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Loraque la document eat trop grand pour Atra reproduit en un aeui clichA, 11 eat f limA A partir de i'angle aupArleur yauche, de gauche A droita, at da haut an baa, en prenant ie nombre d'imagea nAceaaaire. Lea diagrammas auivants lllustrent ia mAthode. ty errata sd to int ne pelura, i9on A 1 2 3 32X 1 2 3 4 5 6 ^ D ME] TO I Z>1 O^Nj^DI AN DOMESTIC LAWYER, WITH PLAIN AND SIMPLE INSTRUCTIONS FOB THE MERCHANT, FARMER, & MECHANIC, TO ENABLE THEM TO TRANSACT THEIB BCSIKESS ACC0EDIN6 TO LAW. BY JOHN WHITLEY, ESQ., ATTORNIV-AT-LAW, TOMOino. STRATFORD : PUBLISHED BY VIVIAN St MADDOCKS. 1864. FRICS 81.36. 1 > PREFACE. , This work Ls presented to the public, not as one which will altogether do away with the ne- cessity for the advice and assistance of a lawyer, — for such a claim in its behalf would be simply ridiculous, — but merely as a guide to the farmer and merchant in the ordinary busi- ness detaUb of e very-day life. It frequently happens that recourse is had to a lawyer for the preparation of a simple instru- ment, or for advice on some trivial point, which would be quite unnecessary if a book like the present were at command. For all such cases it has been especially prepared. The father of a family does not think of call- ing in the aid of a doctor for every trifling in- disposition to which any of his household may be subject; and there is as little reason why a 8 PREFACE. rush shoiild be made to a lawyer for the prepa- ration of every little document or for advice upon every small matter which should be plain to the ordinary comprehension of every common- sense person. The merit of absolute originality is not claimed for this work. The compiler (for he assumes no other appellation) has drawn largely from sources with which the professional man is familiar, but which are practically closed to the general public. To recapitulate the various sources whence information and assistance have been sought, would be alike tedious and super- fluous. It has not been deemed advisable to cumber this work with many special forms, which are serviceable only to the professional man. In every case of intricacy the reader is advised still to have recourse to his lawyer for that aid and assistance which no work of this kind could give him. Whenever the matter in hand passes out of the category of a plain and simple ordi- nary every-day-matter, the reader is reminded of the old adage that "he who is his own lawyer has a fool for a dient." I PREFACE. 5 ♦ With these remarks, this work is submitted to the judgment of the public. If it meets their approbation, the objects of the con^pilation, im- dertaken at the instance of i\u publisher, will have been accomplished. SiaATFOED, C.W., October, 1868. n m t TABLE OP CONTENTS. ^' CHAPTER I. Of Atfidavxts '^y CHAPTER II. Of Contracts or Agreements m CHAPTER III. Op Arbitration e^^^ CHAPTER IV. Op Assignments -4 CHAPTER V. Op Auctions and Auctioneers i3(j CHAPTER VI. Op Bills of Exchange ^4.. CHAPTER Vir. Op Bonds jr,j CHAPTER VIIT. Op Chattel Mortgages ^ ^ i^^- CHAPTER IX. Op the Collection of Debts in tuf. Division Courts.. 1<».-. ^ ^ CHAPTER X. Op Deeds 00- • ss • 7 Ij I 8 CONTENTS. OIIAPTER \l. ^,„ Of Line-Fences and WAiiK-CouRsKs 255 CHAPTER XII. Or Landlord and Tenant— Leases, etc 203 CHAPTER XIIT. Or Master and Servant .'loo CHAPTER XIV. Of MoRTliAtiE.S iJl.'i CHAPTER XV. Of Naturalization .*>77 CHAPTER XVI. Op Partnersiiii' 381 CHAPTER XVII. Of Promlssory Notes 399 CHAPTER XVIII. Of Patents 403 CHAPTER XIX. Of Kgceifts and Releases 41C CHAPTER XX. Of Wills and iNTEsxAOfr 420 I THE CANADIAN DOMESTIC LAWYER CHAPTER I. OF APFIDAYITI. An affidavit is a statement, in writing, of some par- ticular fact, sworn to by the party making the state- ment. Some persons entertain conscientious scruples about the taking of an oath, for any purpose : for the relief of whom the law provides that an affirmation may be made in lieu of an oath. The difference, then, between an affidavit and an affirmation, is simply this : the one is sworn to be true; the other is affirmed. The penalties for making a false affidavit, or a false affirmation, are identical. Specific forms of affidavits, applicable to particular cases, will be found scattered throughout this work : we shall here give only general forms. Every affidavit ought to be written in words at length: figures should not be used in the body of it. We do not mean to say that the use of figures would vitiate an affidavit ; but as a matter of convenience, and for greater certainty, it is always better to use Ii < ; * 10 CANADIAN DOMESTIC LAWYER. j) !ii» words: many figures, hurriedly, or perhaps badly, made, being oftentimes hard to decipher. Affidavits to be used in the courts of law, as a gene- ral rule, require to be taken before a commissioner: sometimes, however, it is sufficient to take them before a Justice of the Peace. In other cases, it must be made before a Justice, and not before a commissioner. The forms given will generally indicate before whom tliey must be sworn. Affidavits to be used in a court of law are required to be written in paragraphs, each paragraph relating, as much as possible, to a distinct subject. Althougli tlie same particularity is not prescribed with reference to affidavits not intended to be used in a court, yet, as the practice is very convenient, the same method is recommended in every case. In the margin of an affidavit not intended for use in court, the name of the county wherein it is sworn should be stated. 1. General Form of Affidavit. County of to wit : or I, A. B., of in the County of , yeoman {or other proper deiig. nation)^ make oath and say : — First. That, &c. &c. (Here state the matter to he sworn to^ plainJjf and necurately. If the affidavit relates to niovf matters than one, then, having disposed of one matter in the first paragraph, go on to a second, as follows:) United Counties of and to wit : i \ AFFIDAVITS. 11 Second. That, &c. &c. {and so on, with as imny paragraphs as may he necessary, confining eachpara- graph to a distinct matter, and commencing each in a new line,) Sworn before me at t n in the County of this day of A.D. 1863. CD., J. P., or Commissioner, &c., or County of [ ] A. B. 2. General Porm of AflBnnation. County of to wit: or \ I, A. B., of Jin the County of ( yeoman {or other proper desig- United Counties of (nation), do solemnly and sin- and I cerely aflSrm and declare as fol- to wit : / lows : First. That, &c. &c. {as in an affidavit.) Affirmed before me at in the County of this day of A.D.1863. C. D., J. P.. or Commissioner, &c., for the County of [ ] A. B. 12 CANADIAN DOMESTIC LAWYER. A The following is the form of an oath :• I m I 3. Oath. You swear that this aflfidavit, 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 subscribed, is true, to the best of your knowledge and belief. Every affidavit or affirmation must be subscribed at the foot by the party making the same ; but, if unable to write, a mark may be made, thus : — The mark of 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 the sounty of tliis day of 18 . And I certify that the foregoing affidavit (or affirma- Hon) was read over by me (or in my presence) to the said A. B., who appeared perfectly to understand the same, and made his mark in my presence. CD. J. P., or Commissioner, &c. i^ii r CONTRACT> OH AliKEEMENTS. 1-3 CHAPTER II. OF CONTRACTS OR AOREEMEKTS. An agreement is an engagement entered into be- tween two or more persons. In legal phraseology, it is termed a contract, which is defined by Sir W. Blackstone, the great commentator upon the laws of England, to be " an agreement upon sufficient consider- ation to do or not to do a particular thing." This agreement, or contract, may be either express or implied. Express contracts are either by parol, or word of mouth, which are technically called simple contracts, or by deed under seal, which are called special contracts. Simple contracts, however, may, and in some cases must, be evidenced by writing. A parol contract, then, is an agreement by word of mouth, upon sufficient consideration, to do or not to do a particular thing. According to English law, a consideration is essential in every contract: a promise »vithout a consideration cannot be enforced. Thus, if a man promise to give me $1000 without any con- sideration, he is not bound to perform his promise, and I am without remedy if he should break his word. Considerations are of two kinds, — good (sometime called meritorious) and valuable. A good considera- tion is that of blood, or the natural love and affection which a person has to his wife or children or any of . .1 if I 14 CANADIAN DOMESTIC LAWYER 1 1 * I. ■ i. ill his relatives. A valuable consideration may be either the payment of money, or the gift or conveyance of any thing valuable; or it may be the consideration of the marriage of the party himself or of any relative, or any act of one party from which the other, or any stranger at his request, express or implied, derives any advantage; or any labor, detriment, inconve- nience, or risk sustained by the one party if such labor be performed, or such detriment, inconvenience, or risk be suffered, by the one party at the request, express or implied, of the other, although such other may himself derive no actual benefit. A good considera- tion is not of itself sufficient to support a promise, any more than the moral obligation which arises from a man's passing his word ; neither will the two together make a binding contract : thus, a promise by a father to make a gift to his child will not be enforced against him. A valuable consideration is, therefore, in all cases necessary to form a valid contract. By some statutes writing is required to most simple contracts respecting matters of importance. It should be remembered, however, that in all cases where writ- ing is by any statute made necessary to a contract, the contract is still a parol one, though evidenced by the writing; but when a contract is made by deed, the deed itself is the contract. The first and most important of these statutes is called the Statute of Frauds, passed in the reign of Charles II. (29 Car. II. cap. 3), which enacts, in its fourth section, that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own CONTRACTS OR AGREEMENTS. 15 N^^ estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or mis- carriage of another person ; or to charge any person upon any agreement made upon consideration of mar- riage; or upon any contract or sale of lands, tene- ments, or hereditaments, or any interest in or concern- ing them ; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person there- unto by him lawfully authorized. This statute, it will be observed, does not give to writing any validity which it did not possess before. A written promise, made since this statute, without any consideration, is quite as void as it would have been before. The statute merely adds a further requisite to the validity of cer- tain contracts, namely, that they shall, besides being good in other respects, be put into writing, otherwise they cannot be enforced. The phrase in t^e statute to ariHwer for the debt, default, or miscarriage of an- other person, means to answer for a debt, default, or miscarriage for which that other remains liable. The words "any agreement that is not to be performed within the space of one year from the making thereof" mean an agreement which appears from its terms incapable of performance within a year. In order to bring an agreement within this clause of the statute, 80 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, 'i 16 CANADIAN DOMESTIC LAWTEK. t « or some memorandum or note thereof, to be signed by the party to be charged therewith, or some other per- son thereunto by him lawfully authorized," has been liberally construed, and any insertion by the party of his name in any part of the agreement in a suffi- cient signing within the statute, provided the name be inserted in such a manner as to have the effect of authenticating the instrument ; and it is not necessary that both parties should sign the agreement. The whole of the agreement must be contained in the writing, sither expressly or by reference to some other docu- ment, but the writing is required by the statute to be signed only by the party to he charged. And, as a "memorandum or not^" of the agreement is allowed, a writing sufficient to satisfy the statute may often be made out from letters written by the party, or from a written offer accepted without any variation before the party offering has exercised his right of retract- ing ; and when correspondence is carried on by means of the post, an offer is held to be accepted from the moment that a letter accepting the offer is put into the post, although it may never reach its destination. With reference to contracts for the sale of goods, it is to be observed that the necessary requisites de- pend partly upon the value of the goods. As to goods under the value of $40, there can be no sale without a tender or part payment of the money, or a tender or part delivery of the goods, unless the con- tract is to be completed at a future time. Thus, if A. should agree to pay so much for the goods, and B., the owner, should agree to take it, and the parties should then separate without any thing further pass- CONTRACTS OR AGREEMENTS. 17 ing, this is no sale. But if A. should tender the monc}", or pay but a cent of it, or B. shouhl tender the goods, or shouM deliver any, even the smallest portion of them, to A., or if the i)ayment, or delivery, or both, should be postponed l)y agreement till a future day, the sale will be valid, and the property in the goods will pass from the seller to the purchaser, if, however, any act should remain to be done on the part of the seller previously to the delivery of the goods, the property will not pass to the purchaser until such act shall have been done. Thus, if goods, the weight of which is unknown, are sold by weight, or if a given weight or measure is sold out of a larger quantity, the property will not pass to the purchaser until the price shall have Deen ascertained by weigh- ing the goods in the one case, or the goods sold shall have been separated by weight or measure in the other. So if an article be ordered to be manufac- tured, the property in it will not vest in the person who gave the order, until it shall, Avith his consent, have been set apart for his benefit. With regard to goods of the value of $40 or up- wards, additional requisites have been enacted by the seventeenth section of the Statute of Frauds, which provides "that no contract for the sale of any goods, wares, and merchandises for the price of XIO sterling or upwards, shall be allowed to be good exc pt the buyer shall accept part of the goods so sold, and actually re- ceive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such con- 18 CANADIAN DOMESTIC LAWYER. tract, or their agents thereunto lawfully authorized.'* And hy a still more recent act (Cons. St. U. C. cap. 44, s. 11) this enactment "shall extend to all contracts for the sale of goods of the value of $4u and upwards, notwithstanding the goods may be intended to be rlelivered at some future time, or may not, ut the time of such contract, be actually made, procured, or pro- vided, or fit 0^' ready for delivery, (>r although some act may bo 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 frcm the making thereof, then, however small be the value of the goods, n<) 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 liim lawfully authorized. Agreements should be signed by all the parties thereto ; and where some' ling is to be done on both sides, it is very useful to have them written in dupli- cate, so that each party may possess one copy. The followinfj are a few forms of aojreements in common use: — Agreement for Sale of Land. Akticles of Agreement, made this day of , in the yeiw of our Lord one thousand eight hundred and , between A. 13. of, &c., of tlie Hrst part, and C. D. of, &c., of the second part. Whereas the said part of the first part, ha agreed to sell to the part of the second part, and the part CONTRACTS OR AGREEMENTS. 19 in of the second part ha agreed to purchase of and from the said part of the first part. All and Sin- gular, th certain tract or parcel of land, being composed of {^describe premi8e8~\, together with all the privileges and appurtenances thereto belonging, at and for the price or sum of , lawful money of Canada, payable in manner and on the days and times hereinafter mentioned, that is to say : \_8tafe terras of 'ay merit.'] Now IT IS HEREBY AGREED between the parties aforesaid in manner following, that is to say: The said part of the second part, for sel heirs, execu- tors, and administrators, do covenant, promise, and agree, to and with the said part of the first j)art heirs, executors, administrators, and assigns, that he or they shall and will well and truly pay, or cause to be paid, to the said part of the first part, heirs, executors, administrators, or assigns, the said sum of money, together with the interest thereon, on the days and times and in manner above mentioned ; and also shall and will pay and discharge all taxes, rates, and assessments, wherewith the said land may be rated or charged from and after this date. In con- sideration whereof and on payment of the said sum of money with interest as aforesaid, in manner afore- said, the said part of the first part do , for sel . heirs, executors, administrators, and assigns, covenant, promise, and agree, to and with the said part of the second part, heirs, executors, administrators, or assigns, to convey and assure, or cause to be conveyed and assured, to the said part of the second part, heirs and assigns, by a good and sufficient Deed, in fee simple, I I do CANADIAN DOMESTIC LAWYER. ^t\ 1 I with the usual covenants, the said piece or parcel of land, ^"'*^' *He appurtenances, freed and discharged from all ^a^amlu'ance.s, hut subject to the conditions and reservations expressed in the original grant from the Crown, and shall and will suffer and permit the said part of the second part, heirs and assigns, to oecupy and enjoy the same, until default be made in the payment of the said sum of money, or any part thereof, on the days and times, and in manner above mentioned, subject, nevertheless, to impeach- ment for voluntary or permissive waste. And it is expressly understood that time is to be considered the essence of the agreement, and unless the payments are punctually made, the said part of the first part is at liberty to re-sell the said land. In Witness whereof, the said parties have hereto set their hands and seals, the day and year first above mentioned. Signed and sealed in presence of X. Z. A. B. [l. s.] C. D. [L. s.] (another form.) Articles of Agreement, made and entered into this day of , in the year of our Lord one thousand eight hundred and , between A. B. of, &c., for heirs, executors, administrators, and assigns, of the first part, and C. D. of, &c., for heirs, executors, administrators, and assigns, of the second part. WITNESSETH, that the said part of the first part, in consideration of the covenants and agree- ments hereinafter contained, on the part of the said CONTRACTS OR AGREEMENTS. 21 part of the second part, Do hereby agree with the said part of the second part to sell to All th {^describe property] with the appurtenances, for the sum of of lawful money of Canada, to be paid at the days and times and in manner following, that is to say: [state terms of payment.'] And Further, that he the said part of the first part will, upon receiving from the said part of the second part, executors or administrators, the sum of as above provided, execute to the said part of the second part, heirs, executors, administrators, or assigns, a good and sufficient Deed of Conveyance in fee simple, for vesting the said premises, with the appurtenances, in the said part of the second part, heirs or assigns, or as he or they shall appoint, free from all incumbrances. And the said part of the second part, in consider- ation of the premises, do hereby covenant and agree with the said part of the first part to purchase the said premises, with the appurtenances, upon the terms and conditions afore^id, and that the said part of the second part, heirs, executors, administra- tors, or assigns, will well and truly pay or cause to be paid to the said part of the first part, heirs, executors, administrators, or assigns, the said purchase money or sum aforesaid, on the days and times and in manner above provided for payment thereof, with- out making any deduction, defalcation, or abatement thereout for or in respect of any taxes, assessments, or otherwise howsoever. And it is hereby mutually agreed, that the said part of the second part may forthwith take posses- i|i 22 CANADIAN DOMESTIC LAWYEB. Ill 8ion of the said premises, and receive the rents ana profits thereof to own use and benefit, as from the , up to which time the said part of the first part will clear all out-goings payable in respect of the said premises. And tuat in case of default in payment of any part of the said purchase money or interest as above provided, for three months after the same shall become due, the whole amount cf the said purchase money shall thereupon become due and payable, and be reco- verable by the said party of the first part. As Witness the hands and seals of the said parties. Signed, sealed, and delivered in the presence of X. Z. A. B. [l. s.] C. D. [l. s.] (another form.) This Agreement, made and entered into the day of , in the year of our Lord one thousand eight hundred and , between A. B. of, &c., of the first part, and C. D. of, &c., of the second part, WITNESSETH, That the said party of the first part, in consideration of the covenants and agreements here- inafter contained, agrees to sell unto the said party of the second part, all th piece or parcel of land known and described as lot number , for the sum of of lawful money of Canada; and the said party of the second part, in consideration of the premises, agrees to pay to the said party of the first part the said sum of , in manner following, namely : And in case default shall be made in the payment of the principal or interest, as above CONTRACTS 01'. AURKEMENTS. 23 provided, for the [MTJod ot* tliret' months after the uame shall have become due as above stipulated, it is expressly understood and UL^reed upon between the said parties, that the wliole amount of the principal sum of money hereby agreed to be paid, together with the interest thereon, shall at once become due and payable: Further, the said party of the first part agrees, that on receiving payment in full of the said sum of , with the interest thereon as aforesaid, he will execute and deliver to the said party of the second part a good anj} sufficient Deed, for the con- veying and assuring to him, the said party of tho second part, the fee simple of the said premises, free from all incumbrances, and for tho due performance of this Agreement the said parties bind themselves, each to the other, in the penal sum of ; and it is understood, that the stipulations aforesaid are to apply to, and to bind the heirs, executors, adminis- trators, and assigns of the respective parties, and that the party of the second part is to have immediate possession of the premises. In Witness whereof, they, the said parties, have hereunto set their respective hands and seals, on the day and year first above written. In the presence of A. B. [l. S.] X. Z. C. D. [l. s.] (another form.) Articles of Agreement, made the day of , in the year of our Lord one thousand eight iundred and fifty- , between A. B. of the of , in the county of . of the first part, and ;lfl " n m Im I t 24 CANADIAN DOMESTIC LAWYER. C. D. of the of 5 in the county of , of the second part, Witness, that the part of the first part, for heirs, executors, and administra- tors, covenants with the part of the second part, ^eirs and assigns, that he shall and will, on the pay- ment of the sum of and interest thereon, on the days and times and in manner hereinafter men- tioned, and also on the observance and performance of the covenants and conditions hereinafter mentioned by the part of the second part, heirs or assigns, but not otherwise, well and diffidently convey, or cause to be conveyed, to the part of the second part, heirs and assigns, by a good and sufficient deed in fee simple, all and singular tli certain par- cel or tract of land and premises situate, lying and being in the of , in the county of , and Province of Canada, consisting of , free from all incumbrances, made, suffered, or created, by the part of the first part, or any person or persons claim- ing by, from, or under . And the part of the second part, for heirs, executors, and administrators, covenant with the part of the first part, executors and administrators, that the part of the second part, heirs, executors, or administrators, shall and will well and truly pay, or cause to be paid, to the part of the first part, executors or administrators, the said sum of , in the manner following : Tliat is to say ; and in default of the payment of such instalments or interest in any year, within one month after any or either of the days on which the same is made payable, the said principal sum of , or any part thereof that at the time of such default shall be CONTRACTS OR AGREEMENTS. 25 remaining unpaid, shall immediately become due and payable ; And the part of the second part, heirs, executors, or administrators, shall immediately pay the same, and all interest that may be due thereon, although the day fixed for the payment of the said principal sum by these presents shall not have arrived !it the time of such default; and also shall opd will l)ay and satisfy all rates and taxes of what nature or kind soever they may be, "whether parliamentary or nmnicipal, that are now or may hereafter be assessed upon or against the said land, or the owner or occu- pier thereof, or the said principal sum of money, or any part thereof, during the continuance of these presents. And it is hereby further expressly agreed between the said parties hereto, that the observance and performance of the covenants and conditions herein contained, and time, as well in the payment of the interest as of the principal money as aforesaid, are strictly of the essence of this contract. In Witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered in presence of X. Z. A. B. [l. s.] 0. D. [l. s.] (another form.) Articles of Agreement, made the day of , in the year of our Lord one thousand eight hundred and fifty- , between A. B. of, &c., of tho first part, and C. D. of, &o., of the seoond part; u ii nrl 'i i ■\ 26 CONTRACTS OR AGREEMENTS. WITNESSETH as foDows: That the said party of the first part, in consideration of the sum of , law- ful money of Canada, to be paid to the said party of tlie first part, and of the covenants to be performed by the said party of the second part as hereinafter expressed, hereby agrees to sell to the said party of the second part, his heirs, 'executors, administrators, or assigns. All that certain tract of land situate , with the privileges and appurtenances there- unto belonging. : f , ■ kill 'i ,1 ■ill i A^'D the said party of the second part, in consider- ation of the covenants herein contained on behalf of the said party of the first part, agrees to purchase of the said party of the first part, the above described land, and to pay for the same to the said V'^^^y () long as any part of the principal or interest of the said consideration mcmey remnins unpaid, well and faithfully, in due season, in eacli and every year, pay, (►r cause to be paid, all taxes and assessments that iiiiiy 1)0 levied or assessed on said premises, and that will not commit, or suifer any other person to commit, any waste or dauiage to the said lands, or the ii)>purtenances, except for fire-wood, improvements or otherwise, for his own use, oi" while clearing the land for cultivation in the ordinary manner. CONTRACTS OR AGREEMENTS. 27 The said party of the first part further covenants and agrees with the said party of the second part, that upon the faithful performance by the said party of the second part of the covenants and agreements by to be performed, and upon the payment of the several sums of money above mentioned, and the interest thereon, at the times and in the manner, and at the place above mentioned, to the said party of the first part, that thereupon the said party of the first part will well and faithfully execute and deliver a good and sufficient Deed or Deeds with such cove- nants and assurances as counsel learned in the law shall advise and require, and thereby convey to the said party of the second part, heirs and assigns, a good and unincumbered title in fee simple, to the above described premises, with their appurtenances. It is further covenanted and agreed, by and between the said parties hereto, that the said may immediately enter on the said Land, and remain thereon and cultivate the same as long as shall fulfil and perform all the agreements hereinbefore mentioned on part, to be fulfilled and performed, and no longer, and that if shall, at any time liereafter, violate or neglect to fulfil any of said agreements, shall forfeit all right or claim under this contract, and be liable to the said for damages, and shall also be liable to be removed from the said land in the same manner as is provided by law for the removal of a tenant that holds over after the expiration of the time specified in his lease. And it shall be lawful for the said party of the first part, at any time after the violation or non>ful- 28 CANADIAN DOMESTIC LAWYER. f 1 ' I ! «i filment of any of the said agreements on the part of the said party of the second part, to sell and convey the said land, or any part thereof, to any person whomsoever; and the said party of the first part shall not be liable in any way, nor to any person, to refund any part of the money which may have received on this contract, nor for any damages on account of such sale. And it is hereby expressly understood and declared that the prompt performance of this contract is in contemplation of the parties, that the time is and shall be deemed and taken as of the very essence of this contract, and that unless the same shall in all respects be complied with by the said party of the second part at the respective times and in the manner above limited and declared, the said party of the second part shall lose and be debarred from all rights, remedies, or actions, either in law or equity, upon or under this contract. These Articles of Agreement are hereby declared to be binding on the respective parties hereto, their heirs or assigns, in the sum of In Witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. Signed, sealed, and delivered in presence of X. Z. A. B. [l. s.] C. D. [l. s.] Agreement for Sale by way of Lease, reserving Purchase- Money as Bent. This Agreement, made the day of In the year of our Lord .one thousand ei^^ht hundred CONTRACTS OR AGREEMENTS. 29 and , Between A. B., of &c., of the first part, and C. D., of &c., of the second part. Whereas, the said party of the second part hath contracted with the said party of the first part for the purchase, in fee simple, of all and singular the land, tenements, hereditaments, and premises herein- after mentioned to be hereby demised, for the sum of [$ ] lawful money of Canada^ to be paid on the days and times and in manner hereinafter men- tioned. And whereas the said parties are willing and desirous that the said party of the sec^n:! part shall go into immediate possession and occupation of the said land, tenements, hereditaments, and premises, and receive a conveyance of the fee simple and in- heritance thereof, so soon as the principal sum shall be fully and faithfully paid on the days and times and in manner after mentioned (all and singular other the covenants and agreements hereinafter contained, and which on the part and behalf of the said party of the second part, his executors, administrators, and assigns, are to be paid, fulfilled, performed, and kept, having been well and truly paid, performed, fulfilled, and kept, according to the true intent and meaning of these presents), and that in the mean time the lawful interest on the said principal sum should be reserved and paid as rent issuing out of the said land, tenements, hereditaments, and premises hereby demised: Now, therefore, this Agreement wn- NESSETH, that in consideration of the premises and of the rents, covenants, and agreements hereinafter reserved and contained, and whidi on the part and behalf of the said party of the second part, his 3* f! u f 1 1 i 'I i I I' I I M 30 CANADIAN DOMESTIC LAWYER. executors, administrators, and assigns, are 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 party of the second part, his executors, administrators, and assigns. All that land, tenements, hereditaments, and premises, situate, lying, and being in the in the County of in the Province aforesaid [here describe the premises], to- gether with all out-houses, waters, and water-courses thereon erected, lying or being, and all and singular other the rights, members, and appurtenances there- unto belonging, or in any wise appertaining. To HAVE AND TO HOLD the Said land, tenements, heredi- taments, and premises hereby demised, or intended so to be, with the appurtenances thereunto belonging, unto the said party of the second part, his executors, administrators, and assigns, from the day of in the year of our Lord one thousand eight hundred and , for and during, and unto the full end and term of years from thence next ensuing, and fully to be completed and ended. Subject NEVERTHELESS to the reservations, limitations, pro- visoes, and conditions expressed in the original grant thereof from the Crown, yielding and paying there- for, yearly and every year during the said term hereby demised, unto the said party of the first part, his heirs, executors, administrators, and assigns, the yearly rent or sum of of lawful money of Canada, in even and equal yearly payments on the day of and day of in each and every year during the said term, without any CON'^RACTS OR AGREEMENTS. 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 im- posed, or hereafter to be taxed, rated, levied, charged, assessed, or imposed, whether the same be now due. or shall hereafter become due, on the said demised premises or any part thereof, or on the said rent or any part thereof, or on the said principal sum of money specified in the Schedule first above mentioned, or any part thereof, or on either of the said parties to these presents, their or either of their heirs, ex- ecutors, administrators, or assigns, or any of tliem in respect thereof, or any part thereof, by authority of Parliament or otherwise howsoever, the first payment of the said rent hereby reserved to be made on the day of in tlio yenr of our Lord one thou- sand eight hundred aiid . Provided always, NEVERTHELESS, that ou payment of any instalment or instalments of the principal sum hereinafter speci- fied according to the covenant hereinafter contained, for payment thereof, and the true intent and meaning of these presents the said rent liereby reserved shall from thenceforth be proportionably reduced, so as at no time to exceed the annual lawful interest on siu'li part of the said principal sum as shall from time lo time remain due and owing after tlie paynu'nt of such instalment or instalments respectively: A\D pro- vided, ALSO, that if the said yearly rent or any part thereof, or the said principal sum or any part thereof, shall at any time or times hereafter be behindhand If 1 : 82 CANADIAN DOiMESTIC LAWYER. \ 'l! and unpaid by the space of thirty days next after any or either of the days on Avhich the same cr any part thereof ought to be paid, as herein or hereby provided, 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 time assign, or set over, oi demise, or underlease the said demised premises, or iny part thereof, or in any other manner part witli the possession of the same, t^ any person or persons whomsoever, for all or any part of the ^aid demised term, without the special license or consent of the said party of the first part, his heirs or assigns, first had in writing under hand and seal, Or if the party of the second part, or any one acting under or claim- ing from him, shall at any time during the continu- ance of these presents commit or sufi'er to be com- mitted any waste or destruction to any of the timber upon the said land, for any other purpose whatsoever than bringing the land into cultivation. Then, and in any and every of the said cases, it shall and may be lawful for the said party of the first part, his heirs or assigns, into the said demised premises or any part thereof, in the name of the whole, to re-enter, and out of the same to eject, expel, amove, and put the said party of the second part, his executors, administra- tors, and assigns, and the same to have again, repossess, and enjoy, as in his and their first and former estate, and from the time of any such re-entry by the said party of the first part, his heirs or assigns, the said term hereby demised, or so much thereof as shall be then unexpired, and these presents, and every CONTRACTS OR AGREEMENTS. 88 .« clause, matter, and thing therein contained, shall cease and determine, and forever thereafter be null and void to all intents and purposes whatsoever, any thing herein contained to the contrary thereof in any wise notwithstanding. And the said party of the second part Doth hereby for himself, his heirs, ex- ecutors, administrators, and assigns, covenant, pro- mise, and agree, to and with the said party of the first part, his heirs and assigns, in manner following, that is to say; That he the said party of the second part, his heirs, executors, administrators, and assigns, or some of them, shall and will well and truly pay or cause to be paid unto the said party of the first part, his heirs, executors, administrator,?, or 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, administrators, 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, statute labor, or other imposition above mentioned, lawfully charged or to be charged, whether the same be now due, or shall hereafter become due, on the said demised premises, on the said rent, or on the said principal sum, or on any part thereof, or on any person or persons in respect thereof, or any part thereof, as aforesaid; And also that he the said party of the second part, his executors, administra- tors, or assigns, or any of them, shall not nor will at any time or times during the said term hereby i I I j'; 34 CANADIAN DOMESTIC LAWYER. demised, assign or set over, underlet or underlease, the said demised premises, or any part thereof, cr in any other manner part with the possession of the same or any part thereof during any part of the said demised term, without such special license and con- sent as is hereinbefore specified, as aforesaid; And ALSO THAT 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, administrators, or assigns, or some of them, shall and will well and truly pay or cause to be paid, unto the said party of the first part, hi<~ heirs, executors, administrators, or assigns, the full and just sum of of lawful money of Canada, on the days and times and in manner following, that is to say [^here set forth the 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, administra- tors, and assigns, covenant, promise, and agree, to and with the said party of the second part, his executors, administrators, and assigns, in manner following, that is to say. That upon the due and faithful payment, performance, and fulfilment by the said party of the second part, his executors, adminis- trators, or assigns, of all and singular the covenants and agreements herein contained, and which on the pan and behalf of the said party of the second part, CONTRACTS OR AGREEMENTS. 85 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 and at the request of the said party of the second part, his executors, adminis- trators, or assigns, made to and upon him the said party of the first part, his heirs, executors, adminis- trators, or assigns, or any of them, but at the proper costs and charges in the law of the said party of the second part, his executors, administrators, or assigns, well and sufficiently convey and assure, or cause to be well and sufficiently conveyed and assured, unto the said party of the second part, and his heirs, in fee simple absolute, or to such person or persons as his, her, or their heirs, in fee simple absolute, as the said party of the second part, his executors, adminis- trators, or assigns, shall nominate and appoint, and to such uses as he or they shall direct, all and singular the said land, tenements, hereditaments, and premises hereby demised by such conveyances and assurances in the law, as by the said party of the second ps^rt, his executors, administrators, or assigns, or hij or their counsel learned in the law, shall or mav be reasonably devised, advised, or required, freed, and discharged of and from all incumbrances whatsoever, But subject nevertheless to the reservations, limita- tions, provisoes, and conditions expressed in the original grant thereof from the Crown. With usual and proper covenants. And it is hereby further ex- pressly agreed upon by and between the said parties, that in case at any time any of the rent or interest r 36 CANADIAN DOMESTIC LAWYER. f 1 f i i aforesaid or of the purchase money shall remain un- paid 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 resell the said land at the best price which can be reasonably got for the same, and thereby utterly extinguish an '. 40 CANADIAN DOMESTIC LAWYER. the true intent and meaning of these presents, before the day of : And that if the said T.G., his executors or administrators, shall not so well and sufficiently cover in the said dwelling-house and offices before the said day of , or shall not so complete, make, and execute, the said dwelling- house, offices, and works before the said day of , they, the said T. G. and T. C, shall pay to the said J. B. the sum of for every week during which the said dwelling-house and offices shall remain uncovered in after the said day of , and the like sum for every week the said-dwelling-house, offices, and works shall remain unfinished after the said day of ; which sums may be recovered as liquidated damages, or may be deducted from the sums payable to the said T. G. under this agreement. Provided always, that in case the said J. B., his executors, administrators, or assigns, or his or their surveyor, shall require any extra or additional works to be done, or shall cause the works to be delayed in their commencement or their progress, the said T. G. shall be allowed to have such additional time for covering in and 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 bee^i lost by the delay caused by the said J. B., his executors, admi- nistrators, or assign, jr his or their surveyor as afore- said ; and the said payments for delay shall not be- come payable until after the expiration of such addi- tional time or times. And the said T. G. and T. C. do hereby further CONTRACTS OR AGREEMENTS. 41 agree with the said J. B., that in case the said W. M., or other surveyor as aforesaid, shall be dissatisfied with the conduct of any workman employed by the said T. G. in the said works, or with any materials used or brought upon the said premises for the pur- pose of being used in the said works, and shall give notice thereof in writing under his hand to the said T. G., he, the said T. G., will forthwith discharge such workman from the said works and remove the said materials ; and that in case the said T. G. shall not, in the judgment of the said W. M. or other sur- v^iyor as aforesaid, employ a sufficient number of workmen in the execution of the said works, or have on the premises a sufficient quantity of materials or implements of proper quality for the said works, and the said W. M. or other surveyor as aforesaid shall, by writing under his hand, require the said T. G. 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, and the said T. G. shall forthwith em- ploy in the said works such additional number of work- men, and shall forthwith bring upon the premises such additional quantity of materials or implements for the said works : and that in case he shall refuse or neg- lect for the space of seven days to comply with any such notice or request, it shall be lawful for the said W. M. or other surveyor as aforesaid to dismiss and discharge the said T. G. from the further execution 42 CANADIAN DOMESTIC LAWYER. of the said works, and for the said J. B., his execu- tors, administrators, and assigns, to employ some other person to complete the same ; and that in such case the sum agreed to be paid to such other person to complete the said works (such sum being approved by the said W. M. or other surveyor as aforesaid) shall be deducted from the said sum of , and the bal- ance, ai'ter making any other deductions which the said J. B. shall be entitled to make under this agree- ment, shall be paid by the said J. B. to the said T. G. in full for the work done by him, at the expiration of one month after he shall have been so discharged as aforesaid : And it is hereby further agreed by and between the parties hereto, that all the materials brought upon the said piece of ground for the purpose of being used in the said buildings, except such as shall bo disapproved of by the said W. M. or other surveyor as aforesaid, shall, immediately they shall be brought upon the said premises, become the pro- perty of the said J. B., and shall be used in the said works. And the said J. B. doth hereby, in consideration of the works so agreed to bo done by the said T. G., agree with the said T. G., that he, the said J. B., shall pay to the said T. G. for the same the said sum of in manner following, that is to say : the sum of within one week after the said W. M. or other surveyor as aforesaid shall have certified in writing to the said J. B., his executors, administrators, or as- signs, under his hand, that work to the value of has been done under this agreement and the further sum of within one week after the said W. M. or CONTRACTS OR AGREEMENTS. 