IMAGE EVALUATION TEST TARGET (MT-3) I I.I 11.25 m 12.5 m m •»». 1^ u autok jH 2.0 '/] [ pies abou. taking a" oa.han°r'''""'°"' «''"'■ made, ne only difference Lf™^''"" '^'"^^^ a-"! an affirmation is Z ^ ^''° "° ^^davit ^e 'rue, the otUerl'l^ZU tT " '"•'™ '" making a false affidavit?! r , " Penalties for identical. ^^'^ "' « ^^Ise affirmation are Affidavits should be wrin»» • 'is advisable not .o use™:,T„7t ? '^"^'•• a'Edavit, althonch thev „/ u ''* ""^^ »' the " any in.erlinea.iJn^^„^? *•> ""^'^ '» ""« jurat. "■'-^« of tie pers^'b:for;r T ""''"' '"« sworn should be p„, in h? ^ "" ^'^''*^'' i« interlineations or wasWs TfT° "^P^^''^ ««°h e^ase any words in an affidavi ^ " "^."^^^^^ to ' and not with the knife. ' *" '^^"' *^« Pen CABINET LAWYER. Affidavits to be uj*ed in a suit or cause in any of the Courts of Law, as a general rule, require to be taken before a Commissioner; sometimes, they may be taken before a Justice of the Peace. Tlie forms given will generally indicate before whom they should be sworn. Affidavits should be written in paragraphs : each paragraph relating, as much as possible, to a dis- tinct subject. This is absolutely necessary in all the Courts, and the same method is recorrimended in every case. In the margin of an affidavit not intended for use in Court it is usual to state the name of the County wherein it is sworn. ** J 1. General Form of Affidavit. County of [ to wit : or United Counties of [ ] and [ to wit : ] ] I, A. B. of in the County of Yeoman (or other proper designation) make oath and say : First. That, &c., &c. {Here state the facts to he sworn to plainly and accurately. If there are several matters to he sworn to, state them in paragraphs separately. First.— That, &c. Second. — That, &c. Third.— That, &c. Confining each paragraph as much as possible to a distinct subject matter, and commencing each with a new line.) AFFIDAYITS. ' A. B. Sworn before me at ' [ ] in the County of [ ] this [ ] day of[ ]A.D. 18[ ]. CD. J. P. or a Commissioner, &c., for the County [orU. C.]of[ ]. 2. General Form of Affirmation. ■J1 r I, A. B. of [ ] in the County of [ ] Yeoman, {or other proper designation) do solemnly and sincerely affirm and declare as follows : County of [ to wi^ : or United Counties of [ ] and [ ] to wit : First.— That, &c., &c. Second. — That, &c., &c. (As in an Affidavit.) Affirmed before me ' at[ ] in the County of [ ] this [ ] day of [ ] A.D. 18 [ ] CD. J. P. or a Commissioner, &c., for the County of[ ]. (If the affidavit or affirmation is made hy more thaa one person, then the names of the several per- ons should be s'atei in the Jurat, thus .*) A. B. CABINET LAWYER. Severally sworn [or ' affirmed] by the Depo- nents, A. B., C. D., &c., . before me, at, &c., [as in the foregoing] . The following is the form of the oath to be admin- istered by the Justice of the Peace, or Commis- sioner, to each deponent. 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, 4. Affirmation. 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 sub- scribed is true, to the best of your knowledge and belief. Every affidavit or affirmation should be signed at the foot by the party making the same, but if unable to write, a mark may be made thus : — The mark of + A. B. 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 CONTRACTS OR AGREEMENTS. 9 the County of [ ] this [ ] day of [ ] 18 [ ], and I certify that the foregoing affidavit {or affirmation) was read over by me {or in my presence) to tlie said A. B., who appeared prrffctly to understand the same, and made his (or her) mark in my presence. CD. J. P., or Commissioner, &c., &c. CHAPTER IL CONTRACTS OR AGREEMENTS. A contract is a stipulation or engagement entered into between two or more persons and may be either express or implied. An express contract is one in which all the particulars are specified and agreed upon, at the time of entering into it. An implied contract is one where the particulars are not specified but rest on the mere construction of law. As a general illustration of an implied con- tract, it may be stated, that it will be implied or assumed that a man actually promises to do that which he is legally liable to do. Express contracts are either by parol, or word of mouth, which are called simple contracts^ or by deed under seal which are called special contracts. A considera- tion is an essential ingredient in every contract.. By consideration, we mean an equivalent oflferedl by the one party and accepted by the other. A. !l CABINET LAWYKR. simple or parol contract, unsupported by a conside- ration cannot be enforced. Thus, if a man should promise to give me $1,000 without any considera- tion or equivalent on my part, he is not bound to perform his promise, and 1 am without remedy if he should break his word. In all contracts by spe- cialty consideration is presumed. Considerations are of two kinds, good and valu- able. A good consideration is that of blood or the natural love which a person has to his wife or chil- dren, or any of his near relatives. A valuable con- sideration is such as money, marriage or the like. A special contract is of necessity a written one ; but a simple contract may be either written or ver- bal. There are, however, some simple contracts which the law requires to be in writing in compli- ance with the provisions of several statutes which we will proceed briefly to notice. The first of these is the Statute of Frauds, passed in 167(), in the reign of Charles II, (29 Car. II, cap. 3) which enacts, (section 4) that in the five follow- ing cases no verbal promii>e shall be sufficient to ground an action upon, but that the agreement, or at the least some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. 1. Where an executor or administrator promises to answer damages out of his own estate. 2. Where a man undertakes to answer for the debt, default or mistcarriage of another person. CONTRACTS OR AGREEMENTS. the 3. Where an agreement is made upon considera- tion of marria .'. 4. Where any contract is made of lands, tene- ments or hereditaments, or any interest therein. 5. And lastly, where there is any agreement that is not to be performed within a year from the making thereof. This statute 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 vali- dity of certain 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 another 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," point to contracts, the complete performance of which is of necessity extended beyond the space of a year. In order to bring an agreement wilhin 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 a year. The clause requiring the '* agreement or some memorandum or note thereof to be signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized," has been liberally construed, and any insertion by the party of his name in any 8 CABINET liAWTER. ■ part of the agreement, either at the beginning or in the body of the document, for the purpose of authen- ticating it, will be equally valid with a signature at the foot ; and it is not necessary that both parties should sign the agreement, for the statute only requires that it should be signed " by the party to be charged therewith." The whole of the agree- ment must be contained in the writing, either expressly or by reference to some other document. And as a " memorandum or note " of the agree- ment i& 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 with- out any variation, before the party offering has exercised his right of retracting ; and when corres- pondence 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 depend 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 contract 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 par- ties should then separate without anything further passing, this is no sale. But if A. should tender tho money, or pay but a cent of it to B., or B. should tender the goods, or should deliver any, even the CONTRACTS OR AGREEMENTS. 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 mea- sure is sold out of a larger quantity, the property will not pass to the purchaser until the price shall have been ascertained by weighing 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 manufactured, 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 upwards, additional requisites have been enacted by the seventeenth seciion of the Statute of Frauds, which provides " that no contract for the sale of any goods, wares and merchandise 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 receive 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 contract, or their agents thereunto lawfully authorized." li 10 CABINET LAWYER. And by a still more recent act, (Con. Stat. U. C. 44. s. II) this enactment "shall extend to all contracts for the sale of goods of the value of $tO 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 provided, 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 note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. It is convenient, though not necessary, that agree- ments 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 duplicate so that each party may possess one copy — they do not i;;pquire a seal in all cases. The forms given will in general indicate when a seal is necessary, and when not. Agreement /or the sale of Freeholds. Articles of agreement made and entered into this day of j 18 , Between A. B. of, &c., (vendor) of the one part, and C. D., of. &c., (purchaser) of the other part, The said A. B. and CONTRACTS OR AGREEMENTS. 11 C. D. do hereby respectively for themselves, their rtsppclive heirs, executors and administrators agree with each other. That the said A. B. shall sell to the said C. D., and that the said C. D. shall pur- chase. All That, &c., (here desrrihn the p emises) with their appurtenances, and ihe freehold and inheritance thereof in fee simple in possession free from all incumbrances, at or for the price or sum of $ to be paid by the said C. D. unto the said A. B. as follows, that is to say : the sum of •f^ part thereof immediately after the signature of these presents, and the sum of J being the residue of the said purchase money on the day of next, at which time the purchase is to be completed, and the said C. D. shall, on and from that day have actual possession of the said premises, all outgoings up to that time being discharged by the said A. B. That the production and inspection of any deeds or other documents not in the possession of the said A. B., and the procuring and making of all certificates, attested, office or other copies of or extracts from any deeds, wills or oilier documents, and of all declarations or other evidences whatso- ever, not in his possession, which may be required, shall be at the expense of the said C. D. That on payment of the said sums of $ and $ at the respective times specified for the p yment thereof as aforesaid, the said A. B., and all other necessary parlies (if any) shall execute a proper conveyance of the said premises with their appurtenances, and the freehold and inheritance thereof in fee simple in possession, free from all incumbrances unto the 12 CABINET LAWYER. daid C. D., his heirs and assigns, or as he oi they shall direct. That il from any cause whatever the said purchase shall not be completed on the said day of next, the said C. D. shall pay interest at the rate of per cent, on the said residue of the purchase money from that day till the completion of the purchase. In witness whereof the partii^s hereto have hereunto set their hands. Signed by the said A. B. and A. B. C. D., in the presence of C. D. E. F. Agreetnent for Lease with a right to Purchase at a Definite Sum. Articles of Agreement made and entered into this day of » 18 ? Between A. B. of, &c., (lessor), of the one part, and C. D., of, &c., (lessee) of the other part as follows, namely. The said A. B. hereby agrees to let, and the said C. D. hereby agrees to take, All, &c., {here describe the premises), for the term of years to be computed from the day of next, at the yearly rent of $ payable quarterly on the day of , the . day of , the day of , and the day of , in every year, the first of such payments to be made on the day of next. The said A.B. his heirs or assigns will, at the request of the said C D., his executors, admin- istrators or assigns, execute a L^ase of the said premises to the said C. D., his executors, adminis- trators or assigns, for the term and at the rent afore- said, *to be payable as aforesaid. In the said lease CONTRACTS OR AGREEMENTS. 13 to be granted as aforesaid, shall be contained cove- nants on the part of ihe said C. D , his executors, administrators and assigns, to pay the said yearly rent as the same shall become due, and also all present and future taxes, rates, assessments and other outgoings whatsoever in respect of the said premises. And also to repair and keep in repair at his and their own expense, during the whole of the said term, the said premises so agreed to be demised. And also at the like expense to ensure the said premises against loss or damage by fire in the name or names of the said A. B., his heirs or assigns, in some public office to be approved of by the said A. B., in the sum of $ at least, and to keep the same so insured during the continuance of the said term, and at all times when required, to produc?^ the policy or policies of insurance und the receipt for the premiums in respect of the same to the said A. B., his heirs or assigns. And also, not to assign, underlet, or part with the possession of the said premises, or any of them, during the said term of years, without the consent of the said A. B. And in the ssiid lease so to be granted as aforesaid, shall be contained a condition authorizing the re-entry of the said A. B., his heirs or assigns, into the said premises on non-payment of the said yearly rent, or any part thereof, for the space of twenty-one days, ox in case the said C. D., his executors or administrators shall become bankrupt or insolvent, or shall permit the said lease to be taken in execution, or on breach of all or any of the covenants so to be contained on the part of the 14 CABINET LAWYER. S i I said C. I). liisoxc(;utors, administrators and assigns in trie said lea*«c agreed to be granted as aforesaid. And in the said lease shall also be contained a cov- enant on the part of ihe said A. B., that in case the said C. D., his executors or administrators shall, on or before the determination of the said term of years, be desirous of purchasing the interest of the said A. B., or bis heirs in the said premises so agreed to be demised, then he, the said A. B., his heirs or assigns, shall and will take fo .he purchase thereof the sum of J , and shall and will, upon payment of the same sum, at the costs and charges of the persfon or persons requiring the same, convey and assure the freehold and inheritance in fee sim- ple in possession or expectant on the determination of the said term of years, (as the case may be) in the same premises unto the person or per- sons so paying the said sum of $ and his, her or their heirs and assigns, or as he, she or they shall direct. And it is moreover agreed that a counter- part of the said lease shall be executed by the said C. D., his executors or administr. tors, at his or their own expense, and delivered to the said A. B., his heirs or assigns; and that until such lease or counterpart shall be executed, the rents, covenants and conditions agreed to be thereby respectively reserved and contained, shall, as nearly as circumstances will permit, be paid, observed and performed as if the same had been actually executed. In witness whereof, the parties hereto have here- unto set their hands. CONTR.^CTS OR AGREEMENTS. 15 Signed in the presence of E. F. A. B. C. D. Agreement for sale ly way of Lcasr, reserving Pvrchase- Monry as Rent, This Agreement, in?Rle the day of , 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 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 premist^s here- inafter mentioned to be hereby demised, for the sura of [$ ] lawful money of Canada, to be paid on the days and limes 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 sim- ple and inheritance 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 here- inafter contained, and which on the part and behalf of the said party of the second part, his executors, adrrinistravors, 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 meantime the interest on the said principal CABINET LAWYER. !( in; ■ / sum should be reserved and paid as rent issuing out of the said land, tenements, hereditaments, and premises hereb" nised. Now, therefore, this agreement witn»..soeth, that in eonsideration of tho premises and of the rents, covenants, and agree- ments hereinafter reserved and contained, and which on the part and behalf of the said party of the second part, his executors, administrators, and assigns, arc to be paid, done and performed. 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 parly of the second part, his executors, administra- tors and assigns. All that land, tenements, heredit- aments, and premises, situate, lying and being in the in the County of in the Province aforesaid [here describe the premises], together with all outhouses, waters, and water-courses there- on 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, heredit- aments, and premises hereby demised, or intended so to be, with the appurtenances thereunto belong- ing, unto the said party of the second part, his executors, administrators and assigns, from the day of , 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 never- theless to the reservations, limitations, provisoes, and conditions expressed in the original grant CONTRACTS OR AORCIMENTS. IT suing ), and , this of the ugree- , and irty of 8, and le, the eased, Doth e said nistra- eredit- ing in 1 ovince get her there- 1 1 1 igular there- i . To '^ ired it- ended 1 ;long- t, his 'ft e • 1 and and , and ever- ^ thereof from the Crown. Yielding and paying there- for, yearly and every year dnring the said term hereby demif«ed, unto the said party of the first part, his heirs, executors, administrators and assigns, the yearly rent or sum of of lawful money of Canada, in even and equal half yearly payments on the day of and day of in each and every year during the said term, without any 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, assessed or imposed, 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 pari hereof, or on either of the said parties to these presents, their or either of their heirs, executors, administrators, or assigns, or any of them in respect thereof, or any part there- of, by authority of Parliament or otherwise howso- ever, the first payment of the said rent hereby reserved to be made on the day of , in the year of our Lord one thousand eight hundred and • Provided always, nevertheless, that on payment of any instalment or instalments of the principal sum hereinafter specified according to 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 proportionably reduced, so as at no time to 2 ■rf \ 18 CABINET LAWVr.R. cxci'ed the annual interests on sueh part of the said principal huih as shall from time to time remain due and owing after the payment of such instal- ment or instahnents respectively ; And provided, 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 behind and unpaid by the spare of thirty days next after any or either of the days on which the same or any pari thereof ought to be paid, as herein or hereby pro- vided, according to the true intent and meaning of these presents ; Or, if the said party of the second part, his executors, administrators, or assigns, or any of them, shall at any lime assign, or set over, or demise, or underlease the said demised premises, or any part thereof, or in any other manner part witii 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 con- sent of the said party of the first part, his heirs or assigns, first had in writing ; Or il the party of the second part, or any one acting under or claiming from him, shall at an time during the continuance of these presents commit or suffer to be commited 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 CUNTRACTl OR AOREKMENTfl. 10 nnd pul llio said party of the srcond part, his exe- ctiturs, administrators and assigns, and the same to have again, rc-possess and enjoy, as in his and thtnr first and former estate ; and from the time of ony such re-entry by the said party of the first part, his heirs or assigns, the said term hereby demised, or so mucii thereof as shall be then unexpired, and these presents, and every clause, matter and thing therein contained, shall cease and determine, and forever thereafter be null and void to all intents and puposes whatsoever, anything herein contained to the contrary thereof in any wise notwithstanding. And the said party of the second part doth hereby for himself, his heirs, executors, adminstrators and assigns, covenant, promise ond 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, adminstrators, and 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, execu- tors, adminstrators, and assigns, the said yearly rent on the days and times and in manner hereinbefore mentioned, for payment thereof, according to the true intent and meaning of these presents. And also that he the said party of the second part, his heirs, executors, adminstrators, or assigns, or some of them, shall and will, during the said term hereby demised, pay, do, and perform all taxes, rates, levies charges, rents, assessments, statue labor, or other imposition above mentioned, lawfully charged or to be charged, whether the same be now due, or ;t» II a* 1 1 ti! il 20 CABINET LAWYER. shall hereafter become due, on ihe said demised premises, on ihe said rent, 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, adminstrators, or assigns, or any of them, shall not nor will at any time or times during the said term hereby 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 consent as is hereinbefore spe- cified, as aforesaid ; And also that he 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, atoinistrators 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, adminstrators or assigns, the full and just sum of ^ of lav/ful money of Canada, on the days and times and in manner following that is to say [here set forth ihe terms and manner in which the purchase money is to be paid]. And the said party of the first part, doth hereby for himself, his heirs, executors, adminis- trators, and assigns, covenant, promise, and agree, CONTRACTS OR AGREEMENTS. 21 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, administrators, 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, his executors, administrators, and assigns, are to be paid, done, and performed, he the said party of the first part, his heirs, or assigns, shall and will, at the expiration or other sooner determination of the said term hereby demised, upon the request of the said party of the second part, his executors, administrators, or assigns, made to him the said party of the first part, his heirs, executors administrators, 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 suffi- cit'nlly conveyed and assured, unto the said party of the second part, and his heirs, in fee simple absolute, or to such person or persons and his, her, or their heirs, in fee simple absolute, as the said party of the second part, his executor, administra- tors, or assigns, shall nominate and appoint, and to such uses as he or they shall direct, all and singu- lar the said land, tenements, herediuments, and premises hereby demised by such conveyances and assurances in the law, as by the said party of the &econd part^ his executors, administrators or assigns f-^ ► 4 ; I H p nil \ \ ! I 22 CABINET LAWYER. or his or their counsel learned in the law, shall or may be reasonably devised, advised, or required, freed, and discharged of and from all incumbrances whatsoever : but subject neverthelesss to the reserva- tions, limitations, provisoes, and conditions expres- sed in the original grant thereof from the Crown : with usual and proper covenants. And it is hereby further expressly agreed upon by and between the said parties, that in case at any time any of the rent or interest aforesaid, or of the purchase money shall remain unpaid by the space of months after the same shall have fallen due, the party of the first part, his heirs or assigns, shall have full power to re-sell the said land at the best price which can be 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 claim- ing under or by him in the same land — such re-sale to be either for cash or upon credit as the party of the first part, his heirs or assigns, may determine. And that the party of the first part, his heirs or assigns, may in the first place pay himself the expenses of such re-sale, and the whole of the claim due, or to become due, by the parly ol 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 ' "I CONTRACTS OR AGREEMENTS. 23 mine. ITS or f the the y ol ander 1 pay cled, lerson cond 11 be heirs pprn to be produced by the re-sale 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 re-sale. In witness whereof, the parlies 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 A. B. [l. s.] E. F. C. D. [l. 8.] [Note. — The above instrument being a contract or agreement by speciality requires to be sealed as well as signed]. Agreement to build a House, &c., the Materials to he provided by the Builder. Articles of agreement made and entered into the day of , 18 , Between A. B. {builder^^ of, &c., of the one part, and CD., { proprietor) ^ of, &c., of the other part. The said A. B., [builder], doth hereby for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said C. D. [proprietor], his executors, administrators and assigns, that he the said A. B. [buildf^] his executors or administrators, shall and will ivjr the consideration here inn fter mentioned, within the space or time of (six calendar months) from the date of these presents, erect, build and completely^ cover in and finish upon the premises, of the said C. D , [proprietor], at aforesaid, a dwelling ■ M! f!i: if iij i' i| 24 CABINET LAWYER. t-, house and buildings according to the plan and ele- vation set forth in the schedule hereunder written. And also do, perform, and execute, or cause and procure to be done, performed and executed, all and singular other the works mentioned in the schedule hereunder written, according to the plan and elevation therein mentioned or contained, the same to be done within the time aforesaid, and in a good workmanlike and substantial manner to the satisfaction of E. F.. (surveyor or architect), of, &c., insert name and residence of architect or surveyor) or any other surveyor or architect whom the said A. B., [builder], and C. D., [proprietor], shall for that purpose by some writing under their hands appoint : such satisfaction to be testified by a writing or certificate under the hand of the said E. F., [surveyor or architect] or such other surveyor or architect as aforesaid. And also shall and will find and provide such good, pro- per and sufficient materials of all kinds whatso- ever as, together with and in addition to the mate- rials now lying on the said premises, shall be proper and sufficient for erecting the said dwelling house and buildings, and completely finishing the said works. And it is further agreed by and between the said parties that if the said A. B., [buildt^r], his executors or administrators shall in any manner neglect or be guilty of any delay whatsoever, in building and completely finishing the said dwelling house, buildings and works as aforesaid, and the said E. F., [surveyor or archi' tect], or such other surveyor or architect as afore* ill CONTRACTS OR AGREEMENTS. S5 said shall certify the same by writing under his hand, and the said C. D., [proprietor], shall give or leave notice in writing of such neglect or delay at the place of abode of him the said A. B., [builder], his executors or adminstrators, and the said A. B., [builder], his executors or administra- tors, shall not according to the direction of the said E. F., [surveyor or architect] or such other surveyor or architect as aforesaid, proceed to complete the said buildings and works within the space of (seven) days after such notice given or left as aforesaid : then and in any such case it shall be lawful fr r the said C. D., [proprietor], his executors or administrators to purchase proper and sufficient materials, and also to employ a sufficient number of workmen to finish and complete the said dwel- ling house, buildings and works, and also that the said C. D., [proprietor], his executors, adminis- trators or assigns,shall and may deduct and retain to himself and themselves the costs of such mate- rials, and all such sum and sums of money as he or they shall pay to such workmen for the comple- tion of such dwelling house, building and works out of the money which shall be due to the said A. B., [builder], his executors or administrators under this agreement ; and also that the said A. B., [builder], his executors or administrators, shall not nor will in any manner do, or cause or procure to be done, any act, matter or thing whatsoever to prevent, hinder or mole#the said C. D., [proprie- tor], his executors, administrators or assigns, or any person or persons employed by him or them '^ir~ ■ '■ ! j 1 ., ) L 26 CABINET LAWYER. from completing and finishing the said dwelling house, buildings and works in manner aforesaid, or in using the materials which shall be on the said premises, and provided by either of the said parties for the doing thereof. And the said C. D., [proprietor], doth hereby for himself, his heirs, executors and administra- tors, covenant, promise and agree to and with the said A. B., [builder], his executors and admin- istrators, that he the said C. D., [proprietor], his executors or administrators, shall and will well and truly pay or cause to be paid unto the said A. B., [builder] his executors, administrators or assigns, the sum of J of lawful money of Canada, in manner following, that is to say, the sum of per cent, on the amount o( the mate- rials used in the said buildings and works as they shall proceed, to be ascertained by the surveyor {or architect) for the time being, and his certificate under his hand to be couclusive between the said parties; and also that the said C. D., [proprietor], his executors or adminslrators shall and will every week during the progress of the said buildings and works, pay and supply the said A. B., [builder] his executors or administrators, with such sums of money as shall be sufficient for paying and dis- charging the wages and labour of the workmen and labourers wlio shall from time to time be employed in or about the said buildings and works, the amount whereof shall be ascetained by the sur- veyor (or architect) for the time being by a certifi- cate under his hand ; and the remainder of the said CONTRACTS OI^ AGREEMENTS. 27 sum of $ , within days (or months) next after the said dwelling house, buildings and prem- ises shall be completely built, done and finished to the satisfaction of the said E. F., [surveyor or architect], or such other surveyor or architect as aforesaid, the same to be testified in writing under his hand. And it is hereby declared and agreed by and between the said parties hereto, that in case the, said C, D., [proprietor], his executors, admin- istrators or assigns, shall direct any more work to be done in or about the said dwellinpr hor.se, buildings and works than is contained in the schedule hereunder written, then, and in such case the said C. D , [proprietor], his executors or ad- ministrators, shall pay or cause to be paid unto the said A. B., [builder], his executor:^ or administra- tors, so much money as such extra work and the materials used therein shall cost or amount unto, anything hereinbefore contained to the contrary holwiihstanding ; and that if it shall be thought proper by the said CD., [proprietor], his execu" tors, administrators or assigns, to diminish or omit any part of the work specified in the said schedule hereunder written, then and in such case the said A. B., [builder], his executors or administrators shall deduct and allow out of the said sum of $ so much money as the work so to be dfminished or omitted shall amount unto, upon a reasonable valu- ation, anything hereinbefore contained to the con- trary notwithstanding ; and all allowances or deduc- tions for such extra or omitted works respectively shall be ascertained and settled by the said E. F., 28 CABINET LAWYER. • [surveyor or architect], or such other surveyor or architect to be appointed as aforesaid. And it is hereby covenanted and agreed by and between the said parties hereto that if any dispute or difference shall happen or arise between them, their or either of their executors, administrators or assigns ; or between either of them, and the said E. F., [surv(yor or architect] , or such other surveyor or architect to be appointed as aforesaid : touching or concerning the said dwelling house, buildings and works hereby contracted to be made and done as aforesaid, or touching or concerning any other n^at- ter or thing whatsoever relating thereto, or to the additional or extra work as aforesaid, then such dispute or difference shall be left to the determina- tion and award of three indifferent persons, one to be named by the said A. B., [builder], his execu- tors or administrators, and another by the said CD., [proprietor], his executors, administrators or as- signs, and the third by the said two persons so named by each of them the said parties or his executors, administrators or assigns. And each of them the said parties hereto doth hereby for him self, his heirs, executors and administrators, cove- nant and agree with the other of them, his execu- tors and administrators that they the said parties respectively and their respective executors and administrators shall and will severally stand to abide by, perform and keep the award and determi- nation of the said three persons so to be chosen, or of any two of them, touching the said several mat- ters of dispute or difference as aforesaid, so as the CONTRACTS OR AOllElBMENTfl. 19 same award and determination be made in writing under the hands and seals of the said arbitrators or some two of them, within two calendar months next after such dispute or difference shall arise. And it is further agreed by and between the said partie."?, that the submission hereby made, shall, at the option and expense of either of the said parties requiring the same, be made a rule of either of the Superior Courts of Law or Equity in Ontario; and that the costs and charges attending any reference or arbitration as aforesaid shall be in the discretion of the said arbitrators, or any two of them, and shall be paid and satisfied pursuant to their award. 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 A. B. [l. s.] Y. Z. C. D. [l. s.] Another Form, An agreement made the day of > 18 j Between A. B., of, &c., (Builder) ^ of the first part, C. D., of, &c , (Surety)^ of the second part, and E. F., of, &c., of the third part. Whereas, the said E. F., is possessed of a piece of ground situate at (describe the premises) upon which he is desirous of erecting a dwelling-house and ofiices according to the elevation, plans and specifications prepared for that purpose by W. M., architect and surveyor, and under the direction and to the satisfaction of the said W. M., or other arch i- 30 CABINET LAWYER. 'iH tcct or surveyor for the time being of the said E. F., his executors, administrators or assigns : which said elevation, plans and specifications, are marked with the letters A, B, C, D, E, F, and G, and are signed by the said A. B., C. 1). and E. F., and the said specification is contained in the schedule hereunder written, or hereunto annexed ; and the said A. B. has proposed to erect and complete the said dwell- ing-house and offices, and to make and execute all other works mentioned and specified in the said elevation plans and specification, wilhin the time hereinafter limited for that purpose, and according to the stipulations and agreements hereinafter con- tained, at or for the price or sum of $ . : which proposal the said E. F. hath agreed to accept on the said A. B., together with the said C. D., as his surety, entering inlo the agreements hereinafter contained. Now it is hereby witnesses!, That the said A. B. and C. D. do, for themselves, their heirs, executors, and administrators, and each and every one of them doth for himself, his heirs, executors and adminis- trators, hereby agree with and to the said E F., his executors, administrators and assigns, in manner following : (that is to say) That he, the said A. B., shall, at his own cost and charges, fori h with erect and complete, make and execute, w^th all proper and necessary materials, workmanship, and labour, of the best kind in every respects, and in the most substantial and workmanlike manner, upon the said piece of ground, a dwelling-house and offices be- hind the same, with the appurtenances, and all CONTRACTS OR AORCKMCNTS. 51 Other worka, matters and things mentioned and specified in the said elevation, plany, and specifica- tion, under the direction and to the satisfaction of the said W. M., or other the architect or surveyor for the time heing of tlie said E. F., his executors, administrators or assigns ; and for tliat purpose shall find and provide all proper and neceysary materials, implements and machinery ; and shall make good all damages which may he occasioned either tothe said dwelling-house, offices, and works, or any of them, or to adjoining buildings, by the execution ol" 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 architect or surveyor as aforesaid, all surplus earth and waste or useless materials, implements and machinery, which may from time to time remain during the execution of the same works, or at the completion 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 exe- cuted, insure or cause to be insured, in the joint names of the said E. F., his executors, administra- tors or assigns, and of the said A. B., 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 E. F., and shall deliver the policy of insurance to the said E. F., Ml I i\ 5^ eABtNCT tAWYfilt. his executors, administrators or assigns, and shall produce and show to the said E. F., his executors, administrators or assigns, the receipts for the pre- mium of insurance, 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 ap- plied in reinstating the premises, under the direc- tion and to the approbation of the said W. M., or other architect or surveyor as aforesaid : and that the said A. B., 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 the true intent and meaning of these presents, be- fore the day of : and thai if the said A. B., his executors or administrators, shall not so well and suificiently cover in the said dwelling-house and offices before the said day of , or shall not so complete, make and execute, the said dwell- ing house, offices and works before the said day of , then, the said A. B., and C. D., their executors and administrators shall pay to the said E. F., his executors, administrators and assigns, the sum of $ , for every week during which the said dwelling-house and offices shall remain uncov- ered in after the said day of and the like sum for every week the said dwelling-house, offices and works shall remain unfinished after the »aid day of ; which sums may be recovered CONTRACTS OR AGREEMENTS. S3 as liquidated damages, or may be deducted from the sums payable to tlio said A. B., his executors and administrators, under this agreement, provided always that in case the said E. F., his executors, administrators or assigns, or his or liieir surveyor or architect, shall require any extra or additional works to be done, or shall cause the works to lie delayed in their commencement or their progress, the said A. H., his executors or administrators, shall be allowed to have such additional time for covering in and finishing 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 E. F., his executors, administrators or assigns, or his or their surveyor or architect as aforesaid : and the said payments for delay shall not become payable until after the expiration of such additional lime or limes. And the said A. B. and C. D., for themselves, their executors and administrators, do hereby further agree with the said E. F., his executors, adminis- trators and assigns, that in case the said W. M., or other architect or surveyor as aforesaid, shall be dissatisfied with the conduct of any workman em- ployed by the said A. B., his executors or adminis- trators, 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 A. B., his executors or administrators, he, the said A. B., his executors or administrators, will forth- 8 34 CABINET LAWYER. i; 1. I' i 1 I! r i with discharge such workman from the said works and remove the said materials ; and that in case the said A. B., his executors or administrators, shall not, in the judgment of the said W. M., or other architect or surveyor, 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 qual- ity for the said works, and the said W. M., or other architect or surveyor as aforesaid, shall, by writing under his hand, require the said A. B., his execu- tors or administrators, to employ an additional number of workmen, or bring upon 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, the said A. B., his executors or administrators, shall forthwith employ in the said works such addi- tional number of workmen, 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 neglect for the space of seven days to comply with any such notice or request, it shall be lawful for the said W. M., or other architect or surveyor as aforesaid, to dismiss and discharge the said A. B., his executors or administrators, irom the further execution of the said works, and for the said E. F., his executors, administrators or assigns, to employ some other person to complete the same ; and that in such case .! CONTRACt-S OR AGREEMENTS. 35 i 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 architect or surveyor as aforesaid) shall be deducted from the said sum of $ , and the balance, after making any other deductions which the said E. F., his executors, ad- ministrators or assigns, shall be entitled to make under this agreement, shall be paid by the said E. F., his executors, administrators or assigns, to the said A. B., his executors or administrators, in full for the work done by him or them, at the expiration of two months after he or they shall have been so dis- charged as aforesaid : And it is hereby furtlier 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 architect or surveyor as aforesaid, shall, immediately they shall be brought upon the said premises, become the property of the said E. F., his executors, administrators or assigns, and shall be used in the said works. And the said E. F. doth hereby, in consideration of the works so agreed to be done by the said A. B., agree with the said A. B., his executors, admin- istrators and assigns, that he, the said E. F., his executors, administrators or assigns, will pay to the said A. B., his executors, administrators or assigns, the said sum of $ , in manner fol- lowing, that is to say : the sum off within one week after the said W. M., or other architect or surveyor as aforesaid, shall have certified in writing 36 CABINET LAWYER. to the said E. F., his execulors, administrators or assigns, 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 other architect or surveyor shall have certified as a'foresaid, that further work to the value of J 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 completed and finished to the satisfaction el the said W. M., or such other ^architect or surveyor, and the said W. M., or such other aTchitect or surveyor, shall have certified to the said E. F., his executors, administrators or assigns, that the said works have been completed and finished to his satisfaction. Provided always, and it is hereby further agreed by the parties hereto, and particularly by the said A. B., and C. D., that if the said E. F., his executors, administrators, or assigns, shall at any time be desirous of making any alterations or additions in the erection or exe- cution of the said dwelling-house, offices and other works, then and in such case, the said A. B., his executors or administrators, shall make and execute such alterations and additions to the satisfaction of the said W. M., or such other architect or surveyor ; and the sum or sums of money to be paid or allowed between the said parties in respect ol such alterations and additions shall be settled and ascer- tained by the said W. M., or such other architect or i'l I'- ^- CONTRACTS OR AGREEMENTS. 