for such sum, 
 tliat the same has been duly demanded, and that the 
 party has neglected to pay the same, and that no suffi- 
 cient distress can be found, may issue a warrant under 
 his hand and seal, and commit the party to the common 
 gaol of the county for any time not exceeding six days, 
 unless such sum and the costs of the warrant and of the 
 execution thereof be sooner paid. (16 V. c. 182, s. 37.) 
 
 No non-resident who has not required his name to 
 be entered on the roll, and whoso name has not been 
 entered thereon, shall be admitted to perform statute 
 labor in respect of any lands owned by him, but shall, 
 in lieu, be charged with a commutation tax, and the 
 commutation shall be charged against every separate 
 lot or parcel, according to its assessed value. 
 
 * 
 
448 
 
 CANADIAN DOMESTIC LAWYER. 
 
 In case any non-resident, admitted to perform statute 
 labor as a resident, does not perform his statute labor, 
 or pay commutation for the same, the overseer of 
 highways, in whose division he is placed, shall return 
 him as a defaulter to the clerk of the municipality 
 before the first day of September, and the clerk shall 
 in that case enter the commutation for statute labor 
 against his name in the collector's roll, and if at any 
 time before the first day of May then next ensuing, 
 the owner of any non-resident's land which has been 
 returned as such to the treasurer of the county, gives 
 in writing to the treasurer a list of the lands owned 
 by him in the municipality, and tenders to him the 
 taxes in full on such land, and the just commutation 
 money as herein provided, he shall be liable to the 
 commutation for statute labor only upon the aggre- 
 gate value of all the lands owned by him in each local 
 municipality ; but after the first day of May, as afore- 
 said, no change shall be made in the commutation for 
 statute labor charged against each separate parcel, in 
 consequence of more than one parcel being owned by 
 the same party. (16 F. c. 182, «. 88.) 
 
 'V' *>"'t '"A •;:'''■' 
 
 • / ;. 1-1. ■■ 
 
 i.'i> »''- 
 '"^i- W 
 
STAMP DUTIES. 
 
 U9 
 
 CHAPTER XXIII. : , . 
 
 I I -i • 
 
 Stamp Duties on Prannissory Notes, <0c. • 
 
 Notes, Drafts, or Bills of Exchange executed sepa- 
 rately: 
 
 Amounting to flOO — 3 cts. 
 
 For each additional . . . 100 — 3 cts. 
 " any fraction of . . . . 100 — 3 cts. 
 Drafts, or bills of exchange in duplicate : 
 
 For . . . . ' $100 — 2 cts. 
 
 " each additional . . .100 — 2 cts. 
 
 " any fraction of . . . . 100 — 2 cts. 
 
 Drafts, or bills of exchange in more parts than two : 
 
 For $100-— 1 ct. 
 
 " each additional . . . 100 — 1 ct. 
 " any fraction of . . . . 100 — 1 ct. 
 Any of the above documents drawn for less than 
 $100 require no stamp. 
 
 Interest made payable at maturity of any bill, &c., 
 shall be counted as part of the principal sum. 
 
 The signature or the initials of the maker or 
 drawer, or some integral or material part of the in- 
 strument, shall be written upon the stamp. 
 
 The stamps for notes, &c., to be affixed by the 
 maker or drawer; and in case of any draft or bill of 
 
 M 
 
450 
 
 CANADIAN DOMESTIC LAWYER. 
 
 exchange drawn out of this Province, by the acceptor 
 or first indorser. 
 
 t^* The penalty for not affixing a stamp, or for 
 affixing a stamp of not sufficient value, shall be one 
 hundred dollars; and for using a stamp which has 
 been previously affixed to any other, such person shall 
 be guilty of misdemeanor, and shall incur a penalty 
 of five hundred dollars. 
 
INDEX. 
 
 H 
 
 AFFIDAVITS. ,^01. 
 
 General directions as to 9, 10 
 
 ' General form of Affidavit 10 
 
 General form of Affirmation 11 
 
 Form of Oath 12 
 
 Form of Affirmation ib, 
 
 AGREEMENTS. See Contracts. 
 
 ARBITRATION. 
 