43 itiou G., shall I of sum tlicr such other surveyor shall have certified as aforesaid that further work to the value of has been done under this agreement, and so on shall pay •for every worth of work so certified as af::resaid, until the whole of the said works shall be finished, and shall pay the balance remaining unpaid within one month after the said works shall have been com- pleted and finished to the satisfaction of the said W. M. or such other surveyor, and the said W. M. or such other surveyor shall have certified to the said J. B. that the said works have been completed and finished to his satisfaction. Provided always, and it is hereby further agreed by the parties hereto, and particularly by the said T. G. and T. C, that if the said J. B., his executors, administrators, or assigns, shall at any time be desirous of making any altera- tions or additions in the erection or execution of the said dwelling-house, offios, and other works, then and in such case the said T. G. shall erect, complete, make, and execute t' ^ said dwelling-house, offices, and other works, with such alterations and additions as the said J. B., his executors, administrators, or assigns, or the said W. M. or such other surveyor, shall from time to time direct by writing under his or their hand or hands, and to the satisfaction of the said W. M. or such other surveyor ; and the sum or sums of money to be paid or allowed between the said parties in respect of such alterations and additions shall be set- tled and ascertained by the said W. M. or such other surveyor, whose deteimination shall bo final. Pro- vided ALWAYS, and it is hereby further agreed, that in the settling and ascertaining the said sum or sums I I il 44 CANADIAN DOMESTIC LAWYER. of money, the said W. M. or such other surveyor shall not include any charge for day-work, unless an account thereof shall have been delivered to the said J. B., his executors, administrators, or assigns, or the said W. M. or such other surveyor, at the end of the week in which the same shall have been performed. Provided also, and it is hereby further agreed, that no such alteration or addition shall release the said T, G. and T. C, their executors or administrators, or any or either of them, from the observance and per- formance of the agreements herein contained on the part f the said T. G., his executors or administrators, to be observed and performed, so far as relates to the other parts of the said dwelling-house, offices, and works; but that the sam^ agreements shall in all respects be observed and performed in like manner as if no such alteration or 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 of the said J. B., his executors, administrators, or assigns, and the said T. G., his executors or adminis- trators, shall be dissatisfied with the surveyor for the time being, to be appointed by the said J. B., his ex- ecutors, administrators, or assigns, then it shall be lawful for the said T. G., his executors or administra- tors, at his own expense, to employ a surveyor on his behalf in the adjustment of the accounts, to act with the surveyor for the time being of the said J. B., his executors, administrators, or assigns ; and in case of disagreement between such two surveyors, they shall be at liberty to nominate a third ; and the said three surveyors, or any two of them, shall and may exercise CONTRACTS OR AGREEMENTS. 45 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 and continued to act as the surveyor of the said J. B., his executors, admi- nistrators, or assigns. And it is hereby further agreed, that if the said T. G., his executors or admi- nistrators, shall 30 employ a surveyor on their behalf, he shall be nominated within ten days after the said T. G. shall be informed of the surveyor for the time being appointed by the said J. B., his executors, ad- ministrators, or assigns, and notice in writing shall forthwith be given of such nomination to the said J. B., his executors, administrators, or assigns. In Witness, &c. Schedule. — [The Specification referred to by the foregoing Articles of Agreement.] Sub-Oontract between a Builder and a Carpenter. An Agreement made the day of , in the year of our Lord 18 , between T. G., of , Builder, and C. D., of , Carpenter. Whereas the said T. G. hath entered into a con- tract with J. B., c^, &c., to erect a dwelling-house and offices according to certain plans, elevations, and spe- cifications, referred to in said contract, under the su- perintendence of W. M. or other surveyor of the said J. B., and which contract is dated the day of : Now it is hereby agreed, that in consideration of the sum of to be paid by the said T. G. to the said C. D. as hereinafter mentioned, the said C. D. shall do all the carpenter's work necessary to be done for the completion of the Baid contract, and referred I l\ \l i 46 CANADIAN DOMESTIC LAWYER. to in the said plans and specifications, and provide all materials and implements necessary for the perform- ance of such work, and shall do the same in all things according to the said contract and specifications, and .shall in all things abide by, perform, fulfil, and keep the said terms and stipulations of the said contract, so far as the same are or shall be applicable to such carpenter's work ; and that in case the said T. G. shall l>ecome liable to pay any penalties under the said contract in consequence of the delay of the said C. D. in the performance of the work agreed to be performed by him, the said C. D. shall pay to the said T. G. the amount of such penalties ; and that in case the said W. M. or other surveyor appointed to superintend the works under the said contract shall disapprove of the work done by the said C. D., or the materials used by him, or the manner in which such work is done, it shall be lawful for the said T. G. to dismiss and discharge the said C. D. from the further performance of such work, and employ some other person to complete the same ; and that in such case the money which the said T. G. t^hall pay to the said other person for the completion of the said works shall be deducted from the sum which would otherwise be payable to the said C. D. under this agreement ; And that for the consideration aforesaid, the said T. G. shall pay to the said C. D. the sum of $ , in manner following : 75 per cent, on the price and value of the work done by the said C. D. during any week, to be paid to him on the Saturday in every week during the continuance of tho said works, and the balance within one month CONTRACTS OR AGREEMENTS. 47 )n after the completion of the said dwelling-house and offices. In Witness, &c. [This form may be easily adapted to any par- ticular work on a building^ as Bricklayer* 8^ Paint- er s, ^c.) Oontract to do Bepairs, ko. An Agreement made the day of , in the year of our Lord 18 , between A. B., of, &c., and C. D., of, &c. : The said A. B. agrees to do all the works hereunder specified, in the best and most workmanlike manner, and to provide for such works all necessary materials and things of the best quality, and to complete and finish the said works on or before the day of next ; and in case the said works shall not be finished on or before the said day of , to pay or allow to the said C. D., out of the moneys payable under this agreement, the sum of for each day during which the said works shall remain unfinished after the said day of ; und that in case the said C. D. shall require any ad- ditions or alterations to be made to the works here- under specified, to execute such additions and altera- tions in the best and most workmanlike manner, with materials of the best quality : And it is hereby agreed, that in case any additional works shall be required by the said C. D., or in case the said C. D. shall delay the execution of the said works, the said A. B. shall have such additional time for the performance of the said works, after the said day of , as shall have been cousumed in the exeoution of such addi- 48 CANADIAN DOMESTIC LAWYER. i i ■;-( \ fll tional works, or as the time during which the said C. D. shall have delayed the said works, and that the payments for delay shall not be payable until after the expiration of such additional time : And it is hereby further agreed, that materials brought upon the premises of the said C. D. for the purpose of being used in the said works, shall, if of proper description and quality, immediately become the property of the said 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 : And it is hereby agreed, that in case of any additions or altera- tions being made in or to the said works, the price of such additions or alterations shall be estimated in pro- portion to the said sum of for the whole of the said works, and such price so estimated shall be either added to or deducted from the sum of In Witness, &c. Agreement for Sale of Merchant's Stock. This Agreement, made the day of , a. d. 18 , Between A. B., of, &c., merchant, of the one part, and C. D., of, &c., merchant, of the other part. The said A. B. agrees to sell, and the said C. D. agrees to buy, all the stock of goods, wares, and mer- chandise now being in and upon the store occupied by the said A. B., at aforesaid at the invoice price thereof (or at the sum of % , or otherivise, as agreed, on), an account of such goods, wares, and mer- chandise being taken by the parties hereto in the presence of each other. And it is hereby agreed that any of the said goods, wares, or merchan- CONTRACTS OR AGREEMENTS. 49 dise which may be damaged, shall be appraised and valued by three disinterested persons ; each of the parties hereto selecting one of such persons, and the two so selected appointing the third; and that the price set upon such damaged goods, wares, or mer- chandise by the said three persons shall be substi- tuted 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. is to pay the valuation thereof to the said A. B. And the said A. B. agrees to make, execute, and deliver unto the said C. D. a good and sufficient bill of sale and conveyance thereof, and to give to the said C. D. quiet and peaceable posses- sion thereof upon payment to him, the said A. B., by the said C. D., within the time before specified, of the invoiced or appraised value as aforesaid. In Witness, &c. {If desired, the form for appraising damaged goods can be made applicable to the entire stock.) Agreement for Sale of Grain. It is agreed this day of , A. D. 18 , by and between A. B., of, &c., and C. D., of, &c., as follows : The said A. B. agrees to sell to the said C. D. five thousand bushels of wheat, to be delivered to the said C. D. at , on or before the first day of January next, free of all charges, at the price or sum of per bushel. And the said C. D. agrees to purchase the said wheat, and to pay therefor at tho rate aforesaid, upon delivery as aforesaid. 4^j) i if \ m CANADIAN DOMESTIC LAWYER. the said A. B. hereby guarantees and warrants the said wheat to be good, clean, and merchantable grain. Witness our hands. Signed in presence of < ^' ■pv'-' ] CHAPTER III. OF ABSITSATION. Instead of the ultimate remedy of an action at law or suit in equity, recourse is sometimes had for the settlement of disputes to the more amicable ex- pedient of arbitration. And in some transactions, especially in articles of copartnership between traders, it is usual to stipulate that if any dispute shall arise it shall be referred to the determination of two in- different 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 is agreed that the award in writing of the arbitrators, or of their umpire in case of their disagreement, shall be binding and conclusive on all parties. 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 bind- ing on both. As the courts of law and equity have full juris- diction on all questions arising oi;t of a^eements of OP AHBITRaTIOH. 51 any kind, it follows that they retain a jurisdiction over matters which the parties themselves have agreed should be referred to arbitration. Notwithstanding, therefore, an agreement to refer disputes to arbi- tration, either party may bring the matter into court ; although if the agreement should contain 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 circumstance of the parties having agreed to refer to arbitration will in- duce a court of equity to pause before granting to any of them summary relief on a point which they have expressly agreed to settle by amicable means. If, however, one of the parties should, notwithstand- ing his agreement, refuse 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 arbitrators ; for the court acts only when it has it in its power itself to execute the whole contract in the terms specifically agreed upon. The reference of disputes to arbitration appears to have been early adopted by the courts of law, with the consent of the parties to an action, in cases where the matter in dispute could be more conveniently settled in this mode. A verdict was taken for the plaintiff by consent, subject to the award of an arbi- trator agreed upon by the parties, and the reference was made a rule of court. This plan is still con- tinually adopted. The arbitrators and the parties to the reference by this means become subject to the jurisdiotioQ of tha court, which has power to set aaido Ip «'• %i I'! P' I i! I ; :i !l 52 CANADIAN DOMESTIC LAWYER. any award which may appear to have been given un- justly or through mistake of the law ; or, if the award be valid, its performance may be enforced under the penalty of imprisonment for contempt of court. In order to extend the benefits of this mode of submis- sion to arbitration to all cases of controversies be- tween merchants and traders or others concerning matters of account or trade or other matters, an act of Parliament was passed in the reign of William the Third, intituled " An Act for determining diflferences by Arbitration" (9 & 10 W. III. c. 15). This Act empowers all merchants and traders and others de- siring to end by arbitration any controversy for which there is no other remedy but by personal action or suit in equity, to agree that their submission of their suit to the award or umpirage of any person or persons shall be made a rule of any of her majesty's courts of record which the parties shall choose. And it provides that in case of disobedience to the arbi- tration or umpirage to be made pursuant to such sub- mission, the party neglecting or refusing to perform and execute the same, or any part thereof, shall bo 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, cither of law or equity, unless it shall be madu appear on oath to such court that the arbitrators or umpire mis- behave themselves, and that such award, arbitration or umpirage was procured by corruption or other un- due means. . It is also further provided that any ar- OP ARBITRATION. 58 bitration or umpirage procured by corruption or undue means shall be judged void, and be set aside by any court of law or equity, so as complaint of such cor- ruption or undue practice be made in the court where the rule is made for submission to such arbitration or umpirage, before the last day of the next term after such arbitration or umpirage is made and published to the parties. Previously to a recent statute, either party might have revoked his submission, and thus determined the authority of the arbitrators ; and this may still be done, if the submission relate to criminal matters, which are not within the statute. But it is now en- acted (Cons. St. U. C. c. 22, s. 179) that the power and authority of any arbitrator or umpire, appointed by or in pursuance of any rule of court or judge's order or order of nisi prius in any action, or by or in pursuance of any submission to reference containing an agreement that such submission shall be made a rule of any of her majesty's courts of record, shall not be revocable by any party to such reference with- out the leave of the court by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave of a judge. And the arbi- trator or umpire is empowered and required to pro- ceed with the reference notwithstanding any such revocation, and to make such award although the person making such revocation shall not afterwards attend the reference. And the court, or any judge thereof, may from time to time enlarge the term for any such arbitrator making his award. The court, or any judge, is also empowered under any such re- 5* 54 CANADIAN DOMESTIC LAWYER. *':: ,: :;, ^ , ;i i I ference, by rule or order to command the attendance and examination of witnesses, or the production of any documents. And if in any rule or order of re- ference, or in any submission to arbitration containing an agreement that the submission shall be made a rule of court, it shall be ordered or agreed that the witnesses upon such reference shall be examined upon oath, the arbitrator or umpire, or any one arbitrator, is oiithorized and required to administer an oath to such witnesses, or to take their affirmation in cases where affirmation is allowed by law instead of oath ; and any witness wilfully and corruptly giving false evidence shall be deemed guilty of perjury, and shall be prosecuted and punished accordingly. But an express order or agreement that the witnesses shall be examined upon oath is not now necessary; for every arbitrator or other person, having by law or by consent of parties authority to hear, receive, and examine evidence, may administer an oath to all such witnesses as arc legally called before them respect- ively. The authority of arbitrators is liable to be deter- mined not only by a revocation of the submission, but also by the death of either of the parties previously to the making of the award. In order to obviate this inconvenience, it is now usual to insert in the order or rule of court, by which reference is made to arbi- tration, a provision that the death of either of the parties shall not operate as a revocation of the author- ity of the arbitrators, but that the award shall be delivered to the executors or administrators of the parties, or either of them, in case of their oi his de- OP ARBITRATION. 55 cease. And the same stipulation may be effectually made in a submission to arbitration by private agree- ment. When no time is limited for the making of the award, it must be made within a reasonable time ; but if a given time be limited, the award must be made within that time, unless the time for making it be enlarged. And if the award is required to be made and ready to be delivered to the parties by a certain day, it will be considered as ready to be delivered if it be made, unless the arbitrators should fail to deliver it to either of the parties on request made for that purpose on tlu' last day. The submission to arbitration frequently contains a power for the arbitrators or umpire to en- large the time for making the award ; and in this case the time may be enlarged from time to time by such arbitrators or umpire, provided the enlargement be made on or before the expiration of the time origin- ally limited for making the award. And if the submis- sion be made a rule of court ,then, whether the arbi- trators or umpire have power to enlarge the time or not, the court, or a judge thereof, has power to en- large the time under the provisions of the statute above mentioned. And should no enlargement be formally made, yet the parties may, by continuing their attend- ance on the reference, or by recognizing the proceed- ings under it, virtually empower tlie arbitrators or um- pire to make a valid award subsequently to the time originally limited. In proceeding in the business of the arbitration, tho arbitrators are bound to require the attendance of thu parties, for which purpose notice of the meetings of 1 I 1 ^! i "\ , P ■ ! I. liU 66 CANADIAN DOMESTIC LAWYER. the arbitrators should be given to them. But if either party neglect to attend either in person or by attorney after due notice, the arbitrators may proceed without him. In taking the evidence the arbitrators are at liberty to proceed in any way they please, if the par- ties have due notice Ol their proceedings, and do not object before the award is made. But in order to obviate any objection, they ought to proceed in the admission of evidence according to the ordinary rules of law. The award should be signed by the arbitra- tors in each other's presence, and when made it must be both certain and final. Thus, if the award be that one party enter into a bond with the other for his quiet enjoyment of certain lands, this award is void for un- certainty; for it does not appear in what sum the bond should be. On the question of finality many cases have arisen. If the arbitrators be empowered to de- cide all matters in difference between the parties, the award will not necessarily be wanting in finality for not deciding on all such matters, unless it appear to have been required that all such matters should be determined by the award. If the award reserve to the arbitrators, or give to any other person, or to one of the parties, any further authority or discretion in the matter, it will be bad for want of finality. And if the award be that any stranger to the reference should do an act, or that money should be paid to or any other act done in favor of a stranger, unless for the benefit of one of the parties, such award will be void. An award, however, may be partly good and partly bad, provided the bad part is independent of and can be separated from that which is good. But if, by reason of the OP ARBITRATION. 5T be the of the if fculd Ided ited the i invalidity of part of the award, one of the parties cannot have the advantage 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 lace 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 arbitration, the arbitrators may make an award according to what they believe to be the justice of the case, irrespective of the law on any particular point. When the submission to arbitration is not made the rule of any othev court, the Court of Chancery, ac- cording to the ordinary principles of equity, has power to set aside the award for corruption or other miscon- duct on the part of the arbitrators, or if they should be mistaken in a plain point of law or fact. If the submission be made a rule of court under the above- mentioned statute of Will. III., the court of which it is made a rule has power to set aside the award, not only on the grounds of corruption or mdue practice mentioned in the act, but also for mistakes in point of law; and no other court has a right to entertain any application for this purpose. The application to set aside the award must, however, be made within the time limited by the act. But although the time Hmited by that sti?tute may have expired, yet, if there be any defect apparent on the face of the award, the court will not assist in carrying it into eflfect by grant- ing an attachment for its non-performance. If the m iii « '. \ *» ! .^1 III j:m H ( 68 CANADIAN DOMESTIC LAWYER. submission to arbitration be made by rule or order of the court in any cause independently of the statute, the court still retains its ancient jurisdiction of setting aside the award on account either of the misconduct of the arbitrators, or of their mistake in point of law. In analogy, however, to the practice under the statute of Will. III., the court in ordinary cases requires ap- plication for setting aside the award to be made within the time limited by that statute ; but upon sufficient grounds it will grant such an application, though made after the expiration of that time. Sometimes power is resarved to the court to refer the matter back to the arbitrators for further examination, in the event of any application being made to the court on the subject of the award. In this case the application must be made within the sane time as an application to set aside the award. If diii umpire be appointed, his authority to make an aW'",rd commences from the time of the disagree- ment of the arbitrators, unless some other period be expressly fixed ; and if, after the disagreement of the arbitrators, he make an award before the expiration of the time given to the arbitrators to make their award, such award will nevertheless be valid. The umpire must be chosen by the arbitrators in the exer- cise of their judgment, and must not be determined by lot, unless all the parties to the reference consent to his appointment by such mcana. 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 deciding on the statement of the arbitrators. And the whole matter in diflference must OF ARBITRATION. 69 'he |ld Ihe ist 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 attachment or execution. And where tho reference is made by order of the Court cf Chancery, or where the award requires any act to be done which cannot be enforced by an action at law, equity will decree a specific performance. It often happens that the matters to be referred are of too complicated a nature to admit of a success- ful carriage without the intervention of a professional man. The foregoing observations and following forms are not intended to apply to any such cases: they are meant for plain and simple cases only. Arbitration Deed. This Indenture, made the day of , A.D. 18 , Between A. B., of, &c., of the one part, and C. D., of, &c., of the other part. Whereas cer- tain diflferences have arisen between the said A. B. and the said C. D. respecting, &c. \Jiere state concisely the subject-matter in dispute, or, if all matters in differ- ence are referred^ you had better not state such subject- matter at air\ ; and it is agreed by and between the said A. B. and C. D. to refer the said difference [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 dis- I 60 CANADIAN DOMESTIC LAWYER. I agree 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 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 him- self, severally and respectively, and for his several and respective heirs, executors, and administrators, doth covenant, promise, and agree with and to each other, his executors and administrators respectively, that the said differences [or all matters in difference] between the said A. B. and C. D. be forthwith referred to the award, order, arbitrament, final end and deter- mination of the said U. V. and X. Z. ; and in case they disagree about making an award, or fail to make an award, before the day of next then to the award, umpirage, final end and determi- nation of such umpire as the said arbitrators shall by writing under their hands, endorsed on these presents, before they enter upon the consideration of the mat- ters referred, nominate and appoint: so as the said arbitrators or umpire his or their award or umpirage make and publish in writing under his or their hands of and concerning 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 representa- tives who shall require the same, on or before the day of next, or on or before any other OF ARBITRATION, 61 day to which the said arbitrators or umpire shall by any writing signed by him or them, endorsed on these presents, from time to time enlarge the time for making such award or umpirage ; and that the said A. B. and C. D. respectively, and their respective executors and administrators, shall and will perform, fulfil, and keep the said award or umpirage so to be made as aforesaid, and that the death of either of the said parties shall not operate as ^- revocation of the power and authority of the said arbitrators or umpire to make said award or umpirage ; and that all costs and charges of this reference and of the said award shall be in the discretion of the 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 them, shall and will produce unto and deposit with the said arbitrators ifr umpire all deeds, books, papers, evidences, and writings touching or relating to the matters in diflference in their respective possessions or power as the said arbitrators or umpire shall think fit : And that each of them shall and will submit to be examined upon oath, if thought necessary by the said arbitrators or umpire, and will as far as in them lies respectively do all such other acts and things as the said administrators 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 umpir* from making an award by afiiected or wilful delay, oi by not attending afte/ reasonable notice, and without such excuse as the said arbitrators or umpire shall be T 62 CANADUN DOMESTIC LAWYER. <¥\ satisfied with and adjudge to be reasonable, it shall be lawful for the said arbitrators or umpire to proceed ex parte : And, further, that neither of them, the said A. B. and 0. D., shall or will prosecute any action or suit in any court of law or equity against the other of them, or bring or prefer any bill in equity against each other of and concerning the premises until the said award be made and published : And further, that this submission shall be made a rule of her majesty's court of , if that court shall so please : And, further, that the said arbitrators or umpire shall take the said arbi- tration at aforesaid, and shall have power tc call for and examine all witnesses upon oath, and have the assistance of accountants in adjusting and ascertain- ing the state of the accounts of the said parties in difference. In Witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. A. B. [l. s.] CD. [L.S.] Signed, sealed, and delivered in the presence of E. F. another form. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between A. B., of, &c., of the first part, and C. B., of, &c., of the second part. Whereas disputes and differences have arisen, an^ are now depending, between the said parties of the first and second parts in reference to [state matters OF ARBITRATION. 63 in di8pute\y and in order to put an end thereto, and to obtain an amicable adjustment thereof, the said parties of the first and second parts have respectively agreed to refer the same to the award, order, arbi- trament, final end and determination of U. V., of, &c., and X. Z., of, &c., arbitrators, indifferently chosen, by and on behalf of the said parties respectively : And in the event of the said two arbitrators hereby appointed not being able to agree within one month from the date of these presents upon their said award, then it shall and may be lawful for them to appoint some fit person as third arbitrator, by a memorandum, in writing, under their hands, to be endorsed on these presents ; and the award of any two of them shall be final and conclusive, both at law and in equity, upon both of the said parties hereto, such award to be made in writing on or before the day of next. Now 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 administrators, COVENANT, PROMISE, AND AGREE, to and with each Other, his and their heirs, executors, and administrators, well and truly to stand to, obey, abide by, observe, per- form, fulfil, and keep the award, order, arbitrament, and final determination of the said arbitrators hereby appointed ; or, in the event of it having been necessary to appoint such third arbitrator as aforesaid, to stand to, obey, abide by, observe, perform, fulfil, and keep the award, order, arbitrament, and final determination of any two of them of and concerning the premises aforesaid or any thing in any manner relating thereto, 64, CANADIAN DOMESTIC LAWYER. 80 as the said award of the said arbitrators be made in writing under their hands, or under the hands of any two of them (in the event of any such appoint- ment as aforesaid). And it is hereby agreed, that the said arbi- trators hereby appointed, or in tlie event of any sucli appointment being made as aforesaid, any two of them, shall be at liberty, by writing, under their hands, re- spectively endorsed on these presents, to enlarge the time for making the said award when and as often and to such times as they shall think fit. And also, that all the costs and charges attending the said ar- bitration shall be in the discretion of the said arbi- trators hereby appointed, or in the event of such appointment of a third arbitrator as aforesaid, of any two of them so making their award as aforesaid, and shall be paid and satisfied pursuant to their award. And also, that these presents shall be made a rule of her majesty's Court of Queen's Bench or Common Pleas, at Toronto, to the end that the said parties respectively may be finally concluded by the said arbitration, pursuant to the statute in such case made and provided. And for the full performance of the said award so to be made as aforesaid, the said parties hereto bind themselves, severally and respectively, their se- veral and respective heirs, executors, and adminis- trators, each to the other of them respectively, in the penal sum of lawful money of Canada, firmly by these presents. In Witness whereof, the said parties to these presents have hereunto set their hands and af- OF ARBITRATION. 65 fixed their seals, the day and year first above written. A. B. [l.s.] C. D. [l. s.] Signed, sealed, and delivered "I in the presence of / E. F. Arbitration Bond, Know all Men, That I, A. B., of, &c., am held and firmly bound to C. D., of, &c., in the sum of , of lawful money of Canada, to be paid to the said C. D. or to his certain attorney, executors, administrators, or assigns, for which payment to be well and truly made I bind myself, my heirs, execu- tors, and administrators forever, firmly by these pre- sents. Sealed with my seal. Datep this day of , in the year of our Lord one thousand eight hundred and Whereas disputes and differences have arisen, and are now pending, between the above-bounden A.B. and the said C. D. touching and concerning [^state sub- ject-matter in dispute as in deed.^ And whereas the above-bounden A. B. and the said C. D. have agreed to refer such disputes and differences, as well as all actions, suits, controversies, accounts, reckonings, matters, and things in any wise relating thereto, to the award, arbitrament, and de- termination of U. V. and X. Z., arbitrators nomi- nated, appointed, and chosen, as well by and on the part and behalf of the above-bounden A. B. as of the 6» 66 CANADIAN DOMESTIC LAWYER. : i if said C. D., and who have consented and agreed to accept the burthen of the said arbitration. Now, THE Condition of the above-written bond or obligation is such, that if the above-bounden A. B. do and shall well and truly submit to, abide by, and perform, the award, arbitrament, and determi- nation of the said arbitrators so nominated, appointed, and chosen as aforesaid, touching and concerning the matters in dispute between the above-bounden A. B. and the said 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 arbi- trators, ready to be delivered to the said parties, or such of them as shall apply for the same, on or before the day of , in the year of our Lord one thousand eight hundred and ) Then this obli- gation shall bo void, otherwise to be and remain in full force and virtue. And the said obligor hereby consents and agrees that this Bond of Submission and the award to be made thereunder shall and mav be made a rule of court of any of the superior courts of this Province. A. B. [L.S.] Signed, sealed, and delivered 1 in the presence of / E. F. . Appointment of an Umpire. We, the within-named U. V. and X. Z., do hereby nominate and appoint U. U., of , to be umpire between us in and concerning the matters in differ- ence within referred [on condition that he do, ""i^Hhin M , LK » * K .m fc*'*'*'"*** OP ARBITRATION. 67 days from the date hereof, by some writing under his hand, accept the umpirage]. Witness our hands this day of A.D. U. V. X. z. Witness, W. W. Enlargement of Time for making Award. We, the undersigned arbitrators, by virtue of the power to us given for this purpose, do hereby appoint, extend, and [if a second enlargement, "further"] en- large the time for making our award until the day of next, on or before which said day our award in writing of and concerning the matters in diflference within mentioned and referred to us shall be made and published. In Witness whereof, we have set our hands the day of Witness, W. W. A.D. A. B. CD. Enlargement of Time by the Parties. We, the within-named A. B. and C. D., for our- selves severally and respectively, and for our several and respective heirs, executors, and administrators, do hereby give, grant, and allow unto the within-named arbitrators further time for making their award of and concerning the several matters within referred to them, until the day of next. In Witness whereof, we have hereunto set our hands [or, if the submission was by bond or deed, say^ 08 CANADIAN DOMESTIC LAWYER. ii k ii H r }\ I i "our hands and seals"], the day of A.D. A. B. CD. Witness, W. W. Appointment of Third Person as additional Arbitrator. We, the within-named U. V. and X. Z., do, by this memorandum under our hands [made before we enter or proceed on the arbitration within mentioned] no- minate and appoint Mr. X. Y., of , the third per- son or arbitrator, to whom, together with ourselves, all matters in difference between the said parties within mentioned shall be referred, according to the tenor and effect of the within [deed]. Witness our hands this day of ,186 U.V. X.Z. Signed in the presence of Y.Z. Oath to be administered by Arbitrator to a Witness. You shall true answer make to all such questions as shall be asked of you by or before me touching or relating to the matters in difference between A. B. and CD. referred to my award [or "to the award of myself and G. H."], without favor or affection to either party ; and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you God. OP AEBITRATION. 69 Appointment by Arbitrator for Attendance before him. B. ^ I appoint , the day of next, V. > at o'clock in the evening, at , for D. J proceeding in this reference. Dated the day of , A.D. 186 . To Messrs. A. B. and \ C. D., and their re- I spective attorneys or v agents, and all others whom it may concern. {The arbitrator's signa- ture^ or the signature of one or more of them^ if more than one.) Peremptory Appointment for the same purpose. I appoint , the day of instant [or "next"], at o'clock in the noon pre- cisely, at , peremptorily to proceed upon and conclude the reference now pending before me be- tween A. B. and C. D. : And I hereby give notice, that in case of non-attendance of either party, I shall nevertheless proceed, and immediately make my award, according to the statute in that case made and provided. Dated the day of , a.d. E. F., Arbitrator. To Messrs. A. B. and CD., and their respective attor- neys or agents, and all others whom it may concern. General Form of Award. To all to whom these presents shall come, I, A. A., of , send greeting : [&c. jjroceed to recite the instrument by which the parties referred to arbitration^ and ao rmoh qf it» terrM 04 may b& en&iniM to show 70 CANADIAN DOMESTIC LAWYER. m the authority of the arbitrator or umpire with respect to the subject-matter of reference, and the time, power of enlargement, and manner of making the award. Thus, if it be by indenture, the recital may be thus : ''Whereas by an indenture bearing, &c., and made between, &c., reciting that various differences had arisen, &c.," so stating all that may be material to warrant the following award, and then proceed thus :] ^ow know ye that I, the said A. A., having taken upon myself the burthen of the said arbitration, and having licard and duly considered all the allegations and evi- dence of the said respective parties of and concerning the said matters in difference and so referred as afore- said, do make this my award in writing of and con- cerning the said matters in difference so referred, anc do hereby award, order, determine, and direct that [&c. conclude with a distinct statement of the arbi- trator s decision on all the points referred to him']. Witness, W.W. A. A. Award where the Submission was by mutual Bonds. To all to whom these presents shall cjme, I, A. ii.., of , send greeting : Whereas on ? by a bond made and sealed with the seal of C. D., of , he became held and firmly bound unto A. B. in the penal sum of : And whereas on the day and year aforesaid the said A. B., by another bond sealed with his seal, ^3ecame held and firmly bound unto the said C. D. in the like penal sum, with con- ditions w>***ten under the said several bonds that the said A. B., his heirs, executors, and administrators, aAd thd said 0. P., lus heirs, ezooutors, and adminis- OF ARBITRATION. 71 ti'Ltors, should well and truly stand to, abide by, perform, fulfil, and keep the award, order, and final end and determination of me, A. A., an arbitrator indifierently named and elected, as well on the part and behalf of the above-bounden A. B. as of the above- bounden 0. D., to arbitrate, award, order, judge, and determine of and concerning [&c. here set out such parts of the bond as bear upon the award, and state the enlargement, if any\. Now I, the said A. A., having taken upon myself the burthen of the said arbitration, and having heard and duly and maturely weighed and considered the several allegations, vouchers, and proofs in difference respectively, do in pursuance of the said submission make and publish this my award of and concerning the said premises in manner following; that is to say, I do award [&c.]. In Witness, &c. A. A. Witness, W.W. Award where the Submission was by Agreement, and stating an Assent for an Enlargement. To all to whom these presents shall come, we, A. A. and T. A., of , send greeting : Whereas on by a certain agreement in writing under the hands [and seals] of A. B., of , and C. .>., of , bearing date on or about the day • last, reciting that [&c. here set out the recital and such parts of the agreement as bear upon the aivard:~\ And whereas by an endorsement on the said agreement, bearing date on or about the day of last past, aad under the hands of all tho said parties to 72 CANADIAN DOMESTIC LAWYER. the said agreement, they the said parties mutually and reciprocally consented and agreed that the time for the said' arbitrator's making the said award should be enlarged to the day of then next, and that they would in all other respects abide by the terms of the said agreement. Now know jc 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 par- ties respectively, and having fully weighed and con- sidered all the allegations, proofs, and vouchers made and produced before us, do award [&c.]. In Witness, &c. A. A. Witness, W. W. . ^H *; I ! Award that each Party shall pay his own Oosts, and that one shall pay the Costs of the Eeference, and that the other shall afterwards pay him half thereof. And I do further award, order, and determine that each of them the said A. B. and C. D. shall bear and pay his own costs incurred by him in and about the said submission and reference, and that the sum of , being the amount of the other costs attend- ing the said submission and reference, and of the making of this award, shall be paid by the said A. B. to me A. A. upon demand, and that the sum of , being one moiety of the said sum of , shall, after such aforesaid payment by the said A. B., be paid by the said C. D. to the said A. B. upon de- mand. ■-"-•'-•'•^""'•-••TT OP ARBITRATION. 73 Affidavit of Execution of Arbitration Bond. County of ,11, Y. Z., of, &c., make oath and to wit : j say, 1. That I was present and did see the annexed Arbitration Bond duly signed, sealed, and delivered by the therein-named A. B., and that I am the subscribing witness to' the execution of the said bond Y. Z. Sworn before me, at , in the county of , this day of , 18 , E. F., a Commissioner, &c., in B. R. for County of . If the affidavit is intended for use in a court of law, it must be entitled in the court. An affidavit of execution of award can easily be framed from the above. 74 CANADIAN DOMESTIC LAWYER. CHAPTER IV. OF ASSIGNMENTS. An assignment, in its general acceptation, is the transfer of any kind of property, whether real or per- sonal. The person making the assignment is called 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 abso- lute, as a bill of sale, or conditional, as a chattel mort- gage, not accompanied by immediate delivery and followed by an actual and continued change of posses- sion, requires to be filed in the office of the clerk of the county court of the county wherein the goods are. See Cons. : Stat. U. C, cap. 45, ss. 1-4. An assignment requires to be executed with the same formalities as other deeds. For a longer notice of these formalities the reader may refer to the chapter upon Deeds. The following forms will be found to meet cases of common occurrence. In matters of difficulty the ser- vices of a professional man should be procured. tma, .