37 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 of money, the said W. M., or surh other archi- tect or surveyor, shall not include any charge for day work, unless an account thereof shall have been delivered to the said E. F., his executors, adminis- trators or assigns, or the said W. M., or such other architect or surveyor, at the end of the week in which the same shall have been performed. Pro- vided also, and it is hereby further agreed, that no such alteration or addition shall release the said A. B. and C. D., their executors or administrators, or any or either of them, from the observance and performance of the agreements herein contained on the part of the said A. B., his executors or admin- istrators, to be observed and performed, so far 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 allerationor addition had been directed. Provided also, and it is hereby agreed, that if the said W. M. shall die, or cease to act as the surveyor and architect of the said K. F., his executors, administrators or assigns, and the said A B., his executors or administrators, shall be dissatisfied with the surveyor or architect for the time being, appointed by the said E. F., his execu- tors, administrators or assigns, in the room of the said W. M., then it shall be lawful for the said A. B., his executors or administrators, at his owa expense to employ a surveyor or architect on hia B8 CABINET LAWYER. ! behalf ia the adjustment of the accounts, to act with the surveyor or architect for tl^e time being of the said E. F., his executors, administrators or assigns; and in case of disagreement between such two sur- veyors or architects, they shall be at liberty to nominate a third ; and the said three surveyors or architects or any two of them, shall and may exer- cise all the powers and discretion which the said W. M. could or might have exercised under or by virtue of these presents if he had lived or continued to act as the surveyor or architect of the said E. F., his executors, administrators and assigns. And it is hereby further agreed that if the said A. B., his executors or administrators, shall so employ as sur- veyor or architect on his or their behalf, he shall be nominated within ten days after the said A. B. shall be informed of the appointment of the surveyor or architect so appointed by the said E.F, his executors administrators or assigns, and notice in writing of such nomination by the said A, B., his executors or administrators, shall forthwith be given to the said E. F., his executors, administrators or assigns. In witness whereof the 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 C. D. (l. s.) in the presence of E. F. (l. s.) Y. Z. THE SCHEDULE ABOVE REFERRED TO. {Here copy the Specification, CONTRACTS OR AGREEMENTS. 39 Sub-Contract between a Builder and a Carpenter. An agreement made the day of 18 , Between A. B., of, &c., {Builder) and G. H., of, &c,, (Carpenter). Whereas, the said A. B., hath entered into a contract with E. F., of, &c., to erect a dwelling- house and offices according to cerlain plans, eleva- tions and specifications referred to in said contract, under the superintendence of W, M., or other archi- tect of the said E. F., whicti contract is dated the day of ; Now it is hereby agreed that in consideration of the sum of $ to be paid by the said A. B., his executors or administrators, to the said G. H., his executors or administrators, as hereinafter mentioned, the said G. H., his exe- cutors or administrators, will do all the carpenter's work necessary to be done for the completion of the said contract in the manner, within the time, and according to the plans and specifications mentioned and referred to in the said contract, and will pro- vide all materials and implements necessary for the performance of such work, and will in all things abide by, perform, fulfil and keep the terms and stipulations of the said contract, so far as the same are applicable to such carpenter's work. And it is further agreed that in case the said A. B., his executors or administrators, shall become liable under the said contract to pay any damages or pen- alty by reason of the default or dejay of the said G. H., his executors or administrators, in the perform- ance of the work agreed to be performed by him> k I 40 CABINET LAWYER. I i: then that the said G. H., his executors or adminis- traors shall pay to the said A. B., his executors or administrators, ihe amount of such damages or pen- alty, and that in case that the said W. M., or other architect appointed to superintend the works under the said contract shall disapprove of the work done by the said G. H., his executors or administrators, or the materials used by him, or the manner in which such work is done, or in case the said G. H., his executors or administrators, shall refuse or neglect forthwith on request by the said W. M., or other architect as aforesaid, to re-execute such work with the materials and in the manner required by the said W. M., or other architect as aforesaid, it shall be 1 «vful for the said A. B., his executors or administrators, to dismiss and discharge the said G. H., his executors or administrators from the further performance of such work, and employ some other person to complete the same, and to deduct the costs of such completion from the sum which would otherwise be payable to the said G. H., his executors and adnunistrators, under this agreement. In consideration whereof the said A. B., agrees to pay to the said G. H., his executors or administrators, the sum of ^ in manner follow- ing, that is to say : 75 per cent, of the contract price for the work done by the said G. H., his executors or administrators, during any week, on the Saturday in every week during the continuance of the said works, and the balance wiihin one month after the completion of the said dwelling- house and offices. CONTRACTS OR AGREEMENTS. 41 In witness whereof, the said parties to these pre- sents have hereunto set there hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l. s.] Y. Z. G. H. [l. s.] [Note. — This form of sub-contract may te adapt f^d to any particular work on a building ^ as bricklayers^ painters\ ^c] Bond from a Builder and two Sureties for the due per- formance of a Contract. Know all men by those presents, That I, A. B., {builder)., of, &c., am held and firmly bound unto E. F., of, &c., in the penal sum of ^1,000, lawful money of Canada, and that we, G. H., (surety)^ of, &c., and J. K., (other surety), of, &c., as the sure- ties for the said A. B., his executors and adminis- trators, are severally and respectively held and firmly bound to the said E. F , in the penal sum of f 1,000 each, lawful money aforesaid, all the said several sums to be paid to the said E. F., or his certain attorney, executors, administrators or as- signs, for which payment to be well and truly made by me the said A. B., I, the said A. B., bind myself, my heirs, executors and administrators, and every of them, firmly by these presants, and for which several payments to be well and truly made by us, the said G. H. and J. K., respectively, we the said G. H. and J. K., respectively, bind ourselves respectively, and our respective heirs, executors and M I [ ! 42 CABINET LAWYER^ administrators, and every of them, firmly by these presents. Sealed with our seals. Dated this day of 18 . Whereas the above bounden A. B., (builder)^ has entered into a contract and agreement in writing with the said E. F., dated the day of 18 , whereby he, the said A. B., has contracted and agreed with the said E. F., to do the whole of the works in erecting and completely finishing a certain dwelling-house and premises, with the out- buildings belong thereto, in every respect agree- ably to the drawings, agreements, conditions, clauses and particulars, mentioned, specified and contained in a certain paper, writing or specifica- tion annexed to the said contract. And whereas, at the time of entering into such agreement as aforesaid, the said A, B., and his said surities, the said G. H. and J. K., agreed to execute the above written bond or obligation for the due performance of the several works so con- tracted to be done as aforesaid, according to the specification aforesaid. Now, therefore, the condition of the above written bond or obligation is such that if the above bounden A. B., his executors or administrators do and shall, within calendar months from the date of the above written bond or obligation, do, perform, exe- cute and completely finish, or cause to be done, per-r formed, executed and completely finished, all and singular the several buildings and works mentioned and specified in the hereinbefore mentioned specifi- pations, conformably tc the said specification in all CONTRACTS OR AOREEMKNTS. 4S respects whatsoever, and in a good and workman- like manner: Then the above written bond or obligation shall be void, but otherwise the same shall remain in full force and virtue. Signed, sealed and delivered in the presence of A. B. [l. s.] Y. Z. G, H. [l. 8.] J. K. [l. s.] Contract to do Repairs^ &c. An agreement made the day of 18 > Between A. B., of, &c., and C. D., of, &c. The said A. B. agrees to do all the works here- under specified in the best and most workmanlike manner, and to provide for such w^orks ail neces- sary 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 monies payable under this agreement, the sum of J , for each day during which the said works shall remain unfinished after the said day of , and in case the said C. D. shall require any additions or alterations to be made to the works hereunder specified, to execute such additions and alterations in the best and most workmanlike manner, with material of the best quality. And it is hereby agreed that in case any additional works shall be required by the said C. D. or in case the said C. D. shall delay the execu- tion of the said works, the said A. B., shall have li \iU 44 CABINET LAWYER. such additional time for the performance of the said works after the said day of , as shall be equivalent to the time consumed in the execution of such additional works, or to the time during which the said C. D. shall have delayed the said works, and that the payments for non-com- pletion as aforesaid, 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 C. D. 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. Witness the hands of the said parlies. Signed in the presence of A. B. Y. Z. C. D. Agreement for sale of Merchants^ Stock, This agreement made the day of 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. agrees to buy, all the stock of goods, wares and merchandise, 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 otherwise as agreed upon) an account of such goods, wares and merchandise being taken by the parlies hereto in the presence of each other. [And it is '(.■■i CONTRACTS OR AGREEMENTS. 45 hereby agreed that any of the said goods, wares or merchandise, which may be damaged, shall be ap praised and valued by ihree disinterested persons, each of the parties hereto selecting one of such per- sons and the two so selected appointing the third, and that the price set upon such damaged goods, wares and merchandise, by the said three persons, or any two of them, shall be substituted for the invoice price thereof, and that within ten days after the value of the said goods, wares and merchandise, shall have been ascertained as aforesaid, the said C. D. shall pay the amount thereof to the said A. B.] And the said A. B. agrees to make, exe- cute and deliver unto the said C. D., a good and sufficient bill of sale of the said goods, wares and merchandise, and to give to the said C. D. quiet and peaceable possession thereof upon payment to him, the said A. B., by the said C D., within the time before specified of the invoiced [or appraised] value as aforesaid. Witness, &c., {complete as in last form.) [If desired, the clatLse for appraising damasked goods citn be made applicable to tfie entire stock. The clause between brackets will be If ft out if a fixed sum is agreed on.] Agreement for Sale of Grain. Memorandum of agreement made the day of 18 , Between A. B., of, &g., of the one part, and C. D., of, &c., of the other part. The said A. B. agrees to sell to the said C. D. five thousand Il > 46 CABINET LAWYER. 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 rale aforesaid, upon delivery as aforesaid. And the said A. B. hereby guarantees and warrants the said wheat to be good, clean and merchantable grain. Witness the hands of the said parties. Signed in the presence of A. B. Y. Z. C. D. i I CHAPTER III. ! i il 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 co-partnership between tra- ders, it is usual to stipulate that if any dispute shall arise it shall be referred to the determination of two indifferent persons as arbitrators, or of their umpire, who is usually, and very properly required to be chosen by the arbitrators before they proceed to take the subject in question into consideration. And it .HWiJi I ifcj ARBlTRATlOPf. 47 Is agreed that the award in writing of the arbitra- tors, or of their nmpire in the case of their disagree- ment, shall be binding and conclusive on all par- ties. It is generally also further 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, which shall be binding on both. As the Courts of Law and Equity have full juris- diction on all questions arising out of agreements of any kind, it follows that they retain a jurisdic- tion over matters which the parties themselves have asreod should be referred to arbitration. Notwith- standing, therefore, an agreement to refer disputes to arbitrition, either party may bring the matter into Court ; although if the agreement should con- tain an express covenant not to sue, and especially if arbitrators be actually named, it seems that such covenant may be effectually pleaded in bar to any suit in equity. And without such a covenant, the circumstances of the parties having agreed to refer to arbitration will induce a Court of Equity to pause before granting to any of them summary re- lief on a point which they have expressly agreed to settle by amicable means. If however, one of the parties should, notwithstanding his agreement, re- fuse to name an arbitrator, the Court of Chancery will not entertain a bill to compel him to do so, neither will it substitute the Master for the arbitra- tors ; for the Court acts only when it has it in its power itself to execute the whole contract in the terms specifically agreed upon. • .-rT 48 CABINET LAWYER. ii t ,1 i The reference of disputes to arbitration appears to have been early adopted by Courts of Law, with the consent of the parties to an action, in cases where the matter in dispute could be more con- veniently settled in this mode. A verdict was taken for the plaintiff by consent, subject to the award of an arbitrator agreed upon by the parties, and the reference was made a rule of Court. This plan is still continually adopted. The arbitrators and the parties to the reference by this means be- come subject to the jurisdiction of the Court, which has power to set aside any award which may appear to have been given unjustly or through mis- take of the law; or, if the award be valid, its per- formance may be enforced by the Court. In order to extend the benefits of this mode of submission to arbitration to all cases of controversies betweeii merchants and traders or others concerning matters of ace junt or trade or other matters, an act of Par- liament wPl3 passed in the reign of William the Third, iiitituled "An Act for delermming the difier- ences by Arbitration" (9 & 10 W. III. c. 15). This Act empowers all merchants and traders and others desiring to end by arbitration any controversy for which there is no other remedy but by jjersonal action or suit in equity, to agree that their submis- sion 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 diso- bedience to the arbitration or umpirage to be made pursuant to such submission, the party neglecting jii ABBITRATION. 49 »n appears Law, with , in cases more con- irdict wa3 ject to the he parties, )urt. This arbitrators means be- )urt, which /hich may I rough mis- lid, its per- . In order bmission to bet wee ii Hg matters act of Par- lliam the the difier- 5). This and others roversy for y personal ir submis- ge of any le of any the parties ise of diso- be made neglecting i^f or refusing to perform and execute the same, oreny 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 misbehave themselves, and that such award, arbitration, or um- pirage was procured by corruption or other undue means. It is also further provided that any arbitra- tion 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 corruption or undue practice be made in the Court where the rule is made for submission to such arbitration or umpirage, before the last day of the next term after such arbitration or umpirage i« made and published, to the parties. Previously to a reeent 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 mat- ters, which are not within the statute. But it is now enacted (Con. Stat. 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 CABINET LAWYER* Record, shall not be revocable by any parly to such reference without 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 arbitrator or umpire is empow- ered and required to proceed with the reference notwithstanding any such revocation, and to make such award although the person making such revo- cation 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 making his award. The Court, or any Judge, is also empowered under an^ such reference, by rule or order to command the attendance and examina- tion of witnesses, or the production of any docu- ments. ' And if in any rule or order of reference, or in any submission to arbitration containing an agree- ment that the submission shall be made a rule of Court, it shall be ordered or agreed that the wit- nesses upon such reference shall be examined upon oath, the arbitrator or umpire, or any one arbitrator, is authorised and required to administer an oath to Buch witnesses, or lo take their affirmation in cases where affirmation is allowed by law instead of oath : and any witness wilfully and corruptly giv- ing false evidence shall be deemed guilty of per- jury, and shall be prosecuted and punished accord* ingly. But an express order or agreement that the witnesses shall be examined upon oath is not now necessary; for every arbitrator or other person, hav- ing, by law or* by consent of parties, authority to hear, receive, and examine evidence, may adminis- ARBITRATION. 51 ter an oath to all such witnesses as are legally called before them respectively. 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 pre- viously 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 arbitration, a provision that the death of either of the parties shall not operate as a revoca- tion of the authority of the arbitrators, but that the award shall be delivered to the executors or admin- istrators of the parties, or either of them, in case of their or his decease. And the same stipulation may be affeclually made in a submission to arbitra- tion by private agreement. 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 considerea 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 sub- mission to arbitration frequently contains a power for the arbitrators or umpire to enlarge the time for making the award ; and in this case the time may be enlarged from time to time by such arbitrator*! or umpire, provided the enlargement be made on or before the expiration of the time originally limited 52 CABINET LAWTER. » for making the award. And if the submission be made a rule of Court, then, whether the arbitrators or umpire have power to enlarge the time or not, the Court or a Judge thereof, has power to enlarge the time under the provisions of the statute above mentioned. And should no enlargement be for- mally made, yet the part'^s may, by continuing their attendance on the reir-A-ence, or by recognizing the proceedings under it, virtually empower the ar- bitrators or umpire to make a valid award subse- quently to the time originally limited In proceeding in the business of the arbitration, the arbitrators are bound to require the attendance of the parties, for which purpose notice of the meet- ings of 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 parties have due notice df 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 ac- cording to the regular rules of law. The award should be signed by the arbitrators in each other's presence, and when made it must be both certain and fiaal. Thus, if the award be that one party enter into a bond with the other for his quiet enjoy- ment of certain lands, this award is void for uncer- tainty ; 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 empowered XfV si AKBITRATIOK. 55 to decide all matters in difFeronce between the par- ties, the award will not necessarily be wanting in finality for not deciding on all such matters, unless it appear to have been required iha^t all such matters should be determined by the award. If the award reserve to the arbitrators, or give to any other per- son, 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 stran- ger, 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 invalidity of part of the award, one of the parties cannot have the advan- tage intended for him as a recompense for that which he 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 invalid. But where subjects involving questions both of law and fact are referred to arbi- tration, the arbitrators may make an award accord- ing to what they believe to be the justice of the case, irrespective of the law on any particular point. When the submission to arbitiatioh is not made the rule of any other Tourt, the Court of Chancery, according to the ordinary principles of equity, has T I: if f 54 CABINET LAWYER. power to set aside the award for corruption or other misconduct on the part of the arbitrators, or if thsy 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 Wm. 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 practice mentioned in the act, but also for mistakes in point of law ; and no otiier Court has a right to entertain any application for this pur- pose. 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 de- fect apparent on the face of the award, the Court will not assist in carrying it into effect by granting process to enforce it. If «lhe submission to arbitra- tion he 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 of either misconduct of the arbitra- tors, or of their mistake in point of law. In analogy, however, to the practice under the statute of Wm. III., the Court in ordinary cases requires applica- tion (or setting aside the award to be made within the lime 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 examin- ation, in the event of any application being made to the Court on the subject of the award, la ARBITRATION. 66 this case the application rnirst be made within the same time as an application to set aside the award. If an umpire be appointed, his authority to make an award commences from the time of the disa- greement of the arbitrators, unless some other pe- riod be expressly fixed; and if, after the disagree- ment 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 arbitra- tors in the exercise 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 him to form a proper decision, he ought to hear the whole evidence over again, unless the parties should be satisfied with his de- ciding on the statement of the arbitrators. And the whole matter in difference must be submitted to his decision, and not some 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 execution. And where the reference is made by order of the Court of Chan- cery, or where the award requires any act* to be done which cannot be enforced by au 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 admit of sue- ri ■ I r !•! 56 CABINET LA>WT£Rr cessful carriage without the intervention of a pro- fessional man. The foregoing observations and following forms are not intended to apply to such matters : they are meant for plain and simple cases only. Arbitration Deed. This Indenture, made the day of 18 , Between A. B.. of, &c., of the one part, and C. D., of, &c., of the other part. Whereas, certain differences have arisen between the said A. B. and the said C. D., respecting, &c., [here state concisely the subject-matter in dispute, or, if all matters in difference are referred, you had better not state such subject-matter at cr//} : and it is agreed by and between the said A. B. and C. D. to refer the said differences [or all matters in difference between them] to the award, order, final end and determination of U. V., of, &c.. and X. Z., of, &c., arbitrators, nominated by the said A. B. and C. D., respectively ; and in case they disagree about making an award, or fail to make aa award, before the day of next, then to the award, um- pirage, final end and determination of such um- pire 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 witnesseth that they, the said A. B. and C. D., do, and each of them for himsePf, severally and respectively, and for his several and respective heirs,^ executors and adrainistratorsj doth AllBITRATIOfl. 57 covenant, promise and agree with and to each other, his executors and administrators respectively, that the said differences [or all matters in differencf] between the said A. B. and C. D., be, forthwith referred to the award, order, arbitrament, final end and determination 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 determination of such umpire as the said arbitra- tors shall, by writing unde'r their hands, endorsed on these presents, before they enter upon the con- sideration of the matters referred, nominate and appoint : so as the said arbitrators or umpire do make and publish his or their award or umpirage in writing under his or their hands of and concern- ing the 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 represen- tatives who shall require the same, on or befcwe tlie day of next, or on or before any o^her day to which the said arbitrators or umpire shall, by wriiing signed by him or them, endorsed on these presents, from time to time enlarge thH time for making sueh award or umpirage ; and that the said A. B. and C. D. respectively, and their respec- tive 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 a^ a revocation of the power and authority of the said i H I; 11 ^ ii if i \ Litj 68 CABINET LAWYER. arbitrators or umpire to make said award or umpi- rage ; and that all costs and charges of this refer- ence and of the said award shall be in the discre- tion of the said 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 tliem, shall and will produce unto and deposit with the said arbitrators or umpire, all deeds, books, papers, evidences and writin^rs, 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 neces- sary 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 arbitrators 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 afier reasonable notice, and without such excuse as the said arbitrators or umpire shall be 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 and will prosecute any action or suit in any Court of Law or Equity against the other of them, of and concerning the premises, until the said award be made and published : And fur- ther, that this submission may be made a rule of AHBITRATIOKT. 6i Her Majesty's Court of [ ] if that Court shall so please : And, further, that the said arbitrators or umpire shall take the said arbitration at [ ] aforesaid, and shall have power to call for and examine all witnesses upon oath, and have the assistance of accountants in adjusting and ascer- taining the state of the accounts of the said parties in diiference. In witness whereof, the said parties to these pre- sents have hereunto set there hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l. s.] E. F. C. D. [l. s.] Another Form . This Indenture, made the day of 18 , BetkVeen A. B., of &c., of the first part, and C. D., 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 in dispute] , and in order to put an end thereto, and to obtain an amicable adjustment there- of the said parties of the first and second parts have respectively agreed to refer the same to the award, order, arbitrament, final end and determina- tion of U. v., of, &c., and X. Z., of, &c., arbitra- tors, indifferently cho«en, 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 eo CABINET LAWYER. these presents upon their said award, then it shall and may be lawful for them to appoint some fit per- son as third arbitrator, by a memorandum, in writ- ing, under their hands, to be endorsed on these presenls ; 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 this 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 adminis- trators, covenant, promise and agree, to and with each other, his and their heirs, executors and ad- ministrators, well and truly to stand to, obey, abide by, observe, perform, 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, so as such award be made in writing, under their hands, or under the hands of any two of them (in the event of any such appointment as aforesaid), on or before the ' day of next. And it is hereby agreed, that the said arbitrators shall be at liberty, by writing, under their hands, or the hands of any two of them, respectively endorsed t tV, ' ARBITRATION. 61 on these presents, to enlarge the time for making the said award when and as often and to such limes as they .shall think fit. And also, that all the costs and charges attending the said arbitration shall be in he discretion of the said arbitrators hereby ap- pointed, 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 may be made a rule of Her Majesty's Court of Queen's Bench or Common Pleas, at Toronto. 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 several and respective heirs, executors and admin- istrators, 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 pre- sents have hereunto set their hands and affixed their seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l. s.] E. F. C. D. [l. s.] Arbitration Bond. Know all men by these presents. That I, A. B., of, &c., am held and firmly bound to C. D., of, &c., in the penal sum of [ ] of lawful money of Canada, to be paid to the said C. D., or to his cer- tain attorney, executors, administrators, or assigns, 6^ CAfltNET LAWVEH. for which pnymfnt to ho w«ll and truly made I bind myself, my heirs, executors, and administra- tors firmly by ihese presents. Sealed with my seal. Dated this day of , 18 . Whereas disputes and differences have arisen, and are now pending, between the abovc-bounden A. H. and the said C. D. touching and concerning [state subject-matter in dispute as in deed] And whereas the above-bounden A. B., and the said C. Do, have agreed to refer such disputes and differences, as well as all actions, suits controver- sies, accounts, reckonings, matters, and things in any wise relating thereto, to the award, arbitra- ment and determination of U. V. and X. Z., arbi- trators nominated, appointed and chosen, as well as by and on the part and behalf of the above-bounden A. B. as of the said C. D., and who have consented and agreed to accept the burthen of the said arbi- tration. 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, ap- pointed and chosen as aforesaid, touching and con- cerning the matters in dispute between the above- bounden A. B. and the said C. D. 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 arbitrators, ready to be de- livered io the said parties, or such of them as shall ARllITRATlOf^. M npply for the eamr, on or before the dny of , one lliouxand ei^lil hundred and ) : Then this oblignlion bhall be void, olhcrwise to be and remain in full force and virtue. And the ?«aid obligor hereby eonsenis and agrees that this Bond of Sub- mission and the Award to be made thereimder shall and may be made a Rule of Court of any of the Superior Courts of this Province. Signed, sealed and delivered in the presence of A. B. [l.s] K F. [Note. — A similar bond must be executed by C. D., substituting C D. for A. B. wherever it occurs.^ Appointment of an Umpire. We, the within-named U. V. and X. Z., do here- by nominate and appoint U. U., of , to be umpire between us in and concerning the matters in difference within referred [on condition that he do, within days from the date hereof, by some writing under his hand, accept the umpirage]. Witness our hands this day of , 18 . U. V. Witness, W. W. X. Z. [XoTE. — The foregoing appointment should be endorsed on the arbitration deed or bond. Fnlargement of Time for Making Award. We, the undersigned arbitrators, by virtue of the power to us given for this purpose, do hereby ap- 64 CABINET LAWYER. point, extend, and [if a second e^ilargement, " fur* ther "] enlarge the time for making our award until the day of next, on or before which said day our award in writing of and v oncerning 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 , 18 .• Witness, A. B. W. W. C. D. Note. — The ohservalion appended to the last form apply to this and the two next forms'\. Enlargement of Time hy the Parties. We, the withiij-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, "our hands and seals "], the day of 18 . Signed, [or Signed sealed and delivered] in the presence of A. B. [l.s.] W. W. C. D. [l.s.] Appointment of Third Person as Additional Arbitrator, We, the within-named U. V. and X. Z., do by this memorandam under our hands {made b&fore ARBITRATION. 65 we enter or proceed on the arbitration within men- tioned] nominate and appoint Mr. X. Y., of , the third person or arbitrator, to whom, together with ourselves, all matters in difference between the said parties within mentioned shall be referred, according to the tenoir and effect of the within submission. Witness our hands this day of , 18 . Signed in the presence of U. V* I . Li, A.% Za, Oath to he administered hy Arbitrator to a Witness. You shall true answer make lo 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. P. referred to rny award [or " to the award ol" myself and G. H."], without favor or affeclioiii to either party ; and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you God. Appointment hy Arbitrator for attendance before him. B. "] I appoint , the day of next, V, I at o'clock in the evening, at , for D, J proceeding in this reference. Dated the day of , 18 . A.A. To Messrs. A. B. and ' C. D., and their re- agents, and all others whom it may concern. . 6 {The arbitrator'' 8 signa' ture^ or the signature speclive attorneys ox > of one or more of them^ if more than one.) V ( It'il ■ M 1; i M 68 CABINET LAWTER. 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. Dated the day of ,18 . E. F., Arbitrator. To Messrs. x«. B. and C. D., and their respective Attorneys 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, &c., send greeting: [&c. proceed to re- cite thejnstrument by which the parties referred to arbitration, avid so much of its terms as may be essential to show the authority of the arbitrator or umpire with respect to the subject-matter of refer- ence^ and the time, power of enlargement, an<^ man- ner of making the award. Thus if it be by inden- ture, the recital may be as follows : Whereas by an Indenture bearing dats, &c., and made between, &,c., reciting that various differences had arisen, &c.," so stating all that may be material to warrant the following award, and then proceed thus : Now know ye that I, the said A. A., having taken upon myself the burthen of the said arbitration, and hav- ing heard and duly considered all the allegations ARBITRATION. 07 and evidence of the said respective parties of and concerning the said matters in difference so referred as aforesaid, do make this my award in writing of and concerning the said matters in difference so referred, and do hereby award, order, determine and direct that [&c. conclude with a distinct state- ment of the arbitrator's decision on all the pointa referred to, him.] In witness whereof, I have hereunto set my hand this day of 18 . Signed in the presence of A. A. W. W. » « Award where the Submission was by mutual Bonds, To all to whom these presents shall come, I, A. A., of, &c., send greeting ; Whereas on » hy a bond made and sealed with the seal of C. D., of, &c., he became held and firmly bound unto A. B., of, &c., in the penal sum of j^ : And whereas on the day and year aforesaid the said A. B., by another bond sealed with his seal, became held and firmly bound unto the said C. D.. in the like penal sum, with conditions written under the said several bonds that the said A. B., his heirs, execu- tors and administrators, and the said C. D., his heirs, executors and administrators, should well and truly stand to, abide by, perform, fulfil, and keep the award, order, and final end and determi- nation of me, A. A., an arbitrator indifferently named and elected, as well on the part and behalf of the above-bounden A. B., as the above-bounden 1 5 t\ I » r i ■■•,■'■ .m .'!■!' IV' 6S CABINET LAWYER. ^1 C. D., to arbitrate, award, order, judge and deter- mine of and concerning [&c. here set out such parts oj the bond as bear upon the award, and state the enlargement, if any]. Now, I, the said A. A., having taJcen upon myself the burthen of the said arbitration, and having heard and duly and maturely weighed and considered the several alle- gations, vouchers and proofs made and produced on both sides, do in pursuance of the said submis- sion make and publish this my award of and con- cerning the said premises in manner following ; that is to say, I do award [&c.]. In witness, &c. (as in last form.) Signed in presence of A. A. W. W. Award where the Submission was by agreement, and stating an assent to an enlargement. To all to whom these presents shall come, we A. A., of, &c., and T. A., of, &c., send greeting: Whereas, by a certain agreement in writing under the hands of A. B., of, &c., and C. D., of, &c., bearing date on or about the day of last recitmg that [&c. hre set out such pa'ts 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 under the hands of all the said parties to the said agree- ment, they the said parties mutually and recipro- cally consented and agreed that the time for the eaid arbitrator's making the said award should be ARBITRATION. 69 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 arbitrators having taken upon us the burthen of the said reference, and having examined all such witnesses as were produced before us by; the said pcries respectively, and having fully weigh- ed and considered all the allegations, proofs and vouchers made and produced before us, do award [&c.]. In witness, &c., [as in preceding forms]. Signed in the presence of A. A. W. W. T. A. Clauses which may he inserted in an Award where they suit the circumstances. 1. I award that C. D. do pay to A. B. the sum of J within days after demand. 2. I award that A. B. do pay to C. D. the sum of J within days after demand. 3. I award and direct that C. D. do, within one month after demand, pay to the said A. B. the sura of $ , and that the said A. B. do, upon such payment, deliver to the said C. D. a good and suffi- cient conveyance in fee simple, free from incum- brances of all and singular, &c., [^describe lands], 4. I award and direct that the said A. B. do pay to the said C. D. the sum of jj , and that there- upon the said A. B. and C. 1). do execute and deliver the one to the other good and sufficient releases of all claims and demands which they may, have one against the other. . I 70 CABINET LAWYER. ! 6. I award that ^e costs of the reference and award be paid by C. D. to A. B. 6. I award that each party bear his own costs of the reference, and that the costs of the award be paid by the said A. B. [or C. D., or in equal por- tions by the said A. B. and C. D.] 7. I award and direct that the said C. D. do pay to the said A. B., the costs incurred by the said A. B., o yd 'ncidental to, the reference and award, [when i« urM*rator is to ascertain the amount add the following words] and I assess the amount of the said costs of the said A. B., at ^ , and the costs of my award at $ 8. And [ further award and direct that the said A. B. and C. D. do each bear his own costs of the reference, and pay one-half the costs of the award, and if either parly shall, in the first instance, pay the whole or more than half of the costs of the award, the other party shall repay him so much of the amount as shall exceed the half of the said costs. 9. I award and direct that one moiety of the costs of the reference and award be borne and paid by A. B., and the other moiety by C. D. Affidavit of execution of Arbitration Bond. County of > ^ ^» Y* ^' ^^> ^°'> ™ake oath and to wit . ) 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 sub* Bcribing witness to the execution of the said bond. Y. Z. ARBITRATION. 71 Sworn before me at' , in the county of , this day of , 18 . E. F., a Commissioner, &c., in B. R. for the County of If the affidavit is intended for use in a Court of law, it must be entitled in the Court. An affidavit of the execution of a submission by deed or otherwise, may be easily in -ned from the above. AjffidavU of execution o ' Award. County of j ) I? W. W., of, &c., make oath It : ) to wit : ) and say, 1. That I was present and did see the within [or annexed] award duly signed by the therein named A. A. and T. A., and that I am the subscribing witness thereto. W. W. Sworn, &c.. 11 •1! > !' ;!,i ! i i I <''i i: CHAPTER IV. ASSrONMENTS. An assignment, in its general acceptation, is the transfer of any kind of property whether real or personal. The person making the assignment 19 call the assignor ; he 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 ab- solute, as a bill of sale, or conditional, as a chattel mortgage, not accompanied by immediate delivery and followed by an actual and continued change of possession, requires to be filed in the office of the Clerk of the County Court of the county wherein the goods are. See Con. Stat. U. C^ c. 45, ss. 1-4. An assignment requires to be executed with the same formalities as other deods. For a longer notice of these formalities the reader may refer ta the chapter upon Deeds. The following forms will be found to meet cases of common occurrence. In matters of difficulty the services of a professional man should be procured ASSIGNMENTS. ts Assignment of Agreement to Purchase. (To be endorsed vpon or annexed to the Original.) Whereap, 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 pur- chase money within mentioned, together with all interest upon such purchase money up to the day of last, according to the terms and pro- visions of the within-written articles, and there now remains to be paid the sum of $ <^n'y, by equal annual instalments of $ each, with inter- est from the day of last. And whereas, the said C. D. hath contracted and agreed with E. F., of, &c., for the sale to him of the within- mentioned premises [and the improvements there- on] 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 administra- tors, unto the said A. B., his executors or adminis- trators, of the said sum of $ , residue of the original purchase money aforesaid, and interest thereon from the period aforesaid, at the times and in manner within mentioned. Now these presents witness, that in pursuance of such agreement and in consideration of the sum of $ , of good and lawful money aforesaid, to him, the said C. D., in hand paid by the said E. F. at or before the execution hereof, the receipt where- of he, the said C. D., doth hereby acknowledge, he, : I ' i' ' ! M Cabinet lawVkr. I 'h the said C. D., hath sold, assigned, transferred, and set over, and by these presents doth sell, assign, transfer, and set over to 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. , in the concession of , together with all the right, title, and interest of him, the said C. D. of, in, and to the within-written articles of agreement covenants and the lands and premises therein re- ferred to, [and all improvements thereon,] and all benefit and advantage to arise therefrom. To hold to the said £. F., his heirs, executors, administra- tors and assigns, for his and their own use and benefit forever. And the said C. D. doth hereby make, ordain, authorize, constitute, and appoint the said E. F., his heirs, executors, administrators, and assigns, his true and lawful attorney and attorneys, irrevo- cable 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 administrators, to demand, sue for, recover and receive of and from the within- named A. B., his heirs, executors or adminis- trators, all such sum or sums o( money and dam- ages as shall or may at any time or time hereafter accrue or grow due to him, the said C. D., his heirs, executors, adminstrators or assigns, under or by virtue of the said recited articles of agreement and covenants, or any matter, clause, or thing therein contained, bv reason or on account of the breach or default oi him, the said A. B., his heirs, ASSIGNMENTS. U executors, or administrators, in relation thereto ; the said C. D. hereby also covenanting with the said E. F., his heirs, executors and administrators, that he hath not done or suffered, 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 princi- pal money or damages under or by virtue of the said articles of agreement and covenants 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 administrators, covenant with the said C. D., his heirs, executors 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 administrators, the aforesaid sum of 3 , residue of the purchase money aforesaid, and all the interest thereon now or hereafter to become due, by the instalments and at the times mentioned and provided therefor in and by the said recited articles of agreement, and therefrom shall and will indemnify and forever save harmless the said C. D., his heirs, executors and administrators, and his and their goods and chattels, lands and tenements, by these presents. In witness whereof the said parties to these pr' - ents have hereunto set their hands and seals, M 1 r \m .Itl : i- \4 % 76 CABIT^KT LAWYEft. Signed, sealed and delivered in the presence of W. W. C. D. [l.s.] E. F. [L.S.] Assignment of a Bond hy EndorsemenL Know all men by these presents, that for and in consideration of the sum of $ lawful money of Canada, by E. F., of, &c., to the within-mentioned obligee, C. D., in hand well and truly paid at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, he, the said C. D., halh bargained, sold, assigned, transferred and set over, and by these presents doth bargain, sell, assign, transfer and set over, unto the said E. F., his executors, administrators and assigns, the wilhin-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, property, claim and demand what- soever, 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, receive and enjoy the said bond and moneys unto the said E. F., his executors, administrators 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 executors, administrators and assigns, the true and SI ASSIONMEMTS. 