 Amicable method of settling suits ... 50 
 
 Benefits of, extended by act of W. 3 . . 62 
 
 Submission cannot be revoked without 
 
 leave 53 
 
 Witnesses may be examined on oath . . 54 
 
 How authority of arbitrators determined . ib. 
 
 Within what time award to be made . . 56 
 
 Power of arbitrator to enlarge time . . ib. 
 
 Proceedings upon reference ..... ib. 
 
 How award should be signed 56 
 
 How award set aside 57 
 
 Authority of umpire, and how chosen . . 58 
 
 Award, how enforced 59 
 
 Forms of arbitration deed 59, 63 
 
 Form of Bond 65 
 
 Appointment of umpire . . . *«. . 66 
 
 Enlargement of time for making award 67 
 
 The like by parties ib. 
 
 Appointment of third arbitrator . . 69 
 
 451 
 
452 
 
 iia)Ex. 
 
 ARBITRATIO'S (Continued). ,^0,. 
 
 Oath to witness 69 
 
 Appointment to proceed 68 
 
 Form of Peremptory appointment ... 68 
 
 Award (general form) ib. 
 
 Of award where submission by bonds 10 
 
 Award where by agreement ... 11 
 
 / Award special as to costs .... 12 
 
 Affidavit of execution of bond ... 13 
 
 ASSIGNMENT. 
 
 Definition of 1i 
 
 When to be registered ib. 
 
 Form of assignment of agreement to pur- 
 chase 16 
 
 Assignment of bond 1Q 
 
 Assignment of crown lands .... 80 
 
 Assignment of lease 81 
 
 Shorter form 85 
 
 Assignment of lease by administrator 87 
 
 Assignment from trader to secure debt 89 
 
 Assignment of judgment 93 
 
 Special form of judgment .... 95 
 Assignments of mortgage . . . 97,114 
 
 Memorial of mortgage 115 
 
 , Assignment for benefit of creditors , 117 
 
 Assignment by indorsement ... 123 
 
 Assignment of partnership property . 124 
 
 Assignment of debt 129 
 
 Assignment of policy of insurance . 130 
 Assignment of goods — bill of sale 131,135 
 AUCTIONS. ^ \ 
 
 Auctioneer cannot buy 136 
 
 Is agent for buyer and seller 137 
 
 Sale must be conducted fairly .... ib. 
 
 m 
 
 % 
 
II7DEZ. 453 
 
 * 
 
 AUCTIO'SH (Continued). tAo*. 
 
 Form of agreement 138 
 
 Forms of conditions of sale .... 139,141 
 BILLS OF EXCHANGE. 
 
 Definition of 143 
 
 \ Foreign ib. 
 
 Inland ib. 
 
 : Distinction between them ...... 144 
 
 Form of inland bill ib. 
 
 Observations on form 145, 158 
 
 BOND. 
 
 i What 169 
 
 Penalty ib. 
 
 What can be recovered on ib. 
 
 Form of single bond 160 
 
 Money bond ib. 
 
 Bond to convey land 161 
 
 Bond for payment of purchase money 162 
 
 Bond of indemnity 164 
 
 Bond to pay rent 165 
 
 CHATTEL MORTGAGE. , 
 
 What . . . . . 167 
 
 Enactments relating to 167, 172^ 
 
 Must be registered within five days . . 186 
 
 What affidavits required ib. 
 
 To secure future advances 169 
 
 Description of property in 170 
 
 When to be registered ib. 
 
 How registered when goods removed . . 171 
 
 Must be renewed every year ..... ib. 
 
 How renewed ib. 
 
 Form of chattel mortgage . . . . .172,179 
 
 Affidavit of mortgage 177 
 
 Affidavit of witness 178 
 
» 
 
 454 INDEX. 
 
 CHATTEL MORTGAGE {Continued). r^oi. 
 Chattel mortgago to indemnify against 
 
 indorsement 182 
 
 Affidavit of mortgage 188 
 
 ' • ^ Affidavit of witness 180 
 
 Chattel mortgage to Bcoure future ad- 
 vances 100 
 
 •*• • Affidavit of mortgage 194 
 
 Affidavit of witness ih, 
 
 COLLECTION op DEBTS. See Division Court. 
 CONTRACTS. . ^v 
 
 Definition of 13 
 
 Are express or implied ih. 
 