£• ASSIGNMENTS. u Assignment of Agreement to Fmcl.ase. (To be endorsed upon or anyiexed to the Original.) Whereas the within-named C. D. hath duly paid to the within-named A. B. the sum of $ , being the amount of the first two instalments of the purchase money within mentioned, together with all interest upon such purchase mone ap to the day of last, according to the te.m and provisions of the within- written articles, aix 1 there now remains to be paid the sum of $ only, by equal annual instalments of $ each, with interest from the day of last. Ai -> WHEREAS the said C. D. hath con- tracted and agreed with E. F., of , for the sale to him of the within-mentioned premises [and the im- provements thereon] and all his right and title thereto and estate and interest therein under or by virtue of the within-written agreement, at the price or sum of $ , but subject nevertheless to the payment by bim, the said E. F., his heirs, executors, or administrators, unto the said A. B., his executors or administrators, of the said sum of $ , residue of the original purchase money aforesaid, and interest thereon from the period aforesaid. Now THESE PRESENTS WITNESS, that in 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 whereof he, the said C. D., doth hereby acknowledge, he, the said C. D., hath granted, bargained, sold, assigned, trans- ferred, and set over, a^ad by these presents doth grant, 79 CANADIAN DOMESTIC LAWYER. bargain, sell, assign, transfer, and set over unto the said E. F., his heirs and assigns. All and singular the within mentioned and described parcel or tract of land and premises, and therein described as being lot No. , 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 referred to, and all improvements thereon, and all benefit and advantage to arise therefrom, or from the j^nal sum of $ thereby secured : To have and to hold, receive and enjoy, the said assigned premises unto the said E. F., his heirs, executors, administrators, and assigns, from henceforth, for his and their own use and benefit forever. And THE SAID C. D. doth hereby make, ordain, author- ize, constitute, and appoint the said E. F., his heirs, executors, administrators, and assigns, his true and lawful attorney and attorneys, irrevocable for him, the said C. D., and in his name, but for the sole use and benefit of the said E. F., his heirs, executors, and ad- ministrators, to demand, sue for, recover, and receive of and from the within-named A. B., his heirs, exe- cutors, or administrators, all such sum or sums of money and damages as shall or may at any time or times hereafter accrue or grow due to him, the said C. D., his heirs, executors, administrators, or assigns, under or by virtue of the said recited articles of agree- ment and covenants, or any matter, clause, or thing therein contained, by reason or on account of the breach on default of him, the said A. B., his heirs, executors, or administratora, ia relatiou thereto ; the ■MM Hi i» *~^^^^i OP ASSIGNMENTS. 77 thing the lieirs, the H 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 principal money or damages under or by virtue of the said articles of agreement and cove- nants referred to, or enforcing the performance of the said articles of agreement, or obtaining such other satisfaction as can or may be had or obtained for the same by virtue thereof; And the said E. F. doth hereby, for himself, his heirs, executors, and adminis- trators, covenant with the said C. D., his heirs, exe- cutors, and administrators, that he, the said E. F., hia heirs, executors, or administrators, shall and will well and truly pay to the said A. B., his executors or ad- ministrators, the aforesaid sum of $ , residue of the purchase money aforesaid, and all the interest thereon now or hereafter to become due, by the instal- ments and at the times mentioned and provided there- for in and by the said recited articles of agreement, and therefrom shall and will indemnify and forever save harmless the said C. D., his heirs, executors, and ad- ministrators, and his and their goods and chattels, lands and tenements, by these presents. In Witness, &c. Signed, &c. 1| ¥i 78 CANADIAN DOMESTIC LAWYER. il ! Assignment of a Bond by Endorsement. Know all Men by these Presents, that for and in consideration of the sum of , of good and law- ful money of Canada, by E. F., of , to the within-mentioned obligee, C. D., in hand well and truly paid at or before the sealing and delivery of these presents, the receipt whereof is hereby acknow- ledged, he, the said C. D., hath bargained, sold, as- signed, transferred, and set over, and by these presents dotii bargain, sell, assign, transfer, and set over, unto the said E. F., his executors, administrators, and as- signs, the within-written bond or obligation, and all principal and interest money thereby secured, and now due or hereafter to become due thereon, and all benefit and advantage whatever to be had, made, or obtained by virtue thereof, and all the right, title, interest, pro- perty, claim, and demand whatsoever, both at law and in equity, of him, the said C. D., of, in, to, or out of the said bond and moneys, together with the said bond. To have, hold, receive, and enjoy the said bond and moneys unto the said E. F., his executors, adminis- trators, and assigns, from henceforth, for his and their own use and benefit forever; And the said C. D. doth hereby make, constitute, and appoint, and in his place and stead put and place, the said E. F., his exe- cutors, administrators, and assigns, the true and law- ful attorney and attorneys irrevocable of him, the said C. D., in his name, but to and for the sole use and benefit of the saidxj. F., his executors, administrators,^ and assigns, to ask, demand, and receive of and from the within-named A. B., the obligor in the within- i OF ASSIGNMENTS. 79 written bond or obligation named, his heirs, executors, administrators, or assigns, all such principal and inte- rest moneys as now are or shall from time to time or at any time hereafter be duo upon the said bond, and to sue and prosecute any action, suit, judgment, or execution thereupon, and to acknowledge, make, and give full satisfaction, receipts, releases, and 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 discharging of all and singular the said hereby assigned bond, moneys, and premises, as fully and effectually to all intents and purposes as he, the said C. D., his executors, adminis- trators, or assigns, could or might do if personally pre- sent and doing the same. And the said C. D. doth hereby, for himself, his executors and administrators, covenant with the said E. F., his executors, adminis- trators, and assigns, to ratify, allow, and confirm all and whatsoever the said E. F., his executors, adminis- trators, 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 covenant, promise, anu agree to and with the said E. F., his executors, admi- nistrators, and assigns, l)y these presents, in manner followinsr, that is to sav : tliat the within-mentioned sum of remains justly due and owing upon the said bond, and that he, tlio said C. T hath not received or discharged all or any of the saivl moneys due or to grow due on the said bond, nor shall or will release, 80 CANADIAN DOMESTIC LAWYER. nonsuit, vacate, or disavow any suit or other legal proceedings to be had, made, or prosecuted by virtue of these presents, for the suing for, recovering, releas- ing, or discharging of the said moneys or any of them, without the license of the said E. F., liis executors, administrators, or assigns, first had and obtained in writing, nor shall or will revoke, invalidate, hinder, or make void these presents, or any authority or power hereby given, without such license as aibresaid. In Witness, &c. Assignment (Grown Lands). Know all Men by these Presents, that I , of the of , in the County of and Province of Canada, for and in consideration of the sum of , of lawful money of the said Pro- vince, to in hand paid by , of the of , in the County of and Province afore- said, at or before the date hereof, the receipt whereof do hereby acknowledge, have bargained, sold, assigned, transferred, and set over, and by these pre- sents do bargain, sell, assign, transfer, and set over to the said , heirs and assigns, all estate, right, title, interest, claim, and demand whatsoever, both at law and in equity, of, in, and to that certain parcel or tract of land and premises situate, lying and being in the township of , in the County of and Province aforesaid, containing by ad- measurement acres, be the same more or less, being composed of Lot number in the Concession of tlie Township aforesaid [insert, if necessary, "subject to the conditions, as to OP ASSIGNMENTS. 81 settlement and otherwise, of the Crown Lands Depart- ment, 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 , heirs and assigns, forever. In witness whereof, have hereunto set hand and seal , this day of , in the year of our Lord one thousand eight hundred and Signed, sealed and delivered \ in presence of j Canada. County of , to wit : , of the Township of , in the County of , maketh oath and saith, that he was personally present and did see . the within-named duly sign and seal, and as act and deed deliver, the within Assign- ment on the day of the date thereof, and that he, this deponent, is a subscribing witness thereto. Sworn before me, at , \ this day of , 18 . / A. B., a Commissioner for taking Affidavits in and for the said county. r i » Assignment of Lease. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and Between , of the first part, and , of the second part. Whereas, by an Indenture of Lease, bearing date on or about the day of m the year of our Lord one thousand eight hundred and U- A.!k 82 CANADIAN DOMESTIC LAWYER. and made between the said lessor f therein named did demise and lease unto the said lessee therein named, executors, administra- tors, and assigns, All and singular th cer lin parcel or tract of land and premises, situate, lying, and being in the To hold the same, with the appurtenances, unto the said lessee, executors, administrators, and assigns, from the day of , in the year of our Lord one thousand eight hundred and , for and during the term of years from thence next ensuing, and fully to be com- plete and ended, at the yearly rent of and under and subject to the lessee's covenants and agreements in the said Indenture of Lease reserved and con- tained. Now THIS Indenture Witnesseth, t' .t in con- sideration of the sum of , of lawfi money of Canada, now paid by the said part of the second part to the said part of the first part (the receipt whereof is hereby acknowledged), the said part of the first part Do hereby grant, bargain, sell, assign, transfer, and set over unto tl.e said part of the second part, executors, administrators, and assigns, All and singular the said parcel or tract of land, and all other the premises comprised in, and demised by, the said hereinbefore in part recited Indenture of Lease, Together with the said Indenture of Lease, "and all benefit and advantage to be had or derived therefrom : To have and to hold the same, togetlicr with all houses and other buiklings, easements, pri- vileges, and appurtenances thereunto belonging or in any wise appertaining, unto the said part of the OP ASSIGNMENTS. 83 second part, 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 part of the first part therein ; Subject to the payment of the rent and the observance and performance of the les- see's covenants and agreements in the said Indenture of Lease reserved and contained. And the said part of the first part do hereby, for heirs, executors, and administraiors, covenant, promise, and agree, to and with the said part of the second part, executors, administrators, and assigns, in manner following, that is to say : That notwithstanding ai^y act of the said part of the first part, the said hereinbefore in part recited Indenture of Lease is, at the time of the sealing and delivery of these presents, a good, valid, and sub- sisting Lease in the law, and not surrendered, for- feited, or become void or voidable ; and that the rent and covenants therein reserved and contained have been duly paid and performed by the said part of the first part up to the day of the date hereof. And that, notwithstanding as aforesaid, the said part of the first part now ha in good right, full power, and lawful and absolute authority to assign the said lands and premises, in manner aforesaid, and according to the true intent and meaning of these presents. And that, subject to the said rent, and the lessee's covenants and agreements in the said lease contained, it shall be lawful for the said part of the second ^, oi ,**. \, It Uh 84 CANADIAN r^HMliSTir LA "^'YER. *i. f'^.- ', i \ p '14 1: > ■ ■■l'^^' If Jift I part, executors, administrators, and assigns, to enter into and upon and hold and enjoy the said pre- mises for the residue of the term granted by the said Indenture of Lease, and any renewal thereof (if any), for their own use and benefit, without the let, suit, hindrance, interruption, or denial of the said part of the first part, executors, administrators, or as- signs, or any other persons claiming under , and that free and clear, and freely and clearly ac- quitted, exonerated, and discharged, or otherwise, by and at the expense of the said bart of the first part, heirs, executors, and administrators, well and efi'ectually saved, defended, and kept harmless, of, from, and against all former and other gifts, grants, bargains, sales, leases, and other incumbrances what- soever, of the said part of the llrst part, or any per- sons claiming under . And that the said part of the first part, heirs, executors, 'ii linistrators, and assigns, and all other persons claiming any interest in the said premises, under or them, shall and will, from time to time, and at all times hereafter, at the request and cost of the said part of the second part, executors, ad- ministrators, or assigns, make, do, and execute, or cause and procure to be made, done^ and executed, all such further assignments and assurances in the law of the said premises for more effectually assign- ing and assuring the said premises for the residue of the said term, and any renewal thereof (if any), as by the said part of the second part, executors, administrators, or assigns, or counsel in the law, shall bo reasonably advised or required. I OF ASSIGNMENTS. 86 And the said part of the second par! o liereby, for heirs, executors, administrators, and assigns, covenant, promise, and agree, to and with the said part of the first part, executors and adminis- trators, that he or they, the said part of the second part, executors, administrators, or assigns, shall and will, from time to time, during all the residue of the said term granted by the said Indenture of Lease, pay the rent, and perform the lessee's covenants and agree- ments the rein respectively reserved and contained, and indemuify and save harmless the said part of the first part, heirs, executors, and administrators, there- from, and from all actions, suits, costs, losses, charges, damages, and expenses in respect thereof. In Witness whereof, the said partita to these pr*.sents have hereunto set their hands and affixed their seals, the day and year first abovt!! -»ritten. Signed, sealed, and delivered ^ in the presence of Received, on the date hereof, ihe sum of , being the full consi ^'ration above Tceu Honed. In presence of Assignment of Lease. SHORTER FORM. This iNo'feNTURE, made the day of in the year of our Lord one thousand eight hundred and , Between , of the first part, and ,of the sec>^nd part, WITNESSETH, that in con- sideration of the sum uf now paid by the said part of the second part to the said part of the firdt n I ■I 86 CANADIAN DOMESTIC LAWYER. tii part, the receipt whereof is hereby acknowledged, the said part of the first part, Do hereby grant and assign unto the said part of the second part, executors, administrators, and assigns, All and singular the premises comprised in and demised by a certain Indenture of Lease, bearing date the day of , in the year of our Lord one thousand eight hundred and , and made between , which said premises are more particularly known and de- scribed as follows, that is to say : All and singular th certain parcel or tract of land and premises situate, lying, and being , together with the ap- purtenances. To HOLD the same unto the said part of the second part, executors, administrators, and assigns, henc^orth for and during the residue of the term of years from the day of , 18 , there- by granted, and for all other the estate, term, and inte- rest (if any) of the said p.irt of the first part therein. Subject to the payment of the rent and the perform- ance of the lessee's covenants and agreements in the saict Indenture of Lease reserved and contained. Vnd the said part of the first part, for heirs, executors, and administrators, do hereby covenant with the said part of the second part, executors, administrators, and assigns, that notwithstanding any act of the said part of the first part, ha now power to assign the said premises in manner afore- said. And that subject to the payment of the said rent, and the performance of the said lessee's cove- nants, it shall be lawful for the said part of the second part, executors, administrators, and assigns, peaceably and quietly to hold and enjoy the said pre- .^jn .r*""- " ^-m-ftK^ywrn 11 OP ASSIGNMENTS. mises hereby assigned during the residue of the term granted by the said Indenture of Lease, without any interruption by the said part of the first part, or any other persons claiming under , free from all charges and incumbrances whatsoever, of the said part of the first part. And that the said part of the first part, and all persons lawfully claiming under , will, at all times hereafter, at the request and costs of the said part of the second part, executors, administrators, and assigns, assign and con- firm to and them the said premises for the residue of the said term as the said part of the second part, executors, administrators, or assigns, shall direct. And the said part of the second part, for heirs, executors, and administrators. Do hereby covenant with the said part of tlie first part, executors and administrators, that , the said part of the second part, executors, administrators, or assigns, will, from time to time, pay the rent and perform the lessee's covenants in the said Indenture of Lease, and indemnify and save harmless the said part of the first part, heirs, executors, and administrators, from all losses and expenses in respect thereof. In Witness wheiieof, 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 J Assignment of Lease by Administrator. Know all men by these presents, that A. B., of , administrator of all and singular the goods and - * ,, %% T'Wk ii ' I i % I ? 88 CANADIAN DOMESTIC LAWYER. m II m m chattels, rights and credits, of the within-named C. D. deceased, for and in consideration of the sum of , of good and lawful money of Canada, to him in hand well and truly paid by E. F., of , at or be- fore the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath (by and with the consent of the within-named A. B., tes- tified by his executing these presents) bargained, sold, assigned, transferred, and set over, and by these presents doth (by and with such consent as aforesaid) bargain, sell, assign, transfer, and set over, unto the said E. F., his exs., ads., and assigns, all and singular the parcel or tract of land and premises comprised in the within-written indenture of lease, and all the estate, right, title, and interest which he, the said A. B., as administrator of the said C. D. as aforesaid, or otherwise, now hath, or at any time hereafter shall or may have, claim, challenge, or demand, of, in, or to, all or any of the said premises, by virtue of the said indenture of lease or otherwise, as administrator of the said CD. To have and to hold the said parcel or tract of land, and all and singular other the premises, with their and every of their appurtenances, unto the said E. F., his exs., ads., and assigns, for and during all the rest, residue, and remainder yet to come and unexpired, of the within-mentioned term of years, subject, nevertheless, to the yearly rent of in and by the said indenture of lease reserved and contained, and to become due and payable, and to all and every the covenants, clauses, provisoes, and agree- ments therein contained. And the said A. B., for himself, his heirs, exs., and ads., doth hereby covenant ismmmmt OF ASSIGNMENTS. 89 and declare to and with the said E. F., "his exs., ads., and assigns, that he, the said A. B., hath not at any time heretofore made, done, committed, or executed, or wittingly or willingly permitted or suffered, any act, deed, matter, or thing whatsoever, whereby or where- with, or by means whereof, the said parcel or tract of land and premises hereby assigned, are, is, can, shall, or may be any ways impeached, charged, af- fected, or incumbered in title, estate, or otherwise, however. In Witness, &c. Assignment from Trader to Secure Debt. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, wi of the said , of the second part, and of the third part. Whereas the said part of the first part is justly and truly indebted unto the said part of the third part in the sum of or thereabouts, and hath agreed to execute unto the said part of the third part, an assignment of all his estates and interest in the real and personal estate and eft'ects hereinafter mentioned, for the purpose of paying "thereout or securing the payment of such indebtedness. Now this Indenture witnesseth, that in pursu- ance of the said agreement, and in consideration of the sum of five shillings of lawful money of Canada, to the said part of the first part paid by the said part of the third part, at or before the execution of these presents (the receipt whereof is hereby ac- 8« ■If ' fy I f^ ;■■ U-, M Ill 90 CANADIAN DOMESTIC LAWYER. h !! knowledged), , the said part of the first part, Ha granted, bargained, sohl, released, conveyed, assigned, transferred, and assured, and by these presents Do grant, bargain, sell, release, convey, assign, transfer, and assure, unto the said part of the third part, heirs, executors, administrators, and assigns, All and singular the real estate specified in the Schedule to these presents marked A, and all the household goods, books, credits, furniture, stock in trade, bonds, bills, notes, books of account, and securities for money, and all other the personal estate and effects, now belonging, due, or owing to him the said part of the first part, the greater part of which are now in and upon the premises upon which the said part of the first part now carries on his said business, and are specified in the Schedule to these presents marked B ; and which said goods are forthwith, upon the exe- cution of these presents, to be delivered into the pos- session of the said part of the third part, or agent or agents in that behalf ; and all reversions, re- mainders, rents, issues, and profits, and all the right, title, interest, trust, possession, property claim, and demand whatsoever, at law or in equity, of the said part of the first part, of, in, to, out of, or upon the same real and personal estate, goods, chattels, effects, and property, respectively. Together with the ap- purtenances, and together with all books, writings, deeds, bills, notes, and receipts, papers and vouchers, touching or concerning the said premises hereby as- signed, or any part thereof. To HAVE AND TO HOLD, reccive, take, and enjoy, the said real and personal estate, goods, chattels, A OP ASSIGNMENTS. 91 stocks, moneys, credits, bonds, bills, notes, securi- ties for TTioney, and all and singular other the pre- mises hereby conveyed and assigned, or intended so to be, unto the said part of the third part, heirs, executors, administrators, and assigns, hence- forth forever, to and for sole and only use, and as and for own proper goods, chattels, moneys, and effects absolutely. Subject nevertheless, and to and for the intents and purposes follo^Ying, that is to say: That the said part of the third part, or agent or agents in that behalf, do and shall with all con- venient speed sell and dispose of the said real and personal estate, stock, chattels, and effects, either together or in parcels, and either by public auction or private contract, for the best price or prices that can be rcf^sonably obtained for the same, and either for ready money or for credit or otherwise, as shall be deemed most beneficial, the receipts of the said part of the third part being sufficient discharges lor the same, and do and shall receive, collect, and get in all and singular the credits and sums of money here- by assigned or intended so to be, and apply the said moneys to arise by such sale or sales, and to be re- ceived or collected as aforesaid, after payment of all costs, charges, and expenses of these presents, and in- cidental thereto, and in carrying out the purposes thereof, or otherwise in relation thereto, in and to- wards the payment and liquidation in full of the said indebtedness of the said part of the first part to the said part of the third part, and after such payment do and shall pay the residue and surplus, if any, to IMAGE EVALUATION TEST U RGET (MT-3) A // ' * 1.0 I.I ^ 1^ 12.0 11-25 U 1.4 1^ HiolDgraphic Sciences Corporation 23 WEST MAIN SiTRICT WIBSTM.N.Y. I4SM (716) «73-4S03 V V L17 :\ \ O^ Il- ^ CANADIAN DOMESTIC LAWYER. i; i the said part of the first part, his executors, ad- ministrators, or assigns, or as shall direct. And for the better carrying out of these presents, the said part of the first part do hereby nominate and appoint the said part of the third part, exe- cutors, administrators, and assigns, the true and law- ful attorney and attorneys of , the said part of the first part, for and in name to do, perform, and execute all such acts, deeds, matters, and things whatsoever in relation to all and singular the real and personal estate and effects and premises hereby as- signed as aforesaid, as the said part 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 part of the third part, servants and agents, to continue in and to occupy the said premises now in the occupation of the said part of the irst part, until the trusts of this assignment are fully exe- cuted. Provided also, that any collateral or other secu- rities, by way of judgments or otherwise, which the said part of the third part now hold against the said part of the first part in respect of said in- debtedness or any part thereof, shall not be preju- diced or affected by this assignment, or otherwise than by payment of such indebtedness out of the proceeds to arise hereunder. And provided, further, that the said part of the third part shall not be answerable or chargeable as implied trustee hereunder, except for wilful neglect or default, b\it no further or otherwise. OF ASSIGNMENTS. 93 And the said part of the second part wi of the said , with the privity and consent of said husband, in consideration of five shillings to paid by the said part of the third part, hereby release unto the said part of the third part all dower, and right or title to dower, in the said lands hereby con- veyed and every part thereof. In Witness whereof, the said parties to these pre- sents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered 1 in the presence of . j Assignment of Judgment. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, and , of the second part. Whereas the said part of the first part, on or about the day of , one thousand eight hundred and , recovered a judgment in the Court of for Upper Canada, at Toronto, for the sum of against And whereas the said part of the first part hath agreed to assign the said judgment, and all benefit to arise therefrom, either at law or in equity, unto the said part of the second part, in manner hereinafter expressed. Now this Indenture witnesseth, that in pur- suance of the said agreement, and in consideration of the sum of , of lawful money of Canada, to the said part of the first part in hand paid by the said part of the second part, at or before the execution w I 'I ' 1;' I- 1 94 CANADIAN DOMESTIC LAWYER. hereof, the receipt whereof is hereby acknowledged, the 6aid part of the first part, Ha granted, bargained, sold, and assigned, and by these presents Do grant, bargain, sell, and assign, unto the said part of the second part, executors, administrators, and assigns, All that the said hereinbefore mentioned judgment, and all benefit to be derived therefrom, either at law or in equity, or otherwise howsoever. To HOLD, receive, and take the same, and all benefit and advantage thereof, to and for his and their own proper use, and as and for his and their own proper moneys and efifects, absolutely. And the said part of the first part hereby con- stitutes and appoints the said part of the second part, executors and administrators, to be true and lawful attorney and attorneys, at the proper costs and charges of the said part of the second part, executors and administrators, to take and prosecute all and every remedy or proceeding at law or in equity, which the said part of the second part, executors or administrators, shall hereafter consider advisable in reference to the said judgment, the said part of the second part, for heirs, executors, and adminis- trators, hereby agreeing to indemnify and save harm- less the said part of the first part, heirs, execu- tors, and administrators, of and from all damages, costs, charges, and expenses in respect thereof. In Witness, whereof, the said parties to these pre- sents have hereunvo set their hands and seals, the day and year first above written. Signed, sealed, and delivered ) in the presence of / OP ASSIGNMENTS. 95 )re- Ithe Assignment of Judgment. SPECIAL FORM. This Indenture., made the day of ,in the year of our Lord one thousand eight hundred and Between the Bank of , of the one part, and A. B., of , of the other part. Whereas the said Bank, on the day of in the year of our Lord one thousand eight hundred and , obtained a judgment in her majesty's Court of Queen's Bench for Upper Canada, at Toronto, against C. D., of , and E. F., of , for the sum of damages and costs, making to- gether the sum of Now this Indenture witnesseth, that in con- sideration of the sum of of lawful monev of Canada to the -eaid Bank in hand well and truly paid by the said A. B. at or immediately before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, the said Bank hath granted, bargained, sold, assigned, transferred, and set over, and by these presents Doth grant, bargain, sell, as- sign, transfer, and set over, unto the said A. B., his executors, administrators, and assigns. All that the said judgment debt or sum of and all and every sum and sums of money now due and hereafter to grow due by virtue thereof, for principal, interest, and costs. And also the said judgment and all other securities for the said debt, and the full benefit and advantage thereof. To have, hold, receive, AND ENJOY the said judgment debt and premises hereby assigned, or intended so to be, unto the said 96 CANADIAN DOMESTIC LAWYER. ;iii A. B., his executors, administrators, and assigns, henceforth, to his and their own proper use and behoof, as his and their proper goods and chattels forever. And for the purpose of enabling the said A. B., his executors, administrators, or assigns, to receive and enforce payment of the judgment debt and premises hereby assigned, the said Bank doth make, ordain, constitute, and appoint the said A. B., his executors and administrators, the true and lawful attorney and attorneys of the said Bank, in the name of the said Bank, but at the costs and charges of the said A. B., his executors or administrators, to ask, demand, and receive of and from the said C. D. and E. F., their executors or administrators, the judgment debt and premises hereby assigned, and on non-payment of the same or any part thereof to obtain any execution or executions, or bring, commence, and prosecute any action or actions, suit or suits, as well at law as in equity, for the recovery of the same, and to use all such other lawful remedies, ways, and means as the said Bank could or might have used or taken for the recovery of the same, and, on receipt or recovery thereof, to sign and give a good and effectual receipt or receipts for the same, with full power from time to time to appoint a substitute or substitutes for all or any of the purposes aforesaid ; and the said Bank doth hereby agree to ratify and confirm whatsoever the said A. B., his executors or administrators, shall law- fully do or cause to be done in or about the premises. And the said A. B. hereby covenants to indemnify and save harmless the said Bank from all loss, costs, OP ASSIGNMENTS. 97 charges, damages, and expenses, l)y reason or on account of any such proceedings as atoresaid. Ix Witness whereof, , of , Esquire, Pre- sident of the said Bank, hath hereunto set his hand iind alHxed the common seal of the said Baiik, and tlie said A. B. hath lierounto set his hand and seal. Till' (lay and year first ahove Avritten. Assignment of Mortgage. rv This Indenture, made the day of m the year of our Lord one thousand eight liundred and Between [■ r], of tlie first part, ssignor and Lassigneej, ot tiio secomi part. Whereas, by Indenture bearing date the day of , in the year of our Lord one thousand eight hundred and , and made between and the said assignor of the part ; in consideration of the sum of paid by the said assignor to the said , He, the said , did grant, bargain, sell, release, convey, and confirm unto the said assignor, his heirs and assigns, All To HOLD the same unto the said assignor, his heirs and assigns forever; Subject, nevertheless, to a proviso or condition therein contained for making the same void on payment by the said , his heirs, executors, administrators, or assigns, of the sum of , Avitli interest, in manner and at the times fol- lowing, that is to say : , And whereas there is now due on the said mort- gage the sum of for principal and interest. And whereas, the said assignor having occasion for the said sum of , the said assignee hath agreed 98 CANADIAN DOMESTIC LAWYER. ill I i , to advance the same to him upon having a transfer and assignment of the said mortgage debt, premises, and securities made to him, the said assignee, in manner hereinafter expressed. Now THIS Indenture witnesseth that in con- sideration of the said sum of paid by the said assignee to the said assignor, at or immediately before the sealing and delivery of these presents, the receipt whereof the said assignor doth hereby acknowledge, and therefrom doth release and discharge the said assignee, his heirs, executors, administrators, and as- signs. He, the said assignor. Doth by these presents bargain, sell, and release unto the said assignee, his heirs and assigns, All and singular the land, pre- mises, and hereditaments comprised in the hereinbe- ibre recited Indenture of Mortgage, and hereinbefore described, together with their sii d every of their rights, members, and appurtenances ; And all tho estate, right, title, interest, trust, property, claim, and demand, ■whatsoever, at law and in equity, of him the said assignor, in, to, or upon the land, j*nd every part thereof; And also all deeds, evidences, and writings, whatsoever, relating to or concerning the same here- ditaments and premises, or any part thereof, which he, the assignor, now hath in his custody or posses- sion, or can or may obtain without suit at law or in equity ; To have and to hold the said land and pre- mises, and all and singular other the hereditaments hereinbefore expressed to be hereby released unto the said assignee, his heirs and assigns, TO THE use of the said assignee, his heirs and assigns, forever : Subject, nevertheless, to such right or equity of OP ASSIGNMENTS. 99 pre- redcmption on payment by the said , his heirs, executors, administrators, or assigns, of the said sum of , as is or may be now subsisting under or by virtue of the hereinbefore recited Indenture of Mort gage. And this Indenture further witnesseth that, or the consideration aforesaid. He, the said assignor, i)oTH by these presents bargain, sell, assign, and transfer unto the said assignee, his executors, adminis- trators, and assigns. All that the sum of now due as aforesaid on the said miortgage, with the in- terest to become due thereon ; And also all the right, title, interest, property, claim, and demand whatsoever, at law and in equity, of him the said as- signor, of, in, to, or out of the same and every part thereof. To have, receive, take, and enjoy tlie said last-mentioned sum and interest, and all other the premises lastly hereinbefore expressed, to be hereby assigned unto and by the said assignee, his executors, administrators, and assigns, as and for his and their own proper goods and chattels forever. And for the better enabling the said assignee, his executors, administrators, or assigns, to recover and receive the sum of hereby assigned, and the in- terest thereon, He, the said assignor. Doth by these presents constitute and appoint the said assignee, his executors and administrators, the true and lawful attorney and attorneys irrevocable oi him tlie said assip;nor, for him and in his name, or in the name or names of his executors or administrators, but for the benefit and at the co^^ts and risk of him the said as- signee, bis executors, administrators, or assigns, to a&k, 100 CANADIAN DOMESTIC LAWYER. I I I demand, and recover, by all lawful ways and means, of and from the said , his heirs, executors, or ad- ministrators, and all and every other person and per- sons liable to pay the same, the said sum of secured by the said mortgage as aforesaid, and all in terest now due, and hereafter to grow due for the same ; And in case of non-payment thereof, or of any part thereof, to commence and prosecute such actions or suits at law or in equity, or to take such proceod- iiigs for the recovery of the samc^ as shall be thought expedient, and on payment or receipt thereof, or of any part thereof, to give jJufTicient releases and dis- charges for the same; And for the purposes aforesaid, the said assignor doth hereby grant unto the said as- signee, liis executors and administrators, power and autliority to appoint a substitute or substitutes, and such substitution from time to time at pleasure to revoke ; And dotli hereby ratify and confirm all and whatsoever tlie said assignee, his executors or adminis- trators, or his or their substitute or substitutes, shall lawfully do or cause to be done in the premises, by virtue of these presents. And the said assignor, for himself, his heirs, execu- tor.-;, an 1 adniiiiistrator.-:, doth hereby e »venant with tlio said assignee, his executors, administrators, and assigns, in manner following, that is to say: That lie, tlie said assignor, hath not at any time heretofore don.', committed, or executed, or willingly permitted, ;:n act, matter, or thing whatsoever by means whereof tlh' lands and premises or the moneys hereby assigned ur intended so to be, or any part thereof, arc, is, can, shall, or may be in any wise impeached, charged, encumbered, OP ASSIGNMENTS. 101 nd means, )rs, or ad- i and per- ind all in le for the or of any ch actions I proeeod- thought L'of, or of and dis- ■iforesa*id, e said as- owcr and utos, and easure to in all and ' adminis- tcs, shall misos, by •s, cxecu- i;int with torr^, and That ho, urc don.', :tcd, i:]] , crcof tlif >igned ur xn, shall, imbered, or in any manner prejudicially aftected in title, charge, estate, or otherwise howsoever. And also that he, the said assignor, hath not re- ceived the said sum of , or any part thereof; and that the same is now justly due and owing, under and by virtue of the said in part recited Indenture of Mortgage. And that he, the said assignor, his executors or ad- ministrators, will not, nor shall at any time hereafter, revoke or attempt to revoke the power or authority hereinbefore contained; or disavow, discontinue, re- lease, or discharge any action, suit, judgment, or exe- cution to be brought, prosecuted, or obtained by the said assignee, his executors, administrators, or assigns, by virtue thereof, without the consent in writii.g of him, the said assignee, his executors, administrators, or assigns, or the rule, order, or decree of some court of law or equity. And the said assignee, for himself, his heirs, execu- tors, and administrators, doth hereby covenant with the said assignor, his executors and administrators, that he, the said assignee, his heirs, executors, and administrators, will at all times save harmless and keep indemnified the said assignor, his executors and administrators, and his and their lands and tenements, goods and chattels, from and against all manner of costs, damages, losses, and expenses whatsoever which shall or may at any time hereafter be paid or sustained by him or them for or by reason of any action or actions, or suit or suits, which shall or may be brought or prosecuted in the name or names of the said assignor, his executors or administrators, under or by virtue of 9* 102 CANADIAN DOMESTIC LAWYER. the power or authority hereinbefore contained in that belialf or in any manner relating thereto, except such costs, damages, losses, and expenses only as shall or may happen by or through the wilful default or neglect of him, the said assignor, his executors or administrators. In Witness whereof, the said parties have here- unto set their hands and seals, the day and year first above written. Signed, scaled, and delivered ) in the presence of J Assignment of Mortgage. ANOTHER FORM. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , in pursuance of the act to facilitate the convey- ance of real property, Between , of the first part, , of the second part [and , of the third part]. Whereas, by an Indenture of Mortgage, bearing date the day of , in the year of our Lord one thousand eight hundred and , and made be- tween : In consideration of the sum of , the said mortgagor therein named did grant, bargain, sell, convey, and assure unto the said , his heirs and assigns, forever. All and singular th certain parcel or tract of land and premises situate, lying, and being in the , Subject to a proviso for redemption of the said premises on payment of the said principal sum and interest on the days and times and in manner therein mentioned. And whereas^ the said party of the first pprt hath agreed with the said party of the second part for the absolute sale to OP ASSIGNMENTS. 103 in that ipt such I or may gleet of trators. re here- jar first ,in ■ed and jonvey- it part, I part], •earing r Lord ide be- Tgain, 3 heirs ertain lying, so for )f the times 3REAS^ h the lie to him of all principal moneys and interest due and to become due on the said Indenture of Mortgage, and all interest of the said party of the first part of and in the lands and premises thereby conveyed, at or for the price or sum of And whereas there in now due upon the said mortgage, for principal, the sum of , with in- terest from the day of , one thousand eight hundred and Now THIS Indenture witnesseth that, in con- sideration of the sum of , of lawful money of Canada, now paid by the said party hereto pf the second part to the said party hereto of the first part, the receipt whereof is hereby acknowledged. He, the said party hereto of the first part. Doth grant, bar- gain, sell, assign, transfer, convey, and set over unto the said party hereto of the second part, his heirs and assigns. All and singular the said lands, tenements, hereditaments, and premises comprised in and mort- gaged by the said hereinbefore in part recited Inden- ture of Mortgage, with their and every of their appur- tenances, and all the estate and interest of the said party of the first part therein. Together with the said Indenture of Mortgage, and the benefit and ad- vantage of all and every the clauses, covenants, mat- ters, and things therein contained ; and together also with the said principal sum and interest thereby secured and now due and payable, or to become duo and pay- able, under and by virtue thereof. To HAVE AND TO HOLD, receive and take, the same and every part und parcel thereof unto and to the use of tk% said party hereto of the second part, his heirs, 1 1» w ill I L 104 CANADIAN DOMESTIC LAWYER. executors, administrators, and assigns, forever, free from all incumbrances made ov done by the said party hereto of the first part ; but subject, nevertheless, to such right or e({uity of redemption as is now subsist- ing in the said lands and premises on payment of the said principal moneys and interest under and by virtue of the said Indenture of Mortgage. And the said party hereto of the first part dotli hereby, for himself, his heirs, executors, and adminis- trators, covenant with the said i>arty of ihe second part, his heirs, executors, administrators, and assigns. That the said mortgage is now a good, valid, and subsisting security for the principal money and inte- rest hereby assigned, and that the same are now due and unpaid. And that he hath good right to assign and convey the said mortgage and premises unto the said party hereto of the second part, in manner aforesaid. And that the said party of the second part shall have quiet possession of the said premises hereby assigned, without any interruption by the said party of the first part or any persons claiming under him, fro^ from all incumbrances. * And tliat the said party of the first part, his heirs, executors, and administrators, will execute such further assurances of the said premises as may be requisite. And tlie said party of the first part doth hereby make, constitute, and appoint the said party of the second part, his lieirs, exerutors, aduiinistrators, and assigns, tlie true and lawful attorney and attorneys irrevocable of hiin, the said party of the first part, his heirs, executors, administrators, or assigns, for mm OP ASSIGNMENTS. 105 Iiim and in his or thei •s, but for the ler name or names, sole use, benefit, and advantage of the said party of the second part, his heirs, executors, administrators, or assigns, to ask, demand, sue for, recover, and re- ceive of and from the said mortgagor in the said mortgage named, his heirs, executors, and adminis- trators, all such principal and interest moneys as are now or shall hereafter become due and owing upon the said mortgage; and on non-.payment thereof or any part thereof to commence, institute, and prose- cute, or proceed with, any action, suit, or execution now pending, as he may think proper or be advised; and on payment thereof or any part thereof to make', seal, execute, and deliver receipts, releases, acquit- tances, and discharges, and generally to do, perform, and execute all such acts, deeds, matters, and things for recovering the said principal and interest, or fore- cloaing the said mortgage, or obtaining the possession of the said lands and premises, or for releasing the said mortgage, as fully and effectually to all intents and purposes as the said party of the first part, his heirs, executors, or administrators, could do if personally present and acting in the premises ; the said party of the first part, for himself, his heirs, executors, and administrators, hereby ratifying and confirming and covenanting and agreeing to ratify and confirm all and whatsoever the said party of the second part, his heirs, executors, administrators, or assigns, shall law- fully do or cause to be done in or about the premises by virtue hereof : Provided he or they do and shall save harmless and indemnify and keep harmless and indemnified the said party of the first part, his heirs, 106 CANADIAN DOMESTIC LAWYER. ! I* t executors, and administrators, and his and their lands and tenements, goods and chattels, of, from, and against all loss, damage, costs, charges, and expenses by reason or on account of any proceeding to be taken in pursuance of the power hereby vested and granted by him to the said party of the second part, his heirs, executors, administrators, or assigns. [And the said party of the third part hereby bars her dower in the said lands.] In Witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered 1 in the presence of J Assignment of Mortgage. SHORT FORM. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, and , of the second part: Whereas, by an Inden- ture of Mortgage, bearing date the day of , one thousand eight hundred and , and made between , It is witnessed, that in considera- tion of , of lawful money of Canada, the said mortgagor therein named did convey and assure unto the said , heirs and assigns. All and singular th certain parcel or tract of land and premises situate, lying, and being in the : To hold the same unto ai^d to the use of the said heirs and assigns. Subject to a proviso for redemp- tion, upon payment of the said principal moneys and OF ASSIGNMENTS. 107 interest as therein mentioned. [Here insert any ad- ditional recital.] Now THIS Indenture witnesseth, that in con- sideration of the sum of , of lawful money of Canada, now paid by the said part hereto of the second part to the said part hereto of the first part (the receipt whereof is hereby acknowledged), the said part hereto of the first part Do hereby grant, bargain, sell, assign, transfer, and set over unto the said part hereto of the second part, heirs and assigns. All and singular the said lands, tene- ments, hereditaments, and premises comprised in and conveyed by the said hereinbefore in part recited In- denture of Mortgage, and all the estate and interest of the said part hereto of the first part therein or thereto. To HAVE AND TO HOLD the Same unto and to the use of the said part hereto of the second part, heirs and assigns forever. Subject, nevertheless, to such equity of redemption, on payment by the said mort- gagor of the said principal moneys and interest, as is now subsisting therein by virtue of the said mortgage. And this Indenture further witnesseth that, for the consideration aforesaid , the said part here- to of the first part Do hereby assign, transfer, and set over unto the said part hereto of the second part all principal moneys and interest now remaining due and unpaid, and to accrue due and payable, under and by virtue of the said Indenture of Mortgage To HAVE, RECEIVE, AND TAKE the samo unto the said part hereto of the second part, executors, administrators, and assigns, as and for own proper moneys and effects absolutely. \\v 108 CANADIAN DOMESTIC LAWYER. And for better enabling the said part hereto of the second part, executors, administrators, and assigns, to recover and receive the said principal moneys and in- terest hereby assigned , the said part hereto of the first part Do hereby nominate, constitute, and appoint the said part hereto of the second part, executors, administrators, or assigns, the true and lawful attorney and attorneys of the said part hereto of the first part, to ask, demand, sue for, recover, and receive either in tlic name of the said part hereto of the first part or otherwise from tlio said mortgagor, in the said Inden- ture of Mortgage named, executors, administra- tors, or assigns, or any other person or persons liable to pay the same, the said principal moneys and inte- rest hereby assigned, and to commence, institute, and prosecute any action, suit, or other proceeding, at law or in equity, for the recovery of the same ; and to give sufficient receipts and discharges therefor, and to make, do, and execute any other act, deed, mrtter, or tiling for recovering tlic said principal moneys and interest, or giving proper and sufficient discharges therefor, or for further assuring the said premises unto the said part hereto of the second part as shall be thought expedient. And the said part hereto of the first part, for heirs, executors, administrators, and assigns, hereby covenant with the said part hereto of the second part, heirs, executors, administrators, and assigns: That the said principal moneys and interest ex- pressed to be hereby assigned are now due and owing to the said part hereto of the first part by virtue of the said mortgage; OP ASSIGNMENTS. 109 ! And that ha done no act whereby the same have been received, released, or discharged, or the said premises incumbered. And that the said mortgage is good, valid, and subsisting, notwithstanding any such act of the said part hereto of the first part. And the said part hereto of the second part hereby covenant to indemnify and save harmless the said part of the first part, estate and effects, from all loss, costs, charges, damages, and expenses, by reason or on account of any such proceedings as aforesaid. In Witness 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 1 in the presence of . / Assignment of Mortgage. ANOTHER short FORM. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the , in the County )f and Province of Canada, of the first part, ind , of the , in the County of and Province aforesaid, of the second part. Whereas, by an Indenture of Mortgage bearing date the day of , in the year of our Lord one thousand eight hundred and , and made between , of the , &c. and the saiJ , of the part, it is Witnessed, that in consideratio i of the sum of , of lawful money of Canada, to him the said paid by the said , He, the 10 110 CANADIAN DOMESTIC LAWYER. ^\ i said , did grant, bargain, sell, alien, release, enfeoff, convey, and confirm unto the said , his heirs and assigns, all and singular th certain parcel Or tract of land and premises situate, lying, and being in the , the butts and bounds of which said parcel or tract of land and premises are more particularly described and set forth in the said Indenture of Mortgage ; To have and to hold the same unto the said , his heirs and assigns, for- ever. Subject, neveriiieless, to a proviso therein contained for redemption upon payment by the said to the said of the sum of of lawful money aforesaid and interest, on the day and time and in manner therein mentioned. And whereas the sum of is now owing to the said on the said in part recited security, and the said hath agreed to sell and assign the said lands and premises, and all the moneys thereby secured, as well as the said Indenture of Mortgage, and all his interest therein, unto the said for the consideration hereinafter mentioned. Now THIS Indenture witnesseth, that the said party of the first part to this Indenture, in consider- ation of the sum of , of lawful money of Canada aforesaid, to him by the said party of the second part to this Indenture in hand paid, the re- ceipt whereof he, the said party of the first part, doth hereby acknowledge, and of and from the same, and every part thereof, acquit, release, and discharge the said party of the second part, his heirs, executors, administrators, and assigns, forever; He, the said party of the first part, hath bargained, sold, assigned, OP ASSIGNMENTS. Ill transferred, and set over to the said party of the second part to this Indenture, his heirs, executors, administrators, and assigns, the said principal sum of , so due and owing to him as aforesaid, and secured by the hereinbefore in part recited Indenture of Mortgage, and also all future and other sums of money which from henceforth shall or may grow due by way of interest for or on account of the said prin- cipal sum of . And also the said messuages and tenements, lan'ds and premises, comprised in the said in part recited Indenture of Mortgage, and all the estate, right, title, interest, claim, and demand whatsoever of him, the said party of the first part, of, in, to, or out of the said premises or any part thereof, and of, in, to, or out of the said principal moneys. To HAVE AND TO HOLD, receive and take, the said principal sum of and interest, and all and singular other the premises hereby assigned, and every part thereof, unto the said party of the second part, his heirs, executors, administrators, or assigns, to and for his and their own proper moneys, securi- ties, and effects absolutely ; And, for the more effec- tually enabling the said party of the second part, his executors, administrators, and assigns, to recover and receive the said principal sum of and interest, and to have and take the benefit of the security for the same, he, the said party of the first part, hath made, ordained, constituted, and appointed the said party of the second part, his executors, administra- tors, or assigns, his true and lawful attorney or attor- neys, to ask, demand, sue for, recover, and receive from the said , his executors, administrators^ or 112 CANADIAN POMESTIC LAWYER. assigns, or any other person or persons liable to pay the same, the said sum of and interest, and to commence and prosecute any action, suit, or other proceeding, either at law or in equity, for the rfccovery of the same, and on receipt of the said principal moneys ai*d interest, or any part thereof, io give sufficient receipts and discharges. And to make, do, and execute all or any other act, matter, or thing, lor recovering and receiving the said principal sum and interest ; And the said party hereto of the first part, for himself, his heirs, executors, administrators, and as- signs, covenants with the party hereto of the second part, his heirs, executors, administrators, and assigns, that the said principal sum of is now owing to him, the said party hereto of the first part, nn ier the SL'id security, and that he has done no act or thing where- by the said principal sum of is or has been received, released, discharged, or incumbered. In Witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered "J in the presence of . / , Assignment of Mortgage. BY INDORSEMENT. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, and , of the second part. WITNESSETH, that the said party of the first part, in consideration of the sum of , of lawful OF ASSIGNMENTS. 113 money of Canada, by the said party of the second part to him in hand paid, the receipt whereof is here- by by him acknowledged, hath bargained, sold, and assigned, and by these presents doth bargain, sell, and assign, unto the said party of the second part, his executors, administrators, and assigns, all that cer- tain sum o^ , secured or intended to hv secured to the said party of the first part in and by the Indenture of Bargain and Sale by way of Mort- gage hereunto annexed, and all interest henceforth to become due for the same, together with the said Indenture of Mortgage, and together also with full power and authority in the name or names of the said party of the first part, his executors or adminis- trators, to receive and give effectual discharges for thf said sum of , and from time to time to commence, institute, and prosecute such actions, suits, and other lawful proceedings upon the said Indenture of Mort- (jage, for the recovery of the moneys, benefits, and advantages secured thereby, as shall be deemed ne- cessary or expedient. To HAVE, HOLD, RECEIVE, AND TAKE the Said SUm of , and the interest henceforth to become due for the same, and all and singular other the premises hereby assigned or intended so to be, and every of tliem and every part thereof, respectively, unto the said party of the second part, his executors, adminis- trators, and assigns, for his and their own absolute use and benefit. And this Indenture further witnesseth, that .n consideration of the further sum of ten shillings by the said party of the second part to the said 10» 114 CANADIAN DOMESTIC LAWYER. party of the first part in hand paid, the receipt whereof is hereby also acknowledged, he, the said party of the first part ^ V bargained, sold, and released, and by these picsents doth bargain, sell, and release, unto the said party of the second part and his heirs. All and singular that certain par- cel or tract of land in the annexed Indenture de- scribed, being , and all the estate, right, title, and interest of the said party of the first part thereto or therein, by virtue of the said Indenture of Mort- gage. To HAVE AND TO HOLD the Same, with all appurte- nances thereunto belonging or appertaining, unto and to the use of the said party of the second part, his heirs and assigns, forever. But subject to such right, title, and equity of redemption as the same are now subject and liable to under and by virtue of the said annexed Indenture. In WiTxsess whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered ) in the presence of . / Assignment of Mortgage. BY INDORSEMENT. — SHORT FORM. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between within named, of the first part, and , of , of the second part, WIT- NESSETH, that the party of the first part, for divers good considerations him thereunto moving, and for I OP ASSIGNMENTS. 115 the further consideration of the sum of five shillings to him in hand well and truly paid by the party of the second part at or before the sealing and delivery of these presents, the receipt whereof is 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 whatsoever of him, the party of the first part, of, in, and to the lands and tenements mentioned and described in the within mortgage. And also to all sum and sums of money secured and payable thereby and now remain- ing unpaid, to have and to hold the same, and to ask, demand, sue for, and recover the same, as fully to all intents and purposes as he, the party of the first part, now holds and is entitled to the same. In Witness whereof, the parties to these pre- sents have hereto set their hands and seals, the day and year first above written. Signed, sealed, and delivered "I in the presence of . j Memorial of Assignment of Mortgage. A Memorial to be registered of an Indenture of Assignment of Mortgage, bearing^ date the day of , in tb j year of our Lord one thousand eight hundred and , made between , of the first part, , of the second part [and , of the third part]. Whereby it is witnessed that in consideration of the sum of , of lawful money of Canada, 116 CANADIAN DOMESTIC LAWYER. then paid by the said part of the second part to the said part of the first part, the receipt whereof is thereby acknowledged, he, the said part of the first part, did thereby assign, transfer, and set over, convey and assure, unto the said part of the second part, heirs, executors, administrators, and as- signs, as well A certain Indenture of Mortgage, bearing date the day of , one thousand eight hundred and , and made between , as also the unpaid principal and interest now re- maining due of a certain mortgage debt or sum of , and the following parcel or tract of land and premises, that is to say. All and singular th certain parcel or tract of land and pre- mises, situate, lying, and being in the To JZOLD ^he same unto and to the use of the said part of the second part, heirs, executors, ad- ministrators, and assigns, forever. Subject to such equity of redemption as was then subsisting therein by virtue of the said Indenture of Mortgage. [And the said party of the third part thereby barred her dower in the said lands.] Which said Indenture is witnessed by I And this Memorial thereof is hereby required to be registered by me, the said assign therein named. Witness my hahd and seal, this day of , one thousand eight hundred and Signed and sealed in the 1 presence of . / Count of , To wit. , of , in the within Memorial named, maketh oath and saith that OF ASSIGNMENTS. 117 he was present, and did see the Indenture to which the said Memorial relates duly executed, signed, sealed, and delivered, by the therein named , and that he is a subscribing witness to the execution of the said Indenture ; that he, this deponent, also saw the said Memorial duly signed and sealed by the therein named for registry thereof, which said Memorial was attested by him, this deponent, and another subscribing witness, and that both said instruments were executed at Sworn before me, at , this day of , 18 . A Commissioner in B. R., ^c. in and for the County of Assigmnent for Benefit of Oreditors. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, (Trustees), of the second part, and the several other persons whose names and seals are hereunto sub- scribed and set, being respectively creditors of tlie said part of the first part, of the third part. Whereas, the said part of the first part is in- debted unto the said parties of the second and third parts in the sums of money set opposite to their respective names in the Schedule hereunder wricten, and, being unable to pay the same in full, has agreed to assign all his estate and efi'ects, both real and personal, unto the said part of the second part, heirs, executors, administrators, and assigns, in manner and upon the trusts hereinafter mentioned. Now THIS Indenture witnesseth, that in con- sideration of the premises, and of the sum of five 118 CANADIAN DOMESTIC LAWYER. m shillings, of lawful money of Canada, to the said part of the first part in hand paid by the said part of the second part, the receipt whereof is hereby acknowledged, the said part of the first part Do by these presents grant, bargain, sell, release, convey, assign, transfer, and set over unto the said part of the second part, All and SINGULAR the real estate enumerated in the Schedule hereunto annexed ; And also all and every ac- counts, books of account, promissory notes, book and other debts, sum and sums of money, and all secu- rities for money, shares, rights, and interests, and all other the real and personal estate and effects whatsoever, and wheresoever, of , the said part of the first part, whether in possession, reversion, expectancy, or otherwise; Together with full and free power and right of entry in and to all and every the messuages, or tenements, and heredita- ments, wherein the said accounts, books of account, promissory notes, book and other debts, or any of tliem, now are or hereafter shall be, and all rever- sions, remainders, yearly and other rents, issues, and profits, And all the estate, right, title, interest, pos- session, property claim, and demand, both at law and in et^uity, of , the said part of the first part, of, in, to, or out of the same. To have and to hold the said real and personal estate and eiTccts, and otlicn- tlie premises hereinbe- fore conveyed and assigned, or intended so to be, with their and every of their appurtenances, unto the said part of the second part, heirs, execu- tors, administrators, and assigns, forever; upon OP ASSIGNMENTS. 119 trust as to the said real estate, that they, or the sur- vivor of them, or the heirs, executors, or adminis- trators of such survivor, shall, as soon as conve- niently may be, make sale and dispose of the same tor the best price or prices that can be reasonably obtained for the same, and, on the sale thereof, to make and execute such deeds, conveyances, and other assurances as may be necessary for conveying the same to the purchaser or purchasers thereof. And as to the said personal estate and effectfl upon trust, that , the said part of the second part, and the survivor of them, and the executors or ad- ministrators of such survivor, do, and shall forthwith, or as soon as conveniently may be, take possession of, call in, collect, compel payment of, and receive. All and singular the said personal estate and effects hereinbefore assigned, or intended so to be, and do and shall, as soon as conveniently may be, sell and dispose of, and convert into money, such parts thereof as shall not consist of money, with power for the said trustees or trustee for the time being to accept any composition for any debts or moneys owing to the said part of the first part, and to allow time for the payment of any of the said debts, moneys, or compositions, and that either with or without taking security for the same, and with power also for the said trustees or trustee for the time being to make any such sale, disposition, or conversions into money, as aforesaid, either by public auction or by private sale. And do and shall, by and out of the moneys to ariso from aoy of the me&UB aforesaid, pay tHnQ costt^ 120 CANADIAN DOMESTIC LAWYER. h 1 'pi I ii {'■J' ( ! I i III iii: I ' H M H charges, and expenses of and attending the pre- paring, engrossing, execution, and making copies of these presents, and of the sale of the said real estate, and the taking possession, calling in, collection, com- pelling payment, recovering, sale, disposition, and conversion into money of the said personal estate and effects, and all other the costs, charges, or e:|- penses to be incurred or become payab e in tho execution of the trusts of these presents, or in rela- tion thereto ; And do and shall, in the next place, pay and divide the clear residue or surplus of the said moneys unto and amongst all and every of the creditors of the sJiid part of the first part, in ratable proportions, according to the amount of their several nnd rospcctivc debts. Subject, nevertheless, to the (.•ovonauts and provisions hereinafter contained. And tlio said part of the first part do by these piw^cnts make, ordain, constitute, and appoint the said part of tho second part, and the survivor of thc'iii, and tho executors and administrators of such ' iiivivor, and their or his assigns, to be the true and l.wful attoriieys of liim the said part of the first p.: It, to ask, demand, sue for, recover, and receive nil (kbl8 and moneys due or owing, or payable or t'-. 1)! come payable, to , the said part of the first p"ivt, and all and singular other the personal (•Stat;' and effocts hereinbefore assigned, or intended • (' '0 be, Avhicli may be in the possession of any per- ^' ;i or persons other than the said part of the fir^t ' it, And on payment or delivery thereof, or of any part thereof, to give and execute sufficient receipts, acquittauces, or otlior discharges for the sp/jne, And ii OF ASSIGNMENTS. 121 the on non-payment or non-delivery thereof, to bring and commence, and either to prosecute or discon- tinue, any action, suit, or other proceedings, for com- pelling the payment or delivery thereof, And for all Oi- any of the purposes aforesaid to use the name or names of the said part of the first part, his heirs, executors, or administrators, and all and whatsoever the said attorneys or attorney shall lawfully do or cause to be done in or about the premises the said part of the first part do hereby, for heirs, executors, and administrators, covenant with the said part of the second part, executors and adr 'nistrators, to allow, ratify, and confirm. And it is hereby agreed and declared by and between the said parties hereto, that it shall be law- ful for the said trustees to employ any person or persons in winding up the afiairs of the said part of the first part, and in the sale, collecting, getting in, and disposing of the said real and personal estate and effects hereinbefore conveyed and assigned, oi intended so to be, or any part thereof, or otherwise in or about the premises, and to make such remune- ration or allowance out of the said trust estate to the person or persons so employed as the said trus- tees or trustee may think fit. Provided always, that any person or persone who, at the date of these presents, shall be a surety or liable in any manner for any debt of the said part of the first part, may, after payment by him of the same debt or any part thereof, stand in the place of the person to whom the same d«bt wis owing for the whole or taoh part of the debt m Khali fc:*f • 1 ] 122 CANADIAN DOMESTIC LAWYER. have been paid, in respect of the trusts and benefit of these presents, notwithstanding the same may be so paid and discharged after the date and execution hereof, and the dividend or dividends thereafter pay- able in respect of the amount of such debt or liability shall be paid to such person or persons, pro rata, but ot so as to disturb any prior dividend or dividends. Provided also, and it is hereby agreed and de- clared, that the receipts of the said part of the second part, and the survivor of them, and the executors and administrators of such survivor, or the trustees or trustee for the time being, acting in the execution of the trusts of these presents, for any sums or sum of money payable under or by virtue of these presents, shall be sufficient and efiec- tual discharges for the same, and that the persons paying the same, his, her, or their heirs, executors, administrators, or assigns, shall not afterwards be answerable or accountable for any loss, misapplica- tion, or non-application of the same, or bo in any wise obliged to see to the application thereof. Provided also, and it is hereby further agreed and declared, that the trustees or trustee for the time being of these presents shall not be answer- able the one for the other of them, nor for involun- tary losses, and that it shall be lawful for them to reimburse themselves out of the moneys which shall come to their hands by virtue of these presents, all costs, charges, and expenses incurred or to be in- curred in any wise relating thereto or to the execu- tion of the trusts thereof. Provided also, and it is hereby further agreed OF ASSIGNMENTS, 123 and declared, that it shall be" lawful for the said trus- tees or trustee for the time being of these presents, if they or he shall so think proper, by and out of the said trust moneys to pay oflf and discharge any debt or debts due or owing from the said part of the first part on any mortgage, charge, lien, bill, note, or other securities, and either with or without interest, and thereupon to cause the same mortgages, charges, liens, bills, notes, or other securities to be delivered up or assigned to the said trustees or trustee, to be held upon the same trusts as are here- inbefore declared of the trust moneys and premises herein comprised. In Witness, &c. The Schedule above referred to, being parties of the third part hereto, and Creditors of the said part of the first part. General Form of Assignment to be indorsed on any Instrument. Know all Men by these Presents, that I, the within-named A. B., in consideration of five* dollars to me paid by C. D., have assigned to the said C. D. and his assigns all my interest in the within-written in- strument, and every clause, article, or thing therein contained ; and I do hereby constitute the said C. D. my attorney, in my name, but to his own use, to take all legal measures which may be proper for the com- plete recovery and enjoyment of the assigned pre- mises, with power of substitution. Witness my hand and seal, this, &c. 124 CANADIAN DOMESTIC LAWYER. lii'U Assignment of Partnership Property and Debts by one Partner to another, in trust to close the Ooncem and pay over a Moiety of the Pnnds realized after all Debts are paid. Whereas a copartnership has heretofore existed between J. S. and A. B., both of the of , which copartnership has been known under the name of S. & B., and which it is the intention of the said copartners forthwith to dissolve and determine : Now THIS Indenture of two parts, made this day of , in the year , by and between the said J. S., of the one part, and the said A. B., of the other part, WITNESSETH : First. That the copartnership aforesaid is hereby, by the mutual consent of the said parties, dissolved and determined. Second. The said J. S. doth hereby sell, transfer, assign, and set over unto the said A. B., his moiety of all the stock in trade, goods, merchandise, effects, and property of every description belonging to or owned by tho said copartnership, wherever the same may be, together with all debts, choses in action, and sums of money due and owing to the said firm from any and all persons whomsoever, to hold the same to the said A. B. and his assigns forever in trust for the following purposes, namely : that the said A. B. shall sell and dispose of all the goods, property, and effects belonging to the said firm, at such time and in uch manner as he may think prudent, and shall with seasonable diligence collect all the debts and sums of money due and owin£ to the said firm ; and shall, out OP ASSIGNMENTS. 125 of the proceeds of the said sales, and with the money thus collected, pay and discharge all the debts and sums of money now due and owing from the said firm, as far as the proceeds of said sales and the sums of money collected will go; and, after fully satisfying all demands against the said firm, if there be any surplus, shall pay over one moiety thereof to the said J. S. or his assigns. Third. The said J. S. doth hereby constitute and appoint the said A. B. his attorney irrevocable, in his the said A. B.'s own name, or in the name of the said firm, to demand, collect, sue for, and receive any and all debts and sums of money due and owing to the said firm ; to institute and prosecute any suits for the recovery of the said debts, or to compound the same, as he may judge most expedient ; to defend any and all suits against the said firm ; to execute all such paper writings and acquittances as may be necessary ; and generally to do all such acts and things as may be necessary or proper for the full and complete settlement of all business and concerns of the said copartnership. Fourth. The said A. B., for himself and his heirs, executors, and administrators, hereby covenants to and with the said J. S. and his assigns that he will sell and dispose of all the partnership property and eflfects to the best advantage ; that he will use his best diligence and endeavors to collect all debts and sums of money due and owing to the said firm ; and that he will truly and faithfully apply the proceeds of said sale, and the moneys collected, to the payment, dis- charge, and satisfaction of all debts and demands ■f"l : 126 CANADIAN DOMESTIC LAWYER. against the said firm, as far as the same will go, and, after discharging all such debts, will pay over to the said J. S. or his assigns one moiety of any surplus that may remain; and, further, that he will keep full and accurate accounts of all moneys received by him for goods sold or debts collected, as well as of moneys paid out, and will render a just, true, and full account thereof to the said J. S. or his assigns. Fifth. The said J. S., for himself, &c., covenants to and with the said A. B., &c., that, upon settlement of accounts, if it shall be found that the debts due and owing from the said firm exceed the amount of moneys received from the sales of the said goods and the debts collected, he will pay unto the said A. B., or his as- signs, one moiety of any balance that may then be due and owing from the said firm. In Witness whereof. &c. t Assignment of Partnership Property and Debts by one Partner to another, for a sum certain. This Indenture, of two parts, made and ccii- cluded this day of , in the year of, &c., , by and between W. S. P., of , of the first part, and J. B. P., of , of the second part, WITNESSETH : That whereas the said parties were lately copart- ners in the business of , which partnership was dissolved and determined on the day of last ; and whereas many debts, due and owing to the Bald parties on account of their said copartnership, are Mtill outstanding, and debts due by the said firm OP ASSIGNMENTS. 127 are yet unpaid; and whereas it is agreed that the said party of the second part shall assign and release to the said party of the first part all his interest in the stock in trade, goods, and eflfects belonging to the said firm, and in the debts now owing to the said firm, and that the said party of the first part shall assume all the debts and liabilities of the said firm, and shall discharge and indemnify the said party of the second part from all liabilities and losses arising from the said partnership. Now THEREFORE, in pursuance of the said agree- ment, and in consideration of the sum of paid and secured to the said J. B. P., he, the said J. B. P., doth hereby fully and absolutely sell, assign, release, and make over to the said W. S. P. all his right, title, interest, and share in and to all the stock in trade, goods, merchandise, machinery, tools, books, leasehold premises, and effects belonging to the said partnership, of whatever kind or nature, and wheresoever situated ; also, all his right, title, and interest in and to all the debts and sums of money now due and owing to the said firm, whether the same be by bond, bill, note, or account, or otherwise ; and the said J. B. P. doth hereby make and appoint the said W. S. P., his executors, administrators, and assigns, to be his attorney and attorneys, to receive all and several the debts and sums of money above mentioned, to his and their own use and benefit; and doth hereby authorize the said W. S. P., his exe- cutors, &c., to demand, collect, and sue for the said debts and sums of money, and to use his the said J. B. P.'s name iu any way or manner that the collec- 128 CANADIAN DOMESTIC LAWYER. 1 .1 tion, recovery, and realization of the said debts and demands may render necessary, as well in court as out of court, but at their own proper costs and charges, and without cost or damage to the said J. B. P. And the said J. B. P. doth hereby further authorize the said W. S. P. to convey and transfer to his own name, and for his own use and benefit, any and all sums of money and eflfects, real and personal estate, which may be taken or received in the name of the said firm, and to hold the same free from all claims by the said J. B. P., his executors, administrators, or assigns. And these Presents further witness, that, in pursuance of the said agreement, the said W. S. P., for himself, his executors and administrators, doth hereby covenant to and with the said J. B. P., his exe- cutors and administrators, that he, the saia W. S. P., ..nd his, &c., shall pay and discharge, and at all times hereafter save harmless ana indemnify, the said J. B. P., his, &c., from and against all and every the debts, duties, and liabilities which, at the dissolution and determination of the said partnership, were due and owing by the said firm to any person or persons, for any matter or thing touching the said partner- ship, and of and from all actions, suits, costs, ex- penses, and damages, for or concerning the said debts, duties, and liabilities, unless the said J. B. P. shall have contracted any debts or incurred any liabilities, in the name and on account of the said firm, which are unknown to the said W. S. P. and do not appear in the books of the said firm ; for which, if any such OF ASSIGNMENTS. 129 exist, the said W. S. P. does not hereby intend to make himself responsible. In Witness whereof, &e. AsBignment of a Debt, with Power of Attorney, &c. Know all Men by these Presents, that , in consideration of the sum of dollars paid to by , of , in the county of (the receipt of which is hereby acknowledged), do hereby sell, assign, and transfer unto the said all claims and demands against , of , for debts due to the said , and all actions against said now pending in favor, and all causes of action whatsoever against him. And the said do hereby nominate and appoint the said , his executors and administrators, attorney or attorneys irrevocable ; and do give him and them full power and authority to institute any suit or suits against said and to prosecute the same, and any suit or suits which are now pending for any cause or causes of action, in favor of said against said , to final judgment and exe- cution ; and any executions for the cause or causes aforesaid to cause to be satisfied by levying the same on any real or personal estate of the said , and the proceeds thereof to take and apply to his or their own use ; and in case of levying said executions on any real estate, the said hereby empower the said , his executors and administrators, to sell, and execute deeds to convey the same, for such price or consideration, and to such person or persons, and on such terms, as he or they shall deem ex- 'l ; *• 111 130 CANADIAN DOMESTIC LAWYER. pedient; or, if he or they prefer it, to execute any conveyances that may be necessary to vest the title thereof in him or them, as his or their own property ; but it is hereby expressly stipulated that all such acts and proceedings are to be at the proper costs and charges of the said , his executors and adminis- trators, without expense to the said And the said do further empower the said , his executors and administrators, to appoint such substitute or substitutes as he or they shall see fit, to carry into effect the objects and purposes of this authority, or any of them, and the same to re- voke from time to time at his or their pleasure ; the said hereby ratifying and confirming all the lawful acts of the said , his, &c., in pursuance of the foregoing authority. In Testimony, &c., this day of , a.d. 18 . Signed, sealed, and delivered 1 in the presence of . / Assignment of a Folioy of Insaranoe by Indorsement. Know all Men by these Presents, that I, the within-named A. B., for and in consideration of the sum of to me paid by C. B., of, &c. (the receipt whereof is hereby acknowledged), have granted, sold, assigned, transferred, and set over, and by these presents I do absolutely grant, sell, assign, transfer, and set over, to him, the said C. D., all my right, property, interest, claim, and demand in and to the within policy of insurance, which have already arisen or which may hereafter arise thereon, with full power to use zny name so far as may be necessary to enable OP ASSIGNMENTS. 181 him fully to avail himself of the interest herein ^ as- signed, or hereby intended to be assigned. The con- veyance herein made, and the powers hereby given, are for myself and my legal representatives to said C. D. and his legal representatives. In Testimony whereof, &c. Assignment or Bill of Sale of Gbods. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and Between of the first part, and of the second part : Whereas, the said part of the first part is possessed oi the hereinafter set forth and enumerated, and hath contracted with the said part of the second part for the sale to of the same at the sum of : Now THIS Indenture witnesseth, that in pursu- ance of the said agreement, and in consideration of '.he sum of , of lawful money of Canada, paid by the said part of the second part to the said part of the first pait, at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), the said part of the first part Ha bargained, sold, assigned, transferred, and set over. And by these presents Do bargain, sell, assign, transfer, and set over, unto the said part of the second part, executors, administrators, and assigns, All those, the said , And all the right, title, interest, property, claim, and demand whatso- ever, both at law and in equity, or otherwise howso- ever, of , the said part of the first part, of, in, to, and out of the same, and every part thereof. • IT ':fM 132 CANADIAK DOMESTIC LAWYER. UU To HAVE AND TO HOLD the Said hereinbefore as- signed premises, and every part thereof, with the appurtenances, and all the right, title, and interest of the said part of the first part therein as afore- said, unto and to the use of the said part of the second part, executors, administrators, and as- signs, to and for sole and only use forever. And the said part of the first part do hereby, for heirs, executors, and administrators, cove- nant, promise, i.nd agree with the said part of the second part, executors and administrators, in manner following, that is to say: That , the said part of the first part, now rightfully and absolutely possessed of and entitled to the said hereby assigned premises and every part thereof, and that the said part of the first part now ha in good right to assign the same unto the said part of the second part, exe- cutors, administrators, and assigns, in manner afore- said and according to the true intent and meaning of these presents ; And that the said part hereto of the second part, executors, administrators, and as- signs, shall and may from time to time and at all times hereafter peaceably and quietly have, hold, possess, and enjoy the said hereby assigned premises and every part thereof to and for own use and benefit, without any manner of hindrance, interrup- tion, molestation, claim, o^ demand whatsoever, of, from, or by , the said part of the first part, or any person or persons whomsoever; And that free and clear and freely and absolutely released and dis- charged or otherwise at the costs of the said part OF ASSIGNMENTS. 133 of the first part, effectually indemnified from and against all former and other bargains, sales, gifts, grants, titles, charges, and incumbrances whatsoever ; And, moreover, that , the said part of the first part, and all persons rightfully claiming or to claim any estate, right, titlo, or interest of, in, or to the said hereby assigned premises or any part thereof, shall and will from time to time and at all times hereafter, upon every reasonable request of the said part of the second part, executors, adminis- trators, or assigns, but at the costs and charges of the said part of the second part, make, do, and exe- cute or cause to be made, done, and executed all such further acts, deeds, and assurances for the more effect- ually assigning and assuring the said hereby assigned premises unto the said part of the second part, executors, administrators, and assigns, in manner aforesaid and according to the true intent and mean- ing of these presents, as by the said part of the second part, executors, administrators, or as- signs, or counsel, shall be reasonably advised and required. ^ In Witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. A. B. [l.s.] C. D. [L.S.] Signed, sealed, and delivered \ in the presence of / 12 r ,>'m It »'iV. m 134 CANADIAN DOMESTIC LAWYER. :;! •• Canada: Count of , to wit: I, , in the within Bill of Sale named, make oath and say, that the feale thereby made is bona fide and for good consideration, namely : , and not for the purpose of holding or enabling me, this deponent to hold the goods mentioned therein against the creditors of the said bargainer. Sworn before me, at , | this day of , A.D. 18 a Commissioner in B. E. in and for Canada: Count of to wit : I, , make oath and say, that I was personally present and did see the annexed Bill of Sale duly signed, sealed, and delivered by , the parties thereto, and that I, this deponent, am a subscribing witness to the same, and that the name , set and subscribed as a witness to the execution thereof, is my handwriting. Sworn before me, at ' \ • this day of , A.D. 18 a Commissioner in B. R., &c. another form. This Indenture, made the day of , in the year of our Lord one thousand eight hun- dred and , Between , ^ x the one part, and , of the other part. Whereas, the said ha contracted and agreed with the said for the absolute sale to h of the , mentioned OF ASSIGNMENTS. 135 and described in the Schedule hereto, at or for the price or sum of : Now THIS Indenture witnesseth, that in pursu- ance of the said agreement, and in consideration of the said sum of , of lawful money of Canada, by the said to the said well and truly paid, as or before the sealing and delivery of these presents (the receipt of which said sum h , the said , do hereby admit and acknowledge, and of and from the same and every part thereof do hereby acquit, release, and forever discharge the said , h executors, administrators, and assigns), , the said , Ha bargained and sold and by these pre- sents Do bargain and sell unto the said , h executors, administrators, and assigns, All mentioned and described in the said Schedule, together with all advantages, privileges, and emoluments to arise therefrom or thereunto in any wise appertain- ing: To HAVE, HOLD, RECEIVE, AND TAKE the said and all and singular other the premises hereby bargained and sold or intended so to be, with their appurtenances, unto the said , h exe- cutors, administrators, and assigns, for h and their absolute use and benefit; And the said do hereby, for , h heirs, executors, and adminis- trators, covenant, promise, and agree with and to the said, h executors, administrators, and assigns, that it shall bo lawful for the said , h executors, administrators, and assigns, at all times hereafter to have, hold, use, occupy, possess, and enjoy the said hereby assigned or intended so to be, without any let, suit, hindrance, disturbance, claim, or de- 136 CANADIAN DOMESTIC LAWYER. mand -.vhatsoever of, from, or by any person or per- sons whomsoever. In Witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first within written. Signed, sealed, and delivered by the ) said in the presence of . j The SchediiU to ivhich the foregoing Indenture refers. Be it remembered, that on the day of , in the year first within written, a delivery was made by the within mentioned to the within mentioned for the within mentioned or referred to ; a being delivered to the said , in the name of the whole, in the presence of Witness, A. B., o;, &c. [Tlie two Affidavits the same as in the lust Form.) CHAPTER V. OF AUCTIONS AND AUCTIONEERS. An auctioneer is a person who is authorized to sell goods or merchandise at public auction or sale for a recompense, or (as it is commonly called) a commission. He cannot buy: he can only sell. Pri- marily, he is deemed the agent of the seller of the \ ^ AUCTIONS AND AUCTIONEERS. 