11 lawful 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, ad- ministrators and assigns, to ask, demand and re- ceive of and from the wilhin-named A. B., the obligor in the within-written bond or obligation named, his heirs, executors, administrators or as- signs, all such principal and interest moneys as now are or shall from time to time or at any time here- after be due upon the said bond, ; nd to sue and prosecute ny action, suit, judgment, or execution thereupon, and to acknowledge, make and give full satisfaction, receipts, releases and discharges for all moneys secured by the said bond and now due or at any time hereafter growing due thereon, and generally to do all and every such further and other lawful acts and things, as well for the recovering and receiving as also for the releasing and dis- charging of all and singular the said hereby as- signed bond, moneys, and premises, as fully and effectually to all intents and purposes as he, the said C. D.,his executors, administrators or assigns, could or might do if personally present and doing the same. And the said C. D. doth hereby, for himself, his executors and administrators, covenant and agree with the said E. F., his executors, ad- ministrators and assigns, to ratify, allow and con- firm all an i whatsoever the said E. F., his execu- tors, administrators or assigns, shall lawfully do or cause to be done in or about the premises by virtue of these presents. And the said C. D., for himself, his executors and administrators, doth further cov- .1 78 CABINET LAWYER. "enant, promise and agree to and with the said E.F., his executors, administrators and assigns, by these presents, in manner following, that is to say : that the within mentioned sum of $ remains justly due and owing upon the said bond, and that he, the said C. D., hath not received or discharged all or any of the said moneys due or to grow due on the said bond, nor shall or will release, nonsuit, vacate or disavow any suit or other legal proceed- ings to be had, made or prosecuted by virtue of these presents, for the suing for, recovering, releasing 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 and will revoke, invalidate, hin- der, or make void these presents, or any authority or power hereby given, without such license as aforesaid. In witness whereof the said C. D. hath hereunto set his hand and seal the day of , 18 . Signed, &c., C. D. [l.s.] W. W. Assignment (Crown Lands.') Know all men by these presents, that I., A. B.,of the of , in the County of and Pro- vince of Ontario, for and in consideration of the sum of $ , of lawful money of the said Province, to me in hand paid by C. D., of the of m^ in the County of and Province afore- said, at or before the date hereof, (the re- 'M 1\ ASSIGNMENTS. 79 ceipt whereof I do hereby acknowledge,) have bar- gained, sold, assigned, transferred and set over, and by these presents do bargain, sell, assign, transfer and set over to the said C. D., his heirs and assigns, all my 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 ihe Township of , in the County of and Pro- vince aforesaid, containing by admeasurement acres, be the same more or less, being composed of Lot number in the Concession of the Township of aforesaid [insert ifneces' sary, " subject to the conditions, as to settlement and otherwise, of the Crown Lands Department, which are to be performed."] To have and to hold the same with all and every the benefit that may or can be derived from the said acres of land, unto the said C. D., his heirs and assigns forever. In witness whereof, I have hereunto set my hand and seal, this day of ,18. Signed, sealed and delivered in presence of A. B. [l.s.] Y. Z. iH ' ii \h Affidavit of Execution. County of , to wit 1, Y. Z., of the Township of , in the County of , make oath and say : That I was personally present and did see the within named A. B. duly sign and seal. li « so CABINET LAWYF.<1. i t add as his act and deed deliver, the willi! ^ iVsf^.S'gn- ment on the day of the date thereof, and 'hat ', this depone.it, am a subcribing witness thereto. Y. Z. Sworn before me at , "> this day of 18 . j A. B. a Commissioner for taking affidavits in and for the said County. Assignment of Lease. This Indenture made the day of , one thousand eight hundred and , Between A. B., of, &c., of the first part, and C. D., of, &c., of the second part. Whereas, by an Indenture of Lease, bearing date on or about the day of , one thou- sand eight hundred and , and made between J. K.jof, &c., of the one part, and the said A. B., of the other part, the said J. K. did demist and lease unto the said A. B. the lessee therein named, his executors, administralors and assigns, all and sin- gular that certain pa oi or tract of land and prem- ises, situate, lying and being, in the, &c. To hold the same with the appurtenances, unto the said lessee, his executors, administrators and assigns, from the day of , one thousand eight hundred and , for and during the term of years from thence next ensuing, and fully to be complete and ended, at the yearly rent of J , and under and subject to the lessee's covenants and agreements in the said Indenture of Lease reserved an 18 , thereby granted, and for all other the estate, term, and interest (if any) of the said party of the first part therein. Sub- ject to the payment of the rent and the performance of the lessee's covenants and agreements in the said Indenture of Lease reserved and contained. And the said party of the first part, for himself, his heirs, executors, and administrators, doth hereby covenant with the said party of the second part, his executors, administrators and assigns, that not- withstanding any act of the said party of the first part, he hath now power to assign the said premises in manner aforesaid. And that subject to the pay- ment of the said rent, and the performance of the said lessee's covenants, it shall be lawful for the said party of the second part, his executors, admin- istrators and assi}2;ns, peaceably and quietly to hold and enjoy the said premises hereby assigned durinn; the residue of the term granted by the said Indenture of Lease, without any interruption b) the said parly of the first part, or any other persons claiming under him, free from all charges and incumbrances what- soever, of him the said party of the first part. And that he the said party of the first part, and all per- i! f I I CABINET LAWYER. sons lawfully claiming under him will, at all times heroafler, at the request and costs of the said parly of the second part, his executors, administrators and assigns, assign and confirm to him and them the said premises for the residue of the said term as the said party of the second part, his executors, ad- ministrators, or assigns, shall direct. And the said party of the second part, for himself, his heirs, executors and administrators. Doth hereby covenant with the said party of the first part, his executors and administrators, that he, the said party of the second part, his executors, administra- tors or assigns, will, from time to time, pay the rent and perform the lessee's covenants in the said Inden- ture of Lease contained, and indemnify and save harmless the said party of the first part, his heirs, executors and administrators, from all losses and expenses in respect 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 A. B. [l.s.] Y. Z. ' C. D. [l.s.] I Assignment of Lease hy Administrator. Know all men by these presents, that I, A. B , of &c. ; administrator of all and singular the goods and chattels, rights and credits, of the within-named C. D. deceased, for and in consideration of the sum of $ , lawful money of Canada, to me in hand AMIOBiMENTf. 8T well and truly paid by E. F., of, &c., at or before the scaling and delivery of these presents, the recept whereof is hereby acknowledp;ed, have bar- gained, sold, assigned, transferred and set ovor, and by these presents do bargain, sell, assign, transfer, and set over, unto the said E. F., his executors, administrators and assigns, all and singular the parcel or tract of land and premises comprised in the within-written Indenture of Lease, and all the estate, right, title and interest which I, the said A. B., as administrator of the said C. D. as afore- «aid, or otherwise, now have, or at any time here- after 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 lea«e 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 iheir appurtenances, unto the said E. F., his Execu- tors, administrators and assigns, for and during all the rc'-t, 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 agreements th-^^rein contained. In witness whereof, I, the said A. B., have here- unto set my hand and seal the day of , 18 . Signed, &c., A. B, [l.b.] ill i ^ v^ ^ ■> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.25 >i< lii |Z2 r^ u& 12.0 u Hiotographic Sdences Corporation 23 WeST MAIN STMiT WnSTIR.N.Y. USSO (716)«7i'4503 ■^ 86 CABINET LAWTRR. Asst^metii from Trader to Secure Debt. This Indenture, made the day of , one thousand eight hundred and , Betwi^en A. B., of, &c., of the first part, C. D., wife of the said A. B., of the second part,^ and £. F., of, &c., of the third part. Whereas, the said party of the first part is justly and truly indebted unto the said party of the third part in the sum of $ or thereabouts, and hatb agreed to execute unto the said party of the third part, an assignment of all his estate 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 witnessetb, 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 party of the first part paid by the said party of the third part, at or before the execution of these presents (the leceipt whereof is hereby ac" knowlcdged), he, the said party of the first part. Hath- granted, bargained, sold, released, conveyed, assigned, trn^isferred, and assured, and by these presents Doth grant, bargain, sell, release, convey, assign, transfer and assure unto the said party of the third part, his heirs, executors, administr.ttors and assigns,. All and singular the real estate speci- fied in the Schedule to these presents, marked A, and all the househi>ld goods, books, credits, fnrnr- ture, stock in trade, bonds, bills, notes, books of accounts and securities for money, and all other the A8SIONBIBNT8. 89 personal estate and effect?, now belonging, due, or owing to him the said party of the first part, spcci* fied in the Schedule to these presents, marked B ; the greater part of which are now in and upon the premises upon whicn the said party of the first part now carries on his said business, and which said goods are forthwith, upon the execution of these presents to be delivered into the possession of the said party of the third part, or his agent or agents in that behalf; and all reversions, remain- ders, rents, issues and profits, and all the right, title, interest, trust, possession, property, claim, and demand whatsoever, at law or in equity, of him the said party of the first part, of, in, to, out of, or upon the same real and personal estate^ goods, chattels, effects and property, respectively. Together with the appurtenances, and together with all books, writings, deeds, bills, notes and receipts, papers and vouchers, touching or concerning the said premises hereby assigned, or any part thereof. To have and to hold, receive, take, and enjoy,* the said real and personal estate, good^, chattel:*, stocks, moneys, credits, bonds, bills, notes, securi- ties for money, and all and singular other the pre- mises hereby conveyed and assigned, or intended so to be, unto the said party of the third part, his heirs, executors, administrators and assigns, hence- forth forever, to and for his and their sole and only use, and as and for his and their own proper goods, chattels, moneys and effects absolutely. Subject nevertheless, and to and for the intents and purposes following, that is to say : i: I 90 CABINET LAWrSR. That the said party of the third part, or his 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 party 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 hereby assigned or intended so to be, and apply the said moneys to arise by such sale or sales, and to be received or collected as afcHresaid, after payment of all costs, charges and expenses of these presents, and incidental thereto, and in carrying out the purposes thereof, or otherwise in relation thereto, in and towards the payment and liquida- tion in full of the said indebtedness of the said party of the first part to the said party of the third part, and after such payment do and shall pay the residue and surplus, if any, lo the said party of the first part, his executors, administrators or assigns, or as he or they shall direct. And for the better carrying out of these presents, the said party of the first part doth hereby nominate and appoint the said party, of the third part, his executors, administrators and assigns, the true and lawful attorney and attorneys of him the said part;' of the first part, for him and in his name to do, per- form, and execute all such acts, deeds, matters, ASSIGNMENTS. 91 or and things whatsoever in relation to all and singu- lar tho real and personal estate and effects and premises hereby assigned as aforesaid, as the said party of the third part may deem necessary for more effectually carrying into effect the true intent and meaning hereof; and that for the purposes aforesaid it shall be lawful for the said party of the third part, his servants and agents, to continue in and to occupy the said premises now in the occu- pation of the said party of the first part, until the trusts of this assignment are fully executed. Provided also, that any collateral or other secu- rities, by way of judgments or otherwise, which the {»aid party of the third part now holds against the said party of the first part in respect of his said indebtedness 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 party of the ^ third part shall not be answerable or chargeable as implied trustee hereunder, except for wilful neglect or default. And the said party of the second part, wife of the said party of the first part, in consideration of five shillings to her paid by the said party of the third part, hereby releases unto the said party of the third part all dower, and right or title to dower, in the said lands hereby conveyed and every part thereof. In witness whereof, the said parties to these pre- rT' 92 CABINET LAWYER. scnts have hereunto set their hands and seals the day and year first above written. Signed, scaled and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [l.>.] E. F. [l.s.] ih hoi Assignment of Judgment This Indenture, made the day of 18 , Between A. B., of, &c., of the first part, and C. D., of, &:c., of ihe second part. Whereas, the said party 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 parly 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 parly of the second part, in manner here- inafter expressed. Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of the sum of $ , of lawful money of Canada, to the said party of the first part in hand paid by the said party of the second part, at or before the execution hereof, the receipt whereof is hereby acknow- ledged, he the said parly of the first part, Hath bargained, sold and assigned, and by these pre- sents Doth bargain, sell and assign, unto the said parly of the second part, his executors, adminis- ASSltJNMttNUI. ds trators and assigns, All that the said hereinbefore mentioned judgment, and all benefit to be derived iherefrom, 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. And the saiJ party of the first part hereby con* stitutcs and appoints the said party of the second part, his executors and administrators, to be his true and lawful attornry and attorneys, at the proper costs and charges of the said party of the second part, his executors and administrators, to take and prosecute all arid every remedy or pro- ceeding at law or in equity, which the said party of the second part, his executors or administrators, shall hereafter consider advisable in reference to the said judgment, the said party of the second part, for himself, his heirs, executors, and adminis^ trators, hereby agreeing to indemnify and save harmless the said party of the first part, his heirs, executors and administrators, of and from ell dam- ages, costs, charges and expenses in respect 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 A. B. [i^.s,] y. z. c. D, [L.S.] '[^ 04 CAfilM^T LAWlTKIt. Aiiignment of Mortgage* day of one , Between A. B., and Province This Indenture, made the thousand eight hundred and of the , in the County of of Ontario, of the first part, and C. D, of the , in the County of and Province afore- said, of the second part. Whereas, by an Indenture of Mortgage bearing date the day of , one thousand eight hundred and and made between E. F. of, &c., of the first part, and the said A. B. of the second part, it is witnessed, that in consideration of the sum of $ , of lawful money of Canada, to him the said E. F. paid hj the said A. B., He, the said £. F., did grant^ bargain, sell, alien, re- lease, enfeoff, convey, and confirm unto the said A. B., his heirs and assigns, all and singular that certain parcel or tract of land and premises situate, lying and being in the, &c. ; To have and to hold the same unto the said A. B., his heirs and assigns, forever. Subject, nevertheless, to a proviso therein contained for redemption upon payment by the said E. F. to the said A B. of the sum of | of law- ful money aforesaid and interest, on the day and time and in manner therein mentioned. And whereas, the earn of $ is now owing to the said A. B. on the said in part recited security, and the said A. B. hath agreed to sell and assign the said lander and premises, and all the moneys thereby secured, as wf 11 as the said Indenture of Mortgage, and all his interest therein, unto the said A8fllO!rMENTS. 95 C. D. for the consideration hereinafter mentioned. Now this Indenture witnesseth, that the said party of the first part to this IndeiUure, in consideration of the sum of H , of lawful money of C anada aforesaid, to him by the said party of the second part to this Indenture In hand paid, the receipt whereof he, the said party of the first part, doth hereby ackno7'ledge, and of and from the same, and every part thereof, acquit, release and discharge the said party of the second part, his heirs, execu- tors^ administrators and assigns, forever ; He, the said parly of the first part, hath bargained, sold assigned, transferred, and set over to the said party of the second part, his heirs, executors, administra- tors and assigns, the said principal sum of ^ , so due and owing to him as aforesaid, and secured by the hereinbefore in part recited Indenture or Mort- gage, and also all future and other sums of money whicL from henceilbrth shall or may* grow due 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, or the said principal and interest monies. To have and to hold, receive and take, the said principal sum of $ and interest, and all and singula^' other the premises hereby assigned, and every part thereof, unto the said party of the second r'' CABINET LAWYAR. part, his heirs, executors, administrators ur assigns, to and for his and their own proper moneys, securi* ties, and effects absoluleiy ; And, for the more effectually enabling the said party of the second part, his executors, administrators, and assigns, to recover and receive the said principal sum off and interest, and to have and take the benefit of the security for the same, he, the said party of the first part, hath mado, ordained, constituted, and ap^ pointed the said party of the second part, his exe- cutors, administrators and assigns, his true and lawful attorney or attorneys, to ask, demand, sue for, recover, and receive from (he said E. F., his executors, administrators, or assign.^, or any other person or persons liable to pay the same, the said 9um of $ and interest, and to commence and prosecute any aciion, 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 exe- cute all or anj other act, matter or thing, for recovering and receiving the said principal sum end interest ; And the said party hereto of the first part, for himself, his heirs, executors, administra- tors and assigns, covenants witli the party hereto of the second part, his heirs, executors, administra- tors 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 lie has done no act or thing whereby the said pria* AStltONMENTS. 07 m si a- of a- €ipa1 sum of $ is or has been received, releasedi discharged, or incambered. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year fitst above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y, Z. C, D. [l.s.] Abngnment of Mortgage, (By Indorse^nent,) This Indenture, ^nade the day of , one thousand eight hundred and , Between C. D., within named, of the first part, and £. F.. of, &c., of the second part, Witnesseth, that the party of the first part, in consideration of the sum of $• , to him paid by the party of the second part, the receipt' whereof is hereby 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 wfiatsoever of him, the party of the first part, o(l lii aiid to the lands and tenements roen- tiotied and'd'escribed in the within mortgage. And al^o to air suiti and suiiis of noney secured and payable thereby and now remaining unpaid. To have abd' to liold the same^ and to ask, demand, sue for, aiidrecoveir the same, as fully to all intents and purposes as he, the party of the first part, now holds aiid is'etititled to the same. 98 CABINET LAWri!R. In Witness whereof, the parlies to these presents have hereto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of C. D. [l.s.] Y. Z. Atsignment of Debts. This Indenture made the day of , 18 * Between A. B., of, &c., of the one part, and C. D.^ of, &c., of the other part : Whereas, the said A. B. hath, for some lime past, carried on the business of a Tailor, at ^ aforesaid, and in the course of such' business the several persons whose names are mentioned in the schedule hereunder written, have become indebted to him in the several sums of money set opposite to their respective names in such schedule, and he hath contracted with the said C. D. for the absolute sale of the same debts for the sum of ^ Now this Indenture witnesseth that in considera- tion of $ , to the said A. B., paid by the said C. D., on the execution hereof, (the receipt whereof is hereby acknowledged). He, the said A. B. doth hereby assign ar.d transfer unto the said C. D., his executors, administrators and assigns, All and sin- gular the several debts and sums of money men- tioned itl the schedule hereunder written, w^hich are now due and owing to the said A. B. from the several persons whose names are mentioned in the same schedule. And all the right and interest, ▲8SIUNMBNT8. 99 claim and demand whatsoever of the said A. B., to and in the same debts and premises. To have, receive and take the said debts, sums of money and premises hereby assigned unto and by the said C. D., his executors, administrators and assigns, for his and their own absolute use and benefit. And the said A. B. doth hereby absolutely and irrevo- cably constitute and appoint the said C. D., his executors, administrators and assigns, the true and lawful attorney and attorneys, of him the said A. B., his executors or administrators in his or their name or names, or otherwise to receive ; and if the said C. D., his executors, administrators or assigns, shall deem it expedient so to do, to sue for and recover the said debts, sums of money and premises hereby assigned, or any of them ; and when the same respectively, or any part thereof, shall b« re- ceived, to give discharges for the same. And gen- erally to perform all acts whatsoever which shall be requisite in order to give complete effect to the assignment hereby made, and to appoint a substi- tute or substitutes for all, or any of the purposes aforesaid, and such substitution at ploasure to revoke ; the said A. B. hereby ratifying and con- firming and agreeing to ratify and confirm whatso- ever his said attorney or attorneys, or his or their substitute or substitutes, shall lawfully do in the premises. And the said A. B. doth hereby for him- self, his heirs, executors and administrators, cove- nant with the said C. D., his executors, administra- tors and assigns, that the said several debts hereby assigned, or intended so to be, are now due and '•'A 1^ CABIirET LAWYVR. <)wing to him, and that be, his executors or admin- ietrators will not at any time hereafter revoke the power or authority herembefore contained, or receive, compoLind for or discharge the said several debts, or any, or either of them, or any part thereof riBspectively, or release or interfere in any action or suit which shall or may be commenced in his, their, or either of their names, in pursuance of these presents, for the recovery of the same, without the consent in writing of the said CD., his execniorir, administrators or assigns, but wilf at all times avow, justify and confirm aU such matters and things, process and proceedings, as the said C. D., his executoro, administrators, or assigns^ or any; other person or persons, by or through his or their direction or procurement, shall in pursuance of the power hereinbefore contained, do commence, bring' or prosecute upon, or by reason or means of the* said debts and premises ; and further that he, the said A. B;, his executors and administrators, will at all times hereafter on ihe request, and at the costs of the said C. D., his executors, administrators o? assigns, make, do and execute all such further assignments, letters of attorney^ acts, deeds, matters^ and things^ for the more effectually assigning and and assuring unto the said C. D., his executors, administrators and assigns, the said several debts and premises, and enabling him or them to recover and receive the same respectively, for his and their own absolute use and benefit in manner aforesaid, according to the true intent and meaning of these pwesenia, as by the said C. D., his executors, A88IONMBNT8. 101 administrators or assigns, shall be reasonably required. And he said C. D., doth hereby* for himself, his heirs, executors, administrators and assigns, covenant with the said A. B»^ his execu- tors and administrators, that he, the said C. D., his executors, administrators or assigns, will at uU times hereafter save harmless, and keep indemnified the said A. B., his executors or administrators, from and against all losses, costs, charges, damages and expenses, by reason of his or their name or names being used in any action, suit or other proceeding, which shall or may be brought or instituted by the said C. D., his executors, administrators or assigns, or his or their substitute or substitutes under or by virtue of the power or authority in that behalf, here- inbefore contamed, or otherwise by reason or in consequence of the same power or authority, or in relation thereunto. In witness, &c.. Signed, &c., A. B. [l.s.] % Y. Z. C. D, [l.«.] Thb Schedule to which the above- written Inden- ture refers. Name of Debtor. John Smith William Jones. John Jacobs. Amount of debt. $100 i)0 $160 00 $200 00 N.m« of Debtor. ^„f »^»' f Henry Bastion. to. $118 25 i is i m in. i tOi CABINET LAWTER. Received on the day of the date of ihe above wfltlen Indendure of the above named C. D., the 8nin of $ , being the consideration money above mentioned to be paid by him to me. Witness, A. B. Y. Z. Note. — In ail caseSy where the consideration for a deed is money paid by the one par y to the o/her^ a receipt y in the above fortn^ should be written upon the Instrumenty and signed and witnessed Another Form. Know all men by these presents, that I, A. B., of &c., in consideration of the sum of j^ paid to me by C. D., of, &o., (the receipt of which is hereby acknowledged) do hereby sell, assign and transfer, unio the said C. D., his executors, admin- istrators and assigns, all my claims and demands against E. F., of, &c., for debt, due to me and all actions against the said E. F., now pending in my favor and all causes of action whatsoever against him. And I do hereby nominate and appoint the said C. D , his executors, administrators and assigns, my attorney or attorneys irrevocable, and do give him and them full power and authority to mstitute iany suit or suits against the said E. F., and to prosecute the same, and any suit or suits which are now pending, for any cause or causes of action !in favor of me, against the said E F., to final judg- {ment and execution : and such execution to cause to be sa'isfied by levying the same on any real or per- ASsiCNMENTS. lOS flunal estate of the said E. F. in due course of law, and the proceeds thereof to take and apply to his or their own use ; but it is hereby expresi^ly stipu- lated that all such acts and proceedings are to be at the proper costs and charges of the said C. D., his executors, administrators or assigns, without expense to me. And I do further empower the said C. D., his executors, administrators and assigns, 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 th^m, and the same to revoke from time to time, at his or their pleasure, I, the said A. B., hereby ratifying and confirming all the lawful acts of the said C. D., his executors, administrators and assigns, in pursuance of the foregoing authority. Witness my hand and seal this day of 18 . Signed, sealed and delivered - ^ in the presence of A. B. [l.s.] Y. Z. I 'm Assignment of a Policy of Fire Insurance hy Indorsement. Know all men by these presents, that I, the within named A. B., in consideration of the sum of ^ to me paid by CD., of, &c., (the receipt whereof is hereby acknowledged) have assigned and transferred, and by these presents do absolutely asbign and transfer unto the said C. D., his execu- tot^y administrators and assigns, All my right, title .104 CABINET LAWTER. and interest to and in the within policy of insnr- ance, with fnll power to use my name so far as may be necessary to enable him fully to avail himself q( the interest herein assigned, or hereby intended to be assigned, but at his own costs and charges. As witness my hand and seal, this day of 18 . Signed, sealed and delivered jn the presence of A. B. [h.s.} Y. Z. Ammment or BiU of Salt of Good; This indenture made the day of 18 , Setween A, B., of, fee, {vendor)^ of the one part, «nd C D., of, &c., putchaaer)^ of the other part. Whereas, the said A. B. hath contracted with the said C. D. for the absolute sale to him of the goods, chattels, furniture and effects comprised in the schedule hereunder written or hereto annexed, and now on the premises >itaate at, &c., {describe the place), at or for the price (mt sum of $ . Now this indenture witnesseth, that in pursuance of the aforesaid agreement, and in consideration of the sum of 8 , now paid to the »skid A. B. by the said C. D., the receipt whereof is hereby acknow- ledged, He, the said A. B., by these presents doth assign and set over unto t^e said C P., his execu- tors, administrators and assigns. All and singular the household furniture, goods, chattels and eflfects comprised and set forth in the schedule hereunder Written or hereunto annexed, and ail the advantages A88IGAMBIIT8. 105 thereof, and all the right, title, interest, possibility, property, claim and demand of him, the said A. B., into, out of or upon the said furniture, goods, chsit- tels and effects, and every part thereof. To have, hold, receive and take the said furniture, goods chattels and eflects hereby assigned or expressed, or inlended so to be, unto the «^d C. D., his exe- cutors, administrators and assigns absolutely. And the said A. B. doth hereby for himself, his heirs, executors and administrators covenant with the said C. D., his execulcM's, administrators and assigns, that he, the said A. B., now hath in himself abso lute authority to assign the several premises hereby assigned or expressed, and intended so to be, unto the said C. D., his executors, administrators and assigns, in manner aforesaid : And that the said A. B., his executors and administrators, and all persons claiming under him and them, shall at any time or times hereafter, on the request, and at the costs and charges of the said C. D., his executors, administrators and assigns, do and execute aU such acts and assurances for more effectually assur- ing the said premises hereby assigned or expressed, and intended so to be, unto the said C. D., his exe- cutors, administrators and assigns, and placing him and them in possession of the same in m >nner aforesaid and according to the true intent and meaning of these presents, as by him or tiiem, or his or their counsel in the law shall be devised, advised and required. In witness whereof the parties to these presents i r^ lU ■1 I ■• ' >i ■ ■ '1 ;■ 106 CABINET LAWYER. have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. ' ■ The ScHEDULif referred to in the above written Indenture. (Here set out a full and particular description of the goods — they must be described with such detail as to rt nder them easy of identification,) Anothtr Form, This Indenture, made day of 18 , Between A. B., of, &c., of the fiist part, and C. D., of, &c., of the second part. Whereas, the said party of the first part is p'^**- eessed of the chattels hereinafter set forth and enumerated and hath contracted with the said party of the second part, for the sale to him of the same, at the sum of $ Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of the sum of $ of lawful money of Canada, now paid by the said party of the second part to the said party of the Hrst part, (the receipt whereof is hereby acknowledged). He, the said parly of the first part, hath bargained, sold, assigned, transferred and set over, and by these presents, doth bargain, sell, assign, transfer and set over unto the said party of the second part, his executors, adminislra- ASSIGNMENTS. 107 tors and assigns. All those ihe said chattels and effects following, that is to say, (here enumerate the aemrcl articles intended to he assignrd with such certainty as that they may be easily indenti^ fied). And all the right, title, interest, property, claim and demand whatsoever, both at law and in equity or otherwise how&oever, of him the said party of the first part, of, in, to and out of the same, and every part therrof. 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 party of the first part therein as afore- said, unto and to the use of the said party of the second part, his executors, administrators and as- signs to and for his and their sole and only use forever. And the said party of the first part doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree with the said party of the second part, his executors and administrator^, in manner following, that is to say : That he, the said party of the first part, is now rightfully and absolutely possessed of and entitled to the said hereby assigned premises and every part thereof, and that the said party of the first part now has in himself good right to assign the same unto the said parly of the second part, his execu- tors, administrators and assigns, in manner afore- said and according to the true intent and meaning of these presents ; And that the said party hereto ot the second part, his executors, administrators • i I I'l i{\ f V : I r w\ 106 CASINBT LAWYER. and assigns, 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 n^d every part thereof to and for his and their own use and oenefit, without any manner of hindrance, interruption, molestation, claim or de« mand whatsoever, of, from or by him, the said party of the first part, or any person or persons whomso- ever : And that free and clear and freely and abso- lutely released and discharged or >!herwise at the costs of the said party 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 he, the if the title of the present vendors, and not occas- ioned by any act done by them or any person claim- ing under or in trust for them ; and subject also to the several mortgages outstanding appearing on the certificate of the registrar of the county of , which will be productid atlhe time of saPe. 4. The purchaser shall accept a conveyance from The vendors, to be piepared at his own expense, on 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 ©f per cent, from that day to the day of pay- ment ; but, nevertheless, this stipulation is without prejudice to the vendor's right of le-sale under the last of these conditions. 5. If any mistake be made in the description of the property, or there be any other error in the par- ticulars of sale, the same shall not annul the sale, but a compensation or equivalent shall be given, or 9 ■ii s i- 1.; i ' 114 CABINET LAWTtTR^ (M taken as the case may require, according to the average of the whole purchase money (on such error or mis-statement being proved): such compen- sation or equivalent to be settled by two referees or their umpire — one referee to be chosen by each parly, within ten days after notice given of the error, ^nd the umpire to be chosen by the referees immediately after their appointment. 6. The purchaser shall not be entitled to the pro- duction of any title deeds other than such as are in the vendor's hands, or in the hands of the several mortgagees. 7. Lastly, upon failure of complying with the above conditions, the deposit shall be forfeited, and the vendor shall be at full liberty (with or without notice) to re-sell tlie property 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 vendor, and all expenses attending such re-sale; the same to be recoverable as liquidated damages. [Note.— 'Special conditions may be necessary to meet particular cases ; but the above conditions wUl meet ordinary cases. Except in very plain and simple cases, the services of a professional man should be procured.] Conditions of Sale of the Court of Chancery. 1. No person shall advance less than JJIO at any bidding under (500, not less than $20 at any bid- c^ng over $500; and no person shall retract hi» bidding. AVCTIONS AND AUCTIONEERS. 115 i. 2. The highest bidder shall be the purchaser; and, if 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, and (naming any parties^ trustees, agents, or others, in a fiduciary situation) are to be at liberty to bid. 4. The purciiaser shall, at the time of sale, pay down a deposit in the proportion of JJIO for every $100 of his purchase money to the vendor or his solicitors, and shall pay the remainder of the pur- chase money on the day of next, and upon such payment the purchaser shall be entitled to the conveyance, and be let into possession. The purchaser at the time of such sale to sign an agree- ment 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 for- feited, 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 be made good by the defaulter. i; i /! i si ' ifl CHAPTER VI. BILLS AND NOTES. A Bill of Exchange (foreign or inland) is defined 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. Foreign Bills are such bills as are drawn in any foreign country upon a person residing here or abroad, or drawn in this country upon a person residing in a foreign country, and 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 that regulating inland bills. The leading distinctions are, that a formal protest is necessary (as regards the drawer and indorser) 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 BILLS AND NOTES. 117 party to be charged resides, may, even in our Courts, regulate the time of payment, protest, &c. It may also be mentioned, as a slight distinction between a foreign and an inland bill, that the for- mer is, in general, drawn in sets ; that is, there are several parts thereof. Therefore, the form of a foreign bill is, in general "at after sight," or "date," &c., "pay this my first of exchange [sec- ond and third of same tenor and date not paid^ to, &c." This condition should be inserted in each part, and should in each mention every other part of the set. 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 hy whom^ foreign hills of exchange were first in-« vented ; 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 because they were drawn as well as payable in England) did not originate at a much earlier period than the reign of Charles II. — probably about ♦he year 1645, when banking began to be extensively carried on by the goldsmiths. ,;» 1' it 'i • ■■ i I \}. Form of an Inland Bill of Exchange. tXQOf^Q^ Toronto,! "1 January, 1870.2 i ^1 II I; 118 CABINET LAWYER. I I Two months after date,* pay to me,^ or order,* {or "to my order," or "to E. F., or order"), at, &c.,^ the sum of one hundred dollars,^ value re- ceived.* A. B., (the drawer). ^^ To C. D., Esq., (the Drawee) j Montreal. ^ ^ Accepted C. D., ^^ payable at Bank of Mon- treal. ^^ [Indoraed]^^ A. B., or "E. F." (first indorser.) G. H., (second indorser,) 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 sura superscribed in figures. ^ 4. The statement of the time when payable. 6. The description of the payee. 6. "Or order." 7. "At," &c. 8. Statement 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," &c. 14. Form of indorsement. 1. The place at which the Bill ia dated, or is supposed to he drawn. It is usual to date the bill at the city or place where it is drawn j but this is not necessary. No SILLS AND NOTES. 119 place need be stated. If a place be stated, it will he presumed that the drawer resides therein , and if only a general description be given, as " Lon- don," or " Montreal," it will be sufScient, in the absence of information, or ready means of acciuiring intelligence, as to the particular street, &c., in which the drawer resides, to give him notice of dishonor by letter addressed to him merely " Lon- don," or " Montreal" 2. The date of the mil This i« not essential, although the bill be payable after date. If there be no date, or an impossiblf date, the time of drawing or issuing the ioslruraent will be reckoned the date, and will give the cvile- rion 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 fide holder. As against third persons the date is not even pre- fiumptive evidenc/C that the bill was drawn on the -day expressed; nor will it afford proof of the time of indorsement. A bill may legally be drawn and dated on a Sunday. 3. The sum superscribed in figures. Tills superscription is unnecessary, but usuaL w 1: \M S s 120 CABINET LAWYEK. If it were contradictory to the body of the bill, it would be rejected : on the other hand, if in the body oi the bill there were an omission of the word dollars J the superscription would aid the mistake by supplyii>g the word. 4. T%e statement of the Time 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 demand, that is, on presentation to the drawer for payment. If the time of payment be fixed, it is not material that the day is ever so distant ; nor is it any objec- tion tbat the bili or note is payable at a specified time after notice from the holder. But it is a rule tbat a bill or note is void, even between the original parties thereto, if the payment of the money is viiade, by the terms of the instru- ment on the face of it, or by a written contempo- raneous indorsement on the instrument, dependent upon a condition, 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 ;'* Of ''^provided T. S. shall not pay;" or ''*■ provid'^d BILLS AND NOTES. 121 D. M. shall not return to England, or his death be duly certified, before the appointed time for pay- ment ;" 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 gum specified is not payable at all events, but is expressed to be security merely as a sel-ofl' against, or deduction from, another demand. And the instrument is considered uncertain, con- tingent, and void, as a bill or note, if \h% money is to be paid out of a specified /itiM/, 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 "ou 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. 5. TJie Description of the Payee The bill may be made payable to the drawer, or to a third person. It is not essential that either should be named, provided the bill be made pay- able to the order of the drawer (when in efl'ect it is payable to him), or to bearer. 122 CABINET LAWYER. But alternative words on the face of the instru- 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 bill, a blank or space be left for the name of the payee, the acceptor and drawer tacitly authorize a bona fide 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 t)f uncertainty, which would otherwise prevail, is thus obviated. If the name of a fictitious person be introduced as payee^ the bill is inoperative in the hands of a party who takes it with knowledge of that fact ; but the parties to the bill who were aware of the circum- stance shs.U not be permitted to avail themselves of the irregularity ; 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 person, 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," &c. Bills are generally payable to the order of the drawer or payee, or they may be payable to him or bearer, or to bearer generally. Great attention is due to this part of the instru- BILLS AUD NOTEJ. 12S ment, as the distinguishing quality of a bill— its negotiability — altogether depends upon the intro- duction of express words rendering it transferable. If the words "or order," or "bearer," be omitted, the bill cannot be negotiated so as to become avail- able against the acceptor. It is available only against the assignor who indorses it to the holder. It will therefore be remarked that the express assent of the original parties is necessary to attach to a bill its more important and peculiar attribute. 7. ''At," dec. Although the bill be accepted payable at a par- ticular 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 Con. Stat. U. C, c. 42, s. 6, the accept- ance is, as to him, deemed to be general; and the acceptor is, it seems, responsible, although no pre- sentment be made at the specified place. But the drawer and indor*jers are not liable in such case, unless the bill be duly presented at the place designated 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, make it payable, not at any specific place, but generally in some town, the direction becomes in- operative, if the bill bj not accepted or the accept- ance be general, without mentioning any particular street or place in such town. It 1 1 '3 1' 1 i '.