 Simple or special i)b. 
 
 Consideration essential in every contract ih. 
 
 Diffisrent sorts of consideration .... ih. 
 
 Good or valuable 14 
 
 When agreements must be in writing . , ih. 
 
 Statute of frauds ih. 
 
 Effect of statute 15 
 
 Contracts for sale of goods 16 
 
 Necessary requisites depend partly on value ih. 
 
 Requisites when under value of $40 . . ih. 
 
 Requisites when over 17 
 
 Contracts not to be performed within a 
 
 year 18 
 
 Agreements should be signed by contract- 
 ing parties ih. 
 
 ^ Forms of agreement for sale of land . . 18, 28 
 •^'^^ • The like reserving purchase money as 
 
 • \ rent 28 
 
 Contract to erect a house .... 37 
 ♦ ' ' Sub-contract between builder and car- 
 
 **^ * penter 46 
 
INDEX. * 465 
 
 COHJTJiACTS (Continued). ,aoi. 
 
 Contract to do repairs 47 
 
 Agreement for sale of merchant's stock 48 
 
 Agreement for sail of grain .... 40 
 DEEDS. 
 
 Definition of « . . . . 225 
 
 Must be printed or written ib. 
 
 General directions with regard to deedH . ib. 
 
 Bar of dower 226 
 
 Deeds of married women ib. 
 
 Mode of execution of deeds ib. 
 
 Registration 227 
 
 Execution of memorials ib. 
 
 How affidavits to be sworn ib. 
 
 Execution abroad 228 
 
 Form of bargain and sale absolute cove- 
 nants 229 
 
 Form of bargain and sale qualified cove- 
 nants 233 
 
 Form of bargain and sale from two joint 
 
 tenants 238 
 
 Memorial of bargain and sale . . . 244 
 
 , . • '. Bargain and sale under statue . . . 245 
 
 The like (another form) 247 
 
 "^ Memorial to ditto 249 
 
 Bargain and sale on mortgage sale . 260 
 
 Deed of gift of lands 253 
 
 Certificate of acknowledgment by 
 
 married wortian 254 
 
 DISTRESS. See Landlord and Tenant. 
 DIVISION COURT. ^ 
 
 Establishment of . 195 
 
 Constitution 196 
 
 Jurisdiction ib. 
 
/< . 
 
 456 ^ INDEX. 
 
 DIVISION COURT ((7on«mt<ec7). ,^„. 
 
 Minor may sue for wages 197 
 
 Cause of action not to be divided ... 198 
 
 Judgment a full discharge ih. 
 
 Mode of procedure ih. 
 
 Summons . , , . , ih. 
 
 Particulars of demand ih. 
 
 At what court suit may be entered . . ih. 
 
 When may be tried in adjoining division . 199 
 
 Service of summons 200 
 
 When to be personal ..,.,,,. ih. 
 
 Claims against partners ...... 201 
 
 Hearing of cause ih. 
 
 Non-suit ih. 
 
 Non-appearance of defendant 202 
 
 Judge may adjourn case ih. 
 
 How tender pleaded . ih. 
 
 Payment into court 202, 203 
 
 Offset 204 
 
 Subpoena for witness > . ih. 
 
 Penalty for not obeying ih. 
 
 When books receivable in evidence . . 206 
 
 How affidavits to be sworn ih. 
 
 Judge to order how debt and costs to be 
 
 paid 207 
 
 Execution not to be postponed over thirty 
 
 days ih. 
 
 Reference to arbitration ih. 
 
 Setting aside award 208 
 
 Costs ih. 
 
 Confession ih. 
 
 Jury 209 
 
 Execution on cross judgments .... 210 
 
 Execution in ordinary cases ih. 
 
 r -"»hi 
 
* 
 
 INDEX. * 457 
 
 DIVISION COVllT (Contmiied), 
 
 Execution where debtor removed . . . 210 
 
 Transcript of judgment /J. 
 