137 goods only ; but for certain purposes he is also deemed to be the agent both of buyer and seller. Thus, by knocking down the goods sold to the person who is the highest bidder, and inserting his name in 'his book or memorandum, he is considered as the agent of both parties; and the memorandum so made by liim will bind both parties, as being a memorandum sufficiently signed by an agent of both parties within the statute of frauds before referred to. Before the knocking down of the goods, he is, indeed, exclu- sively the agent of the seller; but after the knock- .ing down, he becomes also the agent of the purchaser, and the latter is presumed to give him authority to write down his name as purchaser. An auctioneer has also a special property in the goods sold by him, and a lien on the same and the pi'oceeds thereof, for his commissions; and he may sue the purchaser at the sale in his own name, as well as in the name of his principal. An auctioneer can sell only for ready money, unless there be some usage of trade to sell on credit, or unless the ternis of sale are on credit. An auctioneer cannot delegate his authority to an- other person, not even to his own clerk. Auction sales should be conducted with rigid fair- ness, and due notice of the sale ought to be given. Every bona fide bid should be accepted. Before pro- ceeding to sell, the conditions of sale ought to be read or announced. Usually these conditions are written or printed ; but the verbal declarations of the auctioneer at the sale, where they do not contradict the written particulars of the sale, are binding. Although the entry by the auctioneer in his book 12* IfH^ a 11 i Ml 138 CANADIAN DOMESTIC LAWYER. is a sufficient memorandum to bind both seller and buyer, yet in every sale of land it is usual to have agreements of sale and purchase signed by auctioneer and purchaser. JForms of such agreements, and ordinary condi- tions of sale, are subjoined. Auction Agreement to be signed by an Auctioneer, after a sale of land. I hereby acknowledge that A. B. has been this day declared ^y me the highest bidder, and purchaser of [describe the lanlJanuary, 1863.<2) Two months after date, w pay to me,(5) or order, (6) \^or "to my other," or "to E. F. or order"), at, 0(1 A OF BILLS OF EXCHANGE. 145 &c./'^ tlu' sum of Olio Inindred dollars/") value re- ceived/^) A. B. (Mc drawery^''^ To C. D., Esq. (the drawee)^ Montre{il.<") Accepted C. D./'^^ payable at Commercial Bank, London. ^^) [IndorsedY''^ 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 (3 (4 (5 (6 (7 (8 (9 (10 (11 (12 (13 (14 The date of the bill. The sum superscribed in figures. The statement of the time when payable. The description of the payee. " Or order." "At,"&c. Statement of the sum payable. " Value received." The drawer's signature. The direction to the drawee. The form of the acceptance. "Payable at," &c. Form of the indorsements. 1. The Place at which the Bill is dated, or is sup- posed to be drawn. It is usual to date the bill at the city or place ■n I :! i i' .! -i . mm IB: ^ k: J * VI 146 CANADIAN DOMESTIC LA'WYER. place need be stated. If a place be stated, it will be jyresumed that the drawer resides therein; and if only a general description be given, as "London,' or "Montreal," it will be sufficient, in the absence of information, or ready means of acquiring intel- ligence, as to tho particular street, &c. in which the drawer resides, to give Jdm notice of dishonor by /etter addressed to him merely " London," or " Mon- treal." 2. The Date of the Bill. This is not essential, although the bill be payable after date. If there be no dato, or an impossible date, the time of drawing or issuing the instrument will be reckoned the date, and will give the criterion when tbe bill is due. J bill of exchange may legally be post-dated. The restrictions against post-dating in England have reference to stavap 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 hona fide holder. As against third persons the date is not even pre- sumptive evidence that the bill was drawn on the day expressed ; nor will it afford proof of the time of in- dorsement. A bill may legally be drawn and dated on a Sunday. 3. The Sum superscribed in Figures, This superscription is unnecessary, but uffjial. If it were contradictory to the body of the bill, it would OP BILLS OP EXCHANGE. 147 be rejected: on the other hand, if in the body of the bill there were an omission of the word dollars, the superscription would aid the mistake by supplying the word. 4. The Statement of the 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 de- mand, that is, on presentation to the drawer for pay- ment. If the time of payment be fixed, it is not material that the day is ever so distant ; nor is it any objec- tion that the bill or note is payable at a specified time after notice from the holder. But it is a rule that a bill or note is void, even between the original parties thereto, if the payment of the money is made, by the terms of the instrument on the face of it, or by a written contemporaneous in- dorrement or the instrument, dependent upon a con- dition, or upon the contingency of the happening of an event which may never occur ; and the defect is not cured by the fulfelment 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 t^rms men- tioned in certain letters shall be complied with ;" or ^^ provided T. S. shall not pay;" or "provided D. M. ehall not return tt> England^ or h^'fi >'if)fith b^ duly ?4 ■.i"f: . hi ii.' -li 'J ptor. It is availa' le only against the assignor who indorses it to the holaer. It will there- fore be remarked that the express assent of the ori- ginal parties is necessary to attach to a bill its more important and peculiar attribute. 7. ''At;' &c. Although the bill be accepted payable at a particular place in pursuance of the drawer's request, yet if the acceptor do not use the restrictive words "and not otherwise or elsewhere," according to the statute Cfons. St. U. C, c. 42, s. 5, the acceptance is, as to him, deemed to be general; and the acceptor is, it seems, responsible, although no presentment be made at the specified place. But the drawer and indorsers are not liable in such case, unless the bill be duly presented at the place de- signated by the acceptor, in pursuance of the direction in the body of the bill, confirmed and rendered specific by the acceptance. If the drawer, in the body of the instrument, make it payable, not at any specific place, but generally in some town, the direction becomes inoperative, if the bill be not accepted or the acceptance be general, without mentioning any particular street or place in- such town. Sometimes the drawer makes the bill payable at his OP BILLS OP EXCHANGE. 151 own house. This seems to be injudicious ; it having bten held that the circumstance raises a presumption that the bill was accepted for his accommodation, that he is the party to pay, and consequently that he is not entitled to notice of dishonor, unless he proves that he really had effects with the drawee. 8. Statement of the Sum payable. This is generally expressed in words at length ; but figures would suffice. We have seen that the super- scription of the sum in the margin may aid an omis- sion in the body of the bill of the word "dollars." A bill, &c., is not valid unless it be soleli/ for the payment of a specific sum of money. Therefore a bill "to pay A. B. 100?." is void if there be added the words, "and to deliver up a horse," &c. ; or the words, "and all other sums that may be due to him;" or, "first deducting thereoufc 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 2jycsumed by law for the d /aw- ing and indorsing a bill, no argument or inference that it does not exis^. can be founded on the absence of the words "value received:" the presumption that a consideration existed still arises. The precise meaning of these words, in reference i &m "':;{. -niM U V]'m I n 152 CANADIAN DOMESTIC LAWYER. to the parties by whom and from whom the value was received, depends upon the form of the bill. If it be payable to the drawer or his order, the words "value received" import that the drawee has received consi- deration from the drawer ; if it be payable to a third person, they signify that the drawer has received value from him to the amount drawn for. The nature of the value or consideration may be stated, without prejudice to the validity of the instru- ment. 10. The Drawer's Signature. The bill would, evidently, be imperfect if the draw- er's name did not appear on the face of the instru- ment. A formal signature at the foot of the bill is not essential. If the drawer himself write the bill in this shape, "/, A.B., request you :o pay," &c., no doub the instrument would be good, although not undersigned. The signature ina}*^ be in pencil ; or by a mark or cross, by way of signature ; or it may be printed. When an agent draws a bill for his principal, the signature should be in the name of the latter ; or in the name of the agent, thus: " A.B." [the agent), "for C. D." {the 'principal)', or thus: "CD." {the prin- cipal), "per procuration, A. B." {the agent). If an agent merely sign his own name only, as drawer, he will become personally liable on the bill, and the principal will not incur any responsibility' thereon. If there be several drawers, and they be partners, either the niinie of the firm may be subscribed by one of the members or an agent of the firm, or the signa- OP BILLS OF EXCHANGE. 153 ture may be by the partner or agent "for" the firm by its usual title. If the drawers be not partners^ each should sepa- rately sign by himself or by an agent appointed by him for the purpose. In this case one drawer has no implied authority to sign for the others. 11. The Direction to the Drawee. This formal direction is ifot necessary ; for, in a case in which instead of the usual address to the drawee the words "payable at No. 1 Wilmot Street" only were inserted, it was held that a person who resided at that place and who accepted the bill was liable thereon as acceptor. But this case does not show that the instrument can be perfect, as a billy although it do not appear on the face of the instru- ment who is the drawee. And it is clear that the absence of such information, to be obtained from the instrument itself, would render the instrument inope- rative as a bill. Care should be taken to address the bill to each person (if more than one) who has undertaken to accept the bill. There cannot be successive acceptors or a second acceptor of the same bill after a perfect acceptance, unless the second be an acceptor for honor. If, therefore, a bill be directed to A. only and be accepted by him, and B. afterwards accept it, he is not liable thereon as acceptor. 12. The Form of the Acceptance. The acceptance may be upon any part of the bill, and it may be effected by the drawer merely writing f:1 I ■ III :l' = /t 1i: •,■ ! : l't\ 154 CANADIAN DOMESTIC lAWTEB. i 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 Cons. St. U. C, c. 42, s. 7, requires that bills shall be accepted in writing upon the Mil itself. But this statute 'does not require the signature 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 t&ke 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 oflfered, and consent thereto, they also will be bound. Here we may observe the distinction that, although a bill cannot be drawn, it may be accepted, payable upon a condition or contingency/. The acceptance of a bill conditional as to the place of payment will be considered under the next divi- sion. A bill may be accepted ior part only of the sum men- tioned therein ; or the mode of payment may be varied by making part of the amount payable in bills; or the time of payment may be altered by the accept- ance. A bill may be accepted after it has been dishonored, and is then payable on demand. I OF BILLS OF EXCHANGE. 155 The acceptance may be revoked or cancelled by the drawee at any time before it has been called for by the holder and before the drawee has parted with it or delivered it over to the holder. We have seen that, if a bill is complete as to accept- ance, that is, has been accepted by the party on whom it is drawn, the custom of merchants does not authorize any second or further acceptance by another person. But, if the drawee before acceptance become insolvent, &c., or if he refuse to accept, another person may accept for the honor of any party to the bill; whiea is called an acceptance for honor, in the case of an inland bill, and is termed an acceptance supra pi'otest, in the case of a foreign bill, from the circumstance of a pro- test in such instance preceding the acceptance. If a party whose acceptance to a bill has been forged, on the bill being presented to him by a third person, with a request to know if the bill has been accepted by him, answer (though bona fide) that such is the case, he is liable as acceptor. 13. ''Payable at;' kc. . The introduction of these words into an acceptance led to great diiference of opinion in the courts as to thf ir legal operation, before the passing of the English Act 1 & 2 Geo. IV., c. 78 (Canadian Act, Cons. St. U. C, c. 42, founded on 7 Will. II., c. 5). It is clear that the acceptor need not state where the bill is to be presented for payment. He may accept generally. The question which divided the courts was, whether the acceptcv, by using the words *' payable at," &c., incurred only u restricted and con- rHl ;. t mi' 11:'*' f 1>'i W"'¥i rifn, 156 CANADIAN DOMESTIC LAWYER. I 11 ^- 1 fm I m i W H ''■' 1 ! li HJg ■ 'iHl '^K' 1 ditioi al or qualijQed liability, that is, was not respon- sible unless the bill were presented for payment at the place specified ; or whether the words were a mere notification to the holder that he might, if he pleased, there call for payment at his election, without being compelled to do so. The 1 & 2 Geo. IV. provides that an acceptance of a bill payable at a banker's or other specified place shall be deemed merely a general acceptance, unless the acceptor state that it is payable there "on/^ and not otherwise or elsewhere;" and the Canadian act is in the same words. 14. Form, ^c. of the Indorsements. The indorsements may be upon the face or at the back of the bill. They may be written in pencil. The indorsement may be by the mere signature of the party transferring, without any other words. This is called an indorsement in blank. Or before his signature the party may state, "Pay A. B.," or, "Pay A. B., or order." This is termed a special indorsement, or indorsement in full. Bills and notes may be indorsed before they are complete. And a bill may be indorsed before due, so as to charge the drawer, &c., although he had been discharged as to the indorser, by the latter hav- ing previously presented the bill for acceptance and omitted, on the non-acceptance, to give the drawer notice thereof; provided the indorsee had no notice of such fact by noting on the bill or otherwise, and took it for value. So, if a bill not due be paid, but be left in the holder's hands, a person taking it be- OP BILLS OF EXCHANGE. 157 fore it is due, bo7ia fide and without notice, may sue thereon. And a bill may legally be indorsed after it is due^ and has been dishonored; but not after it has been duly paid by the acceptor. # But there is this distinction between bills indorsed before, and after, they are due. If a note indorsed be not due at the time, it carries no suspicion what- ever on the face of it, and the party receives it on its own intrinsic credit. But, if it is over-due, it is out of the common course of dealing, and does give rise to suspicion. And therefore he who takes a bill after it has arrived at maturity takes it subject to all the legal defences that could have been made by any previous holder, arising out of and connected with the bill or note transaction itself, and not re- lating, as in the case of a set-oflf, merely to collateral matter. If, therefore, the party transferring could not have sued the acceptor upon the bill, because it was given upon a smuggling, or other illegal, consideration ; or because it had been paid or settled in account with the acceptor ; or because he (the party transferring) was only an agent to receive the money for his prin- cipal, &c. ; or because he had obtained the bill by fraud, &c. ; the transfer, after the bill or note has become due, will give the transferree no better title than the assignor possessed; and, in an action by the latter, either of these defences will avail th' acceptor. But if the immediate party transferring an over- due bill might have sued thereon, as if he took the (; ' i" ! !'' f i!5li 158 CANADIAN DOMESTIC LAWYER. bill by indorsement, &c., hona fide for value before it was due, the holder is invested with his rights ; and it is no defence that the bill was accepted by the de- fendant, &c. upon a smuggling contract, &c. between him and the drawer. * A bill may be indorsed conditionally, thus: — "Pay the within sum to A. B.,* or order, upon my name ap- pearing in the Gazette as ensign in any regiment of the line between the Ist and 64th, if within two months from this date." Upon such an indorsement neither A. B. nor his indorsees can acquire any right to the money, unless the event specified has oc- curred. An indorsement cannot be made as to part only of the sum due, so as to subject the acceptor to two actions without his consent; but if the partial in- dorsement be before the acceptance, and the drawee accept generally, he is supposed to assent to the double liability (that is, to one party as to one por- tion, and to another as to the residue of the bill), and the indorsement will be good. If part has been satis- fied, the bill may be indorsed for the remainder. An indorsement may be restrictive, and stop the negotiability of the bill; as, "Pay to my servant for my use^^ or, "Pay W. S., or order, for my use," &c. ; or it may be qualified (as ^^sans recours'*), so as to exempt the indorser from personal liability in case of dishonor. The mode in which an agent or partner should in- dorse a bill is similar, in general, to that which should be adopted on his drawing a bill. A partner may transfer in his own name only, and i! OF BONDS. 159 thereby charge the firm if such a mode of indorse- ment has been usual. If there be several holders, not partners, each should indorse. rl\ CHAPTER VII. OF BONDS. . , tj A Bond, or obligation, is a deed, whereby the maker (called the obligor) obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another (called the obligee) at an ap- pointed day. Such a Bond is called a single bond. A condition is, however, generally added, that if the obligor performs some particular act the obligation shall be void, otherwise it shall remain in full force and virtue. The penalty in a Bond is usually double the amount of the real debt, for the purpose of securing the full debt with interest and costs, if necessary. Whenever a specified sum is agreed upon by the parties for stipulated or liquidated damagesy in the eveqj of a failure to comply with the conditions of a bond, such specific sum is the amount which the party in fault is to pay. All that can be recovered of a penalty in a bond in addition to the amount of the debt is interest and costs ; and, as the general inclination of courts is to regard the sum mentioned as a penalty, care must be exercised to state distinctly and unmistakably the ^1 r 1 •■(]■• w 'I •■ vr .,, % i V a.l-' 160 CANADIAN DOMESTIC LAWYER. M V M fact that the sum agreed upon is in the nature of stipulated or liquidated damages, if the whole sum mentioned is intended as a forfeiture in case of failure. Bond. (Single. — Without condition.) Know all Men by these Presents, that 1 debtor], of [^such a place], am held and firmly bound "D [^creditor], of \_8uch a place], in the penal sum of tfOOOZ. of lawful money of Canada, to be paid to the said [^creditor], or to his certain attorney, executors, administrators, or assigns, for which payment to be v;ell and truly made I bind myself, my heirs, execu- tors, and administrators, and every of them, firmly by these presents. Sealed with my seal. Dated this Ist day of January, 1848. A. B. [L.S.] Sealed and delivered ) in the presence of / CD. Hi Money Bond. Know all Men by these Presents, that held and firmly bound unto in the penal sum of , of lawful money of Canada, to be paid t(^ the said , or to certain attorney, executors, ad- ministrators, or assigns, for which payment, well ond truly to bo made, bind heirs, executors, and administrators, forever, firmly by these presents. Sealed with seal. Dated this day of , in the year of our Lord one thousand eight hundred and • • ^/ OF BONDS. 161 The Condition of the above written Bond or obli- gation is such, that if the above bounden , heirs, executors, or administrators, do and shall well and truly pay, or cause to be paid, unto , executors, administrators, or assigns, the just and full sum of , of lawful money of Canada, with interest there- on, at the rate of per cent, per annum, on the (lays and times and in the manner following, that is to say : , without any deduction, defalcation, or abatement whatsoever. Then the said Bond or obligation to be void, otherwise to be and remain in full force and virtue. A. B. [L.S.] Signed, sealed, and delivered \ in the presence of j C. D. ,1 ! Ml t ! •!' 1 .■« ,» ■ H \ i Bond to Oonvey Land. Know all Men by these Presents, that held and firmly bound unto i.n the penal sum of , of lawful money of Canada, to be paid to the said , or to certain attorney, executors, admi- nistrators, or assigns, for which payment, well and truly to be made, bind heirs, executors, and administrators, and every of them, forever, firmly by these presents. Sealed with seal. Dated this day of , in the year of our Lord one thou- simd eight hundred and Whereas the said ha contracted with the above bounden , for the absolute purchase, in fee simple, free from all incumbrances, of the follow- ing parcel or tract of land, hereditaments, and 14» ^ 'm 111 u. I? i I ! i I V I . h 162 CANADIAN DOMESTIC LAWYER. premises, that is to say : And whereas the said ha agreed to pay therefor tae sum of , of lawful money of Canada, at the times and in manner following, that is to say ; Now, THE Condition of the above obligation is such, that if the said , heirs, executors, adminis- trators, or assigns, shall well and truly pay, or cause to be paid, to the above bounden , executors, ad- ministrators, or assigns, the sum of , at the times and in manner aforesaid, then if the above bounden , heirs and assigns, shall, by good and sufficient Deed or Deeds of Conveyance, in fee sim- ple, convey and assure, or cause to be conveyed and assured, unto the said , heirs and assigns, for- ever, the said premises hereinbefore described, free from all incumbrances, then the above obligation shall be void, otherwise to be and remain in full force and virtue. Signed, sealed, and delivered \ in the presence of . • j Bond for Payment of Purchase Money. Know all Men by these Presents, that held and firmly bound unto in the penal sum of , of lawi il money of Canada, to be paid to the said , or to certain attorney, executors, ad- ministrators, or assigns, for which payment, well and truly to be made, bind heirs, executors, and administrators, and every of them, forever, firmly by these presents. Sealed with seal. Dated this day of , OF BONDS. 168 in the year of our Lord one thousand eight hundred and Whereas the above bounden ha contracted with the said for the absolute purchase, in fee simple, free from all incumbrances, of the following parcel or tract of land, hereditaments, and pre- mises, that is to say : And whereas the above bounden ha agreed to pay therefor the sum of , of lawful money of Canada, at the times and in manner follow- ing, that is to say : And whereas, upon the treaty for the said pur- chase, it was agreed that the above bounden should enter into the above Bond or obligation for payment of the said purchase money, or the unpaid part thereof, and interest, in manner aforesaid, and be let into possession of the said lands and premises, and receipt of the rents and profits thereof from the day of the date hereof. Now, the Condition of the above obligation is such, that if the above bounden , heirs, execu- tors, administrators, or assigns, shall well and truly pay, or cause to be paid, to the said , executors, administrators, or assigns, the whole of the said pur- chase money and interest thereon as aforesaid, at the times and in manner aforesaid, without making any deduction, defalcation, or abatement thereout on any account whatsoever, then the above obligation shall be void, otherwise to be and remain in full force and virtue. Signed, sealed, and delivered 1 in the presence of . i IM'M t. Ml I > • 'Si Hi If • ' ■'riiil if .'» " u li ;■ ■« fi 1 ! i i li 164 CANADIAN DOMESTIC LAWYER. Bond of Indemnity. Know all Men by these Presents, that held and firmly bound unto in the penal sum of , of lawful money of Canada, to be paid to the said , or .to certain attorney, executors, adminis- trators, or assigns, for which payment, well and truly to be made, binds heirs, executors, adminis- trators, and every of them, forever, firmly by these presents. Sealed with seal. Dated this day of , in the year of our Lord one thousand eight hundred and The Condition of the above written Bond or obligation is such, that if the above bounden obligor, his htirs, executors, and administrators, do and shall, from time to time, and at all times hereafter, hold and keep harmless, and fully indemnified, the said obligee, his heirs, executors, and administrators, and his and their lands and tenements, goods, chat- tels, and effects, of, from, and against all loss, costs, charges, damages, and expenses which the said obli- gee, his heirs, executors, or administrators, may at any time hereafter bear, sustain, be at, or be put to, for or by reason or on account of , or any thing in any manner relating thereto. Then the above writ- ten Bond or obligation to be void, otherwise to be and remain in full force and virtue. Signed, sealed, and delivered ) in the presence of • / i 1 1 OP BONDS. 165 Bond from a Lessee and his Surety to pay Bent aooording to Lease. Know all Men by these Presents, that we, C. D., of , in the County of , and Province of Canada, Carpenter, and E. F., of the same place, Butcher, are held and firmly bound unt6 A. B., of , in the County of , and Province of Canada, Esquire, in the peniil sum of , of law- ful money of Canada, to be paid to the said A. B., or to his certain attorney, executors, administrators, or assigns, for which payment, well and truly to be made, we bind ourselves, and each of us by himself, our, and each of our, heirs, executors, and adminis- trators, forever, firmly by these presents. Sealed with our seals. Dated this day of , in i\e year of our Lord one thousand eight hundred and Whereas the above named A. B., by his Inden- ture of Lease, bearing even date with and executed before the above written obligation, for the consider- ation in the said lease mentioned, hath demised to the above bounden C. D. a certain saw-mill, situate at, &c. To hold unto the said C. D., his executors, administrators, and assigns, for the term of years frora thence next ensuing, determinable, nevertheless, at the end of the first years of the said term '^ the said C. D., his executors, administrators, or signs, shall give months' notice thereof, in ma; '.vv therein mentioned, at and under the yearly rent of , payable quarterly, in manner as therein ex- pressei^ as by the said lease will more fully appear. Now, the Condition of the above written obi i cation m ii'l '1 ' 1 1 • 'I I-' ^li\ 1 .1* I i>< -•If ^ ft f;1 n .;] 5 I'M '!< til 166 CANADIAN DOMESTIC LAWTER. is such, that if the above bounden C. D. and E. F., or either of them, their, or either of their, heirs, exe- cutors, or administrators, shall and do, during the continuance of the said recited lease, well and truly pay, or cause to be paid, the said yearly rent or sum of unto him, the said A. B., his heirs or as- signs, by four equal quarterly payments of each, on the several days following, that is to say, the day of , the day of , the day of and the day of in each and every year during the said demise, or within days next after every of the said days or times of payment, according to the true intent and meaning of the said recited lease, the first quarterly payment to be made on the day of next, then the above written obligation shall be void and of no effect^ but if default shall happen to be made of or in any of the said quarterly payments, then the same shall remain in full force. Signed, sealed, &c. OF CHATTEL MOBTOAaES. 167 CHAPTER VIII. 11 .if 1 •' /.;' > .:! { , Mi pre OF CHATTEL M0BTGAOE8. A CHATTEL mortgage is a conveyance of movable party, as household furniture, stock in trade, &c., by way of security. -A lengthy dissertation upon the laws affecting chattel mortgages would be inte- resting to none but lawyers; but some enactments regulating their registration, &c. must be noticed. It often happened that chattel mortgages were made use of in order to deprive a creditor of the fruits of his execution. When a debtor became in- volved, and desirous of preventing the seizure of his goods and chattels by the bailiff, it was quite com- mon for the debtor to make a fictitious conveyance *of them to some friend, by way of security for a pretended loan. When a seizure was made, the friend stepped in and claimed payment of the mort- gage, which, being always for an amount equJ to the full value of the goods, had the effect of prevent- ing the creditor from realizing any thing at all. To remedy this evil, the Canadian Legislature, in 1857, passed an Act of Parliament (since consolid- ated, and being now cap. 45 of the Consolidated Statutes for Upper Canada), the sections of which, so far as it is necessary to notice them here, are as follows : — 1. Every mortg^^ge of goods and chattels, made ' » I'M,! '4 i .t Ii.. *i ♦ i ?l,i^ "♦'i ' u'-:'- : ■'!:■ fi' :* ■ * s1^fj ,.m^-*-. LUM-iiin— wi— y ' )>Hi '* 111 111 If iw , 1 j 'I ■ ( ! ! '^1 ' i ■M i| ( : 168 CANADIAN DOMESTIC LAWYER. in Upper Canada, which is not accompanied by an immediate delivery and an actual and continued change of possession of the things mortgaged, or a true copy thereof, shall, within five days from the execution thereof, be registered as hereinafter pro- vided, t'lgether with the affidavit of a witness thereto, of Ih'; due execution of such mortgage or convey- anc or ^f the due execution of the mortgage or conveyance f " which the copy filed purports to be a copy, and also with the affidavit of the mortgagee or his agent, if such agent be aware of all the circum- stances connected therewith and properly authorized in writing to take such mortgage (in which case a copy of such authority shall be registered there- with.) 2. Such last-mentioned affidavit, whether of the mortgagee or his agent, shall state that the mort- gagor therein named is justly and truly indebted to the mortgagee in the sum mentioned in the mort- gage, that it was executed in good faith, and for the express purpose of securing the payment of money justly due or accruing due, and not for the purpose of protecting the goods and chattels mentioned therein against the creditors of the mortgagor, or of preventing the creditors of such mortgagor from ob- taining payment of any claim against him. 8. In case such mortgage or conveyance and affi- davits be not registered as hereinbefore provided, tlie mortgage or conveyance sha!l be absolutely null :'nd void as against creditors of the mortgagor, and ajvainst subsequent purchasers or mortgagees in good fpitb for v«.lw«.bl<^ oonwdfvratiou. OP CHATTEL MORTGAGES. 169 5. In case of an agreement in writing for future advances for the purpose of enabling the borrower to enter into and carry on business with such advances, the time of repayment thereof not being longer than one year from the making of the agreement, and in case of a mortgage of goods and chattels for securing the mortgagee repayment of such advances, or in case of a mortgage of goods and chattels for securing the mortgagee against the indorsement of any bills or promissory notes or any othe -1; bility by him incurred for the mortgagor, n( er.t ending for a longer period than one year from the date of such mortgage, and in case the mortg:.vge is executed in good faith, and sets forth full by recital or other- wise, the terms, nature, and effect of the agreement, and the amount of liability intended to be created, and in case such mortgage is accompanied by the affidavit of a witness thereto of the due execution thereof, and by the aflBdavit of the mortgagee, or in case the agreement has been entered into and the mortgage taken by an agent duly authorized in writing to make such agreement and to take such mortgage, and if the agent is aware of the circum- stances connected therewith, then, if accompanied by the affidavit of such agent, such affidavit, whether of the mortgagee or his agent, stating that the mort- gage truly sets forth the agreement entered into between the parties thereto, and truly states the ex- tent of the liability intended to be created by such agreement and covered by such mortgage, and that such mortgage is executed in good faith, and for the express purpose of securing the mortgagee repay* » - I i '1 ft' .;•■ Ml ;:! f i« i i s i if-** Tg •■'. i, tl ■m\ n'Jfj "iftv, I:; u jn 170 CANADIAN DOMESTIC LAWYER. ment of his advances, or against the payment of the amount of his liability for the mortgagor, as the case may be, and not for the purpose of securing the goods and chattels mentioned therein against the creditors of the mortgagor, nor to prevent such cre- ditors from recovering any claims which they may have against such mortgagor, and in case such mort- gage is registered as hereinafter provided, the same shall be as valid and binding as mortgages mentioned in the preceding section of this act. 6. All the instruments mentioned in the act shall contain such sufficient and full description of the goods and chattels that the same may be thereby readily and easily known and distinguished. 7. The instruments mentioned in the preceding sections shall be registered in the office of the clerk of the county court of the county or union of coun- ties where the mortgagor or bargainor, if a resident in Upper Canada, resides at the time of the execu- tion thereof, and if he be not a resident, then in the office of the clerk of the county court of the county or union r of counties where the property so mort- gaged or sold is at the time of the execution of such instrument. 9. In the event of the permanent removal of goods and chattels mortgaged as aforesaid from the count}'' or union of counties in which they were at the time of the execution of the mortgage, to another county or union of counties before the payment and dis- charge of the mortgage, a certified copy of such mortgage, under the hand of the clerk of the county court in whose office it was first registered, and ^ III OP CHATTEL MORTaAOES. 171 the under the seal of the said court, and of the affidavits and documents and instruments relating thereto filed in such office, shall be filed with the clerk of the county court of the county or union of counties to which such goods and chattels are removed, within two months from such removal, otherwise the said goods and chattels shall be liable to seizure and sale under execution, and in such case the mortgage shall be null and void as against subsequent pur- chasers and mortgagees for valuable consideration as if never executed. 10. Every mortgage, or copy thereof, filed in pur- suance of this act, shall cease to be valid as against the creditors of the persons making the same, and against subsequent purchasers or mortgagees in good faith for valuable consideration, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property claimed by virtue thereof, and a full statement of the amount still due for principal and interest thereon, and of all pay- ments made on account thereof, be again filed in the office of the clerk of the said county court of the county or union of counties wherein such gooils and chattels may be then situate, with an affidavit of the mortgagee, or of his agent duly 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 c . foot for aaj frattdulrat purpeser- \ ii'i 1 > . t' 'Jill] 172 CANADIAN DOMESTIC LAWYER. I \ |i !| m 12. All affidavits and affirmations required by this act shall bo taken and administered by any judge or commissioner of the Courts of Queen's Bench or Common Pleas, or justice of the peace, in Upper Canada; and the sum of twenty cents shall be paid for each and every oath thus administered. The effect of these enactments may be shortly summed up thus : every chattel mortgage must be filed with the clerk of the county court within five days after execution ; the instrument must be ac- companied by an affidavit of its due execution, and another affidavit of the good faith of the transaction. The last-mentioned affidavit may be made by an ivgent, if he be specially appointed in writing for the purpose. These affidavits may be sworn to before a commissioner of the Queen's Bench, &c., or before a justice of the peace. If the mortgage is intended to secure future ad- vances, or as collateral security against the indorse- ment of accommodation bills or notes, the rcquire- , 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, 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 , in the jsiu- of our liQii im» th^mJod eigjht kuo« OP CHATTEL MORTGAGES. 173 dred and , Between , of the one part, and , of the other part, WITNESSETH, that the said party of the first part, for and in consideration of the sum of , of lawful money of Canada, to him in hand well and truly paid by the said party of the second part, at or before the sealing and de- livery of these presents, the receipt whereof is hereby acknowledged. Hath granted, bargained, sold, and assigned, and by these presents doth grant, bargain, sell, and assign, unto the said party of the second part, his executors, administrators, and assigns, All AND SINGULAR the goods, chattels, furniture, and household stuff hereinafter particularly mentioned and expressed, that is to say : To HAVE AND TO HOLD, all and singular, the said goods and chattels hereinbefore granted, bar- gained, sold, and assigned or mentioned, or intended so to be, unto the said party of the second part, his executors, administrators, and assigns, to the only proper use and behoof of the said party of the second part, his executors, administrators, and assigns, for- ever : Provided always, and these presents are upon this condition, that if the said party of the first part, his executors or administrators, do and shall well and truly pay, or cause to be paid, unto the said party of the second part, his executors, adminis- trators, or assigns, the full sum of , with legal interest for the same from the date hereof , then these presents, and every matter and laing herein contained, shall cease, determine, and be utterly void to all intents and purposes, any thing 15» ;•; q 1 ' *■* 174 CANADIAN DOMESTIC LAWYER. I M i'^'^ herein contained to the contrary thereof in any wise notwit'»»tanding. And the said party of the first part, for exe- cutors and administrators, shall and will warrant, and forever defend, by these presents, all and sin- gular the said goods, chattels, and property by these presents unto the said party of the second part, executors, administrators, and assigns, against ., the said party of the first part, exe- cutors and administrators, and against all and every other person and persons whomsoever. And the said party of the first part doth hereby, for exe- cutors and administrators, covenant, promise, and agree to and with the said party of the second part, executors, administrators, and assigns, that , the said party of the first part, executors or administrators, or some or one of them, shall and will well and truly pay, or cause, to be paid, unto the said party of the second part, executors, ad- ministrators, and assigns, the said sum of money in the above proviso mentioned, with interest for the same as aforesaid, on the day and time and in the manner above limited for the payment thereof. And also, that in case default shall be made in the payment of the said sum of money in the said proviso mentioned, or the interest thereon, or any part thereof, or in case the said party of the first part shall attempt to sell or dispose of, or in any way part with the possession of, the said goods and chattels, or any of them, or to remove the same or any part thereof out of the county of , with- out the consent of the said party of the second part, OF CHATTEL MORTGACJES. 175 me or with- party executors, administrators, or assigns, to such sale, removal, or disposal thereof first had and ob- tained in writing, then and in such case it shall and may be lawful for the said party of the second part, executors, administrators, or assigns, with or their servant or servants, and with such other assistant or assistants as may require, at any time during the day to enter into and upon any lj»nds, tenements, houses, and premises, wheresoever and whatsoever, where the said goods and chattels, or any part thereof, may be, and for such persons to break and force open any doors, locks, bolts, fasten- ings, hinges, gates, fences, }\ouses, buildings, en- closures, and places, and any door, lock, bolt, fast- ening, hinge, gate, fence, house, building, enclosure, and place, for the purpose of taking possession of and removing the said goods and chattels, and upon and from and after the taking possession of such goods and chattels as aforesaid, it shall and may be lawful, and the said party of the second part, executors, administrators, or assigns, and each or any of them, is and are hereby autliorized and em- powered to sell the said goods and chattels, or any of them, or any part thereof, at pul)lic auction or private sale, as to them or any of them may seem meet. And from and out of the proceeds of such sale in the first place to pay and reimburse or them- selves all such sums and sum of money as may then be duo by virtue of these presents; and all such ex- penses as may have been incurred, })y the said party of the second part, executors, administrators, or assigns, in consequence of the default, neglect, or ■tiT !i ! Ml J! it I 'if 11 Iwi^ii! I- 'In h:.. :1 \i lifi r. 176 CANADIAN DOMESTIC LAWYER. failures of the said party of the first part, execu- tors, administrators, or assigns, in payment of the said sum of money with interest thereon as above mentioned, or in consequence of such sale or removal as above mentioned, and in the next place to pay unto the said party of the first part, executors, administrators, and assigns, all such surplus as may remain after such sale, and after payment of all such sum and sums of money and interest thereon as may be due by virtue of these presents at the time of such seizure, and after payment of the costs, charges, and expenses incurred by such seizure and sale as aforesaid. Provided always, nevertheless, that it shall not be incumbent on the said party of the second part, ». executors, administrators, and assigns, to sel^ and dispose of the said goods and chattels, but th' in case of default in payment of the said sum c/ money with interest thereon as aforesaid, it shall and may be lawful for the said party of the second part, executors, administrators, and assigns, peaceably and quietly to have, hold, use, occupy, possess, and enjoy the said goods and chattels, with- out the let, molestation, eviction, hindrance, or interruption of , the said party of the first part, executors, administrators, or assigns, or any of them, or any o'^her 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, executors, administrators, and assigns, that in case the sum of money realized under any such sale as above men- OP CHATTEL MORTGAGES. 