■'■) \i ! i 124 CABINET LAWYKA. !i Sometimes the drawer makes the bill payable at his own house. This seems to be injudicious ; it having been held that the circumstances raises a presumption that the bill was accepted for his ac- commodation, that he is the party to pay, and con- sequently that he is not entitled to notice of dis- honor, unless he proves that he really had effects w^ith the drawee. 8. Statement of the Sum payable. This is generally expressed in words at length ; but figures would sulfice. We have seen that the superscription of the sum in the margin may aid an omission 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. lOOZ," 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. 9. " Value received.^^ These words (though usual) are not necessary to give validity or force to the instrument as a bill of exchange. Consideration being presumed by law for the drawing and indorsing a bill, no argument or in- BILLS AND MOTES. \n (erence that it does not exist can be founded on the absence of the words "value received :" the pre- sumption that a consideration existed still arises. The precise meaning of these wonls, in reference to the parties by whom and from whom the value was received, depends upon the form of a bill. If it be payable to the drawer or his order, the words "value received'* import that the drawee has re- ceived consideration from the drawer ; if it be pay- able 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 in- strument. 10. The Drawer^s Signature. The bill would, evidently, be imperfect if the drawer's name did not appear on the face ol the instrument. A formal signature at the foot of the bill is not essential. If the drawer himself write the bill in this shape, "/, A. B., request you to pay," &c., the instrument will 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 uame of the agent, thus : "A. B. ' (the agent), "for C. D." (the principal) ; or thus: "C. D." {the principal), "per procuration, A. B" (the agent). If an agent merely sign his own name If^l W^ K V '1 126 CABINET LAWYER. hi I I 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 hepartnerSy cither the name of the firm may be subscribed by one of the members or an agent of the firm or the signature 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 VVilmot Street" only were inserted, it was held that a per- son 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 per- fect as a billf although it do not appear on the face of the instrument who is the drawee. And it is clear that the absence of such information, to be obtained fropi the instrument itself, would render the instrument inoperative as a bill. Care should be taken to address the bill to each person (if more than one) who has undertaken to accept the bill. There cannot be successive accep- tors or a second acceptor of the same bill after a perfect acceptance, unless the second be an acceptor for honor. BiLLi AND NOTES< t«7 If, therefore, a bill be directed to A. only, and be accepted by him, and B. afterwards accept it, he is not liable thereon aa acceptor. 12. The Form of the Acceptance The acceptance may be upon any part of the bill and it may be effected by the drawer merely writ- ing his name or the word "accepted ;" or, it seems, by 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, or by making a mark in lieu of a signature with intent to accept. The statute Con. Stat. U. C, c. 42, s. 7, requires that bills shall b.e accepted in writing upon the bill itself. But this statute does not require the signa* ture of the drawee. The holder may insist, as against the drawer and endorser, upon having the absolute acceptance of the drawee to the full extent and in 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, al- though a bill cannot be drawn, it may be accepted^ payable upon a condition or contingency. The acceptance of a bill conditional as to the ■J II. 123 CABINET L-AWYSR. place of payment will be considered under the next division. A bill may be accepted fot part onl/j of the sum mentioned therein ; or the mode o( payment may be vuried by making part of the amount payable in biils ; or the time cJf payment may be altered by the acceptance. A bill may be accepted after it has been dishon- ored, and is then payable on demand. The acceptance may be revoked gr cancelled by the drawee at any lime befote it has been called for by the holder and before the drawee has parted with it or delivered il over to the holder. We have seen that, if a bill is complete as to acceptance, that is, has been accepted by the party on whom it is drawn, the custom of merchants does not authorise any second or further acceptance by another person. But, if the drawee before accept- ance 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 for 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 protest in such instance preceding the acceptance. If a parly 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 bona fide that) such is the case, he is liable as acceptor. Bills and notes. 13. "Payahleat;' &c. 129 The introduction of these words into an accept- ance 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. 78 (Canadian Act, Con. Stat. U. C, c. 42, founded on 7 Wm. IV., 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, wtiether the acceptor, by using the words "payable at,'' &c., incurred only a restricted and conditional or qualified liability, that is, was not responsible 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 hU election^ without being compelled to do so. The ] & 2 Geo. IV. provides that an acceptance and upwards, require to be stamped^ as follows : Where the sum payable amounts to, but does not exceed $25, a one cent stamp ; where it exceeds $25, but does not exceed $50, a two cent stamp ; where it exceeds $50, but does not exceed $100, a three cent stamp ; and for every note ex- ceeding $100, an additional three cent stamp for every subsequent $100, or fractional part ot it. Stamps must be affixed when the bill or note is drawn or made ; and must be at once cancelled by writing over them the part of the signature or the initials of the maker, or the date when so affixed. A penalty of $100 is imposed for non-compliance with this enactment. If, however, a bill or note should come bona fide into the hands of a party without having sta:iips affixed, such party may affix double stamps ; the bill or note will thc^n be good as to him and all persons becoming parties to it after him. CHAPTER VII. BONDS. A bond is an obligation under seal, whereby the maker (called the obligor) obliges himself, his Iieirs, executors and administrators, to pay a pen- alty or sum of money to another (called the obligee). A condition is generally added that if the obligor BOVDS< 135 pays a certain sum of money or performs Home par- ticular act, by a time specified, then the obligation shall be void, otherwise it shall remain in full force and virtue. A bond without a condition is called a single bond. The penalty in a bond for payment of money 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 by the parties for stipulated or liquidat(d damages, in the event of a failure to comply with the conditions of a bond, such specific sum is the amount which the pany in fault is to pay. All that can be recovered of a penalty in a bond for payment of money, in addition to the amount of the debt, is interest and costs ; and as the general inclination of Courts is to regard the sum nien- tioned as a penalty^ care must be exercised to state distinctly and unmistakably, the fact, that the sum agreed upon is in the nature of stipulated or liqui- dated damages, if the whole sum mentioned is in- tended as a forfeiture in case of failure. ! 4 ■■•i!l ii i ' '■ t ■ IN u Single Bond. {Without Condition.^ Know all men by these presents. That I, A. B., of, &c., am held and firmly bound unto C. D., of, &c., in the penal sum of JJIOOO of lawfrl money of Canada, to be paid to the said C. D. or to his cer- tain attorney, executors, administrators or assigns ; ^11 '41 136 CABINET LAWTBR. Ill 'I -J! For which payment to be well and faithfully made^ 1 bind myself, my heirs, executors and administra- tors, and every of them firmly by these presents. Sealed with my seal, dated the 6lh day of Janu- ary, 1870. Signed, scaled and delivered in the presence of A. B. [l.s.] Y, Z. Bond. (^With Condition.) Know all men by these presents, That I, A. B., of, &c., am held and firmly bound unto C. D., of, &c., in the penal sum of $1000 of lawful money of Canada, to be paid to the said C. D. or to his cer- tain attorney, executors, administrators or assigns : For which payment well and truly to be made, I bind myself, my heirs, executors and administra- tors firmly by these presents. Sealed with my seal, dated this Cih day of Janu- ary, 1870. The condition of the above written bond or obli- gation is such that if the above bounden A. B., his heirs, executors or administrators, do and shall well and truly pay or cause lo be paid unto the said C. D., his executors, administrators or assigns, the just and full sum of $500 of lawful money of Canada, with interest thereon at the rate often per cent, per annum, on the days and times, and in the manner following, that is to say: The sa«d princi- pal sum of |500 on the 6th day of July, 1873, BONDS. 137 and ihe said interest half yearly, on ihe 6th days of January and July in each year, (the first of such payments of interest on the 6th day of July next) without any deduction, d(>falcation or abatement "whatsoever : Then the above written bond or obli- gation shall be void and of no effect : otherwise shall be and remain in full force and virtue. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Bond to convey Land, Know all men by these presents, That I, A B., of, &c., am held and firmly bound unio C. D., of, &c., in the penal sum of $1000 of lawful money of Canada, to be paid to the said C. D., or to his certain attorney, executors, administrators or as- signs: For which payment well and tmly to be made, I hind myself my heirs, executors and ad- ministrators, and every of them forever, firmly by these presents. Sealed with my seal. Dated this 1st day of May, 1869. Whereas, the said C. D., hath contracted with the above bounden A. B., for the absolute purchase in fee simple, free from incumbrances, of the fol- lowing lands and premises, that is to say : (here de- scribe ihe lands to he convey d). And whereas, the said C. D. hath agreed to pay therefor, the sum of $500 of lawful money of Canada, at the times, and in manner following, that is to say : here state the mode of payment. m 't if I 'i 138 CABINfiT LAWYER. Now the condition of the above obligatitin is such that if the said C. D., his heirs, executors, adminis- trators or assigns, shall well and truly pay, or cause to be paid, to the above bounden A. B., his execu- tors, administrators or assigns, the sum of $500 at the time and in manner aforesaid ; then if (he above bounden A. B., his heirs and assigns, shall, by good and sufficient deed or deeds of conveyance in fee simple, convey and assure, or cause to be con- veyed and assured, unto the said C. D., his heirs and assigns for ever, the said premises hereinbefore described, free from all incumbrances; Then the above obligation shall be void : otherwise shall be and remain in full force and virtue. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Bond for payment of Purchase Money. Know all men by these presents. That I, C. D., of, &c , am held and firmly bound unto A. B., of, &c., in the penal sum of $1000 of lawful money of Canada, to be paid to the said A. B., or to his cer- tain attorney, executors, administrators or assigns : For which payment well and truly to be made, I bind myself, my heirs, executors and administra- tors and every of them firmly by these presents. Sealed with my seal, dated this day of 18 . Whereas, the above bounden C. D., hath con- tracted with the said A. B., for the absolute pur- chase in fee simple, free from all incumbrances, of Bonos. 139 the following lands and premises; that is to say : {here describe the lands). And whereas, the above bounden C. D hath agreed to pay therefor the sum of $500 of lawful money of Canada, at the time and in manner fol-* lowing ; that is to say : (here stale the mode of pa;,- menl. And whereas, upon ihe tri-aty for the said pur- chase, it was agreed that the above bounden C. D. should enter into ihe 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 prem- ises and receipt of the rents and profits thereof, from the day of the date hereof. Now the condition of the above written obliga- tion is such that if the above bounden C. D.. his heirs, executors, administrators or assigns, shall well and truly pay or cause to be paid to the said A. B., his executors, administrators or assigns, the whole of the said purchase money and interest thereon as aforesaid at the times and in manner aforesaid, without making any deduction, defalca- tion or abatement thereout on any account whatso- ever; Then the above obligation shall be void : otherwise shall be and remain in full ferce and virtue. Signed, sealed and delivered in the presence of C. I), [l.s.] Y. Z. » 'I It ■Ui ■ f 140 CABINET LAWYER. Bond of Indemnity. Know all men by ihese presents, That I, E. F., of, &c., ann held and firmly bound unto G. H., of, &c., in the penal sum of $5000 of lawful money of Canada, to be paid to the said E. F., or to his cer- tain attorney, executors, administrators or assigns : For which payment well and truly to be made, I bind myself, my heirs, executors and administra- tors, and every of them, firmly by these presents. Sealed with my seal, dated this day of 18 . The condition of the above written bond or obli- gation is such that if the above bounden obligor, his heirs, executors and administrators, do and shall from time to lime, and at all times hereafter, hold and keep harmless and fully indemnified the said obligee, his heirs, executors and administra- tors, and his and their lands and tenements, goods, chattels and effects, of, from and against all loss, costs, charges, damages and expenses which the said obligee, 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, (Jure state the particular matters to which the indemnity is to apply) or any thing in any manner relating thereto; Then the above written bond or obliga- tion shall be void : otherwise shall be and remain in full force and virtue. Signed, sealed and delivered in the presence of ]£,. F. [i^s.] Y. Z. Bonos. 141 Bond from a Lessee and his Surety to jttty rent accord- • ing to Lease. Know all men by those presents, Thnt we, C. D., of, &c., and E. F., of &c., are held and firmly bound unio A. B., of, &c., in the penal sum of 81000 of lawful 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 administrators, firmly by these presents. Sealed witb our seals. Dated this day of 18 . VVherras, the above named A. B. by Indenture of Lease bearing even date with, but executed before, the above written obligation, for the consideration in the said lease mentioned, hath demised to the above bounden C. D., a certain saw mill situate at &c., {here describe the premises), 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 C. D., his executors, administrators or assigns, shall give months notice thereof, in manner therein mentioned) at and under the yearly rent of j^SOO payable quarterly in manner as therein expressed ; as by the said lease will more fully appear. Now the condition of the above written obliga- tion is such, that if the above bounden C. D. and E. F., or either of them, their, or either of their heirs, executors or administrators, shall and do Il 142 CABINET LAWYSR. during the continuance of the said recited lease, well and truly pay or cause to be paid, the said yearly rent or sum of $500, unto him the said A. B., his heirs or assigns, by four equal quarterly pay- ments of J125 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 within fourteen days next after any of the said days or times of payment, according to ihe true in^r'nt and meaning of the said recited lease, (the fii?t quarterly payment to be made on the day of next) ; Then the above written obli- gi?!ion shall be void and of no effect; otherwise shall remain in full force and virtue. Signed, sealed and delivered in the presence of C. D. [l.s.] Y. Z, E. F. [L.S.] CHAPTER VIII. I n CHATTEL MORTGAGES. Chattel mortgages are deeds or conveyances, by way of security, of personal properly of a moveable kind, such as household farniture, stock in trade^ 4tc. In formerdays it sometin>es happened that ciiattel J CHATTEL MORTGAGES. 145 ■ 1 ! ;) mortgages were made use of in order to deprive a creditor who had obtained a judgment of the just fruits of his execution. When a debtor became in- volved, and desirous of preventing the seizure of his goods and chattels by the sheriff or bailiff, it was quite common for a debtor to make a fictitious conveyance 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 efftict of pre- venting the creditor from realizing any thing at all. To remedy this evil, the Legislamre in 1857, passed an Act of Parliament (since consolidated 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 fal- lows . — 1. Every mortgage of goods and chattels made in Upper Canada, (now Ontario,) which is not ac- companied by an immediate delivery and an actual and continued change of pos.^ession of the things mortgaged, or a true copy thereof, must within five days from the execution thereof, be registered as hereinafter mentioned, together with the affidavit of a witness thereto, of the due execution of such mortgage or conveyance, 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 circumstances connected therewith and properly authorized in writing to take such mort- I'; 144 CAfitNC'T LAWYER. gage : in which case a copy of such authority mu3t be registered therewith. 2. Such last-mentioned affidavit, whether of the mortgagee or his agent, must state that the mort- gagor therein named is justly and truly indebted lo 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 men- tioned therein, against the creditors of the mort- gagor ; or of preventing the creditors of such mort- gagor from obtaining payment of any claim against him. 3. In case such mortgage or conveyance and affidavits be not registered, the mortgage or convey- ance will be absolutely null and void as against creditors of the mortgagor, and against subsequent purchasers or mortgagees in good faith, for valuable consideration. 6. In case of an agreement in writino; for future advances for the purpose of enabling the borrower to enter into and carry on business with such ad- vances, the time of re-payment thereof not being longer than one year from the making of the agree- ment ; and in case of a mortgage of goods and chat- tels for securing the mortgagee re-payment of such advances ; or in case of a mortgage of goods and chatrels for securing the mortgagee against the in- dorsement of any bills or promissory notes, or any other liability by him incurred for the mortgagor, not extending for a longer period than one ye^r CHATTEL MORTGAGES. 145 ■ . i' from the date of such mortgage ; and in case the mortgage is executed in good faith, and sets forth fully, by recitai or otherwise, the terms, nature and effect of the agreement, and the amount of the lia- bility intended to be created ; and in case such mortgage is accompanied by the affidavit of a wit- ness thereto of the due execution thereof, and by Ihe affidavit of the mortgagee, or in case the agree- ment has been entered into, and tlte 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 circumstances connected therewith, then, if accompanied by the affidavit of such p.gent : such affidavit, whether of the mortgagee or his agent, stating that ibe mortgage truly sets forth the agreement entered into between the parties thereto, and truly states the extent of the liability intended to be created by such agreement and •covered by such mortgage, and that such mortgage is executed in good faith, and for the express pur- pose of securing |the mortgagee repayment of his advances, or against the payment of the amount of his liability f^r the mortgagor, as the case may be, and not for the purpose of securing the goods and chattels mentioned therein against the persons making the same, and against subsequent purchasers or mortgagees in good faith for valuable consideration, after the ex- piration 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 mort- gage, 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 due for principal and interest thereon, and of all payments 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 July authorized in writing for that 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. 12. All affidavits and affirmations required by the act may be taken and administered by any Judge or Commissioner of the Courts of Queen's Bench or Common Pleas, or Justice of the Peace, in Ontario. The effisct of these enactments may be shortly \ ■ V 14B CABINET LAWYCR. summed up thus : every chattel mortgage must be filed with the clerk of the County Court within five days alter 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 be sworn to befor.3 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 be renewed each year. Section 10 points out the mode. A statement showing the interest of the mortgagee, and the amount remaining due, together with a copy of the mortgage, must be filed within thirty days of the expiration of the year. The following forms will be found applicable to most occasions : — Chattel Mortgage. This Indenture, made the day of , 18 , Between A. B., of, &c., of the one part, and C. D., of, &c., of the other part. Wit- nesseth that the said party of the first part, for and in consideration of the sum of $100 of lawful money of Canada, to him in hand well and truly paid by the said party of the second part, at or betbre the sealing and delivery of these presents, the receipt 1) one Wit- and CHATTEL MORTGAGES. 149 whereof is hereby acknowledged, doth bargain, sell and assign unto the said party of the second part, his exectitors, administrators and assigns all and every the goods, chattels, furniture and effects in and about the dwelling house {or store) of the said A. B., situate at &c., and hereinafter particu- larly mentioned, that is to say (^Here specify the chattels : or you may refer to a schedule saying after the word, ^c, " which are particularly speci- fied in the schedule hereunder written." To have, receive and take the said goods and chattels hereby assigned or intended so to be, unto the said party of the second part, his executors, administrators and assigns, as his and their own proper goods and effects. Provided always that if the said party of the first part, his executors or administrators, shall pay unto the said party of the second part, his executors, administrators or assigns, the full sum of 8100 with interest thereon, at the rate of 10 per cent, on the day of next, then these presents shall be void. And the said party of the first part doth hereby, for himself, his executors and administrators, cove- nant, promise, and agree to and with the said party of the second part, his executors, administra- tors, and assigns, that he, the said party of the first part, his executors or administrators, or some or one of them, shall aiid will well and truly pay, or cause to be paid, unto the said party of the second part, his executors, administrators and assigns, the said sum of money in the above proviso m rationed, i;! .1 ■: I { if ti ' ii 150 CABINET LAWYEB. ! with interest for the same as aforesaid, on the days and times 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, his executors, administrators or assigns, to such sale, removal 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, administrators and assigns, peaceably and quietly to receive and take unto his or their absolute possession, and thenceforth to hold and enjoy all and every or any of the goods, chat- tels and premises hereby assigned or intended so to be, and with his or their servant or servants, and with such other assistant or assistants as he may require, at any time during the day to enter into and upon any lands, tenements, houses and premi- ses belonging to and in the occupation of the party of the first part, where the said goods and chattels or any part thereof may be, and to break and force open any door, lock, bolt, fastening, hinge, gate, fence, house, building, enclosure and place, for the purpose of taking* possession of and removing the said goods and chattels ; and lo sell the said goods "^ CHATTEL MOSTOAOK8. 151 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 himself or themselves all such sums of money as may then be due, by virtue of these pre- sents and all such expenses as may have benu in- curred by the said party of the second part, his executors, administrators or assigns, in consequence of the defaXilt, neglect or failure of the said party of the first part, his executors, administrators or ^'s- signs, in payment of the said sum of money with interest thereon as above mentioned, or in conse- quence of such sale or removal as above mentioned ; and in the next place to pay unto the said party of the first part, his 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 lime of such seizure, and after payment of the costs, charges, and ex- penses incurred by such seizure and sale as afore- said. 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, administrators and assigns, that in case the sum of money realized under such sale as above men- tioned shall not be sufiicient to pay the whole amount due at the lime of such sale, then he, the said party of the first part, his executors or admia- ifitratDrs, will forthwith pay any deficiency to the i H Ui 152 CABINET LAWYER. said party of the second part, his executors, admin- istrators and assigns. 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 A. B. [l,s,] Y. Z. Affidavit of Mortgagee. Ontario, County of , to wit : I, C. D., of the of , in the County of , the mortgagee in the within Bill of Sale, by way of mortgage named, make oath and say, that A. B., the mortgagor in the within Bill of Sale, by way of mortgage named, is justly and truly ind'ebted to me, this de- ponent C. D., the mortgagee therein named, in the sum of $100, mentioned therem. 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 mrney so jnstty due as afore- isaid, and not f(»r the purpose of protecting the goods and chattels mentioned in the said Bill of Sale, by way of mortgage, against the creditors of the said A. B., the mortgagor therein named, or preventing the creditors of such mortgagor from abtaining pay- ment of any claim against him. CD. Sworn before me, at'i the of County of day of 18 in the this E. F. \ i CHATTEL MORTGAGES. 153 J. P., or a Commissioner for taking Affidaritg in the Queen's Bench, in and for the County of Affidavit of Witness. Ontario, County of , to wit : I, Y. Z., of the of , in the County of make oath and say, that I was jjersonally present, and did see the annexed Bill of Sale, by way of mortgage, duly signed, sealed and delivered by A. B., party thereto, and that the name Y. Z., 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 , in the said County of Y. Z. Sworn before me, at the of County of d y of , , in the this 18 E. F. J. P., or a Commissioner for taking Affidavits in the Queen's Bench, in and for the County of Chattel Mortgage. {By way of security against Indorsement.') This Indenture, made the day of 18 , 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 has indorsed the Promissory I 154 CABINET LAWYER. Note of the said party of the first part for the sum of $500, of lawful money of Canada, for the accom- modation of the said party of the first part, which Promissory Note is in the words and figures follow- ing, that is io say : {here copy the note.) And whereas the said party of the first part has agreed to enter into these presents for the purpose of in- demnifying and saving harmless the said party 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 indorsed by the said party of the second part, for the accommodation of the said party of the first part, by way of renewal of the said recited note, or otherwise howsoever, within the period of one year from the date hereof. Now this Indenture witnesseth, that the said party of the first part, in consideration of the premi- ses, hath bargained, sold and assigned, and by these presents doth 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 here- inafter particularly mentioned and expressed, that is to say : {describe as in preceedtng form). To have, hold, receive and lake the said goods, chattels, furniture and household stuff* hereby assigned, or mentioned, or intended so to be, unto the said party of the second part, his executors, ad- ministrators and assigns, forever : Provided always, and these presents are upon this condition, that if the said party of the first part, his exocutors or ad- roinistrators, do and shall well and truly pay, or CHATTEL MORTGAGES. 165 cause to be paid, the said prommissory note so as aforesaid indorsed by the said party of the second part, and all and every other note or notes, which may hereafter be indorsed by the said party of the second part for the accommodation of the said parly of the first part, by way of renewal of the said note and indemnify and save harmless the said party of the second part, his heirs, executors and adminis- trators, from all loss, costs, charges, damages or expenses in respect of the said note or any renewals thereof, then these presents, and every matter and thing herein contained, shall cease, determine and be utterly void to all intents and purposes, any thing herein contained to the contrary thereof in any wise notwithstanding. And the said party of the first part doth hereby, for himself, his heirs, execu- tors and administrators, covenant, promise and agree to and with the said party of the second part, his executors and administrators, that he, the said party of the first part, his executors or admin- istrators, 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 party of the second part shall here- after indorse for the accommodation of the said party of the first part by way of renewal as afore- said, and indemnify and save harmless the said party of the second part from all loss, costs, charges, damrjges or expenses in respect thereof. And also, that in case default shall be made in the payment of the said promissory note, or any I 156 CABINET LAWYER. i r;i! i renewal note or notes as in the said proviso men- tioned, or in ease the said party of I he 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 (»f them, or remove the same or any part thereof out of the county of , without the consent of the said party of the second part, his exe- cutors or administrators, to such sale, removal or disposal thereof, first had and obtained in writing, t,hen and in such case it shall and may be lawful for the said party of the second part, his executors or administrators, with his or their servant or ser- vants, and with such other assistant or assistants as he or they may require, at any time during the day to enter into and upon any lands, tenements, houses, and premises, wheresoever and whatsover belong- ing to, and in the occupation of the said party of the lirst part, his executors or administrators, 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, fastenings, hinges, gates, fences, houses, buildings, enclosures 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 law- ful, and the said party of the second part, his exe- cutors or administrators , and each or any of them, is and are hereby auti:orized 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 them, or any of them, may snem meet, ^sr^"' ' ..' CHATTEL MoRTdAOtS. 157 and from and out of the proceeds of such sale in ihe first place to pay and reimburse himself or them- selves all such sums and sum of money as may then be due by virtue of these presents on the said promissory note, or any renewal note or notes, as aforesaid, and all such expenses as may have been incurred by the said party of the second part, his executors or administrators, in consequence of the default, neglect or failure of the sa'd parly of the first part, his executors or administralowi, in payt ment of the said note or notes 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, his executors, adminis- trators or assigns, all of such surplus as may re- main after such sale, and alter payment of all such sum and sums of money, and interest thereon, as he, the said party of the second part, shall be called upon to pay by reason of indorsing the said promis- sory note in the said recital and proviso mentioned, or any renewal note or notes to be indorsed by the said party of the second part for the said parly of the first part, as aforesaid, at the time of such seizure, and after payment of such costs, charges and expenses incurred by such seizure and sale, as aforesaid. Provided always, nevertheless, that it shall not be incumbent on ihe said party of the second part, his executors or administrators, to sell and dispo!=e of the said goods and chattels, but that in case of default in payment of the said note or notes as afore- said, it shall and may be lawful for the said party 158 CABINET LAWYfiS. of the second part, his executors, administrators and 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, administrators or assigns, or any of them, or any other persons or person 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 and aduiinistrators, that in case the sum of money realized under any such sale as above mentioned shall not be sufficient to pay the whole amount due on the said note or notes at the time of such sale, that he, the said party of the firt^t part his executors or administrators, shall and will forth- with pay or cause to be paid, unto the said party of the second part, his executors or administrators, all such sum or sums of money, with interest thereon, as may then be remaning due upon the said note or notes. 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 A. B. [l.s.] Y. Z. C. D. [L.8.] Affidavit of Mortgagee, Ontario, County of to wit : I, C. D., of, &c., the Mortgagee in the within mortgage named, make oath and say, that such mortgage truly states CttATTEt MOtLWAOKa, m the extent of the liability intended to be created and covered by such mortgage, and that the said mortgage was executed in good faith and for the express purpose of securing me, the said mortgagee therein named, against the payment of the amount of my liability for the said mortgagor by reason of the promissory note therein recited, or any note or notes which I may indorse for the accommodation of the said party of the first part, as renewals of the said note ; And not for the purpose of securing the goods and chattels mentioned therein against the creditors of the mortgagor, nor to prevent such creditors from recovering any claims which they may have against such mortgagor. CD. Sworn before me, at the of , in the County of , this day of , A.D. 18 . E. P. J. p. or a Commissioner for taking Affidavits ill the Queen^s Bench in and for the County of * Affidavit of Witnen, Ontario, County of , to wit { I, Y. Z., oi^ &c., 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 A. B. and C. D., the parties thereto, and that I, this 160 CAtilUET LAWYEtt. deponent, am a subscribing witness to the same ; that the name Y. Z., set and subscribed as a wit- ness to the execution thereof, is of the proper hand- writing of me, this deponent, and that the same was executed at , in the said County of Y. Z. Sworn before me, at ' the of , in the County of , this day of , A.D. 18 . E. F. J. P. or a Commissioner for taking Affidavits in Ihe Queen's Bench in and lor the County of . Chattel Mortgage. (jTo secure future advances.") This Indenture made the day of 18 Between A. B., of, &c., of the first part, and C. D., of, &c., of the second part. Whereas, [Here set forth fully by way of recitnl, the terms, nature and effect of the agreement for the future advances, and the amount cf liability to be created, as for instance]; " Whereas the said A. B. is desirous of entering into and carrying on the business of a dry goods merchant at the City of Toronto, and hath applied to the said C. D. to make him future advances not exceeding in the whole the sum of $5,000, at such times and in such sums as he, the said A. B., may require the same^ And whereas, by an agreement CHATTEL MORTGAGES. t6l in writing, dated on the day of 18 , and made between the said A. B. and C. D., the said C. D. hath agreed to make such future ad- vances to the extent of $5,000 to the said A. B. for the purpose aforesaid at such times, and in such sums as the said A. B. may require it: the whole to be repaid within one year from the date of thcr said agreement."] Now this* Indenture witnesseth that the said party of the first part, in consideration of the premises, ^nd in pursuance of the said agree- ment hath bargained, sold and assigned, and by these presents doth bargain, sell and assign unto the said party of the second part, his executors, ad- ministrators and assigns, AH and singular the goods, chattels, furniture and household effects hereinafter particularly mentioned and described' in the schedule hereunto annexed marked A. To have, hold, receive and take, all and singular the said goods, chattels, furniture and effects herein- before bargained, sold and assigned, or mentioned, or intended so to be, unto the said party of the second part, his executors, administrators and assigns forever. Provided always, and these pres- ents are upon this condition, that if the said party of the first part, his executors or administrators do «ind shall well and truly pay or cause to be paid «nto the said party of the second part, his execu- torii, administrators or assigns, the said sum of -$5,000 or so much thereof as the said party of the second part shall advance to the said party of the first part, according to the terms of the said agree- ment, together with interest thereon at the rate -of < I ■ i ; ^^'%i % 11 11 If! IG2 CABINET LAWYER. per cent, per annum,, within one year from \he date of the said agreement, then these presents and every mailer and thing herein contained, shafi cease, determine and be utterly void to all intents and purposes, any thing herein contained to the contrary thereof in any wisa notwithstanding. Pro- vided always that in case default shall be made in payment of the said sum of j^5,000, or so much thereof as may be advanced as aforesaid, and inter- est contrary to the last mentioned proviso; 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 City of Toronto, without the consent of the said party of the second part, his executors, administrators or assigns, to such sale, removal 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, administrators or assigns>>yith his or their servant or servants, and with such other assistant or assistants as he or they may require, peaceably and quietly to receive and take into his or their absolute possession, and thenceforth to hold and enjoy all and every, or any of the said goods and chattels ; and upon and from- and after taking possession of such goods and chattels as atoiesaid, it shall and may be lawful^ and the said party of the second part, his executors, administrators and 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, of tttXtteL MoiiToAoes. 163 fetoy part thereof al 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 reimburse him and them all sucb sums and sum of money as may then be due by virtue of these presents, and all such expenses a» may have been incurred by the said party of the second part, his executors, administrators, or as- signs, in consequence of the default, neglect or failure of the said party of the first part, his execu- tors, administrators or assigns, in payment of the said sum of money with interest thereon as abova mentioned, and in the next place to pay unfo the said party of the first part, his executors or adminis- trators, all such surplus as may remain after pay- ment of such sum or sums of money as aforesaid. And the said party of the first part, for himself, his heirs, executors and administrators, doth hereby covenant, promise and agree to and with the said party of the second part, his executors, administra- tors and assigns, that in case the sum of money realized under any such sale as above mentioned^ shall not be sufficient to pay the whole amount due at the time of such sale, 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, admin- istrators or assigns, all such sum and sums of money, with interest thereon, as may then be re- maining due. And it is hereby also declared and agreed, that until default shall be made in payment of the said t iil 164 CABINET LAWYJCA. ^ principal sum of $5,000 and interest contrary to the aiforcsaid proviso, it shall be lawful for the said A. B., his executors or administrators, to make use of (but not to remove from the premises) the said goods, chattels and things hereby assigned or in- tended so to be without any hindrance or disturb- ance by ♦he siid C. D., his executors, administra- tors ■ ^.ssigns. And the said A. B. doth hereby for himsi ' h.fc heirs, executors and administrators, covenant wii'r the said C. D., his executors and administrators, that he, the said A. B., hath not heretofore made, done, permitted or suffered, nor will at any time hereafter make, do, pern>it or suf- fer any act, deed, malter or thing whereby, or by means whereof, the said goods, chattels and premi- ses hereby assigned are, is, can or may be in any wise impeached, charged, affected, incumbered or prejudicially affected in any manner howsoever; and also that he the said A. B., his executors or admin- istrators will, so long as any money shall remain due on this security, insure and keep insured the said goods, chattels and premises from damage by fire, in some respectable insurance office, in the names of the said C. D., his executors, administra- tors or assigns, in the sum of ^ , and hand the policy for such insurance, and the receipt for the current year's premium, to the said C. I)., his exe- cutors, administrators or assigns, on demand ; and that in default of the said policy being so effected or kept on foot as aforesaid, it shall be lawful for the said C. D., his executors, administrators and assigns, to effect or keep on foot the same, and all CHATTEL MORTGAGES. 165 the premiums and other expenses incurred by him or them in so dc ig shall be repaid on demand by the said A. B., his executors or administrators, and until re-payment, the same shall be a charge ol the said goods, chattels and premises hereby assigned, and shall bear interest after the rate aforesaid. And also that the said A. B., his executors and ad- ministrators, will, during the continuance of this security, keep the chattels, effects and premises hereby assigned, in good on' r, repair and condition in all respects, as they arc i at the time of the execution hereof. In witness whereof, the oarties to these presents have hereunto set their hands and seals the day and year first above written Signed, sealed and delivered in the pr-sence of A. B. [l.s.] Y. Z. C. D. [l.s.] The Schedule ahove referred to marked A. (^Here set out a full and particular description of the goods as required in the preceding forms.') Ill Mortgagee's Affidavit. Ontario, County of , to wit : I, CD., of, &c., the mortgagee in the within mortgage na'iied, make oath and say, that the within mortgage truly sets forth the agreement entered into between my- self and A. B., therein named, and truly states the extent ol the liability intended to be created by such agreement, and covered by the within mort- fll 166 CABINET LAWTCR. gage. Thai the within morlgage iscxcculed in good faith, and for the express purpose of securing t«i me the re-p;iyrnont of the advances agreed to be made as within mentioned, and not for the purpose of securing the goods and chattels 'mentioned therin, and set forlii in the schedule altaebed thereto, marked A, against the creditors of the said A. B., or to prevent such creditors from recovering any etaims which they may have against the ^aid A. B. C. D. Sworn before me at 18 the day of , F. W., A Commissioner, &c. Affidavit of Witness. {Sitme as in preceding FormsJ) CHAPTER IX. DEEDS. The legal and technical definilion of a deed is a writing sealed and dtlivered. Bond?*, therefore, and assignments and chattel mortgages, of wliich we have treated in previous chapters, are all deeds ; that is to say, they are writings «ea/e(/ and delivered. The general and pojular idea of a deed, however, is commonly associated with the transfer of land, and it is in this popular but restricted sense in which we shall speak of a deed in this chapter; remarking merely that the manner in which a deed must be written or executed is precisely the same whether goods or lands are intended to be conveyed. A deed of land, then, is a writing sealed and delivered by the parties, by which lands, tenements or hereditaments are conveyed by one person to another. It may be either written or printed, and on paper or parchment. Figures, as a general rule, should be avoided, and all words written in fuU without abbreviation or contraction. The name, residence and occupation or addition of every party to the deed should be carefully inserted, and also gome date : properly the dale of the day of xecu- I 1 1^1 168 CABINET LAWYER. tion, but not necessarily ; for a deed may legally be dated on one day, and not executed until some other and subsequent day. Care should be used in describing the lands conveyed ; an error hero may entail considerable expense before it can be irectified. If a whole township lot be conveyed, it will be sufficient to describe it as lot number so and so, in such a concession, township and county, comprising so many acres. If a portion only be to be conveyed, describe accurately the part intended ; A3 the north or south half, or north-cast or south- west quarter, as the case may be. Where the boundaries are well known, and especially where only a portion of a lot is conveyed, it will be desirable to describe the premises by metes and bounds ; giving the course or magnetic bearings, and the measuration of each side. A well pre- pared deed should contam no alterations or inter- lineations of any kind; they will not, however, invalidate the instrument ; but if necessary to be made, the fact that they were so made before sig- nature of the deed should be staled in the atiesta- tion clause at the foot, and the witness should put his initials in the margin, opposite all such altera- tions or interlineations, so that he may be the better able, if ever called on, to prove that they were so made before execution. When once signed and executed, a deed must not be altered —to do so might be to commit a forgery ; and any such alte- ration might wholly vitiate the deed. The person con /eying the land is called the grantor ; the person to whom it is to be conveyed DEBUS. 