 Effect of death of parties 211 
 
 Execution against lands 212 
 
 Neglect of bailiff to levy ib. 
 
 Goods seized not to be sold for eight days ib. 
 
 Judgment summons 213 
 
 Effect of non-appearance 213 
 
 Judge may commit 214 
 
 Imprisonment not to extinguish debt . . ib. 
 
 Proceedings against absconding debtor . ib. 
 
 Affidavit ib. 
 
 How bail put in 216 
 
 Horses, &c., and perishable articles, to be 
 
 sold ib. 
 
 Rules of court 217 
 
 Form of affidavit, to sue in adjoining di- 
 vision 218 
 
 Particulars of claim 219 
 
 Particulars of set-off , ib. 
 
 Notice of defence 220 
 
 Notice of admission to save proof . ib. 
 
 Affidavit for attachment ib. 
 
 Warrant of attachment 221 
 
 Table of fees ib. 
 
 EQUITY OP REDEMPTION. See Mortgage. 
 EXECUTORS AND ADMINISTRATORS. 
 
 Appointment of executors 422 
 
 Who may be appointed ib. 
 
 Infant executor ib. 
 
 Married woman executrix ib. 
 
 Cannot act without husband's consent . ib. 
 
 Must prove will 423 
 
 20 
 
458 ♦ INDEX. 
 
 EXECUTORS AND ADMINISTRATORS ( Cont'd ). 
 
 PAGK. 
 
 Must pay debts before legacies .... 423 
 
 Liabilities of executor 424 
 
 Who may be administrator 426 
 
 His duties and liabilities ih. 
 
 FENCES. See Line-Fences and Water-Courses. 
 
 FIXTURES. See Landlord and Tenant. 
 
 FRAUDS, STATUTE of. See Contracts. 
 
 GIFT OP LANDS, DEED of. 
 
 Form ; 253 
 
 GOODS, SALE of. 
 
 Contracts for 16 
 
 Necessary requisites on sale depend partly 
 
 on value c ihi 
 
 What necessary when under $40 . . . ih. 
 
 What necessary when over |400 ... 17 
 Contracts not to be performed within a 
 
 year 18 
 
 Form of agreement for sale of stock . . 48 
 
 Agreement for sale of grain .... 49 
 
 Bill of sale of goods 131 
 
 HOUSE. See Landlord and Tenant. 
 
 HIRING. See Master and Servant. 
 
 INSOLVENT ACT. 
 
 Of voluntary assignments 431 
 
 Compulsory liquidation 433 
 
 Of assignees 435 
 
 Of dividends 436 
 
 Of appeal 437 
 
 Of fraud and fraudulent preferences . . 438 
 
 Of composition and discharge .... 439 
 
 Examination of insolvent and others . . 441 
 
 Form A. Notice to creditors to meet ih. 
 
 Form B. Schedule of creditors . . 442 
 
INDEX. * 459 
 
 INSOLVENT ACT {Continued). pag.. 
 
 Form C. Assignment 443 
 
 LANDLORD and TENANT. 
 
 Of a lease 263 
 
 For what term leases may be made . . ih. 
 
 Agreement for lease ib. 
 
 Letting for a year 264 
 
 Use and occupation ib. 
 
 From what time to commence .... ib. 
 
 Holding over ib. 
 
 What constitutes a yearly tenancy . . . 265 
 
 Remedies for rent ib. 
 
 Distress ib. 
 
 Distress after expiration of term . . . 266 
 When and how to be made .... 267, 269 
 
 At what period of the day rent payable . 267 
 
 Distraining goods clandestinely removed . ib. 
 
 Distraining goods seized in execution . . 268 
 
 Costs of distresses under $80 270 
 
 Action for rent ib. 
 
 Repairs 271 
 
 Notice to quit ib. 
 
 Form of distress warrant 272 
 
 Notice of distress 273 
 
 Agreement for farming lease ... 274 
 
 Lease of house 277 
 
 Another form 281 
 
 Lease of land 286 
 
 Lease of house and farm , . • . . 289 
 
 Statutory lease 295 
 
 • Another form 297 
 
 Lease of part ol house 298 
 
 Notice to quit by landlord .... 299 
 
 Notice to quit by tenant ..... 300 
 

 460 ♦ indp:x. 
 