177 mil icond ens. or art, of r. eby ivith ;or8, of tioned shall not be sufficient to pay the whole amount due at the time of such sale, that , the said party of the first part, executors or administrators, shall and will forthwith pay or cause to be paid unto the said party of the second part, executors, ad- ministrators, and assigns, all such sum or sums of money, with interest thereon, as may then be remain- ing due. Amd the said party of the first part doth put the said party of the second part in full possession of the said goods and chattels by delivering to , in the name of all the said goods and chattels at the sealing and delivery hereof. In Witness whereof, the parties to these presents have hereunto set their hands and seals, tha day and year first above written. A. B. [i . s.] Signed, sealed, and delivered 1 in the presence of / CD. Affidavit of Mortgagee. Canada. Count of , to wit : I, A. B., of the of , in the Count of , in the within Bill of Sale, by way of mortgage named, make oath and say, that , the mortgagor in the an- nexed Bill of Sale, by way of mortgage named, * is ju!?tly and truly indebted to me, this deponent , the mortgagee therein named, in the sum of , mentioned therein. That the said Bill of Sale, by way of mortgage, > iS executed in good faith, and for the express purpose of securing the payment of the money so justly due as aforesaid, and not for the ■^: if m T 178 CANADIAN DOMESTIC 1.AWT73R. purpose of protecting the goods and chattels men- tioned in the said Bill of Sale, by way of mortgage, against the creditors of the said , the mortgagor therein named, or preventing the creditors of such mortgagor from obtaining payment of any claim against him. A. B. Sworn before me, at the of , in the Count of , this day of , A.D. 186 . E. F., J. p., or, A Commissioner for taking Affidavits in the Queen's Bench, in and for the Count of , to wit : I, C. D., of AFFIDAVIT OF WITNESS. Canada. Count of the of , in the Count of , make oath and say, that I was personally prtsjent, and did see the annexed B'^' '^f Sale, by way of mortgage, duly ,signed, sealed, 1 delivered by , the parties thereto, and that the name , set and subscribed as a witness to the execution thereof, is of the proper handwriting of me, this deponent, and , in the said CD. that the same wac executed at Count of Sworn before me, at the of , in the Count of , this day of , A.D. 186 . E. F.J J. P., or, .4 Commissioner for taking Affidavits in the Queen's Bench, in and for the Count of , OF CHATTEL MORTQA«ES. 179 Chattel Mortgage. ' ANOTHER FORM. This Indenture, made the day of in the year of our Lord one thousand eight hundred and , Between , hereinafter called the mortgagor, of the one part, and , hereinafter called the mortgagee, of the other part. Whereas [^insert recitals] : Now THIS Indenture witnesseth, that in con- sideration of the covenant hereinafter contained on the part of the said mortgagee, and for the hotter securing to him the payment of the sum of , and interest thereon, as hereinafter mentioned, He, the said mortgagor, Hath bargained, sold, and assigned, and by these presents Doth bargain, sell, and assign, unto the said mortgagee, his executors, administ ;\tors, and assigns. All and every the goods, uteI^slh^ ir^a- plements, and things which are now in, ab' ;, and belonging to , situate and being ii) tlie County of , now in the ocfiipation of the Rind mortgagor, and which are her^ inafter partic.Jarly mentioned, enumerated, and described in the Sche- dule hereunder written, and all his right, title, inte- rest, property, claim, and demand in and to th«j said goods, chattels, and premises, and every part and parcel thereof. To have, take, receive, and enjoy the said goods, chattels, and premises hereby as- signed, or expressed and intended so to be, unto the said mortgagee, hi.s executors, administrators, and assigns, as his and their own property and eifects. Provided nevertheless, and it ia hereby de- (II .ir :#] ,1, i OT? f' 180 CANADIAN DOMESTIC LAWYER. clared and agreed by and between the said parties to these presents, that in case the said mortgagor, his executors or administrators, shall and do well and truly pay, or cause to be paid, unto the said mort- ^gagee, his executors, administrators, or assigns, the said sum of , with interest thereon at the rate of six pounds per centum per annum, on the day of , one thousand eight hundred and , or at such earlier day or time as the said mortgagee, bis executors, administrators, or assigns, shall appoint for the payment thereof, in and by a Notice in writ- ing to be given to the said mortgagor, his executors, or administrators, or left at his or their last or usual place of abode, at least before the day or time so to be appointed for payment as aforesaid. Then, and in such case, these presents, and every article, clause, and thing herein contained, shall cease, deter- mine, and be absolutely void, any thing hereinbefore contained to the contrary in any wise notwithstand- ing. And it is hereby also declared and agreed, by and between the said parties to these presents, that after default shall be made by the said mortgagor, Lis executors, or administrators, in payment of the said sum of and interest, or any part thereof, coT>ti':i«y to the tenor and effect of the before men- tion.'d I "oviso, then and in such case it shall be law- ful for the said mortgagee, his executors, adminis- trators, or assigns, peaceably and quietly to receive and take into his and their possession, and thence- forth to hold and enjoy, all and every the goods, chattels, and premises hereby assigned, or intended so to be. And also to sell and dispose of the same, OF CHATTEL MORTGAGES. 181 and every part thereof, for such price or prices as can be reasonably had or gotten for the same, and to receive and take the moneys to arise by such sale thereof, and thereby and therewith in the first place to retain and reimburse himself and themselves, the' said mortgagee, his executors, administrators, or as- signs, ail costs, charges, and expenses which he or they may incur or be put unto in and about making any such sale or sales, and also in and about the re ceipt and recovery of the said sum of and inte- rest respectively, and in the next place to retain and to reimburse himself and themselves, the said mort- gagee, his executors, administrators, or assigns, the said sum of and the interest thereon, or so much and such part thereof as shall then remain un- paid and unsatisfied, and from and after full payment and satisfaction of such costs, charges, and expenses, sum and sums of money as aforesaid, to render to and account for the surplus (if any) of the money arising from such sale or sales as aforesaid unto the said mortgagor, his executors or administrators. And it is hereby declared and agreed, by and be- tween the said parties to these presents, that until default shall happen to be made in payment of the said principal sum of , at the day or time hereinbefore appointed for payment thereof, con- trary to the tenor and eifect of the proviso herein- before contained, it shall be lawful for the said mort- gagor, his executors or administrators, to hold, makf use of, and possess the said goods, chattels, and pre mises hereby assigned, or intended so to be, without any manner of hindrance or disturbance of or by mj 'I' 182 CANADIAN DOMESTIC LAWYER. h I him, the said mortgagee, his executors, administra- tors, or assigns. And lastly, the said mortgagee, in consideration of the premises, doth hereby, for himself, his heirs, executors, and administrators, covenant and agree with the said mortgagor, his executors and administrators, that he, the said mort- gagee, his executors or administrators, shall not, nor will, until default shall be made in payment of the said sum of and interest, or some part thereof, on some or one of the days or times limited for payment thereof, in and by the proviso for redemption herein- before contained, bring, commence, or institute any action, suit, or process against the said mortgagor, his executors or administrators, for recovery of the said debt, or any part thereof. In Witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. A. B. [l.s.] Signed, sealed, and delivered by the said , in the presence of C. D. } The Schedule to which the foregoing Indenture refers : [The two affidavits the same as in the last Form.] Chattel Mortgage PROMISSORY notes. This Indenture, made the day of in the year of our Lord one thousand eight hundred and Between , of the first part, and OP CHATTEL MORTQAQES. 18i , of the second part: Whereas the said part of the second part ha indorsed the Promissory Note of the said part of the first part for the sum of , of lawful money of Canada, for the accom- modation of the said part of the first part, which Promissory Note is in the words and figures follow- ing, that is to say : And whereas the said part of the first part ha agreed to enter into these presents for the purpose of indemnifying and saving harmless the said part of the second part of and from the payment of the said promissory note, or any part thereof, or any note or notes hereafter to be in- dorsed by the said part of the second part, for the accommodation of the said part of tlie first part, by way of renewal of the said recited note, or otherwise howsoever. Now THIS Indenture witnesseth, that the said part of the first part, for and in consideration of the premises and of the sum of one dollar, of lawful money of Canada, to in hand well and truly paid by the said part of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, bar- gained, sold, and assigned, and by these presents do grant, bargain, sell, and assign, unto the said part of the second part, executors, adminis- trators, and assigns. All and singular the goods, chattels, furniture, and household stuff hereinafter particularly mentioned and expressed, that is to say:— To have and to hold, all and singular, the goods and chattels herein before granted, bargained, Ht ■ m ill Mm m 184 CANADIAN DOMESTIC LAWYER. sold, and assigned, or mentioned, or intended so to be, unto the said part of the second part, exe- cutors, administrators, and assigns, to the only proper use and behoof of the said part of the second part, executors, administrators, and assigns, forever : Provided always, and these presents are upon this condition, that if the said part of the first part, executors or administrators, do and shall well and truly pay, or cause to bo paid, the said promissory note so as aforesaid indorsed by the said part of the second part, a copy of which said promissory note is set out in the recital to this Indenture, And do and shall well and truly pay, or cause to be paid, all and every other note, or notes, which may here- after be indorsed by the said part of the second part for the accommodation of the said part of the first part, by way of renewal of the said note in the said recital to this Ind,enture set forth, or otherwise howsoever, and indemnify and save harmless the said part of the second part from all loss, costs, charges, damages, or expenses in respect of the said note or renewals, , then these presents, and every matter and thing herein contained, shall cease, deter- mine, and be utterly void to all intents and purposes, any thing herein contained to the contrary thereof in any wise notwithstanding. And the said part of the first part, for executors and administrators, shall and will warrant, and forever defend, by these presents, all and singular the said goods, chattels, and property unto the said part of the second part, executors, administrators, and assigns, against , the said part of the first part, executors •. 1K OP CHATTEL MORTGAGES. 185 9 and administrators, and against all and every other person or persons whomsoever. And the said part of the first part do hereby, for executors and administrators, covenant, promise, and agree to and with the said part of the second part, executors, administrators, and assigns, that , the said part of the first part, executors or administrators, or some or one of them, shall and will well and truly piy, or cause to be paid, the said promissory note in the above recital and proviso mentioned, and all future or other promissory notes which the said part of the second part shall hereafter indorse for the accommodation of the said part of the first part •as aforesaid, and indemnify and save harmless the said part of the second part from all loss, costs, charges, damages, or expenses in respect thereof. And also, that in case default shall be made in the payment of the said promissory note, or any future note or notes, as in the said proviso men- tioned, or the interest thereon, or any part thereof, or otherwise as aforesaid, or in case the said part of the first part shall attempt to sell or dispose of, or in any way part with the possession of, the said goods and chattels, or any of them, or remove the same or any part thereof out of the Count of , without the consent of the said part of the second part, executors, administrators, or assigns, to such sale, removal, or disposal thereof, first had and obtained in writing, then and in such case it shall and may be lawful for the said part of the second part, executors, administrators, or assigns, with 16* '4 i IMAGE EVALUATION TEST TARGET (MT-3) m A (/ ^ A ^ {■sr Z 1.0 1.1 ■tflM 125 Z. lilt ■■■ Its lis ■ 40 IL25 m 1.4 ■ 2.0 I 1.6 0% <^ ^' i?;,'*^ Photographic Sciences Corporation 33 WIST MAIN STRUT WnSTH.N.Y. 14SM (716) •72-4903 A '^ V 4 186 CANADIAN DOMESTIC LAWYER. ' ji or their servant or servants, and with such other assistant or assistants as or they may require, at any time during the day to enter into and upon any lands, tenements^ houses, and premises, wheresoever and whatsoever, where the said <70ods and chattels, or any part thereof, may be, and for such persons to break and force open any doors, locks, bolts, fasten- ings, hinges, gates, fences, houses, buildings, enclo- sures, and places, for the purpose of taking possession of and removing the said goods and chattels, and upon, and from, and after the taking possession of such goods and chattels as aforesaid, it shall and may be lawful, and the said part of the second part, executors, administrators, or assigns, and each or any of them, is and are hereby authorized and empowered to sell the said goods and chattels, or any of them, or any part thereof, at public auction or private sale, as to or them, or any of them, may seem meet, and from and out of the proceeds of such sale in the first place to nay and reimburse or themselves all such su^»s and sum of money as may then be due by virtue of these presents on the said promissory note, or any future note or notes, as aforesaid, and all such expenses as may have been incurred by the said part of the second part, executors, administrators, or assigns, in consequence of the default, neglect, or failures of the said part of the first part, executors, administrators, or assigns, in payment of the said promissory note or notes as above mentioned, or in consequence of such sale or removal as above mentioned, and in the next OF CHATTEL MORTGAGES. 187 place to pay unto the said part of the first part, executors, administrators, or assigns, all of such surplus as may remain after such sale, and after payment of all such sum and sums of money, and in- terest thereon, as , the said part of the second part, shall be called upon to pay by reason of indors- ing the said promissory note in the said recital and proviso mentioned, or any future note or notes to be indorsed by the said part of the second part for the said part of the first part, as aforesaid, at the time of such seizure, and after payment of the costs, charges, and expenses incurred by such seizure and sale, as aforesaid. Provided always, nevertheless, that it shall not be incumbent on the said part of the second part, executors, administrators, and assigns, to sell and dispose of the said goods and chattels, but that in case of default in payment of the said note or notes as aforesaid, it shall and may be lawful for the said part of the second part, executors, ad- ministrators, and assigns, peaceably and quietly to have, hold, use, occupy, possess, and enjoy the said goods and chattels without the let, molestation, eviction, hindrance, or interruption of , the said part of the first part, executors, adminis- trators, or assigns, or any of them, or any other per- sons or person whomsoever. And the said part of the first part do hereby further covenant, promise, and agree, to and with the said part of the second part, executors, administrator.^, and assigns, that in ease the sum of money realized under any m 188 CANADIAN DOMESTIC LAWYER. '^l:^ ill ' 1^1'. such sale as above mentioned shall not be sufficient to pay the whole amount due on and by the said note or notes at the time of such sale, that , the said part of the first part, executors or ad- ministrators, shall and will forthwith pay, or cause to be paid, unto the said part of the second part, executors, administrators, and assigns, all such sum or sums of money, with interest thereon, as mjiy then be remaining due upon or under the said note or notes. And , the said part of the first part, put the said part of the second part in full possession of the said goods and chattels, by delivering to , in the name of , all the said goods and chattels, at the sealing and de- livery hereof. 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 1 in the presence of / CD. AFFIDAVIT OF MORTGAGEE. Canada, Count of , to wit: I, A. B., of , in the within Bill of Sale by way of Mortgage named, make oath and say that such mortgage truly sets forth thj agreement entered into between and the Kaid mortgagor therein named, and truly states thr extent of the liability intended to be created by such agreement and covered by such mortgage, of' CHATTEL MORTQAOES. 189 and that the said bill of sale by way of mortgage was executed in good faith and for the express purpose of securing , the said mortgagee therein named, against the payment of the amount of such liability "or the said mortgagor by reason of the said promis- .ory note therein recited, or any future note or notes (^hich may indorse for the accommodation of the said part of the first part, whether as renewals of the said recited promissory note or otherwise; And not for the purpose of securing the goods and chattels mentioned therein against the creditors of the mort- gagor , nor to prevent such creditors from recover- ing any claims which they may have against such mortgagor . A. B. worn before me, at the , in the Count of day of , A.D. 186 E. F., J. P. or a Commitaioner for taking Affidavits in the Queen's Bench in and/or the Count of • ,this > AFFIDAVIT OF WITNESS. Canada, Count of , to wit: I, C. D., of , make oath and say that I was personally pre- sent and did sec the annexed Bill of Sale by way of Mortgage duly signed, scaled, and delivered by , the parties thereto, and that I, this deponent, am a sub- scribing witness to the same; that the name , set and subscribed as a witness to the execution thereof, is of the proper handwriting of me, this deponent, 190 CANADIAN DOMESTIC LAmSR. and that the same was executed at County of re me, at the Oi\ Count of , V of , A.D. 186 . J , in the said CD. Sworn before me, at the , in the this day E. F., /. P. or a Comminaioner for taking Affidavits in the Queen's Bench in and for the Count of the :i| Chattel Mortgage. • (future ADVANCES.) This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, and , of the second part : Witnessetii, that whereas [Aere insert recitals, showing the terms, na- ture, and effect cf the agreement^ and the amount of the liahility intended to he created^. Now, there- fore, tae said party of the first part, for the consi- deration hereinbefore recited and in pursuance of the said agreement, hath granted, bargained, sold, and assigned, and by these presents doth grant, bargain, sell, and assign, unto the said party of the second part, his executors, administrators, and assigns. All and SINGULAR the goods, chattels, furniture, and household stuffs hereinafter particularly mentioned and described in the Schedule herennto annexed, marked A. To have and to hold all and singular the said goods and chattels hereinbefore granted, bargained, sold, and ftssi^6d,or meutioned orintended so to be,unto the said OF CHATTEL MORiaAOES. 191 party of the second part, his executors, administrators, and assigns, to the sole and proper use and behoof of the said party of the second part, his executors, admi- nistrators, and assigns, forever. Provided always, and these presents are upon this condition, that if the said party of the first part, his executors or adminis- trators, do and shall well and truly , and do and shall well and truly save harmless the said party of the second part from , then these presents and every matter and thing herein contained shall cease, determine, and be utterly void to all intents and pur- poses, any thipg herein contained to the contrary there- of in any wise notwithstanding. And the said party of the first part, for himself, his executors and admi- nistrators, all and singular the said goods, chattels, and property by these presents unto the said party of the second part, his executors, administrators, and assigns, against him, the said party of the first part, his heirs, executors, and administrators, and against all and every other person and persons whomsoever, shall and will warrant and forever defend by these presents. And the said party of the first part doth hereby, for himself, his heirs, executors, and adminis- trators, Covenant, promise, and agree to and with the said party of the second part, his executors, admi- nistrators, and assigns, , or in case the said party of the first part shall attempt to sell or dispose of or in any way part with the possession of the said goods and chattels or any of them, or to remove the same or any part thereof out of the , without the consent of the said party of the second part, his exe- cutors, adminiatrators, or assigns, to such sale, removal, 1,1 -i 'lUii 192 CANADIAN DOMESTIC LAWYER. or disposal thereof first had and obtained in writing, then and in such case it shall and may be lawful for the said party of the second part, his executors, admi- nistrators, or assigns, with his or their servant or ser- vants, and with such other assistant or assistants as he or they may require, at any time during the day to enter into and upon any lands, tenements, houses, and premises wheresoever the said goods and chattels or iiTiy part thereof may be, and for such persons to break and force open any doors, locks, bolts, fasten- ings, hinges, gates, fences, houses, buildings, enclo- sures, and places, for the purpose of taking possession of and -removing the said goods and chattels ; and upon and from and after the taking possestfion of such goods and chattels as aforesaid, it shall and may be lawful, and the said party of the second part, his executors, administrators, or assigns, and e;icli or any of them, is and are hereby authorized and empowered to sell tho said goods and chattels, or uny of them, or any part thereof, at public auction or private sale, as to him or any of thfm auiy seem meet, and from and out of the proceeds of such sale in the first place to pay and re- imburse him and them all such sums and sum of money as may then be due by virtue of these presents, and all f-uch expenses as may have been incurred by the said party of the second part, his executors, adminis- trators, or assigns, in consequence of the default, neg- !• ct, or failure of the said party of ihc first part, his ( xecutors, admini;itrators, or assigns, in payment of il;o said sum of money, with interest thereon as above Litutioned, and in the next place to pay unto the said party of the first party lus executors or adsuaistrators, OF CHATTEL MORTGAGES. 193 ail such surplus as may remain after such sale and after payment of all such sum or sums of money, and inter'^st thereon, as may be due by virtue of these presents at the time of such seizure, and after the payment of the costs and charges and expenses Ji curred by such seizure and sale as aforesaid. Provided always, nevertheless, that it shall not be incumbent on the said party of the second part, his executors, administrators, or assigns, to sell and dis- pose of the said goods and chattels, but that in case of default , it shall and may be lawful for the said party of the second part, his executors, adminis- trators, or assigns, peaceably and quietly to have, hold, use, occupy, possess, and enjoy the said goods and chattels, without the let, molestation, eviction, hin- drance, or interruption of him, the said party of the first part, his executors or administrators, or any of them, or any other person or persons whomsoever. And the said party of the first part doth hereby further covenant, promiso, and agree to and with the said party of the second part, his executors, adminis- trators, 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, that he, the said party of the first part, his executors or administrators, shall and will forthwith pay or cause to be paid unto the said party of the second part, his executors, administrators, or assigns, all such sum and sums of money, with interest thereon, as may .'ben be remaining due. And he, the said party of the first part, doth put the said party of tha second part in fuU possession of ir M 194 CANADIAN DOMESTIC LAWYER. (ii trie said goods and chattels by delivering to him , in the name of all the said goods and chattels, at the sealinii; and delivery hereof. 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 "I *n the presence of . ( The /Schedule loithin referred to, marked A. County of , to wit: I, ,make oath and say that the within mortgage truly sets forth the agreement entered into between myself and , therein named, and truly states the extent of the lia- bility intended to be created by such agreement and covered by the within mortgage. That tlio Avithin mortgage is executed in good faith, and for llic express purpose of securing me against the payment of the amount of my liability as That iho Avithin mortgage i.3 not executed fof the pur- pose of securing the gocds and chattels mentioned in the Schedule attached hereto, marked A, against the creditors of the ^aid , or to prevent such cre- ditors from recovering any claims which they imj have ag;iinst the said Sworn before me, at , "I this day of A.D. 18 a Commitsiontr in U. Ji., <5*c. County of , to wit: I, , of , make oath and say that I .was personally present and COLLECTION OF DEBTS. 19/) saw the annexed Chattel Mortgage duly signed^ sealed, and delivered by , the parties thereto, and that the name , set and subscribed as a witness to the execution thereof, is my proper handwriting. Sworn before me, at , 1 this day of , a.d. 18 • / a Commi$noner in B. J?., ^e. CHAPTER IX. OF THI COLLBCnOir OF DEBTS IN THE DIYIBION C0UBT8. In treating of the collection of debts, we shall con- fine ourselves to such as are within the jurisdiction of the division courts. The recovery of debts in the higher courts cannot be satisfactorily accomplished without the aid of professional men : we shall there- fore only remark that debts exceeding one hundred dollars and not exceeding two hundred dollars, where the amount is unliquidated and not ascertained by the act or admission of the parties, and not exceed- ing four hundred dollars, where it is liquidated or so ascertained, must be sued for in the county court ; and all debts of a higher amount must be sued for in the Queen's Bench or Common Pleas. Division courts have been established in every county for the recovery of small debts. The number of such courts varies in different counties ; but there lottst aever bo lew thaa three fior mo^ tbaA twelvei ir 196 CANADIAN DOMESTIC LAWTER. and there must be one court i.^ every city and county town. These courts are presided over by the county judge ; but in some large counties deputy judges are appointed, and then the courts are usually held by such deputy. The authority of these courts is now derived from the " act respecting the division courts," Cons. Stat. U. C. cap. 19. Courts are to be holden once in every two months, or oftener, in the discre- tion of the judge; and the judge may appoint, and from time to time alter, the times and places within such divisions when and at which such courts shall be holden. The division courts have no jurisdiction in any of the following cases :- 1. Actions for any gambling debt ; or 2. For spirituous or malt liquors drunk in a tavern or ale-house ; or 3. On notes of hand given wholly or partly in con- sideration thereof; 4. Actions of ejectment, or actions in which the right or title to any corporeal or incorporeal heredi- taments, or any toll, custom, or franchise, comes in question ; or 5. In which the validity of any devise, bequest, or limitation under any will or settlement may be dis- puted ; or 6. For malicious prosecution, libel, slander, crimi- nal conversation, seduction, or breach of promibc of marriage ; or 7. Against a justice of the peace for any thing done by liim in the execution of his office, if he ob- jepts tkereto. (S. i)4.).^^. =„.„ . * -. . ^. COLLECTION OP DEBTS. 197 The judge of every division court may hear and determine in a summary way, — 1. All personal actions where the deht or damages claimed do not exceed forty dollars ; and 2. All claims and demands of debt, account, or breach of contract or covenant, or money demand, "whether payable in money or otherwise, where the amount or balance claimed does not exceed one hun- dred dollars; and, except in cases in\which a jury is legally demanded by a party, he shall be sole judge, and shall determine all questions of law and fact, and may make such orders, judgments, or decrees as appear to him just and agreeable to equity and good conscience, and every order, judgment, and decree shall be final and conclusive between the parties. (S. 55.) Upon any contract for the payment of a sum cer- tain in labor, or in any kind of goods or commodi- ties, or in any other manner than in money, the judge, after the day has passed on which the goods or commodities ought to have been delivered or the labor or other thing performed, may give judgment for the amount in money, as if the contract had been so originally expressed. (S. 56.) No privilege shall be allowed to any person to exempt him from suing and being sued in a division court, and any executor or administrator may sue or be sued therein, and the judgment and execution shall be such as in like cases would be given or issued in the superior courts. (S. 57.) A minor (that is, a person under twenty-one years of age) may sue in a division court for any sum, not 17» 'M I JiH ii- ' . ( I .21 ■ ,v ' f m h If B ^ 'i 198 CANADIAN DOMESTIC LAWrfl exceeding one hundred dollars, due to him for wages, in the same manner as if h«^ were of full age. (S. 68.) A cause of action shall not be divided into two or more suits for the purpose of bringing the same within the jurisdiction of a division court, and no greater sum than one hundred dollars shall be reco- vered in any action for the balance of an unsettled account, nor shall an;y action for any such balance be sustained where the unsettled account in the whole exceeds two hundred dollars. (S. 59.) A judgment of the court upon a suit brought for the balance of an account is a full discharge of all demands in respect of the account of which such suit was for the balance, and the entry of judgment shall be made accordingly. (S. 60.) The mode of procedure in these courts is very simple. The clerk issues all summonses properly filled up and witiiout blanks, either in date or otherwise, at the time of delivery for service; he also furnishes copies of the same with the notice thereon, according to the form prescribed by rule of court. (S. 34.) The plaintiff or defendant, respectively, must fur- fttsh the clerk with the particulars of the plaintiff's claim or demand or of the defendant's set-off (as the case may be), and the clerk will annex the plaintiffs particulars to the summons, and furnish copies thereof, or of the defendant's set-off, to the proper person to serve the feame. (S. 35.) Any suit may be entered and tried in the court holden for the division in which the cause of action arose (that is, where the debt was contracted), or in \i\ COLLECTION OF DEBTS. 199 which the defe lant or any one of several defendants resides or carries on business at the time the action is brought, notwithstanding that the defendant or defendants may at such time reside in a county or division different from the one in which the cause of action arose. (S. 71.) The places fixed for holding the sittings of the courts, and the offices of the clerks thereof, being in some instances situated at an inconvenient distance from the place of residence of certain parties residing in such divisions, while a court is held in an adjacent division, in the same, or in an adjoining county more convenient for such parties, and it being desirable that procedure in the division courts should be made easy and inexpensive to suitors, therefore, in cr.se any .person desires to bring an action in a division other than that in which the cause of action has arisen, or in which tbe defendant resides, any county judge may by special order authorize a suit to bo entered and tried in the court of any division in his county adjacent to the division in which the defend- ant or one of several defendants resides, whether such defendant or defendants reside in tlie county of the judge granting the order, or in an adjoining county. (S. 72.) The plaintiff must enter with the clerk a copy, and, if more than one defendant, copies, of his account, claim, or demand in writing in detail (and in cases of tort particulars of his demand), which shall be num- bered according to the order in whicli the same are entered, and on the trial of the cause no evidence shall be given by the plaintiff of any cause of action, ' 'Mm I I& 200 CANADIAN DOMESTIC LAWYER. except such as is contained in the account, claim, or demand so entered. (S. 74.) The summons, with a copy of the account, or of the particulars of the claim or demand, attached, requires to be served ten days at least before the court day. (S. 75.) In case none of the defendants reside in the county in which the action is brought, but one of them re- sides in an adjoining county, the summons must be served fifteen days, and in case none of the defend- ants reside in the county within which the action is brought, or in an adjoining county, then twenty days at least, before the court day. (S. 76.) When the claim exceeds eight dollars, the service must be personal on the defendant ; but where the amount does not exceed eight dollars, the service may be on the defendant, his wife or servant, or some grown person being an inmate of the defend- ant's dwelling-house or store. (S. 77.) The bailiffs of the court serve and execute all sum- monses, orders, warrants, precepts, and writs, and so soon as served return the same to the clerk of the court of which they are bailiffs. (S. 79.) The clerk prepares the afiidavit of service of sum- mons, stating how served, the day of service, and the distance the bailiff necessarily travelled to effect ser- vice, which is annexed to or indorsed on the sum- mons ; but the judge may require the bailiff to be sworn in his presence, and to answer such questions as may be put to him touching any service or mileage. (S. 80.) In ce 3 of a debt or demand against two or more COLLECTION OF DEBTS?. 201 persons, partners in trade, or otiip-ise jointly liable, but residing in different divisions, or one or more of whom cannot be found, one or more of such persons may be served with process, and judgment may be obtained and execution issued against the person or persons served, notwithstan ling others jointly liable have not been served or sued, reserving always to the person or persons against whom execution issues, his or their right to demand contribution from any other person jointly liable with him. (S. 81.) Wheue : r judgment has been obtained against any such p«V'-^f-r, and the judge certifies that the demand proved was strictly a partnership transaction, the bailiff, in order to satisfy the judgment and costs and charges thereon, may seize and sell the property of the firm, as well as that of the defendants who have been s^^rved. (S. 82.) Ca the day named in the summons, the defendant must in person, or by some person on his behalf, ap- pear in the court to answer, and, on answer being made, the judge in a summary way tries the cause and gives judgment ; and in case satisfactory proof is not given to the judge entitling either party to judg- ment, he may nonsuit the plaintiff; and the plaintiff may, before verdict in jury cases, and before judg- ment pronounced in other cases, insist on being non- suited. (S. 84.) When a plaintiff takes a nonsuit, he is at liberty to bring his case again into court on a new summons, but if a judgment against him be given, he cannot. £f on the day named in the summons the defendant does not appear, or sufficiently excuse his absence, or ft -If" r ; T-^1p IHI' 202 CANADIAN DOMESTIC LAWTEB. if he neglects to answer, the judge, on proof of due service of the summons and copy of the plaintiff's claim, may proceed to the trial of the cause on the part of the plaintiff only, and the order, verdict, or judgment thereupon shall be final and absolute, and as valid as if both parties had attended. (S. 85.) The judge may adjourn the hearing of any cause in order to permit either party to summon witnesses or to produce further proof, or to serve or give any notice necessary to enable such party to enter more fully into his case or defence, or for any other cause which the judge thinks reasonable, upon such con- ditions as to the payment of costs and admission of evidence or other equitable terms as to him seems meet. (S. 86.) If the defendant desires to plead a tender, before action brought, of a sum of money in full satisfaction of the plaintiff's claim, he may do so on filing his plea with the clerk of the court before which he is summoned to appear, at least six days before the day appointed for the trial of the cause, and at the same time paying into court the amount of the money men- tioned in such plea. (S. 87.) Such sum is to be paid to the plaintiff, less one dollar, to be paid over to the defendant for his trouble, in case the plaintiff do not further prosecute his suit, and all proceedings in the action are to be stayed, unless the plaintiff, within three days after the receipt of notice of such payment, signify to the clerk of the said court his intention to proceed for nis demand, notwithstanding such plea; and in s^'ch case the action shall proceed accordingly. (S. 88.) COLLECTION OP DEBTS. 203 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 said plea, or may be recovered from the plaintift" 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 ])e pronounced against the defendant for the l)alancc due and the costs of suit. (S. 89.) The defendant may, at any time not less than six days before the day appointed for the trial, pay into court such sum as he thinks a full satisfaction for the plaintiff's demand, together with the plaintiff's costs up to the time of such payment. (S. 90.) The sum so paid is to bo paid to the plaintiff, and all proceedings in the action stayed, unless within three days after tlie receipt of the notice the plain- tiff signify to the clerk his intention to proceed for the remainder of the demand claimed, in which case the action shall proceed as if brought ori dually for such remainder only. (S. 91.) If the plaintiff recovers no further sum in the action than the sum paid into court, the plaintiff pays the defendant all costs incurred bv him in the action after such payment, and such costs may be duly taxed, and recovered bv the defendant bv the same means as any other sum ordered to bo paid by the court. (S. 92.) When a defendant desires to put in an offset, or to M I mill id ^n 'kik ''A 1 ^1 • 'H if* .11 . St; 204 CANADIAN DOMESTIC LAWYER. ■■■ take advantage, of the claim being outlawed, he must at least six days before the trial give notice thereof in writing to the plaintiff, or leave the same for him at his usual place of abode if within the division, or, if living without the division, deliver the same to the clerk of the court in which the action is to be tried, and in case of a set-oflf the particulars thereof must accompany the notice. (S. 93.) No evidence of set-off can be given by the defend- ant, except such as contained in the particulars of set-off delivered. (S. 94.) If the defendant's demand, as proved, exceeds the plaintiff's, the court may nonruit the plaintiff; or if the defendant's set-off, after ^'emitting any portion of it he pleases, does not exceed twenty-five pounds, the court may give judgment for the defendant for the balance found in his favor. (S. 95.) And where a set-off is set up, the judgment of the court thereon will be a full discharge, as well of the amount allowed to be set off as the amount by whic'i such claim of the . defendant exceeded one hundred dollars, and the judgment will be entered accordingly. (S. 96.) Any of the parties to a suit may obtain from the clerk a subpoena with or without a clause for the production of books, papers, and writings, requiring any witness resident within the county, or served with the subpoena therein, to attend court ; and the clerk, when requested, shall give copies of such sub- poena. (S. 97.) Any number of names may be inserted in the sub- poena, and service thereof may be made by any per- COLLECTION OF DEBTS. 205 Bon who can read and write, and proof of the due service thereof, together with the tender or payment of expenses, may be made by affidavit sworn before any county judge or the clerk of any division court, or before any person authorized to take affidavits in any of the superior courts, and proof of service may be received by the several judges of the said courts, either orally or by affidavit. (S. 98.) Every person served with a copy of a subpoena, either personally or at his usual place of abode, and to whom at the same time a tender of payment of his lawful expenses is made, who refuses or neglects without sufficient cause to obey the subpoena, and also every person in court called upon to give evi- dence, who refuses to be sworn (or affirm where affirm- ation is by \-dVf allowed) or to give evidence, shall pay such fine, not exceeding eight dollars, as tht judge may impose, and shall, by verbal or written orr -r of the judge, be, in addition, liable to imprisonment for any time not exceeding ten days ; and such fine shall be levied and collected with costs in the same manner as fines imposed on jurymen for non-attendance, and the whole or any part of such fine, in the discretion of the judge, after deducting the costs, shall be appli- cable towards indemnifying the party injured by such refusal or neglect, Lnd the remainder thereof shall form part of the general fee fund. (S. 99.) Any party may obtain, from either of the superior courts of common law, a subpoena requiring tl:3 attendance at the division court, and at the time men- tioned in such subpoena, of a witness residing or served with such subpoena in any part of Upper 18 i*?| '^?!| If: .1111 ' ii 1 { t ■ , ■ i » " f 'Am I 1* 'J ■ '■ "r mmm ' '1 1' r mi ''iM ■ 1 5(1' sJTa 'J Priffl r:;! 'MW M. m m 206 CANADIAN DOMESTIC LAWYER. ■■♦ Canada; and the witness shall obey such subpoena, provided the allowance for his expenses, according to the scale settled in the superior courts, be tendered to him at the time of service. (S. 100.) Neither plaintiff nor defendant can give evidence on their own behal*^; but either may be examined a*^ the instance of the opposite party or of tbs judge. (S. 101.) The judge paay, whenever he thinks it conducive to the ends of justice, require the plaintiff or defend- ant to be examined. (S. 102.) In any suit for a debt not exceeding five pounds, the judge, on being satisfied of their general correct- ness, may receive the plaintiffs' books as testiinony, or in case of a defence of set-off or of payment, so far as the same extends to five pounds, may receive the defendants' books, and may also receive as testi- mony the affidavit of any party or witness in the suit resident without the limits of his county. (S. 103.) All affidavits to be used in any di ision court may be sworn before the judge, clerk, or deputy clerk, or before any judge, or commissioner for taking affi- davits in any of the superior courts. (S. 104.) The judge shall, openly in court, and as soon as may be after the hearing, pronounce his decision ; but if he is not prepared to pronounce a decision in- stanter, he may postpone judgment and name a sub- sequent day and hour for the delivery thereof in writing at the clerk's office ; and the clerk shall then read the dcv^ision to the parties or their agents, if pre- sent, and forthwith enter the judgment. (S. 106.) The judge may order the times and the proportions COLLBCTION OF DEBTS. 207 in which any sum and costs recovered by judgment of the court shall be paid, reference being had to the day on which the summons was served, and, at the request of the party entitled thereto, he may order the same to be paid into court, and the judge, upon the application of either party, within fourteen days after the > > ial, and upon good grounds being shown, may grant a new trial upon such terms as he thinks reasonable, and in the mean time may stay proceed- ings. (S. 107.) Except in cases where a new trial is granted, the issue of execution shall not be postponed for more than fifty days from service of the summons without the consent of the party entitled to the same, but in case it at any time appears to the satisfaction of the judge, by affidavit or otherwise, that any defendant is unable, from sickness or other sufficient cause, to pay and discharge the debt or damages recovered against him, or any instalment thereof, ordered to be paid as aforesaid, the judge may stay judgment or execution for such time and on such terms as he thinks fit. (S. 108.) The judge may, in any case, with the consent of both parties to the suit, or of their agents, order the same, with or without other matters in dispute be- tween such parties, being within the jurisdiction of the court, to be referred to arbitration to such person or persons, and in such manner and on such terms, as he thinks reasonable and just. (S. 109.) Such reference shall only be revocable, by either party, with the consent of the judge. (S. 110.) The award of the arbitrator shall be entered as the nl; I • ;< l-.#'' I m ; Mi •1 J 208 CANADIAN DOMESTIC LAWYER. 1^ i|^: judgment in the cams'* and shall be as binding and effectual as if give ^ the judge. (S. 111.) The judge, on application to him within fourteen days after the entry of such award, may, if he thinks fit, set aside the award, or may, with the consent of both parties, revoke the reference and order another reference to be made in the manner aforesaid. (S. 112.) Any of such arbitrators may administer an oath or affirmation to the parties, and to all other persons examined before such arbitrator. (S. 113.) The costs of any action or proceeding not other- wise provided for shall be paid by or apportioned between the parties in such manner as the judge thinks, fit, and in cases where the plaintiff does not appear in person or by some person on his behalf, or appearing does not make proof of his demand to the satisfaction of the judge, he may award to the de- fendant such costs and such further sum of money, by way of satisfaction for his trouble and attendance, as he thinks proper, to be recovered as provided for in other cases under this act ; and in default of any special direction, the costs shall abide the event of the action, and execution may issue for the recovery thereof in like manner as for any debt adjudged in the court. (S. 114.) Any bailiff or clerk, before or after suit com- menced, may take a confession or acknowledgment of debt from any debtor or defendant desirous of executing the same, and upon the production of such confession or acknowledgment to the judge, and its COLLECTION OP DEBTS. 