169 is called the grantee. U the grantor is a married man, his wife should join in the det-d and bar \wr dower; otherwise, when her husband dies dhe will be entitled to one-third of the land conveyed for her life time. Land may be conveyed in such a man- ner as to preclude the wife of the party to whom it is conveyed from any rigfit to dower on her hus- band^s death ; but the S|)cci«'s of deed by which this may be done is very s|>ceial and can only safely be prepared by a professional man. When a married woman is the owner of land in her own right, she may convey the same by an ordinary deed, to which her husband must be a party, but the deed must be acknowledged by her before a Judge of one of the Superior Courts of law or equity, or before a County Court Judge, or before two Magistrates. A certificate of acknowledgment must be endorsed upon the deed, and signed by the Judge or Magistrates before whom it Is made. Every deed should be signed by the grantor. It is not necessary that the grantee should sign unless the deed contains some covenant on his part. The ordinary way of executing a deed is for the party conveying to sign his name in his usual manner, opposite the seal at the foot, and placing his finger on the seal to say *' I deliver this as my act and deed." If the person should be unable to write, he may execute by mark. In this case some person should write opposite the seal the words " A. B. his mark," leaving space in the middle '')r the his mark to be made -usually a cross : thus , -f B. mark ^L ii^i ^] .1 ffidavits. 2. If made in Quebec it must be made before a Judge or Prothonoiary of the Superior Court or Clerk of the Circuit Court, Or before a Commissioner authorized by any of the Superior Cour's of Common Law for Ontario to take affidavits in Quebec, i j ill 11 '■"' ft ■ ; [i i»! "li .i ^'1 1 '^ I Mill ur 172 CABINET LAWYER. Or before any Notary Public in Quebec, certified under his official seal. , 3. If made in Great Britain or Ireland it must be made befo-e a Judge of any of the Superior Courts of Law or Equity therein, Or before a Judge of any of the County Courts within his County, Or before the Mayor or Chief Magistrate of any city, borough or town corporate therein, and certi- fied under the common seal of such city, borough or town corporate. Or before a Commissioner for taking affidavits in and for any of the Courts of Record for the Province of Ontario, Or before any Notary Public certified under his official seal. 4. If made in any British Colony or possession it must be made before a Judge of a Court of Record, Or before the Mayor of any city, borough or town corporate, and certified under the common seal of such cily, borough or town, Or before any Notary Public certifitjd under his official seal. Or if made in the British Possessions in India before any Magistrate or Collector, certified to have been such under the hand of the Governor of such possession. 6. If made in any foreign country it must be made before tlie Mayor of any city, borough or DEEDS. 173 town corporate of such county, and certified under the common seal of such city, borough or town corporate. Or before any Consul or Vice Consul of Her Majesty, resident therein. Or before a Judge of a Court of Record, or a Notary Public, certified under his official seal. The fees for registering a deed are $1.40 where the document does not exceed 700 words in length ; if it exceeds that number, then fifteen cents for every additional 100 words up to 1400, and ten cents for each 100 words over 1400. If the instru- ment embraces di fife rent lots or parcels of lands situate in different localities in the same counly, then the Registrar is entitled to 40 cents for the necessary entries and certificates, and fifteen cents for every 100 words up to 1400, and ten cents for every 100 words over that number. A corporation executes a deed by affixing to it its common seal, and signing by its chief officer as Mayor, President, &c. No affidavit is necessary to prove the execution of a deed by a corporation ; the seal alone is sufficient evidence. The only forms of deeds given here aio the com- mon forms of bargain and sale used in the ordinary conveyance of real property : special forms in un- skilful hands might result in loss and embarrass- ment. The forms given are with absolute covenants and with qualified or limited covenants. The for- mer are very extensive, and ought not be given without some sufficient reason, as they bind the grantor with reference to the acts of al! part'ics iPi I: » -.r; ^/^ : 174 CAftmET LAWYEr. through whom the property may h^\e passed-. Limited covenants, on the contrary, are confined to the acts of the grantor himself and those claiming under him. Deed of Bargain mid Sale. (^Absolute Covenants.') This Indenture made (in duplicate) the day of ) 18 , Between A. H., of, &c., of the first part, C. D., wife of the said party of the first part, of the second part, and G. H., of, &c., of the third part; Witnes^eth, that the said party of the first part, in consideration of the sum of ^I«00, of lawful money of Canada, to him, 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 re- ceipt whereof is hereby acknowledged)^ doth grant unto the said par^y of the third part., his heirs and assigns, All and .singular that certain parcel or tract of land and ;?!< -riises situate, lying and being in the {here descnoe the lands) ^ Together with the appurtenances : To have and to hold the same landsj tenements- hereditaments, and all and sinsjular Other the premises hereby conveyed or intended so to be, with their and every of their appurtenances, unto the sa' ' party part, assigns, to the sole and only use of the said party of the third part, his heirs and assigns, forever. vSubject, nevertheless, to the reservations, limita- tions, provisoes and conditions expressed in the original grant thereof from the Crown. ii tyv^rs. m And tills Indenture further witnesscth, that the Raid party of the second part, with the privily an J full approbation and consent of her said husband testitied by his being a party to these presents, iui consideration of the premises, and also in conside- ration of the further sum of five shillings of lawful money of Canada aforesaid, to her by the said party of the third part in liand 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 party of tiie third part, hi^ heirs and assigns, all dower, and all right Knd title thereto, which she, the said party of the second part now hath or in the event of surviving her said husband might or would have in, to or out of the lands and premises hereby conveyed or iti- lended so to be. And the said party of the first part doth ' ':'reby,. for himself, hi* heirs, executors and administr .jrs, covenant, promise and agree with and to j said party of the third part, his heirs and assiy; ^s, ia manner following, that is to say : That he, the 8;iid party of the first part, now hath, in himsei., good right, full power and absolute authority to convey the said lands and other the premises iiereby con- veyed or intended so to be, with their and every of their appurtenances, unto the said party 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 party of the third part, his heirs and assigns, from nme to time and at all I ! W * 4k W '^.-'W'' ne Cabinet LAWrEn. limes he cafter peaceably and quietly to enter Upon, have, hold, occupy, possess and enjoy the saic; lands and premises hereby conveyed or intended so to be, v/iih 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 his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim or demand whatsoever of, from or by him, the said parly of the first part, or his heirs, or any other per- son or persons whomsoever ; And that free and clear, and freely and absolutely acquitted, exone- rated and forever discharged or otherwise by the said party of the first part or his heirs well and sufficiently saved, kept harmless, 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, execution, extent, rent, annuity, forfeiture, re-entiy and any and every other estate, title, charge, trouble vccd incumbrance whatsoever ; 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 ot may hereafter have or c'^im, any estate, right, title or interest w^hatsoever, either at law or in equity, in, to or out of the said lands and premises hereby cons(;yed or intended so to be, or any of them, or any party thereof, by, from, under or in trust for him, vhem or any of them, shall and will from time to time and at all limes hereafter, upon every reasona- ble request, and at the costs and charges of the said DEEDS. Ill ;r upon, he saic? nded so 'nances, ues and and for et, suit, aim or he said her per- ee and exone- by the ^eJl and rnnified er and er, use, Igmenr, •e-enliy trouble that he, ecu tors person hall of hi, title equity, hereby lem, or )r him, time to 'asona* le said parly of the third part, his heirs or assigns, make, do or execute, or cause to be made, done or execu- ted, all such further and other lawful acts, deedsi, things, devises, conveyances and assurances in the law whatsoerer, for the better, more perfectly and abi^iolutely 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 party of the third part, his heirs and assigns, in manner aforesaid, as by the said party of the third part, his heirs and assigns, his 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 assu- rances shall be compellable, for the making or exe- cuting thereof, to go or travel from his usual place of abode. 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 A. B. [l.s.] E. F. C. D. [L.S.] Received, on the day of the date of the within Indenture, the sum of $500^ of lawful money of Canada, being the full consideration therein men- tioned. A. B. Witness, E. F. 12 •>■», 178 CABINET 1 \WYERr (Qualified Covenants ) This Indenture, made (in duplicate) the day of IS J Between A. B. of, &c., of the fir&t part, C- D., wife of the said party of the first part, of the second part, and G. H., of, &c., of the third part : Witnesselh, that the said party of the first part, in consideration of the sum of ^500, of lawful money of Canada, to him 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 re- ceipt whereof is hereby acknowledged), doth grant unto the said party of the third part, his heirs and assigns, All and singular that certain parcel or tract of land and premises situate, lying and being in the [here describe the lands), Together with the appurtenances : To have and to hold the same lands, tenements and 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 &aid party of the third part, his heirs and assigns, to the sole and only use of the said party of the third part, his "heirs and assigns, forever. Subject, nevertheless, to the reservations, limitations, provisoes^ and conditions expressed in the original giant thereof from the Crown. And this Inienture further witnesseth, 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 consids- ration of the further sum of five shillings of lawful the and and, J, in ids- yful DEEDS. 179 money of Canada aforesaid, to her by the said parly 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 party of the third part, his 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 might or would have in, to or out of the lands and premises hereby conveyed or in- tended so to be. And the said party of the first part doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree with and to the said party of the third part, his 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 authority 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 party of the third part, in manner aforesaid, and according to the true intent of these presents : And that it shall be lawful for the said party of the third part, his heirs and assigns, from time to lime, and at all times hereafter, peaceably and quietly to enter upon, have, hold, occupy, possess and enjoy the said lands and premises hereby conveyed, or i II !. ^ Ji '•"'ill 1 I I I I ("If Ml , I 180 CABINET LAWYER* 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 liis and their use and benefit, without any let, suit, trouble, denial, eviction, in- terruption, claim or demand whatsoever of, from or ^y him, the said party of the first part or his heirs, or any person claiming or to claim by, from, under or in trust for him, ihem or any of them : And that free and clear, and freely and absolutely acquitted, exonerated and forever discharged or otherwise by the said party of the first part, or his heirs, well and sufficiently saved, kept harmless, 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, execution, extent, rent, annuity, forfeiture, re-entry and any and every other estate, title, charge, trouble and incumbrance whatsoever, made, executed, oc- casioned 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 parly 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 lime to time, and at all times hereafter, DEEDS. 181 upon every reasonable n^quest, and at the costs ami charges of the said party of the third part, his 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 assur- ing the said lands and premises hereby conveyed or intended so to be, and every part thereof, with their appurtenances, unto the said party of the third part, his heirs and assigns, in manner aforesaid, as by the said party of the third part,. his heirs and assigns, his or their counsel in the law, shall be reasonably devised, 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 whereof, the said parties to these pre- sents have hereunto set their hands and affixed their seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] E. F. C. D. [l.s.] Received, on the day of the date of the within Indenture, the sum of ^500, of lawful money of f j if- m ■■■i'.'.i'i ^I'^vT > IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 1^12^8 |25 ■u i2ii 122 us IK u IL25 uiu 12.0 IJ4 V2 ^> ^><^^^ '> Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716) (72-4S03 ^^ -^flV' -Sfc^ o ,.« / 4 V ^■^^--^■U.. H„ . 182 CABINET LAWYER. Canac'a, being the full consideration therein men- tioned. Signed in presence of E. F. A. B. Short forms under Statute, This Indenture, made (in duplicate) the day of 18 , in pursuance of an Act respecting short forms of conveyances : Between A. B., of, &c., of the first part, C. D., wife of the said party of the first part, of the second part, and E. F., of, &c., of the third part : Wit- nesseth, that in consideration of 8500 of lawful money of Canada now paid by the said party of the third part, to the said parly 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 p^tt, his heirs and assigns for ever. All and singular that certain par- cel or tract of land and premises situate, lying and being (here describe the premises.) To have and to ho'd unto the said party of the third part, his heirs and assigns, to and for his and their sole and only use for ever. Subject nevertheless, to the reservations, limitations, provisoes and conditions expressed in the original grant thereof from the Crown. 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 DEEDS. 183 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 of the said party of the third part ; And that the said party of the first part has done no act to encumber 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 whereof, the said parties hereto have hereunto set their hands and seals. Signed, sealed and delivered in the presence of A. B. [l.s.J Y. Z. C. D. [L.8.] Received on the day of the date of this Indenture from the said party of the third part, the sum of ^500 being the full consideration therein men- tioned. • A. B. Witness, Y. Z. Deed of land belonging to married woman. This Indenture made (in duplicate) the day of , 18 , in pursuance of an act respecting £bort forms of conveyances : : ■! 184 CABINET LAWYER. Between A. B., of, &c., wife of E. F., of the same place, of the first part, the aaid E. F., of the second part, and G. H., of, &c., of the third part. VVitnesseth, that in consideration of $ of lawful money of Canada now paid by the said party of the third part to the said parties of the first and second parts, (the receipt whereof is hereby by them acknowledged). They, the said parties of the first and second parts, do grant unto the said party of the third part, his heirs and assigns for ever. All and singular that certain parcel or tract of land and premises situate lying and being, &c., {here describe the premises). 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 for ever : subject, nevertheless, to the reservations, limita- tions, provisoes and conditions expressed in the original grant thereof from the Crown. The said party of the second part covenants v\nth the said parly of the third part, that she, the said party of the first part, jointly, with the party of the second part, hath the right to convey the said lands to the said party of the third part, notwithstanding any act of the said parties of the first and second parts. And that the said party of the third part shall have quiet possession of the said lands, free from all incumbrances, and that the sai^i parties of the first and second parts will execute such further assurances of the said lands as may be requisite. And that the said parties of the first and second parts have done no act to encumber the said lands. DEEDS. 185 And the said parties of the first and second parts release to the said party or the third part all their claims upon ihe said lands. In witness whereof, the said parties hereto have hereunto set their liands and seal:?. Signed, sealed and delivered in the presence of A. B. [l.s.] y. Z. E. F. [l.s.] Received on the day of the date of this Indenture from the said party of the third part the sum of $ , being the full consideration therein mentioned. Witness, A. B. y. Z. E. F. Deed of Gift of Lands. This Indenture, made (in duplicate) the day of 18 , Between A. B., of, &c., of the one part, and C. D. (the eldest son of the said A. B.,) of the other part. Witnesseth, that the said A. B., in consideration of the natural love and affection which he hath and beareth unto the said C. D., Doth give and grant unto the said C. D., his heirs and as*^igns, All that parcel or tract of land, &c., [describing the premises], together with all and singular the appurtenances, to the said parcel or tract of land and premises belonging or in any wise appertaining. To have and to hold the said parcel and tract of land, and all and singular other the premises hereby granted, unto and to the only proper use and behoof of the said C D., his heirs and assigns, forever, M f i. it 186 CABINET LAWYER. ! Ill In witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Certificate of Acknowledgement hy Married Woman, I [or we, inserting the name or names of the Judge or Magistrates, ^^.,] do hereby certify that on this day of . > at , the within deed was duly executed in my [or our] presence by A. B., of , wile ol , one of the gran- tors therein named, and that the said wife of the said , at the said time and place being ex- amined 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 voluntarilv, and without coercion or fear of coer- cion on the part of her husband or of any other person or persons whatsoever. A. B., Judge, or £• r •, «/• x^. Affidavit of Execution of Deed. County of , to wit : I, Y. Z., of, ^'c., [state here the name, in full, of the witness : his place of residence and occupation] make oath and say : — 1. That I was personally present and did see the within instrument and duplicate duly signed, DIVISION COURTS. 187 sealed and executed by A. B. and C. D., two of the parties thereto. 2. That the said instrument and duplicate were executed at the {City of Toronto.) 3. That I know the said parties (if that be the fact.) 4. That I am a subscribing witness to the said instrument and duplicate. Y. Z. Sworn before me at ] in the County of of , this day , 18 . W. W. A Commissioner, &c., in B. R. CHAPTER X. DIVISION COURTS. These Courts have been established in every county in Ontario for the recovery of small debts. For the recovery of larger claims, the Superior Courts of Law and County Courts exist. The number of Division Courts varies in different countiep ; but there must never be less than three o^ more than twelve ; and there must be one Court in every city or county town. They are presided ' I 188 CABINET LAWYER. yi ' ii i! I I over by the County Judge, or, in some large Coun- ties where junior Judges liave been appointed, by such junior Judge. The authority of these Courts is derived from the " Act respecting the Division Courts," Con. Stat. U. C, cap. 19, as amended by the several acts, 27 & 28 Vic, c. 27, and 29 Vic, c. 31, of the acts of the late Province of Canada ; and the 32 Vic, c 23, of the Statutes of Ontario. Courts are holden once in every two months (or oflener, in the discretion of the Judge), at such times and places within each division as the Judge may appoint. Division Courts may entertain, and take cogni- zance of, and determine in a summary way, 1. All personal action, where the debt or dama- ges claimed do not exceed J40; and 2. All claims and demands of debt, account or breach of contract or covenant, or money demand, whether payable in money or otherwise, where the amount or balance claimed does not exceed $100. These Courts have no jurisdiction in the follow- ing 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 consideration thereof; or 4. Actions of ejectment, or actions in which the right or title to any corporeal or incorporeal heredi- taments, or any toli, custom or franchise comes in question ; or 5. In which the validity of any devise, bequest DIVISION COURTS. 189 luest or limitation under any will or settlement may be disputed ; or 6. For malicious prosecution, libel, slander, criminal coiversation, seduction or breach of prom- ise of marriage ; or 7. Against a Justice of the Peace for any thing done by him in the execution oi' his oflice, if he objects thereto. Lipon a contract for payment in labor or goods, or commodities, or anything other than money, the Judge, afle: the ^ay 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 moncy,as if the contract had been so originally expressed. Minors (or persons under twenty-one years of age) may sue in a Divison Court for wages not exceeding $100. A claim will not be allowed to be divided into two or more parts, so as to bring it within the-jiir- isdiction of a Division Court ; nor can any sum greater than $100 be recovered in an action on an unsettled account. Where the unsettled account in the whole exceeds Jf2O0, no action can be brought in these Courts. Formerly judgments of the Division Court were thought to be good for six years only ; but under the last of the acts above referred to, they arc de- clared to have the same force and effect as judg- ments of Courts of Record. They are good, there- fore, for twenty years. Ordinarily a suit must be entered and tried 1 1- 190 CABINET LAWYER. in the Court of the division where the cause of action arose, (that is ; where the debt was con- tracted,) or in that where the defendant resides ; but under the act of 1864, a suit may be entered in the Court nearest to the defendant's residence, irre- spective of the place when the cause of action arose. By leave of the Judge before whom the action is to be tried, a suit may be entered at the Court of the division adjacent to that in which the defendant resides, if the Judge be satisfied on oath or by affidavit, that it will be more convenient for the parties. The first process in the Division Court is a sum- mons. Summonses are of two kinds : ordinary and special. The former may be used in every case : the latter can only be used where the action is for a debt or money demand ; and where the particulars of the plaintiff's claim are given with reasonable certainty and detail. There is also a summons in replevin, used in actions of that nature. When a suit is to be entered at any Division Court, the first thing for the plaintiff to do is to hand to the clerk a written claim and particulars which should shew the names in in full, and the present or last known place of abode of the parties. When the defendant's christian name is unknown, he may be described by his initials, or by such name as he is generally known by. The claim must in every case admitting thereof, show the par- ticulars in detail ; and in other cases must contain E, statement of the particulars, or the facts consti- tuting the claim, in ordinary and concise language. mruios COURTS. 191 and the sum claimed in respect thereof. Where the plaintiff desires to avail himself of the act of 1864, and sues the defendant in the Court nearest to his residence, he must add the following words to his claim, **and the plaintiff enters this suit and claims to have it tried and determined in this Court, because the place of sitting thereof is the nearest to the defendant's residence." If the plain- tiff's claim is beyond the jurisdiction of the Court, he may abandon the excess ; but he must do so in the first instance and on the claim. When the defendants reside in the county, a special summon is returnable on the eleventh day after service. Where they reside in an adjoining county, it is returnable on the sixteenth day ; and "Where they reside at other places, on the twenty- first day. If a defendant served with a special summons disputes the plaintiff's claim, he must leave with the clerk of the Court a notice to that effect, within eight days after service, when the summons is re- turnable on the eleventh day ; and within twelve days in other cases, if he does not do so, judg- ment will be entered by default on the return of the summons, and execution may be at once issued. The Judge, however, has a discretion to let a de- fendant dispute the claim at any time before judg- ment entered, although notice may not have been given ; and he may set aside a judgment on suffi- cient grounds being shown. Judgment by default must be entered within one month after the return of a summons, it cannot be entered after. Where \%2 CABllfBT LAWTEK. ill i a fipecial summons has been issued against several defonJants, but all have not been served, the plain- tiff may take judgment against ihose served : in which case his claim against the others will be lost. li' he does not wish to abandon those not served, he must proceed in the ordinary way. iin ordinary summons, with a copy of the ac- count, or of the particulars of the claim ordeniand, attached, requires to be served ten days at least before the Court day. In case none of the defendants reside in the county in which the action is brought, but one of them resides in an adjoining county, the summons must be served fifteen days ; and in case none of the defendants reside in the county within which the action is brought, or in an adjoining county, then twenty days at least, before the Court day. 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 roav be on the defendant, his wife or servant, or some grown person being an inmate of the defend- ant's dwelling-house or store. The bailiffs of tiie Court serve and execute all summonses, orders, warrants, precepts and writs, and so soon as served return the same to the clerk of the Court of which they are bailiffs. The clerk prepares the affidavit of service of sum- mons, stating how served, the day of service, and the distance the Bailiff necessarily travelled to effect service, which is annexed to or indorsed on the summons ; but the Judge may require the DITISION COURTS. 193 Isum- and ;d to id on the bailiff to be sworn in his presence, and to answer such que.'itions a** may be put to him touching any service or mileage. In case of a debt or demand against two or m^re person?, 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 persions may be served with process, and judgment may be obtained and execution issued against the person or persons served, notwithstand- ing others jointly liable have not been served or sued, reserving always to the person or perscas against whom execution issues, his or their right to demand contribution from any other person jointly liable with him. Whenever judgment has been obtained against any such partner, and the Judge ceriifieH that the demand proved was strictly a partnership transac- tion, 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 defend- ants who have been served. On the day named in the summons, the defend- ant must, in person, or by some person on his be- half, appear 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 judgment, he may non-suit the plaintiff; and the plaintiff may, before verdict in jury cases, and before judgment pronounced in other cases, insist IS "WA §.0 I i i 194 CABINET LAWrSR. on being non-suited. The Judge may also non-suit in a jury case. When a plaintiff is no.n-«uited 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 dav named in the summons the defendant does not appear, or sufficiently excuse his absence, or if he neglects to answer, the Judge, on proof of due service of the summons and copy of the plain^ tiff's claim, may proceed to the trial of the cause on the part of the plaintiff only, and the order, ver- dict or judgment thereupon will be final and abso- lute, and as valid as if both parties had attended. The Judge may adjourn the hearing of any cause in order to permit either party to summon wit- nesses or to p»jduce further proof, or to serve or give any notice necessary to enable such parly to enter more fully into his case or defence; or for any other cause which the Judge thinks reason- abiC : upon such conditions as to the payment of costs aiTd admission of evidence or other equitable terms as to him seems meet. If the defendant desires to plead a tender, before action brought, of a sum of money in full satisfac- tion of the plaintiff^s claim, he may do so on filing his plea with the clerk of the Court before which he is summoned to appear, at least six days before the day appointed far the trial of the cause, and at the same time paying into Court the amount of the money mentioned in such plea. Such sum is to be paid to the plaintiff, less one dollar, to be paid over to the defendant for hi? DITISION COURTS. 195 Irouble, in case the plaintiff do not further prosecute bis suit ; and i.il proceedings in the action are to be stayed, unless the plaintiff, within three days after the receipt of notice of such payment, signifies to llie clerk of the Court his intention to proceed for his demand, notwithstanding such plea ; and in such case the action will proceed accordingly. If such signification is given within the three days, but after the rising of the Court at which the summons is returnable, the case will be tried at the next sitting of the Court. If the decision thereon be 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 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. 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 plaintifPs demand, together with the plaintifPs costs up to the time of such payment. The sum so paid in 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 plaintiff shall signify to the clerk his intention to i ll 196 CABINET LAWYER. proceed for the remainder of the demand claimed; in which case the action will proceed as if brought originally for such remainder only. If the plaintiff recovers no further sum in the action than the sum paid into the Court, the plain- tiff 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 ordered to be paid by the Court. When a defendant desires to put in an off-set, or to 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 ptare 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, he must also deliver two copies of the particulars thereof to the clerk , one to be kept with the papers, and the other for the plaintiif. No evidence of set-olf can be given ,by the de- fendant, beyond that referred to in the particulars of set-off delivered. If the defendant's demand, as proved, exceeds the plaintifPs, the plaintiff will be non-suited ; or if he so elects, the Court may give judgment for the defendant ; in which latter case the set-off will be satisfied to the extent of the plaintifPs claim ; but the defendant may take proceedings to recover the balance. Any of the parties to a suit may obtain from the DITISIOV COURTSr 197 clerk a subpoena wilh or without a clause for the production of books, papers and writings, requiring any witness resident within tlie county, or served wilh the subpoena therein to attend Court; and the rlerk, when requested, will give copies of such subpoena. Any number of names may be inserted in the subpoena, and service thereof may be made by any person who can read and write, and proof of the due service thereof, together with the tender or pay- ment of expenses, may be made by affidavit sworn befoie any County Judge or the clerk of any Djvision Court, or before any person authorized to take aflBi- davits in any of the Superior Courts ; and pVoof of service may be received by the several Judges of the said Courts, either orally or by affidavit. Kvery 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, wiio refuses or neglects, without sufficient cause, to obey ihe sub- poena: and also every person in Court called upon to give evidence, who refuses to be sworn (or affirm where affirmation is by law allowed) or to give evidence, is liable to such fine not exceeding eight dollars, as the Judge may impose, and ma) by verbal or written order of the Judge, be, in addition, imprisoned for any time not exceeding ten days; and such fine may be levied and collected with costs in the same manner as fines imposed on jury- men for non-atiendance ; and the whole or any part of such fine, in the discre ion of the Judge, after V-: ' i ^ ' III 19S CABINRT LAWTCR. I'iii; ,!: deducting Ihe costs, will be applicable towards idcmnifying the party injured by such refusal or neglect ; and the remainder thereof, if any, will form part of the general fee fund. Any parly may obtain, from either of the Superior Courts of Common Law, a subpoena requiring the attendance at the Division Court, and at the time mentioned in such subpoena, of a witness residing or served with such subpoena in any part of Upper Canada ; and the witness must obey such subpoena, provided the allowance for his ex|3enses, according to the scale settled in the Superior Courts, be ten- dered to him at the time of service. Under a recent act affecting the law of evidence, a party may give evidence on his own behalf. In any suit for a debt not exceeding five pounds, the Judge, on being satisfied of their general cor- rectness, may receive the plaintiff's books as testi- mony ; or in case of a defence of set-off or of pay- ment, so far as the same extends to five pounds, may receive the defendant's books, and may also receive as testimony the affiidavit of any party or witness in the suit resident without the limits of his county. 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 affidavits in any of the Superior Courts. The Judge may openly in Court, and immedi- ately after the hearing, pronounce his decision ; but if he is not prepared to pronounce a decision jnstanter, he may postpone judgment and name a DITISION COURTS. !99 subsequent day and hour for the delivery thereof in writing at the clerk's office ; and the elerk will then read the decision of the parties or their agent?, if present, and forthwith enter the judgment. The Judge may order the times and the propor- tions 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 Jays after the trial, and upon good grounds being shown, may grant a new trial upon such terms as he thinks reasonable, and in the meantime may stay proceedings. Except in cases where a new trial is granted, the issue of execution will not be postponed for more than fifty days from service of the summons with out the consent of the party entitled to the same ; but in case it at anytime appears to the satisfaction of the Judge, by affidavit or otherwise, that any defendant is unable, from sickness or other suffi- cient cause, to pay and discharge the debt or dam- ages recovered against him, or any instalment thereof, ordered to be paid as aforesaid, the Judge may stay judgment or execution for such *ime and on such terms as he thinks fit. 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 between such parties, being within the jurisdiction of the Court, to be referred to arbitration to such per ■•i ' 8 its I'> I II 1 1 . il' 200 CABINET LAWTCR. son or persons, and. in such manner and r)n sach terin8, an he thinks reasonable and just. Such reference cannot be revoked by either party, without the comment of the Judge. The award of the arbitrator is to be entered as the judgment in the canse, and will be as bin(iing and effectual as iC given by the Judge. The Judge, on application to him within fourteen days aftrr the entry of such award, may, if he thinks fit, set aside the award ; or may, with the consent of boili parlies, revoke the reference and order ¬h( r reference to be made in the manner aiore- said. Any of such arbitrators may administer an oath or liiirmation to tho parti<>s^ and to all other per- sons examined before such arbitrator. The costs of any action or proceeding not other- wise provided for are lo he paid by, or apportioned between, the parties in such manner as tha 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 the Judge, he may award to the defendant such costs and such further sum of money, by way of satisfacii<»n for his trouble and attend- ance, as he thinks proper, lo be recovered as pro- vided for in other cases under this act ; and in default of any special direction, the costs will abide the event of the action, an«l execution may issue for the recovery thereof in like manner as for any debt adjudged in the Court Any Bailiff or Clerk, before or after suit com- DIVISION COURTS. 201 mence J, may take a confession or acknowledg- ment of debt from any debtor or defendant desirous of executing the same. A confession taken before suit, must shew therein, or by statement annexed, the particulars of claim ; with the same fulness and certainty as in special summons. Application for judgment on confession must be made within three months: otherwise execution will not issue with- out an allidavit that the debt remains due. Either parly 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. In case the plaintiif requires a jury to be sum- moned to try the action, he must give notice ther of 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 expense of such jury; anrl in 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 will be summoned. Either of the parlies to a cause is entitled to chal- lenge three jurors. Five jurors are empannelled and sWorn to do jus- tice between the parties whose cau^e they are re- quired to try, according to the best of their skill and ability, and to give a true verdict according to the eviden e ; the verdict of every jury must be unani- mous. :^! t02 CABINET LAWYER. i! i The Judge may, if he think proper, have any dis- puted fact in a cause tried by a jury ; and in any case, if ihe Judge is satisfied that a jury cannot agree, he may discharge them and adjourn the cause to the next Court : unless the parties conseu* to hiii pronouncing a judgment. If there be cross judgments between the parties, the party only who has obtained judgmeit for the larger sum can have execulioi , and then only for the balance over the smaller judgment ; and if both sums are equal, satisfaction will be entered upon both judgments. In case the Judge makes an order for the pay ment 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. In case any person against vv^hom a judgment has 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 production 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 feuch party. If the party against whom an execution has been awarded pays or tenders to the clerk or Bailiff 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 DIVISION COURTS. 203 been iff of ued, the Intiff pgrees to accept in full of his debt, together with the fees to be levied, the execution will thereupon be superseded, and the goods be released and re- •jtored to such p;irty. The clerk, upon the application of any plaintiff or defendant (or his agent) having an unsatisfied judgment in his favor, will prepare a transcript of the^entry of neh judgment, and send the same to the clerk of any other Division Court in any other county, with a certificate at 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 ad- dressed to the clerk of the Court to whom it is intended to be delivered, and staling the amount unpaid upon such judgment and the date at which the same was recovered ; and the clerk to whom such certificate is addressed, on the receipt of such transcript and certificate, will 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 then be taken for the enforcing and collecting the judgment in such last-mentioned Division Court by the offi- cers thereof that could be had or taken ibr the like purpose upon judgments recovered in any Division Court. In case of the daath of either or both of the par- lies 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, i «i r,; , !! 104 CABINET LAWTKR. and may issue execution thereon in conformity with any rules which apply to such Division Court in I hat b( half. In case an execution be returned n'i7h bona, and the sum remaining unsatisfied on the judgment amounts to the sum of forty dollars, the plaintitf or defendant may obtain a transcript of the judgment from the clerk, under his hand and sealed witlvthe seal of the Court. Upon filing such transcript in the office of the clerk of the County Court in the county where such jud;»ment has been obtained, or in the county wherein the defendant's or plaintifT s lands are situ- ate, the same will become a judgment of such County ("ourt ; and the clerk of such County (^ourt will tile the same and make the proper entries in his book on payment of fifty ce'jts. Upon such filing and entry, the plaintiff or de- fendant may, until the judgment has been fully paid and satisfied, pursue the same remedy for the recovery thereof or of the balance due th»*reon as if the judgment had been originally obtained in the County Court. In case any BailifTemployed to levy an execution against gooils and chattels, by neglect, connivance, or omission, loses the opportunity of so doin<^, then upon complaint of the party aggrieved, and upon proof by the oath of a credible witness of the fact alleged to the satisf iction of the Court, the Judge may order the bailiff to pay such damages as it ai'pears the plaintiff has sustained, not exceeding the sum for which the execution issued ; and the I' I DIVlBlOlf COVRTl. 205 h' BuiliiT shall be liable thereto; and upon demnnd made thereof, and on Wis refusal to satisfy the same, payment may be enforced by such means as are provided for enforcing judgments recovered in the Court. Goods taln obtained, or fiom any Division Court within the limits of which the defendant dwells or carries on his business, a judgment summons ; and if the defendant appears in pursuance thereof, he may bs examined upon oath touching his estate and effects and the manner and circumstances under whicti he contracted the debt or incurred the damages or liability which formed the subject of the action, and as to the means and expectations he then had, and as to the property and means he still has of dis- charging the said debt, damages, or liability, and as to the disposal he has made of any property. i 2O0 CABINET LAWYER* If the party so summoned (I) does not attend as required by the summons or allege a suffieicnt rea- son for not attending, or (2) if he attends and re- fuses to be sworn or to declare any of the things aforesaid ; or (3) if he does not make answer touch- ing the same to the satisfaction of the Judge ; or (4) if it appears to the Judge, either by the exam- ination of the party or by other evidence, that the party obtained credit from the plaintifT or incurred the debt or liability under false pretenses, or by means of fraud or breach of trust, or that he wil- fully contracted the debt or liability without having had at the time a reasonable expectation of being able to pay or discharge the same, or has made or caused to be made any gift, delivery, or transfer of any property, or has removed or concealed 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, suffi- cient means and ability to pay the debt or damages or costs recovered against him, either altogether or by the instalments which the Court in which the judgment was obtained has ordered, and if he has refused or neglected to pay the same at the 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 goal of the county in which the party so summoned is resi- dent, for any period not exceeding forty days. The Judge, before whom such summons is heard, may rescind or alter any order for payment pre- iiliriitON COURTI. 