 LEASES. Ske Landlord and Tenant. pack. 
 LINE-FENCES AND WATER-COURSES. 
 
 Act relating to 255 
 
 Liability to repair ih. 
 
 \ What constitutes a lawful fence .... ib. 
 
 When line-fence may be taken down . . ih. 
 
 W^ater-fences to be made in equal jDarts . 256 
 
 Ditches to be opened in fair proportions . ih. 
 
 Fence- viewers to decide disputes ... 257 
 
 Decision to be in writing ib. 
 
 Notice of investigation ib. 
 
 IIow second aAvard to be obtained . . . 258 
 
 Penalty for disobeying award .... 259 
 
 How payment enforced 260 
 
 Fence-viewers to report 261 
 
 Justice of peace to transmit to clerl; of di- 
 vision court 262 
 
 Execution to issue after 40 days .... ib. 
 
 Fees ib. 
 
 MASTER and SERVANT. 
 
 Contract of hiring 300 
 
 Need not be in writing 301 
 
 Unless far more than one year .... ib. 
 
 When hiring will be presumed .... ib. 
 
 Hiring of domestic servants 302 
 
 Relative rights and duties of master and 
 
 servant ib. 
 
 No deduction of wages for sickness . . . 303 
 
 Contracts of api)renticeship ib. 
 
 Usual provisions in apprenticeship deeds . 304 
 
 Master and Servant Act ib. 
 
 ^ Act respecting ajiprentices and minors . 305 
 
 Summary proceedings, servants .... ib. 
 
 The like against master A^v 
 
IJiDKX. 401 
 
 MASTER AND SERVANT ( Vuntimied ). pagk. 
 
 Binding of approutict'H 306 
 
 Penalty for ill ubujjjo of 307 
 
 Penalty for misconduct ib. 
 
 Form of apj)renti('cslu]> indenture . . . 308 
 
 Form of apprenticeslup for a girl . . . " 310 
 MORTGAGES. 
 
 What constitutes a mortgngo 313 
 
 What passes under ........ ih. 
 
 Right to redeem ih. 
 
 Discharge to operate as re-conveyance . . 314 
 
 Must he in writing ib. 
 
 • How enforced ib. 
 
 Form of mortgage of real estate . . . . 314 
 
 ^' Shorter form 322 
 
 The like, with insurance covenant . . 326 
 Memorial to insurance covenant .• . 331 
 Mortgage with power of side . . . 333 
 Mortgage with power of sale and in- 
 surance covenant 341 
 
 Shorter form 350 
 
 Memorial with power of sale ... 357 
 Short forms under statute . . . 359, 366 
 
 Mortgage of lease 370 
 
 Discharge of mortgage 376 
 
 NATURALIZATIOX. 
 
 Statutes relating to 377 
 
 Proceedings to be taken for 378 
 
 Certificate of justice ib. 
 
 To be filed at Quarter Sessions .... ib. 
 
 Certificate of naturalization 379 
 
 May be registered if desired ib. 
 
 Fees payable ib. 
 
 Form of onth of residence 379 
 
 Oath <'i' allegianco ....... 380 
 
462 * INDEX 
 
 NOTICE TO QUIT. See Landlord and Tenant. 
 
 PARTNERSHIP. p^o.. 
 
 What it is 381 
 
 Founded wholly on consent of parties . . ib. 
 
 General partnership 382 
 
 Special partnership ib. 
 
 Limited partnership ib. 
 
 Authority of partners 383 
 
 Dormant and secret partners ib. 
 
 Ostensible partners 384 
 
 Term of partnership ib. 
 
 Executor of partner 386 
 
 Dissolution of partnership ib. 
 
 Statutes relating to limited partnership . 385 
 
 Provisions of 386 
 
 Mode of formation of limited partner- 
 ships 386,389 
 
 Form of partnership deed ,. 389 
 
 Another form 392 
 
 . Dissolution of partnership . . . . 397 
 
 Notices thereof 397, 39S 
 
 Limited liability certificate ^t)8 
 
 PATENTS FOR INVENTIONS. 
 