209 being proved by the oath of such bailiff or clerk, judgment may be entered thereon. (S. 117.) Either party may require a jury, in actions for damages where the amount sought to be recovered exceeds ten dollars, and in all other actions where such amount exceeds twenty dollars. (S. IID.) In case the plaintiff requires a jury to bo sum- moned to try the action, he must give notice thereof in writing to the clerk at the time of entering his claim, and at the same time pay to the clerk the proper fees for the expenses of such jury; and 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 shall be summoned. (S. 120.) Either of the parties to a cause is entitled to chal- lenge three jurors. (S. 125.) Five jurors shall be empanelled and sworn to do justice between the parties whose cause they are re- quired to try, according to the best of their skill and ability, and to give a true verdict, according to the evidence ; and the verdict of every jury shall be una- nimous. (S. 131.) The judge may, if he think proper, have any dis- puted fact in a cause tried by a jury ; and in any case, if the judge is satisfied that a jury cannot agree, he may discharge them and adjourn the cause to the next court: unless the parties consent to his pronouncing a judgment. (Ss. 132, 133.) If there be cross-judgments between the parties, the )1 'i't. Sa,: .. -'^ d ai i{ - 1- L,, ■I I- ,",-511 ..J:.«i m I, i 210 CANADIAN DOMESTIC LAWYER. party only who has obtained judgment for the larger sum shall have execution, and then only for the balance over the smaller judgment ; and if both sums are equal, satisfaction shall be entered upon both judgments. (S. 134.) In case the judge makes an order for the payment of money, and in case of default of payment of tho whole or of any part thereof, the party in whose favor such order has been made may sue out execution against the goods and chattels of the party in default. (S. 135.) In case any person against whom .a judgment has been entered up removes to another county without satisfying the judgment, the county judge of the county to wb^'ih such party has removed may, upon the pro- duction of a copy of the judgment duly certified by the judge of the county in which the judgment has been entered, order an execution for the debt and costs awarded by the judgment to issue against such party. (S. 137.) If the party against whom an execution has been awarded pays or tenders to the clerk or 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 agrees to accept in full of his debt, together with the fees to be levied, the execution shall thereupon be superseded, and the goods be released and restored to such party. (S. 138.) The clerk, upon the application of any plaintiff or defendant (oi his agent) having an unsatisfied judg- ment in his favor, shall prepare a transcript of the COLLECTION OF DEBTS. 211 entry of such 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 addressed to the clerk of the court to whom it is intended to be deli- vered, and stating the amount unpaid upon such jud^;- ment and the date at which the same was recovered ; and the clerk to whom such certificate is addressed shall, on the receipt of such transcript and certificate, enter the transcript in a book to be kept in his office for the purpose, and the amount due on the judgment according to the certificate; and all proceedings may be taken for the enforcing and collecting the judgment in such last-mentioned division court by the officers thereof that could be had or taken for the like pur- pose upon judgments recovered in any division court. (S. 139.) In case of the death of either or both of the parties to a judgment in any division court, the party in whose favor the judgment has been entered, or his personal representative in case of his death, may revive such judgment against the other party, or his personal representative in case of his death, and may lasue execution thereon in conformity with any rules which apply to such division court in that behalf. (S. 140.) In case an execution be returned nulla bona, and the sum remaining unsatisfied on the judgment amounts to the sum of forty dollars, the plaintiff or defendant may obtain a transcript of the judgment from the clerk, under his hand and sealed with the seal of the court. (S. 142.) ,■■;!), I V 'I \ 212 CANADIAN DOMErTIC LAWYER. iiil Upon filing sncli trnnscript in the office of the clerk of the county court in tlic county where such judg- ment has boon ohtsiined^ or in the county wherein the 'hffendjint's or plaintilT'H hinds arc situate, the same sliall become a judgment of such county court, and tlio clerk of such county court shall file the same and make the proper entries in his book on payment of fifty cents. (S. 148.) Upon such filing and entry, the plaintiff or defendant may, until the judgment has been fully paid and satis- fied, pursue the same remedy for the recovery thereof or of the balance due thereon as if the judgment had been originally obtained in the county court. (S. 145.) In case any bailiff employed to levy an execution against goods and chattels, by neglect, connivance, or omission, loses the opportunity of so doing, then upon complaint of the party aggrieved, and upon proof by the oath of a credible witness of the fact alleged to the satisfaction of the court, the judge shall order the bailiff to pay such damages as it appears the plaintiff has sustained, not exceeding the sum for which the execution issued, and the bailiff shall be liable thereto; and upon demand made thereof, and on his refusal to satisfy the same, payment shall be enforced by such means as are provided for enforcing judgments reco- vered in the court. (S. 147.) Goods taken in execution may not be sold until the expiration of eight days at least next after the seizure thereof, unless upon the request in writing under the hand of the party whose goods have been seized. (S. 150.) In case tho judge be satisfied upon application on COLLECTION OF DEBTS. 213 oath made to him by the party in whose favor a judg- ment has been given, or be satisfied by other testimony, that such party will be in danger of losing the amount of the judgment, if compelled to wait till the day appointed for the payment thereof before any execu- tion can issue, such judge may order an execution to issue at such time as he thinks fit. (S. 158.) Any party having an unsatisfied judgment may pro- cure from the court wherein the judgment has ))ecn obtained, or from any division court within the limits of which the defendant dwells or carries on his busi- ness, a judgment summons; and if the defendant ap- pears in pursuance thereof, he may be examined upon oath touching his estate and effects and the miinner and circumstances under which he contracted the debt or incurred the damages or liability which formed the subject of the action, and as to the means and expecta- tion he then had and as to the property and means he still has of discharging the said debt, damages, or liability, and as to the disposal he has made of any property. (S. 160.) If the party so summoned (1) does not attend as required by the summons or allege a suflicient reason for not attending; or (2) if he attends and refuses to be sworn or to declare any of the things afore-aid ; or (3) if he does not make answer toucliing tlie same to the satisfaction of the judge; or (4) if it af)pear to the judge, either by the examination of the |>arty or by other evidence, that the party obtained credit IVoin the plaintiff or incurred the debt or liability iin(hr false pretences, or by means of fraud or breach of tru^t, or that he wilfully contracted the debt or lia- i€ m ^:-V- ! r 214 CANADIAN DOMESTIC LAWYER. li 4^ i-y bility 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 con- cealed the same with intent to defraud his creditors or any of them ; or (5) if it appears to the satisfaction of the judge that the party had when summoned, or since the judgment was obtained against him has had, sufficient means and ability to pay the debt or damages or costs recovered against him, either altogether or by the 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 gaol of the county in which the party so summoned is resident, for any period not exceeding forty days. (S. 163.) The judge before whom such summons is heard may rescind or alter any order for payment previously made against any defendant so summoned before him, and may make any further or other order, either for the payment of the whole of the debt or damages recovered and costs forthwith, or by any instalments, or in any other manner that he thinks reasonable and just. (S. 167.) In case the defendant has been personally served with the summons to appear, or personally appears at the trial, and judgment be given against him, the judge at the trial may examine the defendant and the plaintiff, and any other person, touching the several things before mentioned, and majr commit the de- COLLECTION OP DEBTS. 215 fendant to prison, and make an order in like manner as in case the plaintiff had obtained a judgment sum- mons. (S. 168.) No imprisonment under the act shall extinguish the debt, or protect the defendant from being sum- moned anew and imprisoned for any new fraud or other default, or deprive the plaintiif of any right to take out execution. (S. 170.) We have stated in the foregoing pages the sub- stance of the enactments of the Division Court Act, so far as they apply to proceedings for the collection of an ordinary debt. We now proceed to notice the mode '"f action where the debtor has absconded or attempts to abscond. In case any person being indebted in a sum not exceeding one hundred dollars, nor less than four dollars, for any debt or damages, or upon any judg- ment, (1) absconds from this province, leaving per- sonal property liable to seizure under execution for debt in any county in Upper Canada, or (2) attempts to remove such personal property either out of Upper Canada or from one county to another therein, or (3) keeps concealed in any county of Upper Canada to avoid service of process, and in case any creditor of such person, his servant or agent, makes and produces an affidavit or affirmation in the form given at the end of this chapter, and in case the said affidavit or affirm- ation be filed with such clerk, then such clerk shall issue a warrant, directed to the bailiff or to any con- stable of the county, commanding such bailiff' or con- stable to attach, seize, take, and safely keep all the personal estate and eflfects of the absconding, remov- ■*'i|' 'I i ■ * ' ''lid my ( ifif ' 1 1 \r i 216 CANADIAN DOMESTIC LAWYER. 1=1 ing, or concealed person within such county liable to seizure under execution for debt, or a sufficient por- tion thereof, to secure the sum mentioned in the war- rant with the costs of the action, and to return the warrant forthwith to the court out of which the same issued. (S. 197.) The judge, or a justice of the peace for the county, m:iy take the affidavit and issue the warrant under his hand and seal. (S. 198.) In case any 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 cre- ditor who sued out tiio attachment, and files in court, a bond with good sureties, to be approved of by the judge or clerk, in double the amount claimed, that the debtor will, in the event of the claim being proved and judgment recovered, pay the same, or the value of the property taken, to the claimant, or produce such property whenever required, the clerk may superst^de the attachment, and the property attached shall bo restored. (S. 207.) If within one month from the seizure the party against whom the attachment issued does not appear and give such bond, execution may issue as soon as jiilginent has been obtained, and the property seized upon the attachment, or enough thereof to satisfy the judgment and costs, may be sold for the satisfaction tlicreoF; or if the property has been previously sold n^ ]»erishiblo, enough of the proceeds thereof may be a|)plied to satisfy the judgment and costs. (S. 208.) Ill case any horses, cattle, sheep, or other pcri>h- able goods have been taken upon an attachment, the COLLECTION OF DEBTS. 217 ction ^-ol(l y be 08.) ri.sh- , the clerk of the court may, at the request of the plaintiff, sell the same to public auction to the highest bidder. (S. 211,) The rules framed under the provisions of the act are almost as lengthy as the act itself: it will, how- ever, only be necessary to refer to a few, the sub- stance of which may be stated as follows : — Every account or claim must show the names of parties in full, and their residences, and must be written in a legible manner. If the plaintiff is un- acquainted with the defendant's Christian name, t.^ may be designated by the surname alone, or by in- itials (R. 14) ; and every account must show the par- ticulars in detail. (R. 15.) If a defendant desires to inspect any deed or docu- ment in plaintiff's hands, he may give four days' notice of his desire, by letter or otherwise, and the plaintiff must appoint a place within the division where defendant may see the document. If he neg- lects or refuses to appoint a place, or allow inspec- tion, within three days, the judge may adjourn the case, and make any order he may think fit as to costs. (R. 26.) If a plaintiff or defendant, with a view to save ex- pense, gives notice to the opposite party that he will admit on the trial any part of the claim or set-off, or any facts which would otherwise require proof, no costs of such proof shall be afterwards allowed. The notice must be served six days before trial. (R. 30.) Every aflSdavit must bo entitled in the cause, stat- ing Christian and surname of parties, and of the per- son making the affida^vit, and bis place of abode and It ' •!■ ■' It ■iii m 218 CANADIAN DOMESTIC LAWYER. addition ; and if any affidavit be sworn by an illite- rate person, the jurat must contain a certificate of the clerk or other person administering the oath, that it was read over to, and apparently understood by, the party making it; and there must be no erasure or 'nterlineation in the jurat. (R. 46.) Where an excess is abandoned, it must be done in the first instance on the claim or set-off. (R. 69.) FOBMS. 1. AFFIDAVIT FOR LEAVE TO SUE A PARTY RESIDING IN AN ADJOINING DIVISION. In the Division Court for the County of I, A. B., of, &c., yeoman, make oath and say : 1. That I have a cause of action against C. D., of , yeoman, who resides in the Division of the County of 2. That I reside in the Division of the County of 3. That the distance from my residence to the place where this court is held is about miles, and to the place where the courl is held in the Division of the County of is about miles. 4. That the distance from the said C. D.'s residence to the place where the court is held, in the Division where he resides, is about miles, and to the place where this court is held, about miles. 5. That the said Division and this Division adjoin each other, and that it will be more easy and inex- COLLECTION 01 DEBTS. 219 pensive for the parties to have this cause tried in this Division than elsewhere. A. B. Sworn before me, at in the County of , this day of , A.D. 18 . E. F., Clerk f or, Commitaionert Jfc, in B, R.^ for County 2. PARTICULARS OF CLAIM. A. B., of, &c., claims of C. D., of, &c., the sum of dollars, the amount of the following account : 1863. Jan. 1. To 100 lbs. flour %2 00 " May 2. To 3 barrels apples 9 00 To interest from to A.B. 3. NOTICE OF SET-OFF. In the Division Court of the County of Between A. B., plaintiff, and C. D., defendant. Take notice that the defendant will set off the follow- ing claim on the trial, viz. : 1863. Feb. 9. To one box stove $4 00 " Apl. 3. To &c. &c Dated this day of To A. B.» the plaintiff. ,18 CD. ;. ' '-\\ m t ! ' ♦ \ 1 ■ HI frsJ 11 \a ■i .if l1 •! 1 ^ ' ' '-, ri M? 'A It mm i^'' «'»■■?'■ ill!: l?'i 220 CANADIAN DOMESTIC LAWYER. 4. NOTICE OF DEFENCE UNDER STATUTE. In the Division Court for the County of Between A. B., plaintiff, and C. D., defendant. The plaintiff is required to take notice, that, upon the hearing of this cause, the defendant intends to give in evidence and insist upon the following ground of defence, namely, that the claim for which he, the defendant, has been summoned, has been barred by the statute of limitations [or, as the case may he"]. Dated this day of , 18 . CD. To A. B., plaintiff. N.B. — This notice may he embodied with notice of set-off. 5. NOTICE OF ADMISSION TO SAVE UNNECESSARY EXPENSE OF PROOF. In the, &c., Between, &c., The plaintiff is required to take notice that the de- fendant will admit, on the trial of this cause, the first, second, and third items of the plaintiff's particulars to be correct. Dated the day of , 18 . CD. 6. AFFIDAVIT FOR ATTACHMENT. [If made after suit commenced, insert style of- court and caused] I, A. B., of, &c., yeoman, make oath and say : 1. Xhat C D.» of [or late of] , iu tltfi (}ountjf COLLECTION OP DEBTS. 221 of , is justly and truly indebted to me in the sum of dollars, for goods sold and delivered by me to the said C. D. at his request [or other cause of action, stating the same in ordinary and concise lan- guage]. 2. I have good reason to believe, and verily do believe, that the said C. D. hath absconded from this province, leaving personal property liable to seizure under execution for debt in the county of [or hath attempted to remove his personal property liable to seizure under execution for debt out of Upper Canada (or from the county of to an other county in Upper Canada) {or from Upper to Lower Canada), with intent and design to defraud me of my said debt (or, as the case may be)']. 3. This affidavit is not made, nor the process thereon to be issued, from any vexatious or malicious motive whatever. A.B. at , this Sworn before me, the county of day of , 18 in } E. F., Clerk, Sfc, or Judge, or Justice of the Peace (oj the case may be). 7. WARRANT OF ATTACHMENT. } County of (here insert the county.) To A. B., bailiff of the Division Court of the said county of [or to A. B., a constable of the county of , as the case may be]. You are hereby commanded to attach, seize, take, 19» ■i:- •i 222 CANADIAN POMBSTIC LAWTER. i> I r , and safely keep all the personal estate and effects of C. D. [naming the dehtor\ an absconding, removing, or concealed debtor, of what nature or kind soever, liable to seizure under execution for debt within the county of [here name the county]^ or a sufficient por- tion thereof to secure A. B. [here name the creditor'] for the sum of [here state the amount sworn to be due], together with the costs of his suit thereupon, and to return this warrant, with what you shall have taken thereupon, to the clerk of the [here state the number of the division] division court of the county aforesaid, forthwith : and herein fail not. Witness my hand and seal, the day of , one thousand eight hundred and E. F. [L. s.] JudgCy Clerk, or Justice of the Peact [aa the euu may be) TARIFF OF DIYISXOir COVBT FEES. Fu Fuxo. Entering account and issuing summons Hearing an undefended cause Hearing a defended cause. To be increased by tbe Judge, if he sees fit, to a sum not exceeding two dollars, whatever be the amount of the debt, damages, or subject- matter of action Every order or judgment (not to be charged when the defendant has given a confession of judgment) On every confession of judgment bo a a u M in, $ c. 07 10 20 05 06 3 8 % c. 10 16 43 10 06 §" J ij % c. 26 025 76 15 005 $ c. 040 060 1 00 25 10 & f c. oeo OM ISQl. S40 10 COLLECTION OF DEBTS. 228 TASI77 OF DTVIBION C0T7BT ¥ZEB.— {Continued.) CLEBK'S FS£H. Entering every account and isHuing Hummons Copy of summous, particulars of demand or not-olT, each Every giimmons to witnesses with any number of names Preparing affidavit, and administering oath to bitilitf of service of summons Entering bailiff's returns to summons to defendant... Every copy of subptjina when made by the clerk f]ntering set-off or other defence requiring notice to plaintiff Adjournment of any caupe Entering every judgment or order mudo at hearing... Taking confession of judgment Every warrant, attachment, or execution Every copy of judgment to another county Transcript or certificate of judgmi-nt for registration in the county registry oflice Entering and gi>'ing notice of jury being rrvjuired Making out summons to jury, for each jmynistn For every affidavit taken, and drawinu; tlie fiame Returns to treasurer, to be paid out of tlie fee lund, including attendance on the judge to audit th > same, each, and to bo retained from the fee fund in his hands Every search on behalf of a person not a pi>rty to a suit, to be paid by the applicant Every seaich for a party to a suit when the proceed- ings are over a year old Transmitting papers for service to another county or division, in addition to the necessarj' postage on transmission and return Receiving papers from another county or division for service, entering same in a book, liunding the same to the bailiff, and receiving hiw return, to bo paid when the claim is filed (5r defence entered For returning a judge's jury be a ■■S ! ! *= i $ c. 1 20 10 i 10 i 15 05 or. V) 1 20 1 i:> 15 t) -20 i "Jo i -'■) 1 'M i t) 10 1 -20 ■\- 1)0 j 10 10 20 20 25 11 ■a B S $ C. 30 15 10 15 06 05 20 20 20 15 30 26 25 26 10 20 4 00 10 10 20 20 25 I > ( . 40 2«t U 111 1.1 o:> o."i 2i> 20 25 lo iO •'. 2:^ 30 10 20 4 00 10 10 20 2't 25 fr ! ! fx ■' H ir' f !^ ''}\' ill} i 224 CANADIAN DOMESTIC LAWYER. ii'i TABIFF OF DIYI8I0K COTJBT TJSEB.— {Continued.) Tax BAnjPF'a Fibs. Service of summons, or other proceeding, ex- cept subpoena, on each person Service of Hubpwna on each witnetis For taking confeHsion of Judgment Drawing and attending to swear to every aftidavit of eer^ico of suinmonH, when served out of the division Enforcing every warrant, execution, or at- tachment, against the goods or body For every mile necessarily travelled from the clerk's office, to serve summons or sub- pcuna, and in going to seize on execution *ir attachment, where money made or case settled after the levy For every jury trial For carrying delinquent to prison, including all expenses and nssisttince, per mile, twenty cents. Every schedule of property seized, return, including affidavit of appraisal Every bond, including affidavit of Justifica- tion Every notice of sale not exceeding three, under execution, on attachment ten cents each. That there be allowed to the bai'-ff upon the sale of property under any execution the t*um of two and a half per cent, upon the amount realized, and not to apply to any overplus on the said execution. JUBORS' FXES. Each Juror sworn in any cause, out of the money deposited with the clerk for Jurors' fees Fees of Appraisers of Goods, Ac, seized UNDER Warrant of Attachment. To each appraiser, fifl y cents per day during the time actually employed in appraising goods, to be paid in first instance by the plaintiff, and allowed in costs of the cause, fifty cents. ■3 'i Hi o ^% 'A I c. 07 07 07 20 30 08 Ills' 1111 1^ i S c. 10 07 10 20 30 08 10 60 50 10 ij i i f? o bo '"o* ,9 a a •Sac 1st! ceeil and •eedj U s f r. .< c. 15 15 07 07 10 16 1 i 20 20 40 60 t e i^ I c. 08 15 50 50 10 08 20 50 50 10 20 07 20 20 7r. OS 30 1 00 17 OF DSSBS* 225 CHAPTER X. OF DEEDS. A DEED is a writing by which lands, tenements, or hereditaments are conveyed, scaled, and delivered by the parties. It must be written or printed on paper or parchment. As a general rule, it is better not to use figures in a deed ; and every word should be written in full. The names, residences, and ad- ditions of all the parties to the deed should be care- fully inserted. The description of the premises con- veyed should be very accurate. If a whole lot be conveyed, it may be sufiicient simply to describe it as lot No. 1 (as the case may be), such a concession and township, containing so many acres. If a part only is to be conveyed, the particular part intended should be specified, — whether north or south half, or northeast quarter, and so on. When it can be conve- niently done, it is always better to describe a lot by metes and bounds, particularly where it is part of a larger lot. If there are any alterations, interlinea- tions, or erasures in a deed, made before signing, they should be mentioned in the attestation, and the witness should put hiKS initials opposite each altera- tion, &c. After a deed has been signed, the parties have no right to make the slightest alteration. An interlineation of a deed after execution sometimes vitiates the deed. i r J •, r 226 CANADIAN BOMESIIO LAWTER. The maker of a deed is called the grantor ; the party to whom it is delivered, the grantee. If the grantor of freehold land have a wife, she must join in the deed with her husband, in order to bar her dower; or else after the death of the husband she may claim hex, dower, or the use of one-third during her life. When a married woman desires to convey any freehold property to which she is entitled in her own right, she must acknowledge the deed before a judge of any of the superior courts, or before the judge of a county court, or before two justices of the peace. The judge or justices before whom the acknowledg- ment is taken must sign a certificate of the acknow- ledgment in the form prescribed by the " act respect- ing the conveyance of real estate by married women," cap. 85, Cons. Stat. U. C. The formal mode of executing a deed is as follows. The grantor, or party conveying, signs his name, in the usual way in which he writes it, opposite the seal, and then, placing a finger upon the seal, says, "I deliver this as my act and deed." The grantee, or any other party signing the deed, will do so in like manner. When a deed is to be executed by a marksman, that is, a person who cannot write his name, it is done as follows. Some person — it matters not whom — writes opposite the seal A.B. A. B., his mark (thus : Jf-) [l. s.] ; bia mark. And then the person who is to make the mark takes a pen, and with it makes a cross in the way OP DEEDS. 227 above shown. Before making his mark, however, the deed shoukl be read over and explained to him, so that there may be no doubt about his knowing perfectly well what he is doing. The law of real property is much too intricate to be treated of in this place ; nor shall we attempt a popular definition of a "good title," or enter into the question of title at all. If any purchaser of property desires to be satisfied that he is ^rettin"; a good title to that for which he is paying, he must have recourse to the professional man. We may remark, however, that registry offices have been established in every county in Canada, and that, in order to be safe, every deed of land ought to be recorded. The fee for re- cording a deed is one dollar and twenty-five cents, but, if the memorial is over a certain length, an extra charge may be made. A search may be made in any registry office to see how a title stands, or what deeds are recorded acrainst a lot. The fee for search is twenty-five cents for every four deeds or entries in the books, looked at. Memorials are executed in the same way as deeds, except that it is not necessary to put the finger on the seal and say, "I deliver tliis as my act and deed." Every memorial must be witnessed by two witnesses, one of whom must be the witness to the deed, and this witness (the witness to l/oth deed and memorial) must make the affidavit. Tlie affidavit may be sworn to before the registrar, or deputy registrar, or before a judge of the superior courts or of a county court, or before a commissioner. When a deed and memorial has been executed out of Kt U I J :m ■I ' *■ '^\ ii a. if V 'I 22S CANADIAN DOMESTIC LAWYER. H? Upper Canada, the affidavit may be sworn before any of the persons aforesaid, or before the mayor or chief magistrate of any city, town, or place in Great Britain, certified under the corporate seal ; or before a judge of the superior or circuit courts in Lower Canada, or before a judge of the supreme court of any colony belonging to Great Britain, or before the mayor of any place in a foreign country, or any British consul or vice-consul. In all cases, however, where the affidavit is made out of Upper Canada, the deed to be recorded must be identified by a certificate indorsed on the deed, under the hand of the person before whom the affidavit is made. The certificate may be in the following form : — " This is the deed referred to in the affidavit of A. B. annexed to the memorial of this deed, sworn before me, this day of , 186 . "E. F., Judge, 07' Mayor, &c. &c." A corporation executes a deed by affixing to it its common seal, and signing by its head officer as mayor, or president, &c. A memorial is executed in the same way. No affidavit is necessary to prove the execution of a memorial by a corporation : the cor- porate seal alone is sufficient evidence. The ordinary mode by which real property is con- veyed in Upper Canada is by deed called bargain and sale. A receipt for the purchase money should be in- dorsed on every deed. OP DEEDS. 229 Deed of Bargain and Sale. ABSOLUTE COVENANTS. This Indenture, made ihe day of in tiie year of our Lord one thousand eight hundred tind , Between , of the first part, wife of the said party of the first part, of the second part, and , of the third part ; Witnesseth, that the said part of the first part, for and in considera- tion of the sum of , of lawful money of Canada, to , by the said part of the third part, in hand well and truly paid, at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), ha granted, bargained, sold, released, conveyed, and confirmed, and by these pre- sents do grant, bargain, sell, release, convey, and confirm, unto the said part of the third part, heirs and assigns. All and singular th certain parcel or tract of land and premises situate, lying, and being in the , Together with all and singular the houses, out-houses, edifices, barns, stables, yards, gardens, orchards, trees, woods, underwoods, fences, ways, waters, water-courses, lights, liberties, privileges, easements, profits, com- modities, emoluments, hereditaments, and appurte- nances, whatsoever, to the said parcel or tract of land ard premises belonging, or in any wise apper- taining, or therewith demised, held, used, occupied and enjoyed, or taken or known as part or pared thereof; and also the reversion and reversions, re- mainder and remainders, yearly and other rents, issues, and profits thereof, and of every part and 30 ■\\f' 1 1 J^JkoM . ■^ 230 CANADIAN DOMESTIC LAWYER. ^1 ■ j 1 1 ^ i parcel thereof; and all the estate, right, title, inte- rest, inheritance, use, trust, property, profit, posses- sion, claim, and demand whatsoever, both at law and in equity, of , the said part of the first part, in, to, out of, or upon the said lands and premises, and every part and parcel thereof, with their and every of their appurtenances : To have and to hold the same lands, tenerricnts, hereditaments, and all and singular other the premises hereby conveyed or in- tended so to be, with their and every of their appur- tenances, unto the said part of the third part, heirs and assigns, to the sole and only use of the said part of the third part, heirs and assigns, for- ever. Subject, nevertheless, to the reservations, limitations, provisoes, and conditions expressed in the original grant thereof from the crown. And this Indenture further witnesseth, that the sair j irty of the second part, with the privity and full approbation and consent of her said husband, tes- tified by his being a party to these presents, in consi- deration of the premises, and also in consideration of the further sum of five shillings of lawful money of the Province of Canada aforesaid,* to her by the said part of the third part in hand well and truly paid at or before vhe sealing and delivery of these presents (the receipt whereof is hereby acknowledged), hath granted and released, and by these presents doth grant and release, unto the said part of the third part, heirs and assigns, all Dower, and all right and title thereto, which she, the said party of the second part, now hath or in the event pf surviving her said husband ml OF DEEDS. 281 might or would have in, to, or out of the lands and premises hereby conveyed or intended so to be. And the said part of the first part do nereby, for , heirs, executors, and administrators, covenant, promise, and agree with and to the said part of the third part, heirs and assigns, in manner following, that is to say : That , the said part of the first part, now ha in good right full power and absolute authority to convey the said lands and other the premises hereby conveyed or in- tended so to be, with their and every of their appurte- nances, unto the said part of the third part, in manner aforesaid and according to the true intent and meaning of these presents : And that it shall be lawful for the said part of the third part, heirs and assigns, from time to time and at all times hereafter peaceably and quietly to enter upon, have, hold, occupy, possess, and enjoy the said lands and premises hereby conveyed or intended so to be, with their and every of their appurtenances, and *o have, receive, and take the rents, issues, and profits thereof and of every part thereof to and for and their use and benefit, with- out any let, suit, trouble, denial, eviction, interrup- tion, claim, or demand whatsoever of, from, or by , the said part of the first part, or heirs, or any other person or persons whomsoever : And that free and clear, and freely and absolutely acquitted, exone- rated, and forever discharged or otherwise by the said part of the first part or heirs well and suffi- ciently saved, kept harmless, and indemnified of, from, and against any and every former and other gift, jerant, bargain, sale, jointure, dower, use, trust, entail, /' .. ? /;*» 232 CANADIAN DOMESTIC LAWYER. will, statute, recognizance, judgment, execution, ex- tent, rent, annuity, forfeiture, re-entry, and any and every other estate, title, charge, trouble, and incum- brance Trhatsoever: And lastly, that , the said part of the first part, heirs, executors, or ad- ministrators, and all and every other person whomso- ever having or claiming, or who shall or may hereafter nave or claim, any estate, right, title, or interest what- soever, either at law or in equity, in, to, or out of the said lands and premises hereby conveyed or intended so to bo, or any of them, or any part thereof, by, from, under, or in ust for , them, or any of them, shall and will from time to time and at all times hereafter, upon every reasonable request, and at the costs and charges of the raid part of the third part, heirs or assigns, make, do, or execute, or cause to be made, done, or executed, all such further and other lawful acts, deeds, things, devices, conveyances, and assurances in the law whatsoe er, for the better, more perfectly and absolutely conveying and assuring the said lands and premises hereby conveyed or intended so to be, and every part thereof, with their appurte- nances, unto the said part of the third part, heirs and assigns, in manner aforesaid, as by the said part of the third part, heirs and assigns, or their counsel in the law, shall be reasonably devised, advised, or required; so as no person who shall be required to make or execute such assurances shall be compellable, for the making or executing thereof, to go or travel from his usual place of abode. Tn Witness whebeof, the said parties to these pre- OP DEEDS. 233 Bents have hereunto set their hands and affixed their seals, the day and year first above -written. A. B. [l.s.] C. D. [L.S.] Signed, sealed, and delivered 1 in the presence of j E. F. Received, on the day of the within Indenture, the sum of , of lawful money of Canada, being the full consideration therein mentioned. A. B. Signed in the presence of E. F. "t't f 1 .!! Deed of Bargain and Sale. qualified covenants. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, , wife of the said party of the first part, of the second part, and , of the third part: WITNESSETH, that the said party of the firct part, for and in consi- deration of the sum of , of lawful money of Canada, to him by the said part of the third part in hand v/ell and truly paid at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), hath granted, bargained, sold, released, conveyed, and confirmed, and by these pre- sents doth grant, bargain, sell, release, convey, and confirm, unto the said part of the third part, heirs and assigns, All and singular th certain 20* ' ym u. 234 CANADIAN DOMESTIC LAWYER. parcel or tract of land and premises situate, lying, and being in the , Together with all and sin- gular the houses, out-houses, edifices, barns, stables, yards, gardens, orchards, trees, woods, underwoods, fences, ways, waters, water-courses, lights, liberties, privileges, easements, profits, commodities, emolu- ments, hereditaments, and appurtenances whatsoever, to the said parcel or tract of land and premises belonging or in any wise appertaining, or therewith de- mised, held, used, occupied, and enjoyed, or taken or known as part or parcel thereof, and also the rever- sion and reversions, remainder and remainders, yearly and other rents, issues, and profits thereof, and of every part and parcel thereof; and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim, and demand whatsoever, both at law and in equity, of him, the said party of the first part, in, to, out of, or upon the said lands and premises and every part and parcel thereof, with their and every of their appurtenances : To have and to HOLD the same lands, tenements, and hereditaments, and all and singular other the premises hereby con- veyed or intended so to be, with their and every of their appurtenances, unto the said part of the third part, heirs and assigns, to the sole and only use of the said part of the third part, heirs and assigns, forever. Subject, nevertheless, to the reservations, limitations, provisoes, and conditions ex pressed in the original grant thereof from the Crown. And this Indenture further witnesseth, that the said party of the second part, with the privity and full approbation and consent of her said husband, tes- OF DEEDS. 235 tified by his being a party to these presents, in consi- deration of the premises, and also in consideration of the further sum of five shillings of lawful money of the Province of Canada aforesaid to her by the said part of the third part in hand well and truly paid at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), hath granted and released, and by these presents doth grant and release, unto the said part of the third part, heirs and assigns, all Dower, and all right and title thereto, which she, the said party of the second part, now hath or in the event of surviving her said hus- band might or would have in, to, or out of the lands and premises hereby conveyed or intended so to be. And the said Party of the first Part doth hereby, for himself, his heirs, executors, and adminis- trators, covenant, promise, and agree with and to the said part of the third part, heirs and assigns, in manner following, that is to say : That for and not- withstanding any act, deed, matter, or thing by the said party of the first part done, executed, committed, or knowingly or wilfully permitted or suffered to the contrary, he, the said party of the first part, now hath in himself good right, full power, and absolute au- thority to convey the said lands and other the premises hereby conveyed or intended so to be, with their and every of their appurtenances, unto the said part of the third part, in manner aforesaid, and according to the true intent of these presents : And that it shall be lawful for the said part of the third part, heirs and assigns, from time to time, and at all times here- after, peaceably and quietly to enter upon, have, hold, mr\ If mglggggi 236 CANADIAN DOMESTIC LAWYER. occupy, possess, and enjoy the said lands and premises hereby conveyed, or intended so to be, with their and every of their appurtenances, and to have, receive, and take the rents, issues, and profits thereof and of every part thereof to and for and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever of, from, or by 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, them, 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 suflSciently 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, execu- tion, extent, rent, annuity, forfeiture, re-entry, and any and every other estate, title, charge, trouble, and incumbrance whatsoever, made, executed, occasioned, or suffered by the said party of the first part, or his heirs, or by any person claiming or to claim by, from, under, or in trust for him, them, or any of them: And lastly, that he, the said party of the first part, his heirs, executors, or administrators, and all and every other person whomsoever having or claiming, or who shall or may hereafter have or claim, any estate, right, title, or interest whatsoever, either at law or in equity, in, to, or out of the said lands and priemises hereby conveyed or intended so to be, or any of them, or any part thereof, by, from, under, or in trust for him, them, or any of them, shall and will from time OF DEEDS. 237 to time and at all times hereafter, upon every reason- able request, and at the costs and charges of the said part of the third part, heirs or assigns, make, do, or execute, or cause to be made, done, or executed, all such further and other lawful acts, deeds, things, devices, conveyances, and assurances in the law what- soever, for the better, more perfectly and absolutely conveying and assuring the said lands and premises hereby conveyed or intended so to be, and every part thereof, with their appurtenances, unto the said part of the third part, heirs and assigns, in manner aforesaid, as by the said part of the third part, heirs and assigns, or their counsel in the law, shall be 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 presents have hereunto set their hands and affixed their seals, tho day and year first above written. Signed, sealed, and delivered 1 in the presence of . / Received, on the day of the date of the within In- denture, the sum of , of lawful money of Canada, being the full consideration therein mentioned. Signed in preseao^ of ' I 1 -P ir'hMi !■ .r^> : n m m} >r~'l .«»K 'i fi^i U I -I .'if \ ii 1' ^1 i r 'i I ^1 ij . ' 1 h 288 CANADIAN DOMESTIC LAWYER. Deed of Bargain and Bale. FROM TWO JOINT TENANTS, ON SALE IN LOTS. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Bbtwee;! a. B., of, &c., and C. D., his wife, of the first part * E. F., of, &e., of the second part ; and , of the third part. Whereas the said A. B. and E. F. have contracted and agreed with the said for the sale to of the parcel or tract of land and premises hei^inafter mentioned or described, at or for the price or sum of . And WHEREAS at the time of entering into such contract it was agreed that the sum of should be paid by the said to the said A. B. and E. F., in part payment of the said purchase money, and that the sum of , the residue thereof, should be secured to them by a mortgage of the said land and premises : And in pursuance of the said agreement the said Hath paid to the said A. B. and E. F. the said sum of , as they do hereby respect- ively admit and acknowledge : And in further pur- suance of the said agreement, an Indenture, by way of mortgage of the said lands and hereditaments, Hath already been prepared, and is intended to bear even date with, but to be executed immediately after the execution of, these presents, for securing the pay- ment by the said to the said A. B. and E. F. of the said sum of Now THIS Indenture witnesseth, that in pur- suance of the said agreement on the part of the said OF DEEDS. 239 A. B. and E. F., and for the considerations herein- before expressed, and also in consideration of five shillings of lawful money of Canada to each of them, the said A. B. and C. D. his wife, and E. F., paid by the said at or immediately before the execution of these presents, the receipt whereof they do hereby respectively acknowledge, they, the said A. B. and C. D. his wife, and E. F. (and as to the said C. D., for the purpose, and for the purpose only, of barring and extinguishing her right and title to dower of and in the said parcel or tract of land and premises), Have, and each and every of them Hath, granted, bargained, sold, aliened, released, conveyed, assured, and confirmed, and by these presents Do, and each and every of them DoTii, grant, bargain, sell, alien, release, convey, assure, and confirm, unto the said , his heirs and assigns. All and singular th certain parcel or tract of land and premises situate, lying, and being in the Together with all and singular houses, out-houses, buildings, yards, gardens, woods, ways, fences, waters, water- courses, easements, liberties, privileges, profits, emo- luments, hereditaments, and appurtenances whatso- ever, to the said parcel or tract of land and pre- mises belonging, or in any wise appertaining, or therewith used and enjoyed, or known or taken as a part or parcel thereof, or of any part thereof: And the reversion and reversions, remainder and remain- ders, yearly and other rents, issues, and profits there- of, and all the estate, right, title, interest, dower, and right and title to dower, and particularly the dower, or right and title to dower, of her, the said :l '! it I i !r M-: i^M "M 240 CANADIAN DOMESTIC LAWYER. C. D., use, trust, inheritance, property, claim, and demand, both at law and in equity, of them, the said A. B. and C. D. his wife, and E. F., and each and every of them, of, in, to, or out of, the same parcel or tract of land and hereditaments, anrl every part and parcel thereof : To have and to hold the said parcel or tract of land, hereditaments, and all and singular other the premises hereby conveyed, or in- te.'^fled so to be, with their and every of their rights, members, and appurtenances, unto the said , his heirs and assigns, to the sole and only use of the said , his heirs and assigns, forever. Subject, never- theless, to the reservations, limitations, provisoes, and conditions expressed in the original grant thereof from the Crown. And the said A. B., so far only as c<*nce!