207 viously 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 cosls forthwith, or by any instalments, or in any other manner that ho thinks reasonable and just. 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 com- mit the defendant to prison, and make an order in like manner as in case the plaintifT had obtained a fudgment summons. No imprisonment under the act will 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. We have stated in the foregoing pages the sub- stance of the enactments of the Division Court Acts, so far as they apply to proceedings for the collec- tion of an ordinary debt. We now proceed to notice the mode of action where the debtor has absconded or attempts to abscond. If any person indebted in a sum not exceeding one hundred dollars, nor less than four dollars, for any debt or damages, or upon any judgment, (1) absconds from the province, leaving personal property liable to seizure under execution for debt in any county in Ontario, or (2) attempts to remove 'i it* If i 203 CABINET LAWYER. such personal properly either oat of Ontario or from one county to another therein, or (3^ keeps con- cealed in any connty of Ontario to avoid service of process ; any creditor on making an affidavit or affirmation in the form given at the end of this chapter, and filing same with the clerk, can obtain a warrant, direct«'d to the Bailiff or to any constable of the connty, commandini such Bailiff or constable to attach, seize, take and safely keep all the per- sonal estate and effects of I he absconding, removing or concealed j)erson within such county liable to seizure under execuiion for debt, or a sufficient portion thereof, tj secure the sum mentioned in the warrant with the cost of the action. The Judge or a Justice of the Peace for the coun:y, may lake the affidavit and issue the war- rant. Jf the person against whom an attachment has issued, at any time prior to the recovery of judg- ment in the cause, executes and tenders to the credi- tor who sued out the attachment, and files in Court, a bond with good surities, 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 property taken, to the claimant, or produce such property whenever required, the clerk may supersede the attachment, and the property attached will be restored. If wiihin one month from the seizure, the party against whom the attachment issued does not appear to give such bond, execution may issue as DIVISIOX COUBTS. 209 soon as judgment has been obtained, and the prop- erly 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 pro- ceeds thereof may be applied to satisfy the judg- ment and costs. If horses, cattle, sheep or other perishable goods have been taken upon an attachment, the clerk of the Court may at the request of the plaintiff, sell the same at public auction lo the highest bidder. By the last act affecting the Division Courts, pro- vision has been made for the attachment of debts, the effect of which may be shortly stated as follows : If a debtor against whom a judgment has been ob- tained in the Division Court is himself a creditor of some third party, the judgment creditor, who is called the primary creditor, may obtain an order attaching the debt due by such third party to the judgment debtor, who is called the primary debtor : and thereupon proceedings, called garnishee pro- veedingSy may be taken to enforce payment by the third party to the primary creditor of the debt so due, or so much thereof as may be sufficient to satisfy the primary creditor's claim. The form of affidavit required will be found at the end of the chapter. Besides the ordinary proceedings in a Division Court for the collection of a debt, proceed ngs may be taken to determine the right of property seized in execution. Such proceedings are termed inter' pleader. And if goods are illegally distrained for u ' 'I I 8 \ k m i 1: SIO CABlfTET LAWYER. rent ; or if goods are wrongfully detained from the owner, a replevin summons may be issued. Before the Bailiff will replevy the goods, he will require a bond to produce the goods replevied if judgment is given against the party replevying, or to pay the value thereof, and to pay all costs. Special provisions are made in the rules with reference to proceedings by and against executors and administrators and other matters ; but it would swell the limits of this work beyond due bounds if we were to notice them in detail : besides which it will always be found advisable to consult a pro- fessional man whenever the matter in dispute is at all out of the ordinary, and common course. We subjoin a few forms which will be found useful in the progress of a suit, They are the forms appended to the new Division Court rules. Undertaking hy next friend of infant to he responsible for defendant's costs. In the Division Court in the County of I, the undersigned E. F., being the next friend of A. B., who is an infant, and who is desirous of entering a suit in this Court against C. D., of, &c.y hereby undertake to be responsible for the costs of the said C. D., in such cause, and that if the said A. B. fail to pay the said C. D. all such costs of such cause as the Court, shall direct him to pay to the said C. D., I will forthwith pay the same to the Clerk of the Court. Dated this day of 18 . (Signed) E. F. Witness DIVISION COURTS. 211 Affidavit for leave to sue a party residing in an adjoining division In the Division Court iii the County of I, A. B., of , yeoman (or I, E. F., of , yeoman, agent for A. B., of, &c.,) make oath and say — 1st. That I have a cause of action against C. D., of , yeoman, who resides in the Division of the County of {if by agent, "That the said A. B. has a cause of action against C. D., of, yeoman.") 2nd. That I (or the said A. B.) reside in the Division, in the County of 3rd. That the distance from my residence [or from the said A. B.'s residence) to the place, where this Court is held is about miles, and to the place, where the Court is held in the Division in the County of is about miles. 4th. 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. 6th. That the said Division and this Division adjoin each other, and that it will be more easy and inexpensive for the parties to have this cause led in this Division than elsewhere. Sworn, &c. A. B. {or E. F.) Affidavit for leave to sue in a Division, adjoining one in which debtors reside, where there are several. In the Division Court in the County of 1,^ •r m 41 212 CABINET LAWYER* II IM , yeomaQ, make yeoman, age oath and say, for A. B., of, &c. I, A. B., of (or E. F., of make oath and say) : — 1st. That I have {or that the said A. B. has) a cause of action respectively against each of the debtors named in the first column of the Schedule, on this affidavit indorsed. 2nd. That the columns in the said Schedule, numbered respectively 1st, 2nd, 3rd, 4th, 5th, 6th and 7th, are truly and correctly filled up, according to the best of my knowledge and belief. 3rd. That the Divisions named in the second and third columns of the said Schedule, opposite each debtor's name, respectively adjoin each other. 4th. That it will be more easy and inexpensive for the parties to have the said causes, respectively, tried in this Division, than elsewhere. Sworn, &c. A. B. (or E. F.) liL rv'r.^F DITI8ION COURTS. 21S m <1 O H M »J P O » O OQ 0) hi 8-:2t§s alsS-SS a Number of from de residen where C held in Di where de resides. •: <• ». I^Ssfl 1 Ht-s^l 1 ^ Number of from debto sidence to Court held vision whei tobecomn « 00 d jf miles crwlitA'a ence to Court held ivisioa in suit to be meed. 9* p4 •a Number from resid where in Di which comnu of miles creditor's lence to Court held vision in debtor re> d 3 8 •* Number from resid where in Di which sides. ja a LA o 1-4 O t* ^y .^^A ed 'i c'l No ited VVei iltoi 1 CO §1 gSoM g 3^ ivisi the ties and 1 Q Q s »5 . 8 in the unties of Welland. 91 ia 1 ivision in suit is to menced. ivision No, United Co Lincoln & it Q Q Q s names, of residence ddition. oe, uf Salt- of the Uni- .'ounties uf worth and o, yeoman. Richard Roe, of Monc, County of Simcoe, Esquire. Debtor* place anda John D fleet, ted ( Went Halto m 1 lir tfl 1. r i"- S CABINET LAWYER. Affidavit for Attachment. {If made after suit commenced, insert style of Court and cause.^ I, A. B., of the in the County of , (or ly E. F., of, &c., agent for the said A. B., of, &c. J make oath and say: — 1st. That C. D., of {or late of) in the County of is justly and truly indebted to me, {or to the said A. B.) in the sum of doliars and cent , on a promissory note for the payment of dollars and cents, made by the said C. D., pay- able to me (or the said A. B.) at a day now past ; Or for goods sold and delivered Or for goods bargained and sold Or for crops bargained and sold Or for money lent Or for money paid for the said C. D. Or for an. I in respect of my {or the said A. B.) having relinquished and given up to and in favor Of the said C. D., at his request, the benefit and ad- vantage of work done and materials found and pro- vided and moneys expended by me (or the said A. B.) in and about the farming, sowing, cultivat- ing and improving of certain land and premises; Or for the use by the said C. D., by my permis- sion {or by the permission of the said A. B.) of messuages and lands of me (or the said A B.) j by me {or the said A.B.) to the said C. D. ; DIVISION COURTS. 216 Or for the use by the said C. D. of pasture land of me (or the said A. B.) and the eatage of the grass and herbage thereon, by the permission of me (or the said A. B.) ; Or for the wharfage and warehouse room of goods deposited, stowed and kept by me (or ihe said A. B. in and upon a wharf, warehouse and premises of me {or the said A. B.) for the said C. D., at his request ; Or for horse-meat, staBling, care and attendance provided and bestowed by me {or the said A. B.) in feeding and keeping horses for the said C. D., at his request ; or for work done and materials provi- ded by me {or the said A. B.) for the said C. D., at his request ; Or for expenses necessarily incurred by me {or the said A. B ) in attending as a witness for the said C D., at his request, to give evidence upon the trial of an action at law then depending in the Court, wherein the said C. D. was plaintiff, and one E. F. defendant ; Or for money received by the said C. D. for my use {or for the use of the said A. B.) ; Or for money found to be due from the said C. D. to me, (or to the said A. B.) on an account stated be- tween them, {or other cause of action, slating the same in ordinary and concise language.) 2nd. I further say that I have good reason to be- lieve and do verily believe that the said C. D. hath absconded from that part of the Dominion of Canada, which heretofore constituted the Province of Canada, leaving persoijal property liable to i m ' ' 1 Hi SI 316 CABINET LAWYER. seizure under execution for debt in the County of in this Province.* {Or instead of matter between the asterisks, the said C. D. hath attempted to remove his personal property, liable to seizure under execution for debt, out of this Province ; or the said C. D. hath attempted to remove his personal property liable to seizure under execution for debt from the County of to the County of , in this Province ; or the said C. D. keeps Concealed in the County of in this Province to avoid service of process) with intent and design to defraud me (or the said A. B.) of my (or his) said debt. 3rd. That this affidavit is not made by me nor the process thereon to be issued from any vexatious or malicious motive whatever. Sworr,, &c. A. B. Replevin, Affidavit to obtain Judge's order for writ of replevin. In the Division Court in the County of County of , to wit : I, A. B., of , make oath and say : 1st. That I am the owner of (describe property JuUy) at present in the possession of C. D. ; or that I am entitled to the immediate possession of (de- scribe properly), as lessee, (bailee, or agent,) of E. F., the owner thereof or as trustee for E. F.) {or as the case may be), at present in the possession of C. D. 2nd. That the said goods, chattels, and personal DIVISION COURTS. 217 dollars and not property aro of the value of exceeding $40. 3rd. That on or about the day of , the said goods, chatt3ls, and personal properly, were lent to the said C. D., for a period which has ex- pired, and that although the ^aid goods, chattels and personal property have been demanded from the said C. D., he wrongfully withholds and de- tains the same from me, the said A. B. ; or, that on or about the day of , the said CD., fraudulently obtained possession of the said goods, chattels and personal property, by falsely repre^ent- ing that {here state the false representation), and now wrongfully withholds and detains the same from me ; or, that the said goods, chattels and per- sonal property were on the day of , last, distrained or taken by the said C. D., under color of a distress for rent, alleged to be due by me, to one E. F., when in fact no rent was due by me to the said E. P., {or as the case may be, setting out the facts of the wrongful taking or detention com' plained of with certa inty and precision.) 4th. That the said C. D. resides {or carries on business, at , within the limits of the Division Court in the County of , (or that the said goods, chattels and personal properly were distrained), (or taken and detained), {or detained), at within the limits of the Division Court of the County of Sworn, &c. i ! '-'''' I ■;1 ■if ■ilk ■*•:■'; 43 A. B. ' I r ■A m ^ 218 CABINET LAWYER. Affi,diivU to obtain writ without order in first instance, \_The first four sections vm}/ be as above and the follow- ing must be stated in addition ;] 5th. That the said personal property was wrong- fully taken, (or fraudulently ^ot) out of my posses- sion within two calendar months before the making of this atfidavit, that is to say, on the day of last. 6th. 1 am advised and believe that I am entitled to an order for the writ of replevin now applied for, and I have good reason to apprehend, and do apprehend, that unless the said writ is issued with- out waiting for an order, the delay will materially prejudice my just rights in respect to the said property. [Or if the property was distrained for rent or damage feasant^ then the statement given in the last apt ci fie alternative under th*> 3rd clause of the above form will be sufficient to obtain writ without order,] Claim in Replevin. In the Division Court in the County of A. B., of , states that C. D., of , did on or about the day of , A, D. 18 , take and unjustly detain {or detain, as the case may be), and still doth detain his goods, cliattels and per- sonal property, that is to say (here set out the de- scription of /iroperty) which the said A. B. alleges to be of the value of dollars, whereby he hath sustained damages ', and the said A. B. claims the DITISION COURTS. 219 said property with damages in tliis behalf as his just remedy. Particulars in cases of contract. A. B., of , claims of C. D., of , the sum of jf , the amount of the following account, viz., (or "the amount of the note, a copy of which is under written,") together with the interest thereon, [or^ for that the said C. D. promised {here state shortly the promise) which undertaking the said C. D. hath not performed, or^ for that the said C. D. by deed under his seal dated the day of , A D. 18 , covenanted to, &c., and that the said C. D. hath broken said covenant whereby the said A. B. hath sustained damages to the amount aforesaid ; or for money agreed by the said C. D. to be paid by the said A. B., together with a horse of the said C. D., in exchange for a horse of the said A. B., delivered by the said A. B. to the said C. D ; or for that the said C. D., by warranting a horse to be then sound and quiet to ride, sold the said horse to the said A. B., yet the said horse was not then sound and quiet to ride ; or for that the said C. D., in consideration that the said A. B. would supply E. F. with goods on credit promised the said A. B., that he, the said C, D. would be answerable to the said A. B. for the same, that the said C. D. did accordingly supply the said E. F. with goods to the price of $ and upwards, on credit, that such credit has ex- pired, yet neither the said E. F. nor the said C. D. has as yet paid for the said goods j or for that the 1^ f %:\ ji)i 220 CABINET LAWYER. ,.'! paid A. B. let to ihe said C. D. a house for seven years to hold from the day of , A. D. , at J a year, payable quarterly, of which rent quarters are due and unpaid. ( The above forms are given merely as examples of alatementi of causes of action^ and (he claim must show such further particulars as the facts of the case r f quire.) Particulars in cases of Tort. A. B. of , states that C. D. of , did, on or about the day of , A.D. 18 , at the Township of , unlawfully [take and convert one cow and one calf, the property of th« said A. B. ; or break and injure a waggon of the said A. B. ; or falsely represent L. O. as fit to be trusted, the said C. D. at the same time knowing that the said L. O was insolvent, whereby the said A. B. was induced to give him cr'^dit: or assault and beat the said A. B. (or aa the casf may he, stating ihfi Tort sued for in concise language) ;] The said A. B. hath sustained thereby damages to the amount of , and claims the same of the said C. D. A. B. Landlord's claim for rent. Whereas, I have been informed that you have seized the goods of C. D , of , on his premises at , to satisfy a certain judgment of the Division Court in , against the said C. D., at DIVISION COURTS. 221 r seven , A. D. which amplea ! claim facts of did, on » at the jonvert )aid A. (aid A. usted, at the A. B. It and Hating le said to the e said h have mises D., at the suit of A. D. ; I hereby give you notice that I am the landlord of the said premises, and that I claim f^ for rent now in arrear, being for one quarter {or as the case may be,) and I require you to pay the same to me before you apply the proceeds of the sale of said goods or any part thereof to satisfy the said judgment. E. F. Dated, &c. Landlord of the said Tenant, To V. W., Bailiff' of, &c. In the Particulan of claim on Interpleader. Division Court in ihe County of Between A- B -, Plaintiff. AND E ', Defendant y Claimant, To whom it may concern — E. F., of , claims as his property the follow- ing goods and chattels {or moneys, &c.) seized and taken in execution, (or attached) as it is alleged, namely, (specify the goods and chattels, or chattels or moneys, S^c, claimed) and the grounds of claim are (set forth in ordinary language the particulars on which the claim is grounded, as how acquired, from whom, when, and the consideration paid or <•': ! ! ;:.;! ■r ,. i 't '■ li- 1 ,■;, ■ |lj|ij HJ't} 1 1 S2^ CABlNEt LAWYER. ^o be paid, and when) and this the said E. F. will mainlain and prove. E. F. Dated this day of ,18 . N. B. — // any action for the seizure has been commenced, state in What Court, and how the action stands. Application for Judgment Summons. To X. Y., Clerk of the Division in the County of . Be pleased to summon , of, &c., to answer according to the Statute in that behalf, touching the debt due me by the judgment of the Court of the Division Court of the County of , on my behalf, a minute whereof is hereunto annexed. A. B., Plaintiff. Affidavit forj)rder to garnish debt. In the Division Court in the County of Between A — B , 'Plaintiff. AND -D- -, Defendant. I, A. B., of the of , in the County of , the plaintiff in the suit, {if the affidavit be mxide by the plaintiffs attorney or agent make the necessary alteration) make oath and say, that DlVlSlOPr COt/RTS/ 223 F. will F. as been iow the County answer ouching ^ourt of ereiinto if. County affidavit t make ly, that judgment was recovered in this case against the above named Defendant on the day of A. D. 18 , for the sum of $ debt and costs, (or according to the judgment^) and that the same remains wholly unsatisfied, (or that jj part thereof yet remains unsatisfied.) That I have reason to believe, and do believe, that E. F., residing at within the Province is {or if the person indebted to the Defendant be not known, say " that one or more persons residing in this Province, whom I am unable to name, are") indebted to the Defendant in the sum of J , {or if the amount be unknown, say "in an amount which I am unable to name," for goods sold and delivered by the Defendant to the said E. F., {or otherwise according to the nature of the debt sought to be garnished,) Sworn before me at the 1 of , in the County I of this day of , I A. D. 18 . X. Y., Clerk, A. B. Defendant's notices to the Plaintiff or Clerk, In the Division Court in the County of Between A B , Plaintiff, AND ; ; ill ' I- r IM 'il ! 11 -D- -, Defendant, tu CABINET LAWYER. m ! Take notice that I will admit, on the trial, the first, second and third items of the PlaintifTs par- ticulars to be correct [or the signing and endorse- ment of the promissory note sued upon {or as the case may he)] or Take notice that I dispute the claim of the Plain- tiff in /u/^ (or here specify all or any of the grounds of defence, > Dated the day of , A. D. 18 . Yours, &c. , C. D., Defendant. To the Plaintiff (or to the Clerk of the said Court.) The several grounds of defence may he slated as follows where they meet the circumstances : t. I dispute the following items of your claim, viz., (here specify the items)^ and admit the residue. Or 2. I will on the trial claim a set-off against your demand, and the particulars thereof are here- unto annexed. Or 3. I will on the trial insist that your claim is barred by the Statute of Limitations (or other statu- tory defence.) Or 4. I will on the trial ins^ist that I am dis- charged from payment of your claim by the provi- sions of the Insolvent Act. Or 5. I will admit on the trial the 1st, 9th, lllh (or other) items of your particulars of account to be correct. Or 6. 1 will admit on the trial the signing [or endorsement] of the promissory note [or bill of ex- DIVISION COURTS. 225 change] sued upon, (or as the case may be), and deny the residue of your claim. Or 7. I will on the trial insist that you are not a duly certified Attorney or Solicitor. Or 8. 1 will insist upon the defence at the trial that the note or bill) you have sued upon, and which forms (part of) the particulars of your claim, was not duly stamped (or that the stamp was not duly cancelled according to law.) Or 9. I will insist as a defence upon the trial that you have not given the proper notice oi action before suit to which I am entitled as a Justice of the Peace (or Peace officer) under Con. Stat, of U. C, cap. 126, or as a Ball ifl' of the Division Court under the 193 sec. of the Division Courts Act. Affirmation hy Quaker*, d&c, and jurat thereto. (Court and style of cause.) I, A. B., of , &c., do solemnly, sincerely and truly declare and affirm that I am one of the Society called Quakers (or Menonists, Tunkers, Unitas Fratrum or Moravians, as the case may fte), and I do also solemnly, sincerely and truly declare and affirm as follows, that is to say (state the facts. Solemnly affirmed at ' , in the county of , on , before me. A. B. X. y , Clerh,8fc. Or as the case may be. IS 226 CABINET LAWYER. Affidavit of DishursemenU to several witnesses. In the Division Court in the County of Between A B , Plaintiff, AND D •, Defendant, I, A. B., of , the above Plaintiff (or C. D., the above Defendant, or E. F., agent for the above Plaintiff or Defendant) make oath and say : — 1st. That the several persons whose names are mentioned in the first column of the schedule at the foot hereof were necessary and material wit- nesses on my behalf (,or on behalf of the said Plain- tiff or Defendant) and attended at the sittmgs of this Court on the day of as witnesses on my behalf {or on behalf of the said Defendant or Plaintiff) and that they did not attend as witnesses in any other cause ; (if otherwise state the facts.) 2nd. That the said witnesses necessarily travelled in going to the said Court, the number of miles re- spectively mentioned in figures in the second col- umn of the said schedule opposite to the names of each of the said witnesses respectively. 3rd. That the several and respective sums of money mentioned in figures in the third column of the said schedule opposite to the names of the said witnesses respectively, have been paid by me (or by the Plaintiff or Defendant) to the said witnesses respectively as in the said schedule set forth for DIVISION COURTS. 2S57 their allendance and travel as witnesses in this cause. A. B. Sworn before me at this day of 18 . X. Y., Clerk, Schedule referred to in the foregoing Affidavit. Names of Witnesses Affidavit for revival of Judgment. In the Division Court, in the County of Between A B , Plaintiffs i. c- AND D -, Defendant. I, A. B., of the of 5 in the County of , yeoman {if the affidavit he made by the Plain- tiffs attorney or agent with the necessary altera- tion)^ make oath and say as follows : 1st. On the day of , A.D. 18 ,ll recovered a judgment of this Court against the 228 CABINET LAWYER. above named Defendant for $ , debt, and $ , costs of suit. 2nd. No part of said nnoneys so recovered has been paid or satisfied, and the said judgment re- mains in full force {or "the sum of , part only of the said moneys has been paid, and the judg- ment remains in full force as to the residue of the said moneys so recovered thereby." 3rd. I (or'* the said Plaintiff") am entitled to have execution of the said judgment, and to issue cxpcutir n thereupon (for the sum of $ ) as I verily believe. Sworn, &c. CHAPTER XI. INSOLVENCY. But little can be said on the subject of insolvency In a work of this kind. To treat of it efficiently would swell the limits of the present volume far beyond due bounds. Uur remarks, therefore, under this head will necessarily be brief and very general. And first, we observe that the present " Act re- specting Insolvency," (Dom. Slat. 32 & 33 Vic, cap. 1 6,) is restricted in its operation and provisions to "Traders" only. The common definition of a " Trader " is " one engaged in the business of buy- INSOLVENCY. 229 irtg and selling." Until aulhorativc decisions have been pronounced by our Courts on the question, •Who are and who arc not traders? it would be gorriewhat presumptuous in a popular treatise?, such as this is, to attempt, with any pretentions to ac- curacy, to specify the features which distinguish the trader from th? non-trader. According to the Imperial Statutes relating to bankruptcy, the following are some of the parties who are traders : — Auctioneers, bankers, brokers, brickmakers, builders, carpenters, cattle dealers, coach proprietors, cow keepers, dyers, keepers of inns, taverns or hotels, lime burners, livery stable keepers, market gardners, millers, printers, ship owners, warehousemen and warfingers. It is pre- sumed that any person who engages in buying and selling generally^ so as to supply any one who will come to buy, will be held a trader. Under the act, then, any trader debtor who is .un- able to meet his engagements, and is desirous of making an assignment of his estate and effects for the benefit of his creditors, may make such assign- ment to any official assignee resident within the county or place where the inso'ivent has his domi- cile vr place of abode ; or if there be no official assignee there, then to some such assignee in the county or place nearest thereto. The official assignee to whom such assignment is made, is called the " interim assignee." Official assignees are nominated and appointed by the various boards of trade throughout the Province ; and in places where no such boards exist ; or whtro, although '£i 230 CABINET LAWYER. existing, they fail to appoint, the County Judge may nominate them. As soon as the assignment to the interim assignee has been made, a meeting of creditors must be called, to be holden at the insolvents place of busi- ness. This is done by advertisement for two weeks in the " Official Gazette " of the province ; and in every issue, during two weeks, of some one news- paper published at or nearest to the insolvent's chief place of business. Notices of such meeting must also be mailed to each creditor, postage paid, at least ten days before, accompanied by a list of the creditors so far as known. Previous to the meeting Ihe assignee must pre- pare for CAhibition thereat, statements showing the position of the insolvent's affairs, and conlaining the particulars required by the act : together with a statement of the assets. The insolvent must assist in the preparation of these statements, and must attend the meeting in order that he may answer any questions that may be put to him touching his affairs. At the meeting he must also file a declaration under oath stating whether or no the assignee's statements are correct, and if incorrect, in what particulars. At the meeting the creditors who have proved their claims may appoint an assignee, who will there upon take the place of the interim assignee, and to whom the estate and effects of the insolvent will thenceforth stand assigned. If no assignee is ap- pointed, or being appointed, refuses to act, the inte- rim assignee will continue. If an interim assignee INSOLVENCY. 231 fails or neglects to execute an assignment within twenty-four hours after nomination of any assignee, he may be imprisoned for a period not exceeding one month. An assignment vests in the interim assignee, in the first instance, and afterwards in the creditor's assignee, if one be appointed, the books, vouchers, accounts, letters and papers, relating to the Insol- vent's business, and all moneys and negotiable papers, stocks, bonds and other securities, as well as the real estate of the insolvent, and all his interr est therein, and all his personal estate, debts, assets and efTects, which he has or may become entitled to at any time before his discharge : excepting only such as are exempt from seizure under execution. Pledgees of, and parties having liens on, any of the insolvent's chattels, are entitled to a preferential claim thereon. Where an insolvent possesses real slate, the assignment to the assignee should be registered in the usual way. The foregoing observations apply to voluntary assignments. In the following cases a trader is declared to be insolvent and compulsory llcjuiddiion may be enforced : 1. If a trador debtor absconds, or is immediately about to abscond, with intent to defraud, defeat or delay any creditor, or to avoid being arrested, or served with legal process, or being absent, remains so with such intent, or conceals himself with such intent. ^. If he secretes or is immediately about to 232 CABIl^ET LAWY£R. secrete his estate and effects with such intent* 3. If he assigns, removes or disposes of any of his property ; or is about to do so : with such intent. 4. If wiih such intent he procures his effects to be taken in execution for a sum exceeding $200. 6. If he has been imprisoned or on the gaol lim- its for more than 30 days in a civil action for more than jf200 ; or if he has escaped. 6. If he wilfully refuses or neglects to appear on any rule or order to be examined as to his debts. 7. If he wilfully refuses or neglects to obey or comply with any rule or order for payment of debt. 8. If he wilfully neglects or refuses to obey or comply with an order of the Court of Chancery for payment of money. 9. If he has made any general assignment for benefit of creditors otherwise than under the act ; or being unable to meet his liabilities in full, makes any sale or conveyance of his assets without the consent of his creditors, or without satisfying their claims. 10. Or if he permits any execution to remain un- satisfied till within four days of time fixed for sale, or fifteen days after seizure. In case any creditor, by affidavit of himself or other person, shows, to the satisfaction of the Judge, that he is a creditor for not less than J200, and also shows, by affidavits of two credible persons, such facts and circumstances as satisfy such Judge that the debtor is insolvent as above mentioned, the Judge may make an order for an attachment to issue, under which the debtor's effects will be I or iNSOLTKNCY. 23^ seized and handed over lo an ofTicial assignee, who is called the "guardian." Applicaiion may be made by the debtor to set aside the attachment, if he can show that the creditor has not a sunicient claim, or that he (the debtor) is not insolvent within the meaning of the act. If ihe atlaciinient is not set aside, the Jud^e will order a meeting of creditors to be called, and they will appoint an assignee, who will thereupon take jxTssession of the insolvent's effects as in the case of voluntary assign- ments. If a debtor ceases to meet his liabilities gone- rally, as they become due, one or more creditors for sums exceeding in the aggregate $500, may re- quire him to make an assignment ; and if he fails to do so, they may proceed to compulsory liijuida- tion. Immediately upon his appointment the assignee gives notice thereof by advertisement and notice mailed to the creditors calling upon them to file their claims with him within one month. The as-, signee will then proceed to realise the insolvent's estate, and divide the proceeds amongst the credi- tors. Clerks and servants of the insolvent are enti- tled to be paid their wages in full, not exceeding four months arrears ; but such amount may be increased by the creditors if they please. An insolvent may procure his discharge at any time by consent of a majority of his creditors for sumsofJlOO and upwards, and who represent at least three-fourths in value of the liabilities. This is effected by deed of composition and discharge, ^34 CABINET LAWYER. which, upon being confirmrd by an ordor of ihe Judge, will operate as a final discharge. If the in- solvent cannot or does not procure such consent, he may at the expiration of one year from the date of the assignment or attachment, apply to the Judge for his discharge. The foregoing is a very general outline of the Insolvent act of 1869, which occupies fifty-five pages of the Statutes, and contains one hundred and nOy-five sections. It is obvious, therefore, that any attempt at greater particularity and detail would be incompatible with the design of this work. The principal object of this chapter was simply to furnish creditors with the means of prov- ing their own claims without the intervention of a solicitor. As for the insolvent, he must necessarily put himself in communication with an official assig- nee, who will instruct him as to the mode of pro- cedure ; although he will find it, in most cases better at once to secure the services oi a profes- sional man. We subjoin the form in which a creditor's claim should be presented to the assignee for proof. Insolvent Act of 1869. In the matter of A B an Insolvent ^ AND C/aimant. I, C. D., of, &c , {staling name ia full and place of residence and occupation) , being duly sworn in depose and say ; IN80LVKNCY. 235 1. I nm the claimant, (or the duly niithorized agent of the chiimant in this beliaif, and liave a personal knowledge of the matter hereinafter de- posed to, or a member of the firm of , claimants in the matter, and the said firm is composed of myself and E. F., of .) 2. The insolvent is indebted to me (or to the claimant) in the sum of $ for (^here state the nature and particulars of the claimT/or whuh pur- pose reference may also be male to accounts or documents annexed. 3. I (or the claimant) hold no security for the claim, [or I, ( or the claimant) hold the following* and no other , security for the claim, namely : {s*atf. here the pa li'ulars of the .security) y To the best of my knowledge and belief, the security is of the value of dollars.] 18 Sworn before me at , this day of , And I have signed CD, f i ! ' CHAPTER XII. LANDLORD AND TENANT. The relation of landlord and tenant is that which subsists between the owner of houses or lands, and the pfr; on to whom he grants the use of them. It may be created by contract in writing, as lease, or agreement for a lease ; or Ity verbal agreement as is usually the case in a letting from year to year. The owner, who is called the landlord or lessor, grants th° possession and use of the property to the tenani or )t ssee for a specified time at a stipulated sum dt nominated rent. A lease may be made lor 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, de- terminable 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. II , c. 3, s. 4), before referred to; and all leases exceeding three years in duration must now be by deed ; and if for more than seven years they must also be registered. A lease in writing, not under seal, for a term not exceeding three years in duration will amount only to an agreement for a lease for the term specified. LANDLORD AND TENANT. 237 A letting and hiring of land for a year or any les-^ period may arise, by implication of law, from the relative situations of the parties and the silent language of their actions and conduct, as well as by express words and stipulations. Whenever the house or land of one man has been occupied and used by another, 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 reason- able hire and reward for the use of the landj unless the tenant can show that he entered into possession of the property under circumstances fairly leading lo an opposite conclusion. A landlord, on the other hand, who has permitted a tenant to occupy properly, and has received rent from the latter for such use and occupation, 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 Hay to come, as well as from the day of the making oii the lease. If a tenant holds over after the expiration of his lease ; and the landlord receives from him rent which has accrued due subsequently to the expira- tion of the lease, he becomes a tenant from year to year upon the terras 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 re- butted by showing that the money was paid or re- ceived by mistake. i, i; if' 238 CABINET LAWYER. If an annual rent is reserved, ihe holding is from year to year, although the lease or agreement pro- vides that the tenant shall quit at a quarter's notice. Such a contract difiers only from the usual letting from year to year in the agreement by the parties to reduce tfie 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 consti- tutes a half-yearly tenancy, and the lessee will be presumed to hold 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 month's notice to quit at the expiration of such notice, the tenancy will be a quarterly ten- ancy. The landlord's remedy for the non-payment of rent is either by action or distress. Where the rent reserved 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 distrainor be the immediate landlord or owner of the estate. If after the mak- ing of the lease the landlord has sold and trans- ferred his estate or interest to some third party, he has no right or power to distrain. A landlord can- not distrain twice for the same rent, unless the distress has been withdrawn at the instance or LANDLORD AND TENANT. 239 is from nt pro- notice, letting parties quit to d that at six eonsti- vill be nonths f he is ; other ion of y ten- ent of le rent id lord i rent to be d can e and law. lower 'diate mak- rans- y, he can- the e or request of the tenant, or unless there has been some mistake as to the value of the things taken. When an annual rent is reserved, it may bo made payable monthly or quarterly, or at any period of lime that the parties may think fit to appoint, whatever 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 be 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. A distress by the landlord after tender of the rent to him or to his bailiff, authorized to distrain, with- out 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 ol 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 prem- ises, 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 term for rent that accrued due before the determination thereof; but now, by the statute 8 Ann, c. 14, ss. 6, 7, landlords are ! i IliN il!* 240 CABINET LAWYER. authorized to distrain, provided the distress be made within six months after the deterniination of the lease, and during the continuance of the land- lord's title or interest, and during the possession of the tenant from whom the arrears became due. The tonant has the whole day on which the rent becomes due to ]?ay such rent ; an(' a distress, there- fore, cannot be made until the day after the day ap- pointed for the payment of the rent. Unless the rent is made payable at some particular specified place, the tenant is bound to seek out the lar liord and pay or tender him the money. A landlord or his bailiff, cannol lawfully break open gates or break down iiiclosures, or force open the outer door of any dwelling-house or building, in order to make a distress ; but he may draw a staple or undo fasten- ings which are ordinarily opened from the outside of the house. A distress cannot be made in the night, or after suns,t, or before sunrise, nor upon latid which does not form part or parcel of the 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 coniing to distrain, or unless they have been fraudulently removed thereto by the tenant to avoid distress. If the tenant fraudulently or clandestinely removes goods and chattels from the demised premises, to prevent the landlord from distraining them for rent in arrear, the landlord may, within thirty days after such re- moval, take and seize them wherever they may be found, unless they have in the meantime been sold LANDLORD AND T£NANT. 241 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 must call a con- stable 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, fo- the purpose of putting them out of the reach of a distress, the removal is fraudu- lent. It is not necessary that the rent should be in nrrear and a right to distrain exist, at the time of the removal. Therefore, if the goods ftre 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 sufl&cient goods on the demised premises, independently of the goods removed, to satisfy the rent, the removal is not fraudulent, and the landlord cannot follow them. Goods in the custody of a SheriflPs 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 landlord 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 procf'ss of any Division Court, the land- lord shall be entitled by writing under his hand, or under the hand of his agent, staling 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 te him not exceeding 16 M 242 CABINET LAWYER. the rent of four weeks, where the tenement has been let by the week, and not exceeding the rent accru- ing due in two terms of payment where the tene- ment has been let for any other term less than a year, and not exceeding in any cafe the rent accruing due in one year. Property of third parties on the demised prem- ises in the possession and use of the owners, and Hot in the possession or under the charge of the tenant, cannot be distrained for rent ; nor can the goods and chattels of third parties placed upon the demised premises in the possession and under the care of the tenant in the ordinary course of trade ; nor the goods and chattels of travellers in hotels. Fixtures, implements 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 corporal possession of the things intended to be distrained. It is sufficient if the landlord in per- son, or by deputy, enters upon the demised premises and announces the distress to the tenant or his ser- vants, or to 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 Warrant, As soon as the distress is made, whether by the landlord or his bailiff, an inventory of the goods LANDLORD AND TENANT. 24S distrained should be made and served upon the tenant, together with the notice of the distress. The notice of the distress should set forth the amount of rent distrained for, and the 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 can be got for them, and apply the purchase-money in discharge of the rent and the costs of the distress and sale, paying the overplus, if any, to the tenant. The costs of distresses under eighty dollars are regulated by Con. Stat. U. C, c. 123, and are as follows : I Levying Distress $1 09 Man keeping possession, per diem 7S Appraisement, whether by one appraiser or more, two cents in the dollar on the value of the goods If any printed advertinement, not to exceed in all 1 0# 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 makes any distress is bound to give a copy of his charges, aad of all the costs and charges of the distress, signed by him, to the person on whose goods and chattels any distress shall have been levied, although 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 par- ticular amount or fixed scale of charge ; but they must be %ir and reasonable. 244 CABINET LAWYER. When, in consequence of the rent not hvAng fixed and ascertained^ the landlord haR no right to dis- train, his only remedy is by action at law, in which he can recover from the tenant a proper compensa- tion for the use and occupation of the premises.. With regard to repairs, it may be remarked gene- . rally, that in the absence of an express covenant or agreement to repair, there results from the demise and acceptance of the lease by the tenant an implied covenant or promise to use the property demised in a tenantlike 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 deterioration 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. i, In the case of a tenancy at will, no notice to quit is • necessary, 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 LANDLORD AND TENANT. 245 g fixed to dis- which pensa- es.. I gene- lant or Jerriise mplied ised in enable of .the te and Dt only ar and lose for 1 event neces- ized of a lease r only, B term, quit is land of of the action It will, lability for use I lord of >n, and of his election to rescind the contract and put an end to the tenancy. 