 How regulated 403 
 
 Whj may obtain ib. 
 
 Mode of obtaining ........ 404 
 
 Decli.xation, how made ib. 
 
 Descript':Oi> and specification 405 
 
 Patents for discoveries, 400 
 
 How obtained * . - ib. 
 
 Patents may be assigned ib. 
 
 Rights of executors '^07 
 
 Contested applications ib. 
 
 Renewing patents ib. 
 
 Notice of application for 408 
 
' * * INDEX 463 
 
 PATENTS FOR INVENTIONS ( Continued), pxg* 
 
 Surrendering patent 408 
 
 ^ Mistake in patent ih. 
 
 •• Penalty for infringing 409 
 
 ^' Patented articles to be stamped .... ib. 
 
 Form of petition ib. 
 
 • ' Specification 410 
 
 Declaration 411 
 
 Surrender for re-issue 412 
 
 Disclaimer ib. 
 
 Petition for patent for design . . . 413 
 
 Assignment of entire interest . . . ib. 
 PROMISSORY NOTES. 
 
 ^ Form of a note. . . . • 399 
 
 Observations upon 403, 404 
 
 See also Bills of Exchange. 
 RECEIFTS AND RELEASES. 
 
 Parties receiving money not generally 
 
 bound to give receipt 416 
 
 Effect of receipt in full ib. 
 
 Effect of release ib. 
 
 Difference between receipt and release . 417 
 
 Release must be under seal ib. 
 
 Form of receipt for rent ib. 
 
 Receipt in full ib. 
 
 Receipt on account ib. 
 
 Receipt to executor 418 
 
 Release of all demands ib, 
 
 RENTS. See Landlord and Tenant. 
 SALE OF GOODS. See Contracts. 
 SERVANT. See Master and Serv^xi. 
 STATUTE LABOR. 
 
 Objects of act 444 
 
 Who are exempt 445 
 
 Who liable ib. 
 
 ^-vS 
 
I 
 
 464 INDEX. 
 
 STATUTE LABOR {Continued). ,xo.. 
 
 Assessment scale 446 
 
 Powers of councils iO. 
 
 Duties of collector 447 
 
 Non-residents ih. 
 
 8TAMP DUTIES on PROMISSORY NOTES, ifec. 
 
 Proper stamps 449 
 
 Penalty for not affixing . 460 
 
 WILLS AND INTESTACY. 
 
 Who may make a will 420 
 
 Will of lands ib. 
 
 Will of personality » . . ih. 
 
 A will must be in writing 421 
 
 Except of soldier* and sailors .... ih. 
 
 How to be executed . ih. 
 
 Appointment of executor 422 
 
 Who may be executor ih. 
 
 Difference between wills of lands and per- 
 sonality ih. 
 
 ' Executor must prove will 42M 
 
 ' Duty of executor ih. 
 
 ; f Payment of debts and legacies .... 424 
 
 Of intestacy ih. 
 
 How intestate's estate distributed . . . ih. 
 
 ' Rights of widow and children .... 425 
 
 Distribution of personal property . . . ih. 
 
 ■ f^- Wills of married women 426 
 
 Letters of administration ih. 
 
 Codicils 427 
 
 Revocation of will ih. 
 
 Form of will 427, 428 
 
 Codicils *r* ^29 
 
 Codicil to a will 430 
 
 1t^, ... THE END. .i -i^r 
 
rxan. 
 
 I ^^^ 
 ib. 
 
 . 447 
 
 ih. 
 
 449 
 450 
 
 420 
 
 ib. 
 
 ib. 
 
 421 
 
 ib. 
 
 ib. 
 
 . 422 
 
 ib. 
 
 Br- 
 
 ib. 
 
 42.'^ 
 
 ib. 
 
 ,#. 424 
 
 ib. 
 
 ib. 
 
 425 
 
 «i. 
 
 . '426 
 
 ib. 
 
 . 427 
 
 ib. 
 
 4t2l, 428 
 
 . 429 
 
 430 
 
 1 1 J .*