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 ten- ancy it must be a six month's notice, to expire at that period of the year corresponding with the period at which the tenancy commenced. It is better that a notice to quit should be served upon the landlord or tenant (as the case may be) personally ; but it is sufficient if served upon the wife or servant at the dwelling-house of the party lo be served. A landlord may recover possession of his property by ejectment or procedings under the "Act respec- ing Overholding Tenants :" in either case it will be necessary for him to employ an attorney. The following forms may be found useful : — Lease of House, This Indenture made the day of ,18 Between A. B., of, &c., of the first part, and C. D., of, &c., of the second part, Witnesseth, that in con- sideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the said party of the second part, his executors, administrators and assigns, to be paid, observed and II r"' ue CABINET LAWYElt. performed, He, the said party of the fir^t pp rt, hath demised and leased, and by these presents doth demise and lease, unto the said party of the second part, his executors, administrators and assigns, all that m(?ssuage or tenement situate, lying and being, &c., {here describe the premises),, Together with all houses, out-houses, yards and other appurtenances thereto belonging, or usually known as part or par- cel thereof, or as belonging thereto : To have and to hold the same for and during the term of years, to be computed from the day of , 18 , and from thenceforth next ensuing, and fully to be complete and ended. Yielding and paying therefor yearly and every year during the said term hereby granted unto the 8did party of the first part, his heirs, executors, administrators or assigns, the sum of J , to be payable quarterly on the following days and times, that is to say, {here state the days af payment)^ the first of such payments lO become due and be made on the day of next. • Provided always, and these presents are upon this express condition, that if the said yearly rent, hereby reserved, or any part thereof, shall at any time remain behind or unpaid for the space of tweniy-one days next over or after any of the days on whi h the same shall become due and payable, then, and in every such case, it shall be lawful for the said party of the first part, his heirs, executors, administrators, or assigns, into and upon the said premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, LANDLORD AND TENANT. 247 repossess and enjoy, as if these presents had never been exrciited. And the said party of the second part, for himself, his heirs, executors, administrators and assigns, doth hereby covenant, promise and agree to and with the said party of the first part, his heirs, exe- cutors, administrators and assigns, in manner fol- lowing, that is to say : That he, tlie said party of the second part, his executors, administrators and assigns, shall and will well and truly pay, or cause to be paid, to the said party of the firs* part, his heirs, executors, ad- minisirntors or assigns, the said yearly rent hereby res(^rved at the times and in manner hereinbefore appointed for payment thereof. And also shall and will, from time to time, and at all times during the s^id term, keep in good and sufficient repair the said premises hereby demised, (reasonable wear and tear and accident by fire ex- cepted), and the same so kept in repair shall and will, at the end, expiration or other sootier determi- nation of the said term, peaceably and quietly yield and deliver up to the said party of the first part, his heirs, executors, administrators or assigns. And also shall and will well and truly pay, or cause to be paid, all taxes, rates, levies, duties chari^es, 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. I 24S CABINET LrAWrCR. And also that it shall be lawful for the said party of the first part, his heirs, executors, administrators, and assigns, and their agents respectively, either alone or with workn^ien or others, from tinr^e to time at all reasonable times in the daytime, dur- ing the said term, to enter upon the said demised promises, and every part thereof, to view and ex- amine the state and condition thereof; and in case any want of reparation or amendment be found on any such examination, the said party of the second part, his executors, administrators or assigns, shall and will from time to time cause the same to be well and sufficiently 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 party of the second part, his executors, ad- ministrators or assigns, fail in making the neces- sary repairs in maimer hereinbefore described, that it shall be lawful for the said party ol the first part, his heirs, executors, administrators and assigns, and their agents, to enter into and upon the said hereby demised premises, and have the same re- paired in a proper manner, and to render the account for such repairs to the said paity of the second part, his executors, administrators and as- signs, and demand payment for the same, and if default is made, to sue for the same in^ny Court of Law having jurisdiction over the same. And the said party of the second part, his execu- tors, administrators or assigns, shall not, nor will at any time or times during the continuance of this I i LANDLORD AND TENANT. S49 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 pari of the said term, nor alter, change or remove ariy part of the said premises, yards or offices, externally or internally, ■without the license and consent in writing of the said party of the first part, his heirs, executors, administrators or assigns, from time to time, first had and obtained. And the said party of the first part, for himself, his heirs, executors and admirislrators or assigns, covenants with the said party of the second part, his executors, administrators and assigns, that he, the said party of the second part, his executors, administrators and assigns, well and truly paying the rent 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 molestation or hindrance. 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 A. B. [l.s.] Y. Z. C. D. [L.S.] Lease of Land. This Indenture, made the day of , 18 , etween A. B., of, &c. of the first part, and CD., I 250 CABINET LAWYKA. of, &0., of the second part, Witnesseth, that in con- sideration of the rent, covenants, and agreements hereinafier reserved and contained, and to be paid, observed and performed by the said party of the second part, his executors, administrators and assigns. He, the said party of the first part. Hath demised and leased, and by these presents Doth demise and lease, unto the said party of the second part, his executors, administrators and assigns, All that certain parcel or tract of land and premises situate, lyyjg and being (here describe the lands). To have and to hold the said parcel or tract of land, with the appurtenances, unto the said party of the second part, his executors administrators and assigns, from the day of ,18 , for the term of , from thence next ensuing, and fully to be complete and ended , Yieldiiig and paying therefor, unio the said party of the first part, his executors, administrators and assigns, the yearly rent or sum of $ , of lawful money of Canada, by equal yearly payments, on the day 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. {The iimvs of pay- ment may be quarterly or half-yearly^ if desired.) And the said party of the s» cond part doth hereby for himself, his heirs, executors, administrators and assigns, covenant, promise and agree with and to the said party of the first part, his executors, admin- istrators and assigns, that he, the said party of the second part, his executors, administrators and asig;ns^ shall and will well and truly pay, or cause 2^v' Landlord And tenant. 251 nts aid, the and ath Poth ond to be paid, to the said party of the first part, his executors, administrators or assigns, thp said yearly rent hereby reserved, at the times and in manner hereinbefore mentioned for payment therrof, with- out any deduction or abatement whatsoever there- out for or in respect of any rates taxes, assessment, or otherwise : And also shall and will, on or before the day of , now next, at his own costs and charges, fence in the premises hereby demised in a good and substantial manner, (add here such covenant< as to the mode of cultivation, ^c, as may be agreed on,) And it is hereby agreed, on the part of the said party of the first pari, his heirs, executors, adminis- trators and assigns, 'hat if at any time within the said term of the said party of the second part, his heirs, executors, administrators or assigns, shall desire to purchase the fee simple of the land hereby demised, he shall be allowed to do so by paying the sum of S , of lawful monr-y aforesaid, pro^ vidcd the said rent shall have been regularly paid up to the lime when he may so desire to purchase; and providc'd he gives to the party of the first part, three inonths previous notice of his intention to pur- chase. And it is hereby agreed, on the part of the said party of the second part, his executors, administra- tors and assigns, that if at any timer as- Ihe fol- |, &c., Jf such s. } here- strain n the house he now dwells in, [or on the premises in his possession], situate at , in the county of , for dollars, being one year's rent due to me for the same on first of May last, and to proceed thereon for the recovery of the said rent, as the law directs. - - Dated ihe day of 18 . J. S. (Landlord.) Inventory and Notice. An "inventory of the several goods and chattels distrained by me J. S., [or if as Bailiff, say A. B., as Bailiff to Mr. J. S.], this day of , in the year of our Lord, 18 , in the dwelling- house, out-houses and lands [as the case may be] of C. D., situate at , in the county of , [and if as Bailiff, say, by the authority and on the behalf of the said J. S.,] for the sum of dollars, being one year's rent due to me [or to the said J. S.,] for the said houses and premises on first of May last, and as yet in arrear and unpaid. In the Dwelling-house. 1. In the Kitchen. Two pine tables, six old chairs, fiv* copper sauce- pans, &c., &c. 2. In the Parlor. One large pier looking-glass, two sconces in gilt frames, two mahogany card tables, one pembroke table, &c., &c. 262 CABINET LAWYER. 3. In the Dining Room. Six hair-bottom chairs, mahogany frames, &c., one set of dining tables, &c., &c. 4. In the Out-hou»e8, 1. Bam, Six sacks of wheat, six hurdles, &c., &c. 2. Stables^ &c. And 80 ofiy describing the thins^a as correctly as may he according to the place from which they are taken. At the bottom of the inventory subscribe one of the following notices to the tenant according as the case may be. Mr. C. D. Take notice that I have this day distrained [or that I, as Bailiff to J. S., your landlord, have this day distrained] on the premises above mentioned, the several goods and chattels specified in the above inventory, for the sum of dollars, being one year's rent due to me [or to the said J. S.,] on first of May last, for the said premises, and that unless you pay the said arrears of rent with the charges of distraining for the same, or replevy the said goods and chattels within five days from the date hereof, the Slid goods and chattels will be appraise I and sold according to law. Given under my hand the day of , 18 . J. S. (Landlord) or A. B. {Bailiff.) '•> LANDLORD AND TENANT. Notice of Distreti of Growing Crops. 263 Mr. C. D. Take notice that I have this day taken and dis- trained, [or that as Bailiff to J. S., your landlord, I have taken and distrained,] on the lands and prem- ises known as lot number one in the township of &c., &c., the several growing crops specified in ihe inventory for the sum of I , being one year's rent due to me [or to the said J. S.,] on the first of May last, for the said lands and premises , and unless you previously pay the said rent with the charges of distraining for the same, I shall proceed to cut, gather, make, cure, carry and lay up the crops when ripe, in the barn or other proper place on the said premises, and in convenient time sell and dispose of the same towards satisfaction of the said rent, and of the charges of such distress, ap- praisement and sale, according to the form of the Statute in such case made and provided. Given under my hand tlie day of 18 . J. S. {Landlord.) or A B. (BaUijr.) A true copy of the above inventory was this day of , delivered to the above mentioned C. D., in the presence of us. G. H. J. K. Tenant'' 8 request for delay. Mr. A. B. I hereby desire you will keep possession of ray goods which you have this day distrained for ent duR or alleged to be due from me to you, ; the < ;■ 264 CABINET LAWYFR. place where they now are, being the house No. 3 Dean Street, Toronto, for the space of seven days from the date hereof, on your undertaking to delay the sale of the said goods and chattels for that time to enable me to discha»*ge the- paid rent, and I will pay the roan for keeping the said possession. Witness my hand this day of 18 . CD. Witness, Iv. 9< Notice fo quit by Landlord. To C. D. (Tenant). I hereby give you notice to quit and deliver up the premises which you now hold of me, situate at (here describe the premises) on the day of , 18 . Dated the day of , 18 ► Yours, &c. A. B., {Landhrd.y Notice to quit by Tenant. To A. B., (Landlord), I hereby give you notice that on the day of next, I shall quit and deliver up to you, the peaceable and quiet possession of the premises now lield by me, with the appurtenances, situate at , in the township of , ir the county of , in this, province. Dated this day of > 18 , Yours, &c., C. D., ^Tenant,) "$■■'■ il o. 3 Jays elay ime will 8 . r up tc at day , the now this CHAPTER XIII. LINE-FENCES AND WATER-COURSES. The statutes which repnilate theso matters are cap. 67 of the Con. Stat. U. C, and the Ontario Stat. 32 Vic, c. 46. By the first of these statutes, each of the parties occupying adjoining tracts of land must make, keep up, and repair, a just proportion of the division or iine-fence on the line dividing such tracts, and equally on either side thereof. Any fence coming within the meaning of a law- ful 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 judg- ment, and decide what they consider to be a lawful fence. The owner of the whole or part of a division or line fence, which forms part of the fence inclosing the occupied or improved land of another person, may not take down or remove any part of such fence : 1. Without giving at least twelve months' pre- vious notice of his intention to the owner or occu- pier of such adjacent inclosure ; U I) ft l; till, " Si' 266 CABINET LAWYER. 2. Nor unless such last-menti tned owner or occupier, alter demand made upon him in writing by the owner of such fence, refuses to pay therefor a sum 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. 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 JIne-fence standing upon the divisional line between such land and the mclosure of any other occupant or proprietor, a just proportion of the value thereof. 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 ai»ree. 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 suffi- cient barrier, and it is impracticable to fence upon the true boundary-line, the fence must 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. When it is the joint interest of parties resident to open a ditch 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 LINE-FENCES AND WATER-COURSES. 267 several parlies must open a just and fair proportion of such ditch or water-course, according to their several interesits. Three fence-viewers of the municipality, or a majority of them, may decide all disputes between the owners or occupants of adjoining lands, 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, ma4iing or paying for ditches and water- courses, under this act. Every determination or award of fence-viewers must be in writing, signed by such of them as con- cur therein ; and they must transmit the same (or a certified copy thereof) to the clerk of the munici- pality, and deliver a copy tc every party requiring the same ; and such determination or award will be binding on the parties thereto. When the dispute lo as to the commencement or extent of the part of the fence to be made or repaired by ei her party ; or as to the opening ot 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-viewerj of the dispute, and name in the notice for the investi- gation thereof the time and place of meeiiny:, and notify the other party to appear at the same time and place. On receiving such notice, the fence-viewers will attend at the time and place named, and, alier being satisfied that the other party has been also duly notified, they will examine the premises and ! ri '4ti -Rii ',a-j:i 268 CABINIST LAWYER. ,.^-:!.qi- htnr llio parties nnd llieir witnesses, if dcmarK'ocK and, according to the subject-matter of the refer- ence, will decide the commencement or extent of the part of the fence which either party claims to have made or repaired, or refuses to make or repair, or divide or apportion the ditch or water-course among the several parlies, having due regard to the interests of each in the opening thereof, and fully determine the matters in dispute. On any reference regarding the opening or mak- ing of a ditch or water-course, the fence -viewers will decide what length of time each of the parties should have to open the share of the ditch or water- course which the fence-viewers decide each sueh parly should open ; and if it appears lo the fence- viewers that the owner or occupier of any trnct of land is not sufficiently interested in the opening of the ditch or water-course to make him liable to per- form any part thereof, and at the same time thut it is necessary for the «)lher party that such ditch should be continued accrr -s ?)uch tract, they may award the same to be done at the expense of such other party ; and after such award the last-men- tioned parly ijfiay open the ditch or water-course across the tract, at his own expense, without being a trespasser. When, by reason of any material change of cir- cumstances in respect lo the improvement and ocou- paiion of adjacent lots or parcels of land, an award previously made ceases, in the opinion of either of i\e parties, to be equitable between them, such party may obtain another award of fence-viewers r r- of to Jse Ihe lly LtNE'FENCKS AND WATER-CO'; RflES, 269 by a lik(i mode of proceeding; and if iho fencc- vicwors called upon to make a pnbsoquent award find no reason for making an alteration, the whoh; cost of the reference must be borne by the party at whose instance it has been made. (S. 13.) If any party neglects or refuses, upon demand made in writing as aforesaid, to open, or make and Iveep open, his share or proportion of ihc 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 pro- portion allotted to the party in default, and will be entitled to recover not exceeding forty cents per rod for the same from the party so in default. If after an award of fence-viewers, or after being required by a demand in writing by the parly occu- pying the adjoining tract, or a tract separated there- from by a river, pond, or creek, a party in the occu- pation of any tract of land neglects or refuse.* ibr ii period of thirty days to make or repair (as the v ase may be) his proportion of the division or linr lence between his tract and such adjoining or sep.;',aied tract ; or if the party making t' e demand riCjrleits or refuses for the like period, to make or repair his own proportion of the fence, either parly, after first completing his own proportion, may make or repair in a substantial manner and ol good sound mate- rials, 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. To ascertain the amount j oyable by any person ■I' I ? i ! ! mjp 870 CABINET LAWrER. who, under the authorl y of the act, makes or repairs a fence, or makes, opens or keeps open any ditch or water-course, which another person ^plicable to unoccu- pied or non-resident lands, and the owners thereof: so far as the same relate to water-courses. The several enactments of the amended act are the following : 1. The provisions of the Con. Stat., so far as the same relate to water-courses, are to be construed to apply to unoccupied, and non-resident lands, and to the owners thereof: to the same extent as to occupied lands, and the occupants thereof; and the fence-viewers are in like manner as in other cases, to determine the share of the expense of any water-course made under the Con. Stat, as amended, (which expenses is to be borne by the owner of such unoccupied or non-resident lands) and report the same to the justice who is to transmit such report to the clerk of the municipality. The share of the 18 Ifi \ I I i< u 2t4 CAfilNfiT LAWYfirt. •1 expense of any water-course, chargoab!e against such unoccupied and non-resident lands, must not exceed the sum of twenty-five cents per rod. 2. The clerk is to bring such report before the council of the rnunicipaliiy, at its first meeting after the receipt thereof; and the council are to cause the amount so reported to be paid to the party entitled thereto, together with a proportionate share of the costs attending the investigation and report. 3. Forthwith after such payment the clerk ii to transmit to the County Treasurer an account of the amount and dale of such payment, and the land against which the same is chargeable, and the County Treasurer, upon receipt thereof, is to charge the same against such land in the same manner as the wild land tax ; and the same will thereupon become to all intents and purposes a charge upon the said land, and be subject to the provisions of the Statutes respecting such tax, and may be col- lected by distress, or by the sale of such land, in the same manner as such tax may be collected. 4. In collecting the amount of such charge, there shall be added to the same eight per centum thereof, and all fees and incidental expenses in the same way, and to the same amount, as in the case of such tax. 6. Where the owner of such unoccupied or non- resident lands cannot be found, after reasonable dilligence, or is absent from the province, the Justice may cause such owner to- be notified by letter, mailed to his last known place of residence, and 1 linst not the Wing pe la the ^nate and LINE-FENCES AND WATER-COURSES. 276 may proceed and cause all subsequent proceedings to be taken in his absence, and all such proceed- ings are to be as valid as if the notification required by the said act to be given to an occupant had been given to such owner. 6, When any ditch or water-course is extended to the limit or boundary of a township, and in order to be effective should be continued into or through another or adjoining municipality, such adjoining municipality must extend and continue such ditch or water-course through the whole or such part of its territorial limits, as may be neces- sary for making such ditch or water-course effec- tive. If the lands in both municipalities are bene- fited in an equal degree, in proportion to the extent of such work in each ; then the duty of deciding in what proportion the expense shall be borne, by and amongst the owners of occupied and unoccupied lands in each municipality, devolves upon, and appertams to, the fence-viewers in each such muni- cipality : and the proceedings provided by the first act, as amended by the second act, are to be taken and apply ; but if such ditch or water-course does not benefit the land in both municipalities in an equal degree in proportion to the expense of the work in each, then the duty of deciding in what proportion the expense shall be borne by and amongst the owners of occupied and unoccupied lands, in both the municipalities, devolves upon and appertains to, six fence-viewers (three from each of such municipalities) to be nominated, and ■i '^ vis* IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I I^|2j8 |25 ■U lU 12.2 E lit ^" £ iffl 1^0 IL25 III 1.4 U4 -► % /i 7. ^, ^* Hiotographic Sciences Corporation 33 WEST MAIN STREET WiBSTBt.N.Y. 145S0 (716) 872-4503 «76 CABINET LAWTEB. notified of such nomination, by some Justice of the Peace having jurisdiction in such municipalities or one of them ; and the decision of such fence-view- ers or the majority of them will be binding, and must be in duplicate, and one of such duplicates is to be transmitted by the Justice to the clerk of each such municipalities. 7. Any party affected by any decision of the fence-viewers may appeal to the Judge of the County Court within which the said land is situate, against such decision, within thirty days after the same shall be filed with the clerk of the munici- pality in this act mentioned. \ CHAPTER XIV. MASTER AND SERVANT. The relation of Master and Servant is so exten- •slve, entering into all the walks of life, that this work would be incomplete without a chapter de- moted 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 implied mutual engagement, binding one party to employ and remunerate, and the other to serve, for MASTER AND SERVANT. 277 some determinate term or period. If the employer merely agrees to pay so long as the servant con- tinues to 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 deter- minate term, and the employer, expressly or im- pliedly, 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 authenticated by writing unless the hiring exceeds a year in duration. The Master and Servant Act (Con. Stat. U. C, c. 75, s. 3) provides that a ^Werbal agreement shall not exceed the tevm of one year." In the absence of an express ccRtract between the parties, a hiring may be presumed from the mere fact of the service, unless the service has been with near 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 anything being said as to wages, the law presumes that the parties agreed for custormary and reasonable wages. But if the service has been with a 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 \a.w regards services rendered by near relations to one another as gratui* 278 CABINET LAWYER. tous acts of kindness and charity, and does not presume that they are to be paid for unless there is an express agreement to that effect. 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 lo 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, determin- able by custom and usage, at the option of either of the parties, on giving a month's warning or tender- ing a month's wages. When wages are to be paid weekly, and there is nothing in the original con- tract importing a different agreement, the hiring is a weekly hiring, and may be terminated ty a week's warning or a week's wages. It is the first duty of the master, after the con- tract 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 forth- with to an action for a breach of contract. Every servant, on the other hand, impliedly untertakes to obey the just and reasonable commands of the master, and to be careful, diligent and industrious in the performance of the work intrusted to him to execute. He is not bound to fulfil the unjust and unreasonable commands of a hard taskmaster, nor MASTER AND SERYAMT. 279 to perform work and services not fairly coming within the scope of his employment. If a person wilfully disobeys or habitually ne- glects the just and reasonable orders of the master, if he absents 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 dis- solved by the master, and the servant dismissed. If 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 incapaci- tated 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 con- tracts to pay a salary for services for a certain term, a contract 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 apprenticeship. Contracts of apprenticeship, being usually for more than one year, require to be in writing. An indenture of apprenticeship is suffi- ciently executed by the apprentice desiring a by- 280 CABINET LAWTKK. Btander 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 inrariably created by deed, the liabilities resulting therefrom will depend upon the terms and covenants of the particular 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 kis secrets, obey his lawful commands, und pre- serve 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> lice 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 wear- ing-apparel, washing and all other necessaries, during the term. The sicknese of the apprentice, or his incapacity to serve and to learn by reason of ill health, or an accident, does not discharge the master from his covenant to provide for him and to maintain him, inasmuch as 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 Ontario are not binding for a longer period than nine years from the day of the date of the contract. There are two arts of Parliament bearing particu- larly upon the subject of this chapterjp-the "Mas- MASTER AND SERVANT. 281 ter and Servant Act," Con. Stat. U. C, cap. 75, as amended by 29 Vic, cap. SS ; and the ^^ Act respecting Apprentices and Minors," Con. Slat. U. C, cap. 76. The former of these acts provides that if after any engagement has been entered into, and during the period of such engagement, the servant refuses to go to work, or without perraJosion or discharge leaves the employ of the master, or refuses to obey his lawful commands, or neglects the service or injures the property of the master, the offender, on complaint of the master, shall be liable to the pun- ishment provided by the act ; and that if any tavern or boarding-house keeper, or other person, induces or persuades any servar^ts or laborors to confederate lor demanding extravagant or high wages, and prevents their hiring, then, on due proof of offence, such tavern-keeper shall forfeit his license, in addi- tion to any fine, and be subject to fine or imprison- ment. The penalty for contravention of the foregoing provisions is a fine not exceeding twenty dollars, or imprisonment not exceeding one month nor less 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. By the amended act (29 Vic. c. 33) it is provided that if after the termination of an engagement be- 282 CABINET LAWYER. tween master and servant, any dispute should arise between them in respect of the term of such engage- ment, or of any matter appertaining to it, the Jus- tice or Justices of the Peace who shall receive the complaint shall be bound to decide the matter in accordance with the provisions of the act respect- ing master and servant, and as though the agree- ment between the parties still subsisted — proceed- ings however must be taken within one month after Ihe engagement has ceased. When any dispute comes before a Magistrate he must, if he takes the complainant's evidence, also lake the defendant's evidence if it is tendered. Any person who thinks himself aggrieved by any such conviction, or order for payment of wages, may appeal to the General Sessions against such conviction 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, who has no parent or legal guardian, or who does not reside with such parent or guardian, tenters into an engagement written or verbal, to perform any service or work, such minor shall be liable upon the same, and ohall have the benefit thereof in the same manner as if of legal age. A parent or otiier 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 MASTER AND SERVANT. 283 trade or calling, 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 app'obation 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 n^nst sign the inden- ture. No child fourteen years old or upwards is to be so apprenticed without his or her consent. The Mayor, or Police Magistrate of any city or town, and in a county, the chairman of and at the ^ General Sessions may apprentice orphan childr and children who have been deserted by their parents, or whose parents have been committed to gaoi. If the master of an apprentice dies, the appren- tice by opeiation of law, and without any new writings, ])ecomes transferred to the person (if any) who continues the masttcr^s business. A master may transfer his apprentice to any per- son who is competent to receive or take an appren- tice, and who carries on the same kind of business. Every master must provide to his spprentice suit- able board, lodging and clothing, or such equiva- lent therefor as is mentioned in the indenture, and mu^t also properly teach and instruct him, or cause him 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- 184 CABIlfBT LAWTBR. 1 : PI I self from his service, day or night, wittiout 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 noces- sary provisions, is liable to a f^ne 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 law- ful commands, or of waste or damage to property, or of any other improper conduct, may be impris- oned 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 satii^faction within three years after the expiration of the term for which the apprentice contracted to serve. Persons harboring or employing an absconding apprentice, are liable to pay the master the full value of the apprentice's labor. The apprenticeship indentures may be cancelled if the apprentice becomes insane, or be convicted of felony, or be sentenced to the Provincial Peniten- tiary, 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 inden- tures, which notice must be served on the parties, IIABTCR AND dCRVANT. S85 or published in the Gazette, or in a local county or city newspaper. Masters or apprentices may appeal to the General Sessions against any Magisi rate's decision. Apprenticeship Indenture, This Indenture, made the day of > 18 9 Between W. J., of, &c., of the first part, H. J , his son, now the age of fifteen yearij, of the second part, and T. M., of, &c., printer of the third part, Witnesseth, That the said W. J., with the consent of his »aid son 11. J., (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 H. J., to the said T. M., to learn the art and trade of a printer, and with him, the said T. M., his exe- cutors, administrators and assigns, after the man- ner of an apprentice to dwell and serve from the day of the date hereof until the day of ^ 18 , being a period of years, when the said minor will arrive at the age of twenty-one years. And the said W. J. doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said T. M., his executors, administrators and assigns, that during the said term of years, the said H. J. shall well and faithfnlly serve the said T. M., his secrets keep, and lawful commands at all times obey, and shall give and devote to him his whole time and labor ; that he shall not marry during the said term, nor use ardent spirits, nor practice gaming or any 286 CABINET LAWYEft. ^ 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 T. M., for himself, his heirs, execu- tors and administrators, doth hereby covenant, prom- ise and agree to and with the said W. J., his executors and administrators, that he, the said T. M., his executors and administrators, shall and will teach and instruct, or cause to be taught and instrucied, the said H. J. in the art, trade and mys- tery of a Printer, and shall and will find and pro- vide for the said apprentice sufficient meat, drink apparel, washing and lodging during the said term ; and at the expiration thereof shall and will give his said apprentice two suits of apparel {any other special terms may he here inserted) ; and the said T. M. further agrees to pay to the said W. J. father of the said H. J., 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, until the completion of his term, one hundred dollars j which said payments are to be made on the first day of May in each year. And for the true performance of all and singular the covenants and agreements hereinbefore con- tained, the said parties bind themselves each unto the other, jointly by these presents. In witness whereof, the said parties to these pre- IIAStBR ANb SERVANT. iSl ftcnts have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of W. J. [l.s.' R. J. H. J. [l.s. T. M. [l.s] Indenture of Apprenticeship for a Girl to ham House- workf 18 , made between, &c., (stating tht nam^s of the parties to the assignment) registered in the said Registry office, on tlie day of ^ A. D. 18 , at minutes past o^clock noon, in liber for , as No. '*; and so on^ in the same manner, with reference to all assign- mentSy where there are several. If the mortgage has not been assigned, state the fact thus : " and that the said mortgage has not been assigned."] And that I am the person entitled by law to receive the money, and that such mortgage, (or such suni of money as aforesaid ; or such part of the lands as is herein particularly described, that is to say^. (here set out the lands intended to be discharged, if a part only of the lands is to be released,) is there- fore discharged. Witness my hand this day of , a.o. 18 . Signed in the presence of A. B. Y. Z. (One witness is sufficient,) of, &c., (here state jresidcnce and occupation,) \ t90 CABIirXT LAWTCR. I (An affidavit of execution of the diacharg^,^ mttat be made by the witness ; it will be in a form similar to that if the execution of the mortgage,} m Assignment of Mortgage, This indenture made the day of , 18 , Between E. F., of, &c., (hereinafter "called the assignor,) of the first part ; and G. H.,of, &c., (here- inafter called the assigkiee), of '^e second part, Whereas, by indenture of mortgage, bearing date the day of > 18 , make between one A. B., of, &c.) of the first part; C. D., (wife of the said A. B., and for the purpose of barring her dower), of the second part ; and the said E. F., of the third part; the said A. B. did convey and assure the lands and premises hereinafter described, ijnto the said E. F., his heirs, executors, adminis- trators and assigns, subject to a protriso for redemp- tion on payment of $ , and interest thereon, at the rate of per cent, per annum, on the days and times, and in the manner>in the snid indenture of mortgage mentioned. And whereas, there is now due upon the said mortgage ^ for principal money, the sum of ^ ;. and for interest, the sum of $ b Now this indenture witnesseth, that in consideration of the sum of ^ , of lawful money of Canada, now paid by the said assignee to the said assignor, the receipt whereof is hereby acknowledged. He, the said assignor, doth hereby grant, assign, and transfer unto the said assignee, his heirs, executors, administrators and assigns, the said indenture of mortgage, and the principal BfOSTOAOEfl. 207 and interest moneys thereby secared, and the lands and premises thereby conveyed: to wit, All and singular {here describe the premiaee). To have, hold, receive and take, the said indenture of mort gage, and the principal and interest moneys thereby secured, and the lands and premises thereby con- veyed unto the said assignee, his heirs, executors, administrators and assigns, to and for his and their sole and otily use : subject nevertheless to the pro- viso for redemption in the said mortgage contained. And for the better enabling the said assignee, his executors, administrators and assigns, to recover and receive the said principal moneys and interest, from the said A. B., his executors or administra- tors, he the said assignor doth hereby nominate and appoint the said assignee, his executors, adminis- trators and assigns, to be the true and lawful attor- ney and attorneys of him the said assignor, his executors or administrators, for him, the said assig- nor, his executors or administrators, and in hi^, or their, names or name, but at the cost and charges of the assignee, his executors, administrators or assigns, to sue for and recover the said principal moneys and interest, in any Court of Law or Equity ; and on receipt or recovery, to give good and suffi- cient discharges ; and generally to do, and execute, all such acts, deeds, matters and things, as may be requisite and necessary, for the recovery of the said mortgage money and interest. And the said assig- nor dolh hereby, for himself, his heirs, executors and administrators, oovenant, promise and agree, to and with the said assignee, bis executors, ad- 298 CABINET LAWYER. I nninlstrators and assigns, that the said indenture of mortg.ige, is a good, valid and subsisting security, free from all incu ' iccs ; and not discharged or released ; and that the principal moneys and in- terest hereinbefore mentioned, are now justly due and owing upon the security of the said mortgage ; and that the said assignor has good rights to assign and transfer the said mortgage ; and will not at any time hereafter release or discharge the same, with- out the consent of the said sssignee, his executors, administrators or assigns; and that the said assig- nor, his heirs, executors or administrators, will at all times, on the request, but at the costs and char- ges of the assignee, his executors, administrators and assigns, execute such further assignments or assurances of the said indenture, and the moneys thereby secured, and the lands therein comprised, as may be necessary ; and the said assignee doth hereby, for himself, his executors, administrators and assigns, covenant, promise and agree, to and with the assignor,* his heirs, executors and admin- istrators, that he the said assignee, his executors or administrators, in case he or they shall act upon the power of attorney hereinbefore contained, will save harmless, and indemnify, the said assignor, his heirs, executors and administrators, of and from all costs, charges and expenses, to which he or they may bec;>.Tie liable, or be put unto,Jn conse- quence thereof. In witness whereof, the parties to these presents, have hereunto set their hands and seals, the day and year first above written. MORTOAOE8. 299 Signed, sealed and delivered in the presence of E. F. [l.s.] Y. Z. G. H. [l.s.] Mortgage of Leate, This Indenture, made the day of » ^8 i Between A. B., of, &c., of the first part, and C. D., of, &c., of the second part. Whereas, by an inden- ture of Lease, bearing date on or about the day of , lb , and made between, &c.. The said lessor therein named did demise and lease unto the said lessee therein named, his executors, adminis- trators and assigns, All and singular that certain parcel or tract of land and premises situate, lying and beiug, &c., (set out the lands,) To hold the same,with their appurtenances, unto the said lessee, his executors, administrators and assigns from the day of , 18 , for and during the terra of years from thence ne^ ensuing, and fu)ly to be complete and ended, at the yearly rent of 1^ , and under and subject to the lessee's cove- nants and agreements in the said Indenture of Lease reserved and contained. Now this Indenture witnesseth,that in considera- tion of the sum of J , of lawful money of Canada, now paid by the said party of the second part to the said party of the first part, (the receipt whereof is hereby acknowledged,) He, the said parly of the. first part. Doth hereby grant, bargain, sell, assign, transfer and set over unto the said parly of ihe second part, his executors, administra- tors and assigns, All and singular the said parcel 300 OABINST LAWYER. or tract of land, and all other the premises dom- prised in and demised by the said hereinbefore in part recited Indenture of Lease : Together with the said Indenture of Lease, and all benefit and advan- tage to be had or derived therefrom : To have and to hold the same, with the appurtenances thereunto belonging, unto the said parly of the second part, his executors, administrators 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 party of the first part therein. Subject to the payment of the rent, and the observance and performance of the lessee's covenants and agreements, in the said In- denture of Lease reserved and contained ; and to the proviso for redemption hereinafter contained. Provided always, 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, admin- istrators 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, (here specify terms of payment) with- out making any deduction, defalcation or abate- ment 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 ^11 intejjjts atid purposes whatsoever, as if the same had never been executed. And the said party of the first part doth hereby, MORTOAOBl. SOl for him'^eir, his heirs, executors and administrators covenant, promise and agree to and with the said party of the second part, his executors, administra- tors and assigns, in manner following, that is to «ay: That he, the said party of the first part, his exe- cutors and 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, his executors, administrators or assigns, the said prin- cipal sum and interest in the above proviso men- tioned, at the times and in manner hereinbefore appointed for payment thereof, without any deduc- tion or abatement whatsoever, and according to the true intent and meaning of these presents. And that the said hereinbefore in part recited In- denture 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 party of the first part, up to the day of the date thereof. And that the said party of the first part now hath in himself 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 in case of default in payment of the said principal money or interest, or any part thereof, contrary to the proviso and covenant aforesaid, it it ■' '4\ 80^ CAfilNEl! LAWY£lt. shall be lawful for the said parly of the second part, his executors, administrators and assigns, to enler into and upon and hold and enjoy the said premises for the residue of the term granted by the said Indenture of Lease, and any renewal thereof (if an^), for their own use and benefit, without the let, suit, hindrance, interruption, or denial of the said party of the first part, his executors, adminis- trators and assigns, or any other persons whomso- ever ; and that free and clear, and freely and clearly acquitted, exonerated and discharged, or otherwise, by and at the expeqse of the said party of the first part, his executors and administrators, well and eflectually saved, defended and kept harmless of, from and against all former a.id other gifts, grants, bargains, sales, leases, and other incumbrances whatsoever. And that the said party of the first part, his execu- tors, administrators and assigns, and all other per- sons claiming any interest in the said premises, 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 party of the second part, his executors, administrators or assigns, make, do and execute, or cause and pro- cure to be made, done and executed, all such fur- ther assignments and assuraiices 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 party of the uaancAaKS, 303 secohd part,his executors,aclministratorsor assigns, or his or their counsel in the law, shall be reason- ably advised or required. And that the said party of the first part, his 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 party of the second part shall enter into possession of the said premises as aforesaid, well and truly pay, or cause to be daid, 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 party of the second part therefrom, and from all loss, costs, charges, dam« ages, 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, shall remain due on thi8security,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 Insurance Office, to be approved of by the party of the second part, in the full amount hereby secured, at the least, and, at the expense of the said party of the first part, im- mediately assign the Policy, and all benefit thereof to the said party of the second part, his executors, administrators and assigns, as additional security for the payment of the principal money and interest hereby secured ; and that in default of such 1' •a. 304 CABINET LAWYER. insurance it shall be lawful for the said party of the second part, his executors, administrators or assigns, to effect the same, and the premium or premiums paid therefor shall be a charge or lien on the said premises hereby assigned, which shall not be redeemed or redeemable 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 se- cured, it shall be lawful for the said party of the first part, his executors, administrators or assigns, to hold, occupy, possess and enjoy the said lands and premises hereby assigned, with the appurte- nances, without any molestation, interruption or disturbance of, from or by the said party of the second part,his 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 seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [l.s.] Received on the date hereof, the sum of J • , being the full consideration above mentioned. Witness, A. B. Y. Z. CHAPTER XVI. or NATURALIZATION. The residents in every county, are divided into three classes : they are either aliens, denizens or natives. An alien is a foreigner, (that is, one bom in a foreign country), who has not been naturalized. A denizen is a foreigner, who is resident in some country other than that in which he was born, and has acquired certain civil rights in the country, of his adoption. A native, is one born in the country in which he is resident. Naturalization then, is the process by which an alien, or foreigner, is translormed into a denizen, and thereby becomes entitled to certain of the pri- vileges of a native born subject. In Canada, a denizen, or person duly naturalized, is entitled to all the privileges, rights and capacities, of a natural born subject of the British Crown. The law at present affecting aliens, who desire to be naturalized, is to be found in the act p > jsed in the Domion Parliament, in 1868 : usually cited as Dom. Stat. : 31 Vic. c. 66. It applies to the whole Dominion : comprising the four Provinces of Nova Scotia, New Brunswick, Quebec and Ontario. The laws fornfierly in force, with reference to aliens, ;i S06 CABINET LAtTTEir^ being various in the different Provinces, it was thought fit to assimilate them ; and the first pro- vision of the existing ad is therefore that any alien, who, before the passing of the present act, has been naturalized in any of such Province, under the laws heretofore in force in such Province, is now to be considered as a denizen, or naturalized sub^ ject, of the whole DominioDr The next provision is that any alien woman, who> is married to a natural born British subject, or to a person naturalized under the present act, or the several acts formerly in force in the several Pro- vinces, is to be deemed herself naturalized. The following provisions, are then made for the naturalization of all aliens, except an alien woman so married to a native born, or naturalized subject : guch alien v/oman becoming naturalized by (he mere act of marriage. Every alien, resident in any. part of the Domin- ion, 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 affirma- tions of residence and allegiance, and propured the same to be filed of record, as hereinafter mentioned, so as to entitle him or her to a certificate of natural- ization, will thenceforth enjoy, and may transmit, all the rights and capacities of a natural born sub- ject. The first thing for an alien to dp^ if he desires to be naturalized, is to take and subscribe the oath9 of residence and allegiance. If the alien is a per- son entitled, by the laws of tlie Province where he NATURALIZATION. 307 resides, to make an affirmation in lien of an oath he may do so. In Ontario, these oaths or affirmations must be taken and subscribed before a Judge of a Court of Record, or befo/e some person authorized lo ad- minister oaths in the Courts of General Sessions of the Peace ; or before a Commissioner appointed by the Governor for the purpose ; or before a Justice of the Peace of the County where the alien resides. When taken, the Judge, Commissioner or Justice, on being satisfied by evidence produced by the alien, that he or she has been a resident of Canada for a continuous period of three years or upwar^^F^ and is a person of good character, will grant a cer tificate : setting forth that such alien has taken and subscribed the said oath or affirmation ; and, (if the fact is so), that such Judge, Commissioner or Jus^ tice, 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 that there exists to the know- ledge of the Judge, Commissioner or Justice, no reason why the alien should not be granted all the rights and capacities of a natural born British tub- ject. This certificate must then be presented to the Court of General Sessions of the Peace of the county, within the jurisdiction of which the alien resides, 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, dur- ing such general sitting, the facts mentioned in the certificate are not controverted, or any other valid 308 CABINET LAWYCR. objection 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 ad- mitted and confirmed in all the rights and privi- leges of British birth, to all intents whatever, as if he or she had been bom within the Dominion. These formalities having been gone through, the alien will be entitled to receive from the Court, a certificate of naturalization, under the seal of the Court, and the signature of the clerk thereof, that he or she hath complied with the several require- ments of the act. A copy of this certificate may, at the option of the party, be registered in the Registry office of aury county or registration division within the Dominion, and a certified copy of such registry is sufficient evidence of such naturalization, in all Courts and places. Any alien, entitled at the time of the passing of the act, (22 May, 1868), to be naturalized under the provisions of any of the acts then in force, may take the oaths of residence and allegiance, and obtain certificates, in the same manner, and with the ilame effect, as aliens naturalized under the new act. 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 entitled to receive twenty-five cents, And no more ; and the Registrar for recording the certificate of naturalization, is entitled to receive a fee of twenty-five cents ; and a further fee of MATUaALlZATIOn. 309 twenty-five cents for every search and certified copy of the same, and no more. Oath of Rendence. I, A. B., do swear {or heini( one of the person$ allowed by law to affirm injudicial cases^do affirm) that I have resided three years in this Dominion, with intent to settle therein, without having been, during that time, a stated resident in any foreign country. So help me God. Oath of AUegiance. I. A. B., do sincerely promise and swear, (or being one of the persons allowed by law to affirm injudicial cases do affirm), that I will be faithful, and bear true allegiance, to Her Majesty Queen Victoria, as lawful Sovereign of the United King< dow of Great Britain and Ireland, and of the Do- minion of Canada, dependent on, and belonging to, the said United Kingdom ; and that 1 will defend Her to the utmost of my power against all traitorous conspiracies and attempts whatsoever, which shall be made against Her person. Crown and dignity ; and that I will do my utmost endeavor to disclose and make known to Her Majesty, Her heirs and successors, all treason and traitorous conspiracies, and attempts, which I shall know to be against Her or any equivocation, mental evasion or secret reservation. So help me God. CHAPTER XVII. PARTNERSHIP. A partnership is an association of two or more persons, contributing, in equal or unequal propor- tions, money, labor, skill, care attendance or ser- vices in the prosecution of some trade or manufac- ture or the 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 certain propor- tions. The contract of partnership is founded wholly on the concent 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 con- tract. If parties are not to share the profit and loss, there can be no partnership as between them- selves : whatever may be their apparent situation and position as regards the public. If one man joins another in the furtherance of a particular nndertaking, and contributes work and labor, ser- vices and skill, towards the attainment of the com- mon object, upon the understanding that the remuneration is to depend upon the realization of PARTNBltSHIP. 311 profits, so that, if the bunmet^s is a losing business, be is to get nothing, he stands in the por^ition of a partner in the undertaking, and not in that of a laborer or servant for hire. Bat a person who merely receives out of the profits the wages of labor, or a commissron, as a hired servant or agent^ such as a fictor, foreman, clerk or manager, and who has no interest or property in the capital stock of the business, 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 {ihares) 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 stipulations and agreements between him and the parties who appear to the world as the managers and conductors of the business ; because the profits form a portion of the fund on which the creditors have a right to rely for payment. A general partnership is one formed fcv 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 certaia SIS CABINET LAWTES. I- amount of capital, which is liable for the contracts of the firm ; but beyond that amount the party advancing 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 be a partner, if 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 endorse , 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 matters 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 partnership transaction by one part- ner, or the commission of any fraud in such trans- action, 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 lia- bilities and responsibilities of partners as regards the public and third parties, by holding themselves out to the world as partners, as well as by contract- ing the legal relationship of partners among ^hem- PARTNERSHIP. SIS selves. If a man, therefore, allows himself to be published to the world as a member of a particular firm ; if he permits his name to appear in the part- nership name or to be used in the business ; if he suffers it to be exhibited to the public over a shop- window ; or to be written or printed in invoices or bills of parcels or prospectuses ; or to be published in advertisements, as the name of a 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 he is represented by others to be a partner without his authority or permission, he cannot, of course, be made responsible as a partner, upon the strength of such false and fraudulent representation. An incoming partner, cannot be made responsi- ble for the non-performance of contracts entered into by the firm before he became an actual or re- puted member 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 as 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 ouhtomers : 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 partnership at 314 CABINET LAWYEB. will, and may be dissolved at any time at the plea- sure of any one or more of tlie partners. If the partnership was established by deed, the renuncia- tion and disclaimer of it by the party who with- draws from the firm ought to be made by deed. But if the partnership was contracted without deed, or, as it is technically called, by parol, it may be re- nounced in the same manner. If the partners have agreed that the parlnership shall continue for a de- finite period, it cannot be dissolved before the expi- ration 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 paitnership for a definite term has been created by deed, the mutual agreement of the parties to dis.solve it, must be by deed also. The partnership is dissolved by the death or insolvency of one of the partners ; or by aa assignment by any partner of his share and interest in the business. A dissolution by one partner is a dissolution as to all. An executor, administrator or personal represent- ative, continuing in the business after the death of a parmer, 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 persons who have had no notice of the dissolution, PARTNERSHIP. 315 Under the "Act Limited Partnorphins." ^spectmg Con. Stat. Can., c. 60, limited parlnershipH for the transaction of any mercantile, mechanical, or mana- facturing business within the Province of Canada may be formed by two or more persons, upon cer- tain terms and conditions; but the provisions of the act are not to be construed to authorize any part- ship 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 pay- ments, a specific sum as capital to the common stock, artd who are styled " special partners." General partners are jointly and severally respon- sible for all debts and engagements of the pnriner- ship, 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 trans- acted by the general partners alone ; and they only are authorised to sign for and bind the partnership. Persons desirous of forming a limited partnership must make and sign a certificate which is to con- tain : firstly, the name or firm under which the part- nership is to be conducted ; secondly, the general natnre of the business intended to be transacted ; thirdly, the names of all the general and special partners interested therein; dis'inguishing which are general and which are special partners, and their usual places of residence ; fourthly, the amount of capital stock which each special partner bas contributed j fifthly, the period at whi':;h the i ! !ill •iM S16 CABINET LAWYER. partnership is to commeDce, and the period at which it will terminate. The certificate is to be in the form given in the act, and which will be found hereafter, and must be signed by the several persons forming such partnership before a notary public, who will duly certify the same. The certificate so signed and certified must, in Ontario, be filed in the office of the clerk of the County. Court of the county in which the principal place of business of partnership is situate, and in Quebec, in the office of the Pro- thonotory 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 in- spection. No partnership will be deemed to have been formed until such certificate has been made, cer- tified, filed and recorded ; and if any false state- ment be made in such certificate, all the persons interested in the partnership 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 dura- tion, a new certificate must be made, certified, filed and recorded in the manner required for its original formation; 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 PARTNERSHIP. 317 partnership in any manner carried on after any such alteration has been made, will be deemed a general partnership, unless renewed as a special parnership in the way above mentioned. The business of the partnership is to be conducted under a name or firm in which the names of the general 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 dur- ing the continuance of the partnership ; but any partner may annually receive lawful interest on the sum contributed by him, if the payment of such interest does not reduce the original amount of capital ; and if, after the payment of such interest, any profits remain to be divided, he may also receive his portion of such profits. If, however, it should afterwards appear that by the payment of any inter- est 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 neces ary to make good his share of the deficient capital with interest. Special partners are at liberty, at all times, to examine into 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 318 CABINET LAWYER. 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 other, and to the special partners, for their manage- ment of the concern, in the same manner as part- ners in any other trade or business. A limited partnership may be dissolved before the expiration of the term specified in the original certificate, by filing a notice of dissolution in the office in which the origmal 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 business, and for the same time in the Ontario Gazette, The fee for filing or recording every certificate is fifty cents. By an act of the Ontario Legislature, passed in 1869, (33 Vic.,c. 20), it is enacted that all persons, who, at the time of the passing of the act, or there- after, should be associated in partnership for trad- ing, manufacturing or mining purposes, should cause to be delivered to the Registrar of the county, city or riding, in which they carry on business, a declaration in writing, signed by the members of the co-partnershtp : which declaration is to contain the names, surnames, additions and residences of each partner, and the style of the firm, and the period of the partnership ; and also a statement that there are no other members. PARTNERSUIP. 519 Such declaration must be filed within six months after the passing of the act, as to all partnerships in existence at that time : and within six months of formation, as to all others ; and a similar declara- tion must be filed whenever any change is made in tho names of the members, or the style ^f the firm, or place of residence. The penalty for non-compliance with this act is $200, to be sued for in a civil action ; half of which goes to the informer, and half to the Crown. For registering such declaration, the Registrar is entitled to 50 cents, if it does not contain more than 200 words, and 10 cents per folio of 100 words over 200. L'ntil a new declaration has been signed and filed, the members of the original partnership will remain liable. Partnership Deed. Articles of agreement, made the day of » 18 , Between A. B., of, &c., C. D., of, &c., E. F., of, &c„ and G. H., of, &c. Whereas, the said parties hereto respectively are desirous of entering into a co-partnership in the business of at for the term and sub- ject to the stipulations hereinafter expressed. Now, therefore, these presents witness that each of them, the said parties hereto respectively, for himself, his heirs, executors and administrators, hereby coven. nants with the others and other of them, their and his executors and administrators, in manner follow- ing ; that is to say : S20 CABINET LAWYER. I 1st. That the said parties hereto rssppctively will henceforth be and continue partners together in the said business of , for the iuil term of years, to b6 computed from the day of of, 18 , if the said partners shall so long live, subject to the provisions hereinafter contained for determining the said partnership. 2nd. That the said business shall be carried on under the style or firm of A. B. & Co. 3rd. That the said partners shall be entitled to the profits of the said business in the proportions following ; that is to say, {here state the shares;) and that all Josses in the said business shall be borne by them in the same proportions, 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. 4th. That the said partners shall each be at liberty, from time to time during the said partner- ship, 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. 5th. That all rents, taxes, salaries, wages and other outgoings and expenses incurred in respect of the said business shall be paid and borne out of the profits of the said business. 6th. 7 hat the said partners shall keep, or cause to be kept, proper and correct books of account of PARTNERSHIP. 321 all the partnortjhip moneys received and paid, and all business transacted on partnership account, and of all oiher matters of which accounts ought lo be kept according to the usual and regular cour^:e of the said business: which said books shall be open to the inspection of both partners, or their legal represcntfitivos ; and a general balance or statement of the said accounts, stock in trade, and business, and of accounts between the said partners, siiall be made and taken on the d ^.y of , in each year of the said term, and oftener, if required. 7th. That the said partners will be true and just to each other in all matters of the said co-partner- ship, and will at all times during the continuance thereoi'dilligently and faithfully employ themselves respectively in the conduct and concerns ol the said business, and devoto their whole time exclu- sively thereto, and will not transact or engage in any other business or trade whatsoever; and will not either in the name of the said partnership, or individually in their own names, draw, accept or endorse any accommodation bill or bills, promissory note or noies, 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 partnership moneys cr effects shall be 8eia*jd, attaclied, or taken in executi, County of < For*.) PATBKT8 or INVENTIONS. d3S We, A. B., of (Toronto) Grocer, C. 0., oi (Toronto^) Grocer, and E. F., o( {Toronfo)^ Grocer, do certify and delare that we have carried on, and intend to carry on business as Grocers in {Toritnto) in partnership under the name, style or firm of **A. B. and Company ; and that the said partner^ ship has existed since the day of ^ \6 ^ (or is to exist until the day of « 18 ;) and that we, ihe said A. B., C. I), and E. F., are the only members of such co-partnership. A. B. Witness, C. I). G. H. E. F. Note. — The form given in the schedule to the act {Ont Slat. 33 Ftc, c. 20) is sum f what confmed^ and is not refernd to in /ha h dy of the act. The aboreform cuWains all th >/ is required by sec. 2, and may be easily adapted to suit circumslances.] CHAPTER XVIII. PATENTS OF INVENTIONS. The Patent oliice in Canada is attached to the Depariment of Agriculture, and the Minister of Agriculture for the time being, is the Commissioner of patents. Patents of invention are grants by the 326 CABINET LAWYER. Crown of the exclusive right to make, use ntnl sell any new and useful uit, machine, manufiiclure or composition of matter, or any new and useful im- provement not known and used by others. The statute now in force relating to patents in the Dom. Stat. 32 & 33 Vic, c. 1 1, passed in 18G9. Under the act, the Commissioner is empowered to make rales and regulations, subject to the approval of the Governor in Council. Any person who has been a resident of Canada for at least one }ear next before his application, and has invented or discovered any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter, Dot known or used by others before hin invention or discovery thereof, or not being at the time of the application in use, or on sale, in any of the Pio- vinces of the Dominion with the consent or allow- ance of the inventor or discoverer thereol, may peti- tion for a patent. Iso patent will issue lor an invention or discovery having an illicit object in view, nor ior any mere scientific principle or abstract thereon. The fact that the inventor or discoverer has previously obtained a patent in a foreign country, will not deprive him of his right to a patent in Canada, if such foreign parent has been obtained within six months next preceding Ihe filing of his specification as required by the act. Patents may be granted to the assignee of an inventor. Every application for a patent must be ly peti- PATENTS or INTENTIONS. S27 tion, addressed, it is presumed, to the Commifissloner of patents. A patent may be granted for an improvement only ; but such a patent will not confer the right of selling or using the original invention ; nor will the original inventor have the right to use or sell the improvement. Where joint applications are made, the patent will issue in the names of all ; find in the event of any assignment from one to another, such assignment must be registered as in the case of other assignments. Kvery applicant must make oath, or when enti- tled by law to make an affirmation instead of an oath, then an ahirmation, that he verily believes that he is, or that the person whose assignee or representative bo is, is, or was, the true inventor or discoverer of the invention or discovery for which the patent is soiiciled, and that he, or such person, was a resident of Canada for one year before appli- cation, or il dead, before his death. This oath or affirmation may be made before any Justice of the Peace ; or if the applicant is out of Canada at the time, it may be made before a Minister Plenipoten- tiary, Consul or Consular Agent of the United Kingdom, or any Judge of the country in which the applicant happens to be. The petitioner must elect some known and speci- fied place in Canada as his domicile or place of residence and state the same in his petition. The petition must also state the place in Canada at which the petitioner, or the person whose assignee or representative he is, was resident during the 828 CABIIfCT LAWYER. year of residence, and the period of residence at each such place The petitioner must insert the title or name of his invention or discovery — rts object and a short description of the same, and distinctly allege all the facts which are necessary to entitle him to a patent. A written specification, in duplicate must accompany the petition describ- ing the same in such full, clear and exact terms as to distinguish it from all contrivances or processed for similar purposes. It must correctly and fully describe the mode of operating contemplated b> the applicant; and the contrivances and things which arc claimed as new, and for the use of which an exclusive property and privilege is claimed; and it must bear the name of the place and date where made, and be signed by the applicant and two witnesses. In the case of a machine, the specifi- cation must fully explain the principle and the several modes in which it is intended to npply and work out the same. Where the invention admits of illustration by means of drawings, the applicant must send in drawings, in duplicate, showing eleariy allf parts of the invention. Each drawing must hear the name of the inventor, and con- tain references corresponding with the specificntion, and a certificate of the applicant that it is the draw- ing referred to in the specification. A working model must also be delivered, unless the Commis- sioner dispenses with it. Specimens of ingredients and composition, used in the invention, sufficient for experiment, mast also be delivered to the Cora- PATENTS or INVENTIONS. 329 missionor, where they are not explosive or dan- gerous. Forms of petition and spcijifieation, &c., will be found at thf end of this chapter. The patent, when issued, will grnnt to the pate'ntee, his assigns and legnl n-proseniHiivt's, or in trust, the exclusive right, privilrgf, and liberty of making, constructing, using, and selling toothers to be used, the invention or diseovery. It will be valid for five years; but the holder of the patent may obtain an extension Sot t\k'o separate periuda of five years each ; thus making a period of fifteen years in all. Where an error occurs in the specification, through mistake or inadvertence, and without frandulent intention, a patent may be surrendered and a nevr one issued. And if an inventor obtain", through inadvertence and mistake, without wilful intent to defrau I, a patent for more than he is entitled to, he may disclaim. Such disclaimer must be in writing, and in duplicate, and attested ^)y two witnesses, one copy to be filed and the other attached to the patent. Patents may be assigned either in whole or in part. The assignment must be in wrilmg, and must be registered in the patent office. An un registerrj assignment will be void as as?ainst one subsequently registered. The Government have a right to use any patented invent on or discovery, but they will pay the patentee therefor ^uch sum as the Connnissi(»ner may report to be a reasonable compensation for the use thereof. SSO CABINET LAWYER, « The remedy for the infringement of a patent is by an action at I tvv, for damages, and an injunc- tion may be obtained to restrain any future infringe- ment. Such an injunction may be obtamed from the C«>iirt of Law in which any action for damages is pending; or it may be obtained from the Court of Chancery. If any material allegation in the petition or de- claration of the applicant be untrue, or if the speci- fications and drawings contain more or less thin is neccfrtary,and suchomis^'onor addition be wilfully m-^de for the purpose of misleading, the patent will be void. ' A patent will cease to be operative after three years, unless the patentee has, within that period, commenccil, and since carried on, the construction or O; inuiacture of the invention. Patents is*- jed under any of the acts oi the several provinc snow for? ning the Dominion, prior to the 1st day of J'lly, io69, remain in force for the term for which ihcy were originally granted, subject to the provisions of the new act, so far as applicable. The following fees are payable to the Commis- sioner, and must be paid in advance : On petition for patent for five years . . , $20 00 •* for extension to ten years 20 00 '* for extension to fifteen years 20 00 On registering assignment 2 00 On attaching a disclaimer, 4 00 There are olher fees payable in respect of some matters which have not been noticed in this chap- ter: such matters being beyond and out of the PATENTS OF INVENTIONS. 331 ordinary routine of applying for a patent and regis- tering an assignment. If an inventor is afraid that some person may get the advantage of him by applying for a paient before lie (the inventor) has pt»r(ected liis invention or discovery, he may file a description of such in- vention in the patent office, with or without plans ; and such filing will operate as a caveat^ and will entitle him to notice in case any one else should apply for a patent. Every patentee must stamp or engrave on each patented article solil or offered for sale, the year of the date of the patent, thus ; " Patented ISliO," {or as the case may be.) The penalty for neglect to do this is fine and imprisonment. Petition for Patent. To THE Honorable the Commissioner of Pa' TENTS FOR INVENTIONS. The petition of A. B., of, &c., [state here name, residence and occupation in full.) Shbwe 111 : — That your petitioner has invented (ordiscov<'red) a new and useful (ar/, mar.hiiie, maiiufaclure^ or composition ofmatt'r^ or a new and useful iiDprove- menl on such art, &c. : inserting htr^ the title or name of his invention, or discovery, its obji ct, and a shurt description of the same\ not known or used by others before this invention (or discovery ) thereof, (or not being at this time in public use, or on sale in any of the Provinces of the Dominion, with the con- sentor allowance of theinventorordiscovertTihereof. 332 CABINET LAWYER. That your petitioner has elected his domicile at (state here some known place in Canada) , and that he has resided for one year and upwards, prior to the time of this application for a patent ai {state where, and if in several placps, state where, and the period of residence at each place.) Your petifioner therefore prays that a patent may issue in his favor granting him the exclusive pro- perty in the said invention {or discovery.) Datt d the day of 18 A. B. Oath or Affirmation. Province of , County of , to wit : I, A. B., of &c., (insert name, residence and occw pation), make oaih and »Siy (or if an ajhrmation, say : do solemnly and sincerely declare and allirin) as follows : 1. That I verily believe that I am [or that E. F., of &c., whose assignee (or representative) I am, is {or was] the true inventor {or discoverer) of the (here insert the ntme or title of tie invenlion or dsconery), for which I am soliciting a patent. 2. That I have {or the person whose assignee or representative he is, has been) a resident of Canada for one year now last past. Sworn (or affirmed) 1 before me, at , in the J ^ A. B. County of , this day of , A.D. 18 Y. Z. J. P. (or as the case may be). PATENTS or INVENTIONS. S33 Specification, Whereas I, A. B., of, &c., have invented {or dis- covered) a new and useful {art machine^ fyc.^ state here the proper name or title of the invention or discovery ; or if an improvement only so s ate it) ; and the following is a full, clear and exact descrip- tion of the same ; (here describe the incen/ion or d'Scovery in such exact and clear terms, as to dis- tinf^nish it f om all contrivances or processes for similar purpose s : correctly and fuHy describe the mode of operating ; and the confrivance and thms^s which are claimed as new. If the invention is a Tnachine, explain fully the prirtciple and several w>'>des of appliance. Where the itwenlion or dis' cover y admits of illusf ration by drawings, refer to them hire thus:) The plans and drawings accom- panying this specification, show clearly all parts of the invention (or discovery). Figure No. 1. shows &c., (slating clearly what each figure illustrates). Witness my hand at , this day of 18 . Signed in presence of A. B. C. D. E. F. [Note. — The specification and drawings must be in duplicate ; and the latter must bear the name of the invtntoTy a>d contain written reftrinces to the specification, and be certified btf the applicant to be the draunngs referred to in the specific ■ceUion, S34 CABlNCt LAWYER. Surrender for Re^issue. To THB Honorable the Commissioner or Pa- tents FOR Inventions. The petition of A. B., of, &c., sheweth : That youi petitioner did btain letter-patent under the seal of the patent office for a new (Jhrash' ing-machine , which letters -patent are dated the day of , A.D. 18 . That your petitioner now believes that t' i same letter*-paient are inoperative, or invalid, by reason of insufficieni description or specification, {op by reason of his claiming more than he had a right to claim as new), which error has arisen from inad- vertence, accident or mistake, and without any fraudulent or deceptive intention. Your petitioner therefore prays that he may be allowed to surrender the said letters-patent, and that new letters-p.itent may issue to him for the same invention for the residue of the period for which the original patent was issued, in accord- ance with tlie corrected description and specifica- tion herewith presented. A. B. {A corrected specification and declaration must accom- pany this petition.) • Disclaimer, Know all men by these presents. That I, A. B., of, &c., to whom letters-patent under the Seal of the Patent office, for a new (thrashing-machine^) Patents of intentions. 335 did issue on t ho day of , a.d. 18 , did by mistake, accident or inadveriancp, and without any wilful intent to defraud or mislead the public, make any specification too broad, claiming more than that of which I was the orii^inal or first inventor, [or, claiming to be the fiist inventor, or discoverer of a material and substantitl part of the said (Ihrashin^ machine)^ of, which I was not the first inventor or discoverer, and which 1 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 jn the follow- ing word;«, to witi [fnaert here that part which i$ disclaimed y in the words of the original. State also the extent of the interest which t'le disclaiming party has in the patent, whether an entire or partial interest.] Witness my hand, at , this day of , a.d. 18 . Signed in the presence of A. B, C. D. E. F. Assignment of an Untire Interest in a Patent, To all to whom these presents shall come, A. B., of, &c., sends, greeting : Whereas, the said A. B., has invented a certain ( ), and has applied for and obtained letters- patent from the patent office in Canada, grantmg 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 . S36 CABINET LAWYKR. And whereas, C. D., of, &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 invention under the said letters-patent, for the price or sum of dollars. Now these presents witness, that for and in con* sideiation of the said sum of dollars, by the said C D. 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 C. D-, 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 ail hie interest therein or right thereto. In witness whereof, the said A. B. hath hereunto set his hand and seal, this day of , a.d. 18 . Signed, sealed and delivered in the presence of A. B. [l*s.] X Y. (An assignment of a partial inter e9t may be readily framed from the foregoing. Every assign- ment must be registered in the patent office CHAPTER XIX. WILLS AND INTESTACY. A will is the instrument by which the owner of property declares the mode in which he d'^siresthat 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 testa- trix. When moveable property is given by will, it is said to be bequeathed, on the other hand, when land is given, it is said to be d vised. 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 womon is subject to some re- strictions, 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 sufficient 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 properly by will was first given by an act of Pa r- Jiament called the Statute of Wills, passed in the 22 338 CABINET LAWYER. reign of Henry VIIF. Personal or moveable pro- perty was always subject to such a disposition, but not to its present extent. Anciently, by the general common law, a oaan 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 tho children. At the present day, however, there is no such limitation ; a man may, if sufficiently devoid of all natural affection, bequeath the whole of his property to strangers, and leave his wife and chil- dren 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 pres nee of each other. A will of moveable or personal property does not require the same formalities, although in practice it is usual to observe them. It is neither necessary that the writing should be signed, nor, as a conse- quence, that it should be witnessed. A writing, however, it mu»t be, though it does not require signing or attesting. If a man should give instruc- tions to his lawyer to prepare his will, and those instructions are in writing, or a draft will prepared from them, it is sufficient. Such a writing operates as a will of movables, although it may be informally WILLS AND INTESTACY. 339 drawn up and neither signed nor attested Not- withstanding, however, that such is the 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 susceptible of <;asy and satisfactory proof. In every will of personalty there should be an «»ppointment of some person or persons as executor or executrix. Any person may be appointed ; but \f 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 lis time the administration 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 execu- trix, she cannot accept the office without the con- sent of her husband ; and, having accepted it, with his consent, she is unable, without his concur- rence, to perform 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 gel the same through the executor. I'he moment a testator dies, the exe- cutor becomes entitled to the possession of the S40 CABINET LAWITBR. whole of the personal property, and is bound to see that all the testator's debts are paid, before he pays a 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, Ontario, at the time of his death, then in the Court of any county in whicth he had any personal or landed propeity. The first thing, then, for an executor to do is, to take the will to the clerk of the Surrogate Court, who is generally the same individual as the clerk of the County Court ; there the necessary affidavits and docu- ments will be filled up and the will proved in due form. A Surrogate 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 entitled by virtue of liis office. For this purpose the executor has reposed in him by the law the full- est 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 tes- tator are then to be discharged. In order to give the executor sufficient time to inform himself of the Btate of the assets and to pay the debts of the de- WILLS AND INTESTACY. 311 Ceased, he is allowed a twelvemonth from the dale «f the death of the testator, before he is bound to pay any legacies. Notwithstanding the lapse of a year from the testator's death, the executor is still liable to any creditor of the deceased to the amount of the property which may have come to the execu- tor's hands ; and if he 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 Chancery, in which case the Court undertakes the administration, and the executor is consequently exonerated from all risk. The exe- cutor, 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 sufficient consideration, have given a written pro- mise 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, then 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 I. 3i2 CABINKT LAWYER. his children, sons and daughters, equally, and if any child should he dead leaving children, these grand-children will stand in their parent's place and he entitled to the share which would have fal- len to their parent, had such parent been alive. Failing children, the lands will goto the intestate's father ; and if the father be dead, then to the mo- ther ; and if the mother be dead, then lo the brothers and sisters and collateral relatives. If, however, the land came to the intestate in right of his mother, 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 outline 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 fur beyond our design. The law of descent of real property is much too intricate to warrant any attempt to popularize it. The application of an intestate's personal prop- erty, after payment of all his debts, is now regu- lated by statutes of the reign of Charles II. and James II., commonly called the Statutes of Distri- bution, by which statutes the rights of the relations of the deceased appear to have been first definitely ascertained 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 tt,. I WiLI.8 AND INTESTACY. 343 child or descendant of a child, she takes one-half. If the intestate leave children, two-ihirds of his efTecta if he leave a widow, or ihe whole if he leave no widow, shall be equally divided among his children, or, if but one, to such child. If the intestate leave no children or representatives of thenn, his father, if living, takes the whole ; or, if the intestate should have left a widow, then one-half. If the father l-e dead, the mother, brother-* and sisters of the intestate shall take in equalshares, subject, as before, to the widow's right to a moiety. If there be no brother or sister,themothershall take the whole, or, if the widow be living, a moiety only, as before ; but a step-mother can take nothing. The children of brotht»rs or sis- ters who are dead stand in their pareni's place. If a married woman in posr TENANT, 236; leases, 236: yearly ten- ancy, 23*7, 238 ; holding over, 237 ; distress, 238, 243 | action for rent, 288 ; distress after expiration of term, mDEX. 351 I LANDLORD AND TENANT, (Conlinued.) 239 ; at what time rent payable, 240; cUstraining goods in execution, 241 ; costs of distress, 248 ; action for rent, 244 ; repairs, 244 ; notice to quit, 244 ; form of leaHc of house, 245 ; land, 249 ; house and farm, '25;i ; statutory- lease, 259; distress warrant, 2G0; inventory, 261 ; notice of distress, 262, 263; request for delay, 263; notice to quit by landlord, 264 ; by tenant, 264 t.lNE-FENCES AND W ATEll-COUUSES, 206 ; statutes relat- ing to, 265; removal of, 2G5 ; water-fences, 2o6 ; open- ing ditches, 266 ; disputes, as to, 207 ; mode of procedure by fence-viewers, 267, 268; enforcing award, 209; ap- plication to Justices, 270, 272 ; fees, 272 ; provisions of amended act, 273; non-resident lands, 273; extension into adjoining municipality, 275. M. MASTER AND SERVANT, 276 ; contract of hiving, 276 ; when to be in writing, 277 ; when presumed, 277 ; hiring of domestic servants, 278 ; relative duties of, 279 ; appren- ticeship, 279 ; usual covenants on, 280 ; statutes relating to, 281; summary proceedings under, 281 ; remedy for wages, 281 ; act respecting minors, 282; orphan child- ren, ^'83 ; illusage iff apprentice, 284 ; punishment of apprentice, 284 ; form of apprenticeship indenture, 285 ; apprenticeship of girl, 287 ;, assignment, '288. MORTGAGES, 289 ; what they are, 289 ; how discharged, 290 j should be in duplicate, 291 ; remedies on, 291 ; forms of statutory mortgage, 292; affidavit of execution, 294; dis- charge, 294 ; assignment of, 206 ; mortgage of lease, 299. N. KATURALIZATION, 305; who are aliens, 305; statutes affect- ing, 305 ; how naturalized, 806 ; certificate of, a08 ; how recorded, 308 ; forms of oath, 309. NOTICE TO QUIT, Sek Landlord and Tknant, P. TARTNERSHIP, 310 ; what constitutes a part : 310 ; general and special, 811, 317; authority of partners, 312; dormant 852 CABINET LAWYER. PARTNERSHIP, {Continued. and secret, 312; determination of, 814; limited, 315; how formed, 315 ; cxtenHion and alteration of, 31G ; dis- solution of limited, 318 ; registration of names of firm, 318; from of deed, 319; dis8olnti