-ns one undivided moiety or equal half part of the said \ ircel or tract of land and hereditaments hereby conveyed, or intended so to be, and the acts, deeds, and defaults of the said A. B., and of those claiming under him and the said E. F., so for only as concerns the other undivided moiety or equal half part of the said parcel or tract of land and pre- mises, and the acts, deed.s, and defaults of the said E. F., and of those claiming under him, do hereby, for themselves respectively, and for their respective heirs, executors, and administrators, covenant, pro- mise, and agree to and with the said , his heirs and assigns, in manner following, that is to say : — That they, the said A. B. and E. F., at the time of the sealing and delivery of these presents, are, or that one of them is, rightfully and lawfully seised of a goody sure, perfect, absolute, a&d mdefeasible estate of or of ate OF DEEDS. 241 of inheritance, in fee simple, of and in the said parcel or tract of land and hereditaments herein- before described, and hereby conveyed, or intended 80 to be, with their and every of their appurtenances, and of and in every part and parcel thereof, without any manner of reservation, limitation, proviso, or condition, or any other matter or thing, to alter, charge, incumber, or defeat the same, save and ex- cept as appears by these presents : And also, that they now have in themselves, or one of them now hath in himself, good right, full power, and lawful and absolute authority to grant, bargain, sell, con- vey, and assure the said parcel or tract of land and hereditaments hereby conveyed, or intended so to be, and every part and parcel thereof, with the appurtenances, unto the said , his heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents: And also, THAT it shall and may be lawful to and for the said , his heirs and assigns, peaceably and quietly to enter into and upon, have, hold, use, occupy, pos- sess, and enjoy, the said land and premises, with the appurtenances, and to take the rents and profits thereof to and for his and their own use, without any eviction, interruption, hindrance, or denial whatso- ever, from or by the said A. B. and E. F. respect- ively, or any person or persons whomsoever, having, or rightfully claiming or to claim, any estate, right, title, or interest, at law or in equity, of, in, to, or out of the same land and hereditaments, or any part thereof, by, from, through, under, or in trust for them, or cither of them ; Aw that froe aod deof » J'BW 1 Hii ■ fiWPi r f '.[ '11 'i \ *^ h :■] li 1 r-''-' 1 m\ ■ ■.;,'i mil M\ 1 'M im 1 f ; m . ^ "■' 1 ! f l:.i ! 1 -■ i'ni m 242 CANADIAN DOMESTIC LAWYER. and freely and clearly acquitted, exonerated, and discharged of and from all arrears of taxes and aiesessments whatsoever, due or payable upon, or in respect of, the said land and premises, or any part thereof, and of and from all former conveyances, mortgages, rights, annuities, debts, judgments, exe- utions, and recognizances, and all manner of other charges and incumbrances whatsoever (save and ex- cept a certain Indenture of Mortgage bearing date, &;c., and made between, &c., for securing the sum of money in the same Indenture of Mortgage mentioned) ; And also, that upon payment by the said , his heirs, executors, administrators, or assigns, of the said sum of , with interest for the same, at the rate, and on and at the respective days and times, and in manner in and by the said herein- before in part recited Indenture of Mortgage, of even date with these presents, limited and appointed for payment thereof, respectively, they, the said A. B. and E. F., their heirs, executors, or adminis- trators, shall and will cause and procure the said lands and hereditaments hereinbefore described, and hereby conveyed, or intended so to be, and every part thereof, to be well and effectually released and discharged by the said , his heirs, executors, administrators, or assigns, of and from the said In- denture of Mortgage, of the day of , one thousand eight hundred and , hereinbefore recited or referred to, so and in such manner as that the same shall cease to be a charge or incumbrance upon the same land and hereditaments, or any part thcLTOofy in auj manner whatsoever, and skall and \4 OF DEEDS. 243 will in the mean time well and sufficiently indemnify, save harmless, and keep indemnified, i-he said , his heirs and assigns, and his and their lands and tenements, goods and chattels, and particularly the lands and hereditaments hereby conveyed, or in- tended so to be, and every part thereof, of, from, and against the same Indenture of Mortgage, and all payments, charges, covenants, stipulations, and agreements therein contained, and on the part and behalf of the said A. B. and E. F., their heirs, exe- cutors, administrators, or assigns, or any of them, to be made, executed, done, or performed : And lastly, that they, the said A. B. and E. F., their heirs and assigns, and all and every other person or persons whomsoever, having and lawfully claiming, or who shall or may have or lawfully claim, any estate, right, title, trust, or interest, of, in, to, or out of the said lands and premises hereby conveyed, or in- tended so to be, or any part thereof, with their ap- purtenances, by, from, under, or in trust for them, the said A. B. and E. F., or either of them, their or either of their heirs or assigns, shall and Avill, from time to time, and at all times hereafter, at the proper costs and charges in the law, of the said , his heirs or assigns, make, do, suffer, and execute, or cause or procure to be made, done, suffered, and exe- cuted, but subject nevertheless, and without preju- dice, to the said Indenture of Mortgage of even date with these presents, and to the said mortgage to the said , and the covenant hereinbefore contained in relation thereto, All such further and other rea- sonable act and acts, deed and deeds, devices, con- 1 Hi n •I il 'I in U .4 i'i' J.' m j m I« s I 244 CANADIAN DOMESTIC LAWYER. veyances, and assurances in the law, for the further, better, and more perfectly and absolutely conveying and assuring of the said lands and hereditaments, with the appurtenances, unto the said , his heirs and assigns, as by the said , his heirs and ass\i;ns, or his or thei-* counsel in the law, shall be reasonably devised, advibod, or required. In Witness whereof, the said parties to these presents have here' nto set their hands and seals, the day and year first above written. Momorial to Deed of Bargain and Sale. A Memorial (to be registered pursuant to the Acts of Parliament in that behalf) of an Indenture of Bargain and Sale, bearing date the day of , in the year of our Lord one thousand eight hundred and , And made between , of the first part, , wi of the said part of the first part, of the second part, and , of the third part : Whereby it is witnessed, that the said part of the first part, in consideration of the sum of , of lawful money of Canada (the receipt whereof is thereby acknowledged), Did grant, bargain, sell, release, convey, and confirm unto the said part of the third part, heirs and assigns. All and singular th certain parcel or tract of land and premises situate, lying, and being in the , in the County of , &c. To hold the same, with all the privileges and appurtenances thereof, to the said pan of the third part, heirs and assigns, to and their own use, forever : And the said party of tho second part thereby barred her Dower m OF DEEDS. 245 said of and in the said lands and premises. Which said Indenture is witnessed by And this Memorial thereof is hereby required to be registered by , the^aid therein men- tioned. • As WiTNES« hand and seal , this of , 18 . Signed and sealed in the presence of day } County of , to wit : , of , maketh oath and saith, that he vma present, and did see the Deed to which the within Memorial relates duly executed by , therein named : And also (together with another subscribing witness) that ho did see duly execute the said Memorial, and that he, deponent, is a subscribing witness to said Deed and Memorial, and that both the said Instru- ments were executed at , in the County of Sworn before me, at in the Count of this day of , 186 A Commissioner for taking Affidavits in the Queen's Bench, In and for the Count of Or, Judge, Sgc, or Mayor, Consul, ^t. Deed of Bargain and Sale. SHORT FORM UNDER STATUTE. This Indenture made the day of , one thousanJ eight hundred and , in pursuance of the act to facilitate the con/eyance of real pro- perty, Between , of the first part, , 21* Mm tM I '!■ ) i \^^ . ilM 246 CANADIAN DOMESTIC LAWYER. wife of the said party of the first part, of the second part, and of the third part, WITNESSETH, that in consideration of , of lawful money of Canada, now paid by the said party of the third part to the said party of the first part (the receipt whereof is hereby by him acknowledged), he, the t:aid party of the first part, doth grant unto the said party of the third part, heirs and assigns, for- ever. All AND SINGULAR th certain parcel or tract of land and premises situate, lying, and being in the To HAVii AND TO HOLD unto the said party of the third part, heirs and assigns, to and for and their sole and only use, forever. Subject, never- theless, to the reservations, limitations, provisoes, and conditions expressed in the original grant there- of from the Crown [^And subject ilso to the payment of a mortgage made by the party of the third part to the party of the first party for securing the sum of , bearing date the day of , one thousand eight hundred and ]. The said party of the first part covenants with the said party of the third part, that he has the right to convey the said lands to the said party of the third part, notwithstanding any act of the said party of the first part. And that the said party of the third part shall have quiet possession of the said lands, free from all incumbrances. And that the said party of the first part will execute such further assurances of the said lands as may be requisite. And that he will produce the title-deeds enumerated hereunder, and allow copies to be made of them at the expense OP DEEDS. 247 of the said party of the third part. And that the said party of the first part has done no act to incum- ber 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 have here- unto set their hands and seals. Signed, sealed, and delivered ) in the presence of . / Received, on the date of this Indenture, the sum of , of lawful money of Canada, being the full consideration herein mentioned. Witness. Deed of Bargain and Sale under Statute. ANOTHER FORxM. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , in pursuance of the act to facilitate the conveyance of real property, Between , WIT- NESSETH, that in consideration ot , of lawful money of Canada, now paid by the part of the part to the part of the first part, the receipt whereof is hereby acknowledged by , the said part of the first part, , the said part of the first part, Do HEREBY GRANT unto thc .said part of the part, heirs and assigns, forever. All and sin- gular th certain parcel or tract of land and premises situate, lying, and being in the of ''! I 1' ; li m 2f^ CANADIAN DOM«STtO LAWYER. , ill tHe county of , arid province of Canada, containing, by admeasurement, , and which is composed of, comprises, and may be known as follows, that is to say : — To have and to HOLD unto the said part of the part, heirs and assigns, to and for sole and only use, forever. Subject, nevertheless, to the reservations, limita- tions, provisoes, and conditions expressed in the original grant thereof from the Crown. And the said part of the first part do covenant with the said part of the part, that ha the right to convey the before-mentioned land to the said part of the part, heirs and assigns . And that the said part of the part shall have quiet possession of the said land, free from all incum- brances, . And that the part of the first part will execute such further assurances of the said land as may be requisite. And that will produce the title-deeds enumerated hereupon, and allow copies to be made of them at the expense of the said part of the part. And that the part of the first part ha done no [o^Aer] act to incumber the said land. And the said part of the first part release to the said part of the part all claims upon the said land. In Witness whereof, the said parties to these presents have hereunto set their hands and seals, upon the day and year first above written. Signed, sealed, and delivered ) in the presence of / The part of the first part in the within deed OF DEEDS. 249 named hereby acknowledge receipt of the full con- sideration therein mentioned. In presence of Memorial to Bargain and Sale nnder Statute. A Memorial, to be registered, of an Indenture made the day of , one thousand eight hundred and , in pursuance of the act to facili- tate the conveyance of real property, Between , of the first part, , wife of the said party of the first part, of the second part, and , of the third part : Whereby the said part of the first part, in consideration of of lawful money of Canada, then paid by the said part of the third part to the said part of the first part (the receipt whereof is thereby acknowledged), did grant unto the said part of the third part, heirs and assigns, forever, all and singular th certain parcel or tract of land and premises situate, lying, and being in the . To have and to hold the said above granted premises unto the said part of the third part, heirs and assigns, to and for and tlieir sole and only use, forever; Subject to the reservations, limitations, provisoes, and conditions in the original grant from the Crown. And the said party of the second part thereby barred her Dower in the said lands : which said indenture is witnessed by . And this memorial thereof is hereby required to be registered by , the said grant therein nam?d. Witness halld and stal , the day of ■■•. I I I w\ . \\ «'f' ( . Mi » 2f.O CANADIAN DOMESTIC LAWYER. , in the year of our Lord one thousand eight hundred and Signed and sealed in the presence of ""} Count of , to wit : , above named, maketh oath and saith, that he was present, and saw the deed of which the within is a memorial, duly exe- cuted by the therein named , and the said memorial duly executed by the therein named for registry thereof, and that he is one of the sub- scribing witnesses both to the said deed and memo- rial, and that the same were respectively executed at Sworn before me, at , this 1 day of , A.D. 18 . / Judge, 4*c., or a Commissioner for taking Affidavits in the Queen^s Bench, in and for the Count of Deed of Bargain and Sale of Lands. ON SALE BY MORTGAGEE. This Indenture, made the day of , in the year, &c., 18 , Between A. B., of, &c., of the one part, and C. D., of, &c., of the other part. Whereas, E. F., of, &c., did, by a certain Indenture of Mortgage, dated the day of , in the year, &c., for the consideration of , bargain and sell unto the said A. B., and to his heirs and assigns, forever, all that certain, &c. ; Together with all and singular the hereditaments atod appurtenances thereunto belonging : To have and to hold the said OP DEEDS. 251 granted and bargained premise?, yuth the appurte- nances, unto the said A. B., his heirs and assigns, to the only proper use and behoof of the said A. B., his heirs and assigns, forever ; Provided, neverthe- less, and the said Indenture of Mortgage was there- by declared to be upon condition, that, if the said E. F., his heirs, executors, or administrators, should well and truly pay unto the said A. B., his executors, administrators, or assigns, the just and full sum of , with lawful interest for the same, on or be- fore the day of , in the year, &c., according to the condition of the said Indenture of Mortgage, that then, and in such case, the said indenture should be void and of no eifoct : ' And the said E. F. did, by the said indenture, for himself, his heirs and assigns, agree with the said A. B., his heirs, executors, administrators, and assigns, that in case it should so happen that the said sum of , and the interest for the same, should be due and un- paid at the time limited for the payment thereof, in the whole or in part thereof, that then it should and might be lawful for the said A. B., his heirs or assigns, at any time after default in payment, to bargain, sell, and dispose of the said mortgaged pre- mises, with the appurtenances, at public auction, and out of the moneys to arise from the sale thereof to retain and keep the said sum of , and the in- terest, or so much thereof as might be due, together with the costs and charges of such sale or sales, rendering the overplus money, if any, to the said E. F., his heirs, executors, administrators, or assigns: And whereas the said E. F. did not pay to the said m ■•'! t •II; ' ..ill , M . ii m VM ' \ Hi ^ ! M 'Hi- m m p. m Mi n \f ch W III; ■1 «. 252 CANADIAN DOMSSTIC LAWYER. i A. B. the said sum of money, with the interest, at the time limited for payment, or at any time since ; and the said A. B. hath, therefore, in pursuance of the authority so given to him as aforesaid, caused the premises to be advertised and sold at public auction, and the same have been knocked down to the said C. D., for , being the highest sum bid for the same. Now, THERBFORB, THIS INDENTURE WITNESSETH, that the said A. B., in pursuance of the power afore- said, and also for and in consideration of the said sum of to him in hand paid by the said C. D. at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, released, and confirmed, and by these presents doth grant, bar- gain, sell, alien, release, and confirm, unto the said C. D., and to his heirs and assigns, forever, all the farm, piece, or parcel of land above mentioned, together with the hereditaments and appurtenances, as the same is described and conveyed by said Inden- ture of Mortgage ; and all the estate, right, title, interest, claim, and demand, at law and in equity, of him the said A. B., and also of the said E. F., as far as the said A. B. hath power to grant and convey the same, of, in, and to the premises, and every part and parcel thereof: To have and to hold the said above granted and bargained premises, with the appurtenances, unto the said C. D., his heirs and assigns, to the sole and only proper use and behoof of the said C. D., his heirs and assigns, forever. In Witness whereof, the parties have hereunto I'! OP DEEDS. 253 I set their hands and seals, the day and year first above written. Signed, sealed, &c. •f. Deed of Gift of Lands. This Indenture, made the day of , in the year of our Lord one thousand eight hun- dred and , Between A. B., of the township of , in the county of , yeoman, of the one part, and C. D. (eldest son and heir apparent of the said A. B.), of the other part. WITNESSETH, that the said A. B., as well for and m consideration of the natural love and affection which he hath and beareth unto the said C. D., as also for the better maintenance, support, livelihood, and preferment of him the said C. D., Hath given, granted, aliened, enfeoffed, and confirmed, and by these presents Doth give, grant, alien, enfeoff, and confirm, unto the said C. B., his heirs and assigns, All that parcel or tract of land, &c. [^describing the premises']^ together with all and singular houses, out-houses, edifices, buildings, barns, stables, courts, curtilages, gardens, orchards, woods, underwoods, ways, waters, water- courses, advantages, and appurtenances, whatsoever, to the said parcel or tract of land and premises be- longing or in any wise appertaining, and the rever- sion and reversions, remainder and remainders, rents, issues, and profits of the same, and all the estate, right, title, interest, property, claim, and demanl whatsoever of him the said A. B. of, in, and to the said parcel or tract of land and premises, and of, in, and to every part and parcel thereof, with their and .22 ir "I" 'i U 1 ''J i tUi 254 CANADIAN DOMESTIC LAWYER. '■; ir: i \ I every of their appurtenances, and all deeds, evi- dences, and writings concerning the said premises. To HAVE AND TO HOLD the said parcel and tract of land, and all and singular other the pnemiscs hereby granted and confirmed, unto and to the only proper use and behoof of the said C. D., his heirs and assigns, forever. In Witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year above written. Oertifioate of Acknowledgment by Married Woman. I [or we, inserting the name or names, ^c] do hereby certify that on this day of , at , the within deed was duly executed in my [or our] presence by A. B., of , wife of , one of the grantors therein named, and that the said wife of the said , at the said time and place being examined by me (or us) apart from her husband, did appear to give her consent to convey her estate in the lands mentioned in the said deed freely and voluntarily, and without coer- cion or fear of coercion on the part of her husband or of any other person or persons whatsoever. A. B., Judge, or, CD., J. P. E.F., J. P. OF LINE-FEXCES AND WATER-COURSES. 255 CHAPTER XI. OF UnE-FENCES AND WATER-COURSES. We purpose noticing in this chapter the statutory provisions aflfecting line-fences and water-courses, for the guidance of owners of neighboring lots. The statute which regulates these matters is cap. 57 of the Cons. Stat. U. C. Each of the parties occupying adjoining tracts of land must make, keep up, and repair a just propor- tion of the division or line fence on the line dividing such tracts, and equally on either side thereof. (S. 1.) . Any fence coming within the meaning of a lawful fence in any by-law of the municipal council in that behalf, is to be considered a lawful fence ; and when no such by-law exists, any fence-viewers, when called upon, are to exercise their own judgment, and decide what they consider to be a lawful fence. (S. 2.) The owner of the whole or part of a division or line fence, 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' previous notice of his intention to the owner or occupier of such adjacent inclosure; 2. Nor unless such last-mentioned owner or occu- pier, after demand made upon him in writing by the ft *• .fl i . ■ti (!!! -. (' ill V *P' ■I1 I / 256 CANADIAN DOMESTIC LAWYER. owner of such fence, refuses to pay therefor a sum to be determined, as provided in tl/e next sub- section ; 3. Nor, if such owner or occupier will pay to the owner of such fence, or of any part thereof, such sum as three fence-viewers, or a majority of them, in writing, determine to be the reasonable value thereof. (S. 3.) When any land which has laid uninclosed or in common is afterwards inclosed or improved, the occupier must pay to the owner of the division or line fence standing upon the divisional lino between such land and the inclosure of any other occupant or proprietor, a just proportion of the value thereof. (S. 1) When a water fence, or a fence running into the water, is necessary, the same is also to be made in equal parts, unless the parties otherwise agree. (S. 5.) When lands belonging to or occupied by different persons are divided from each other by any river, brook, pond, or creek, which of itself is not a suffi- cient barrier, and it is impracticable to fence upon the true boundary-line, the fence shall be set up on one side of the viver, brook, pond, or creek, or partly on one side and partly on the other, as may be just. (S. 6.) When it is the joint interest of parties resident to open a 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 several parties shall open a just and fair proportion of such OP LINE-FENCES AND WATER-COURSES. 257 ditch or water-course, according to their several inte- rests. (S. 7.) Three fence-viewers of the municipality, or a ma- jority 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, making, or paying for ditches and water-courses, under this act. (S. 8.) Every determination or award of fence-viewers shall be in writing, signed by such of them as concur therein ; and they shall transmit the same (or a certi- fied copy thereof) to the clerk of the municipality, and shall also deliver a copy to every party requiring the same, and such determination or award shall be binding on the parties thereto. (S. 0.) When the dispute is as to the commencement or extent of the part of the fence to be made or repaired by either party, or as to the opening of a ditch or water-course, or as to the part, width, depth, or extent that any person should open or make, either party may by writing notify the fence-viewers of the dispute, and name in the notice for the investigation thereof the time and place of meeting, and shall also notify the other party to appear at the same time and place. (S. 10.) On receiving such notice, the fence-viewers shall attend at the time and place named, and, after being satisfied that the other party has been also duly notified, they shall examine the premises and hear the parties and their witnesses, if demanded, and, according to the 22* ti^ I t 258 CANADIAN DOMESTIC lAWTER. \l:\- subject-matter of the reference, shall decide the com- mencement or extent of the part of the fence which either party claims to have made or repaired, or refuses to make or repair, or shall divide or apportion the ditch or water-course among the several parties, having due regard to the interests of each in the opening thereof, and shall fully determine the matters in dispute. (S. 11.) On any reference regarding the opening or making of a ditch or water-ccurse, the fence-viewers shall decide what length of time each of the* parties shall have to open the share of the ditch or water-course which the fence-viewers decide each such party shall open ; and if it appears to the fence-viewers that the owner or occupier of any tract of land is not suffi- ciently interested in the opening of the ditch or water- course to make him liable to perform any part thereof, and at the same time that it is necessary for the other party that such ditcli should be continued across such tract, they may award the same to be done at the expense of such other party; and after such Lward the last-mentioned party may open the ditch or water- course across the tract, at his own expense, without being a trespasser. (S. 12.) When, by reason of any material change of circum- stances in respect to the improvement and occupation of adjacent lots or parcels v? land, an award pre- viously made ceases, in the opinion of either of the parties, to be ^ litable between them, such party may obtain another award of fence-viewers by a like mode of proceeding; and if the fence-viewers called upon to make a subsequent award find no reason for OF LINE-FENCES AND WATER-COURSES. 259 making an alteration, the whole cost of the reference shall 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 keep open his share or proportion of the ditch or water-course allotted or awarded to him by the fence-viewers within the time allowed by them, any of the other parties may, after hrst completing his own share or proportion, open the share or proportion allotted to the party in default, and shall be entitled to recover not exceeding forty cents per rod for the same from the party so in default. (S. 14.) If after an award of fence-viewers, or after being required by a demand in writing by the party occu- pying the adjoining tract or a tract separated therefrom by a river, pond, or creek, a party in the occupation of any tract of land neglects or refuses for a period of thirty days to make or repair (as the case may be) his proportion of the division or line fenc« between his tract and such adjoining or separated tract, or if the party making the demand neglects or refuses for the like period to make or repair his own proportion of the fence, either party, after first completing his own proportion, may make or repair, in a su^ -tantial manner and of good sound materials, the ■ ole or any part of the fence which ought to have I . en made or repaired by the other party, and may recover from him the value thereof. (S. 15.) To ascertain the amount payable by any person who under the authority of this act makes or repairs a fence, or makes, opens, or keeps open any ditch or i% ; f 260 CANADIAN DOMESTIC LAWYER. l- y I M I '^ I I'.^i water-course which another person should have done, and to enforce the payment of such amount, the fol- lowing proceedings shall be taken : — 1. Any of the persons interested may apply to a justice of the peace residing within the municipality or township in which any such fence is situated, and if there be no such justice residing therein, then to any justice of the peace residing in any adjacent municipality or township, and thereupon such justice shall issue a summons under his hand and seal, directed by name to three fence-viewers of the municipality in which the fence is situated, requiring them to attend at the place and on the day and hour therein mentioned, to view such fence and to appraise the same. 2. The justice shall at the same time issue a sum- mons to the party so having neglected or refused to make or repair his proportion thereof (who shall thenceforth be considered the defendant in the case), requiring him to appear at the same time and place to show cause why the party claiming payment (who shall thenceforth be considered the plaintiff in the case) should not recover the same. 3. The fence-viewers shall be personally served with the summons at least four days before the day named for their attendance. 4. If either party desires to procure the attendance of any person to give evidence before the fence- viewers, the justice shall, upon the application of such party, issue a summons to such witness or witnesses to attend before the fence-viewers at the time and place mentioned in the summons to the fence-viewers, 5. The fence-viewers, when met at the time and OF LINE-FENCES AND WATER-COURSES. 261 place appointed, shall, whenever desired by either party, or whenever they themselves think it proper, may administer an oath to any witness, which oath is to be in the following form : — "You do solemnly swear that you will t^ue answer make to such questions as may be asked of you by either of the fence-viewers now present, touching the matters which they are now to examine and deter- mine. So help you God." 6. The fence-viewers, or any two of them, bein^y present, shall, after having duly examined the fence and received evidence, determine whether the plain- tiff is entitled to recover any and what sum from the defendant. 7. In case the commencement or extent of the part of the division or line fence which each should make or repair had not been previously determined by the award of fence-viewers, the fence-viewers named in the summons, or any two of them, shall determine the same; and if they determine that the plaintiff is entitled to recover from the defendant, they shall also state what distance of fence the defendant should have made or repaired. 8. The fence-viewers, if required by either party, before they report, shall give to such party a copy of their determination. 9. The fence-viewers shall report their determina- tion in writing,' under their hands, to the justice who issued the summons; and such determination shall be final. 10. The justice to whom the determination of tho fencc-viewcrsis,£^tujr&94. ^^4^ ^^^^W^J^ ,^^^ ^^ -Jim ' I ■:- . i .v( if' 262 CANADIAN DOMESTIC LAWYER. the clerk of the division court having jurisdiction over that part of the municipality, and shall certify and transmit a copy thereof to the clerk of the muni- cipality, to be entered in the book in which the muni- cipal proceedings are recorded. tl. After the expiration of forty days from the tiiii : { >e determination, the clerk of the division com "haL *isue an execution against the goods and chattels of ine defendant in the same manner as if the party in whose favor the determination has been made had recovered judgment in the division court for the sum which the fence-viewers have determined him to be entitled to receive, with costs. (S. 16.) Fees. (S. 17.) To the Justice of the Peace. For summons to fence-viewers, twenty-five cents. For subpoena which may contain three names, twenty-five cents. For transmitting copy of fence-viewers* determina- tion to division court and to clerk of the municipality, twenty-five cents. To the Fence -Viewers. One dollar per day each; if less than half a day employed, fifty cents. To the Bailiff or Constable employed. For serving summons or subpoena, twenty cents. Mileage — per mile, six and two-thirds cents. To witaesd— per d&j, oadi fiftj^ oeats. LANDLORD AND TENANT. 263 Upon the party in whose favor the determination of the fence-viewers has been made making an aO • davit that such fees have been duly paid and disbursed to the persons entitled thereto, the clerk shall include the amount thereof in the execution, and, when col- lected, shall pay over the same to the party. (S. 18.) CHAPTER XII. OF LANDL02D AND T NANT-LEASES, Ac. A Lease, or contract for the letting and hiring of realty (as houses, farms, &c.), is a contract whereby the temporary use and possession of a house or land are granted by the owner to the hirer for a stipulated or implied remuneration. He who grants the pos- session and use of the property to be enjoyed for hire, is called the lessor, or landlord ; and he who has the enjoyment of it, paying the rent or hire, is called the lessee, or tenant. The stipulated or im- plied remuneration is denominated rent. A lease may be made for the life either of the landlord or the tenant, or it may be made for any number of years, or it may be at will, — that is, determinable at any moment at the will either of the lessor or lessee. An agreement for a lease must be in writing, as required by the Statute of Frauds (29 Car. II., c. 3, s. 4), before referred to ; and all leabcs exceeding three years in duration must now be autheutioated by a deed. A || : 'r I . 1- h-iti. ■ ;.ifi 264 CANADIAN DOMESTIC LAWYER. 1: « lease in writing, not under seal, for a term exceeding three years in duration will amount only to an agree- ment for a lease for the term specified. A letting and hiring of land for a year or any less period may arise, by implication of law, from the re- lative situations of the parties and the silent language of their 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 an- other, the presumption is that the use and occupation are to be paid for, and the landlord is entitled to maintain an action to recover a reasonable hire and reward for the use of the land, unless the tenant can show that he entered into possession of the property under circumstances fairly leading to an opposite conclusion. A landlord, on the other hand, who has permitted a tenant to occupy property, and has re- ceived rent from the latter for such use and occu- pation, will be bound by his own acts, and cannot afterwards treat such tenant as a trespasser, and turn him out of possession, without a proper notice to quit. Leases may be made to commence from a day that is passed, or from a day to come, as well as from the day of the making of the lease. If a tenant holds over after the expiration of his lease, and the landlord r ceives from him rent which has accrued due subsequently to the expiration of the lease, he becomes a tenant from year to year upon the terms of the original demise. A tenancy from year to year is ordinarily implied from the payment and acceptance of rent; but this j^rima/a«ie presumptioa maj, of course, be rebutted i LANDLORD AND TENANT. 265 by showing that the money was paid or received by mistake. If an annual rent is reserved, the holding is from year to year, although the lease or agreement pro- vides that the tenant shall quit at a quarter's notice. Such a contract differs only from the usual letting from year to year in the agreement by the parties to reduce the ordinary six months' notice to quit to three months. But if it is expressly agreed that tho tenant is always to be subject to quit at six months' notice, given him at any time, this constitutes 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 months' notice to quit at tho expiration of such notice, the tenancy will be a quarterly tenancy. The landlord's remedy for the non-payment of rent is cither by action or distress. Where the rent re- served is a fixed ascertained rent, the landlord may distrain. But if no certain ascertained rent has been reserved or covenanted or agreed to be paid, there is no right to distrain: the landlord can only recover a fair compensation for the use and occupation of the premises in an action at law. It is essential to the lawful exercise of the power of distress that the dis- trainor bo tho immediate landlord or owner of the estate. If after the making of the lease the landlord has sold and transferred his estate or interest to some third party, he has no right or power to distrain. A landlord cannot distrain twice for the same rent, un- less the distress has beeti withdrawn at the instaaoe ,. I ;' . i " ■j ; } 1 i 1 " ii 1 .: \J. ' f fri ( ;il 1 n . ■ ,ii ■ -. 'it k ■ . ■'4 1 > i 1 'it ^^*Kr?-t' 266 CANADIAN DOMESTIC LAWTER. I ll or request of the tenant, oi* unless there has been Home mistake as to the value of the things taken. When an annual rent is reserved, it may be made payable monthly or quarterly, or at any period of time that the parties may think fit to appoint, what- ever may be the duration of the term of hiring. It may also be made payable in advance, so as to entitle the landlord to distrain for it at the commencement instead of at the end of each quarter. There may 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 bailiii', authorized to distrain, without a fresh demand on the tenant, is illegal ; and if the landlord distrains before the rent ^as become due, the tenant may resist the entry and seizure by force, and, after a seizure has been made, he may rescue his goods at any time before they have been impounded; but when once the goods have been impounded they are in the custody of the law, and the tenant cannot then break pound and retake them. As soon as the distrainor has made out and delivered to the tenant, or has left upon the premises, an inventory of the goods he his taken, they are said to be impounded. Formerly the landlord could not have distrain H after the expiration of the term for rent that accru' fl duo before the doterminat:^ i thereof; but now, by tlio statute 8 Ann. c. 14, ss. 6, 7, landlords are Qutlioriz d to distrain, provided the distress be made within six moilthd alter the dotormioa^^oB. of the le^so, and LANDLORD AND TENANT. 267 during the continuance of the hindlord's title or in- terest, and during the possession of the tenant from whom the arrears became due. The tenant has the ■whole day on which the rent becomes due to pay such rent; and 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 landlord and pay or tender him the money. A landlord or his bailiff cannot lawfully break open gates or break down inclosures, 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 fastenings which are ordinarily opened from the outside of the house. A distress cannot be made in the night, or after sun- set, or before sunrise, nor upon land which 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 coming to distrain, or unless they have been fraudu- lently removed thereto by the tenant to avoid the distress. If the tenant fraudulently or clandestinely removes goods and chattels from the demised pre- mises, to prevent the landlord from distrainii)g them for rent in arrear, the landlord may within thirty days after such removal take and seize them wher- ever they may be found, unless thoy have n the mean time been sold bona fide to some person i,. orant of the fraud. But if it bo necessary to break open anj door jji order to aeize such goods, tlio landlord I ' ■ 1.; I ■ 1-1! ippen to be duo at such seizure. And by the Divi. ion Courts Act it is enacted that when goods arc tak.'n in execution under the process of any divi- sion court the landlord shall be entitled, by writing i^nd r Vv^ hand, or under the hand of his ap-tn;, slating tho terms of holding, and the rent payable fv)i the bame, r.i^ deliv^'red to the bailiff" making the levy, to claim any rent in arrear th'^n due to him nut excc'.divig the rent of four wetks wh( re tlie ten- - mont has betn let by the we.k, and not exered:ni I jL-M 1 9 ^1 1: ■' ' Inl |i -i# w -. 't • If ? V 1 1 till * 270 CANADIAN DOMESTIC LAWYER. 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 regu- lated by Cons. S. U. C, c. 123, and are as follows: — Levying distress $1 00 Mar keeping possession, per diem 75 Appiaiseinenf, whether by one appraiser or more, two cents in the dollar on the value of the goods. If any printed advertisement, not to exceed in all 1 00 Catalogues, sale, and commission, and delivery of good& five cents in the dollar on the net produce of the sale. Every broker or otiier person wno shall make and levy any distress is to give a copy of his charges, and of all the costs and charges of the distress, signed by him, to the person on whose goods and chattels any dis- tress 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 'iny particular amount or fixed scale of charge; but they must be fair and reasonable. When, in consequence of the rent not being fixed and ascertained, the landlord has no right to distrain, we have before seen that his only remedy is by action at law, in which he can recover from the tenant a proper compensation for the use and occupation of it LANDIORD AND TENANT. 271 the premises. In such cases we must refer the land- lord to his professional adviser, it being beyond the scope of this work to detail an action at law : indeed, it would be useless to do so. With regard to repairs, we may say, generally, that in the absence of an express covenant or agreement to repair, there results from the demise and accept- ance of the lease by the tenant an implied covenant or promise to use the property demised in a tenant- like and proper manner; to take reasonable care of it, and restore it, at the expiration of the term for which it is hired, in the same state and condition as it was in when demised, subject only to the deteriora- tion produced by ordinary wear and tear, and the reasonable use of it for the purpose for which it w;is known to be required. When a lease is determinable on a certain event or at a particular period, no notice to quit is neces- sary, because both parties are equally apprized of the determination of the term. If, therefore, a lease be granted for a term of years, or for one year only, no notice to quit is necessary at the end of the term. In the case of a tenancy at will, no notice to quit is neces- sary, but there must be a formal demand of possession, or notice of the determination of the will, on the part of the landlord, before any action of ejectment can bo brought. The tenant at will, too, in order to dis- charge himself from hi>' liability for rent or for a reasonable compensation lor use and occupation, must give nC'ce to the Landlord of the fact of his abandonment of the possession, and of his election to rescind the contract and put an end to the tenancy. H 272 CANADIAN DOMESTIC LaWrEK. M V 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 i/iring and tenancy; and this notice may be given in the first as well as any subsequent year of the tenancy. The notice may be in writing or by word of mouth. In the case of a yearly tenancy it must be a six months' notice, to expire at that period of the year cor- responding with the period at whi.h the tenancy commenced. It is better that a notice to quit shuukl be served upon the landlord or tenant (as the case may be) per- sonally ; but it is sufficient if served upon the wife or servant at the dwelling-house of the party to be served. A landlord may recover possession jf his property by ejectment or proceedings under the " Overholding Tenants Act:" i.: "her case it will be necessary for him to employ ai' i'. orney. The following forms may be found useful : — Distress Warrant, To A. B., my bailiff in this behalf. Distrain the goods and chattels liable to be distrained for rent, in and upon the [house] now or lately in the tenure or occupation of C. D., situate at , in the county of , and province of Canada, for the sum of , being rent due to me for the same, on thp day of , in the year of our Lord one thousand eight hundred and . And for the purpose aforesaid, distrain, within the time, in the '^m^^:-.-^ ,;*■• ■- „- ■w*'' ..".•*-\-.* tANDtORIX AND TENANT. 2r3 ■»i manner, and with the forms prescribed by law, 11 such goods and chattels of the said C. D., whereso- ever they shall be found, as have been carried oflf the said premises, but are nevertheless liable, by law, to be seized as a distress for the rent aforesaid. And proceed thereupon for the recovery of the said rent as the law directs. And ibr vour so doing this shall be your sufficient warrant aixd authority. Witness my hand and seal, this day of , in the year of our Lord one thousand eight hundred and Witness, E. F. [l.s.] Notice of Distress. Notice is hereby given that the cattle, goods, a:.d chattels, distrained for rent, on the day of ,18 , by me, , as bailiff io | the landlord of the premises of , the v ~i,xnt, vyill be sold by public auction on the da^ of , 18 , at o'clock. Which cattle, goods, and chattels are as follows, 1 .at is to say; Stratford, day of , 18 . A. xJ., Bailiff, ^MMi y^i M %!f^^ m *J; i ■ i i« :1 ' ?l Inventory. An Inventory of the several goods and chattels distrained by mo , the day of , in the year 18 , in the house, out-houses, and lands of , situate , by authority and on behalf of , your landlord, for the sum of , being rent duo to the said Mk the duy of , 18 , m . 'fh^p 274 CANADIAN DOMESTIC LAWYER. I i mm' ^iM-J: i In the dwelling-house . On the pre- mises Mr. . Take Notice, that as the bailiff to , your landlord, I have this day distrained, on the premises above mentioned, the several goods and chattels specified in the above inventory, for the sum of , being rent due to the said on the day of ,18 , for the said pre- mises ; and that unless you pay the said rent, with the charges of distraining for the | same, or replevy within five days from the date hereof, the said goods and chattels will be annraised, and sold according to law. Given under my hand, the day of , in the year of our Lord one thousand eight hundred and Witness, A. B., Bailiff. Farming Lease, Agreement for. This Agreement, made this day of , in tlie year, &c., Between A. B., of , of the one part, and C. 1)., of , of the other part, WITNESSETH : That the said A. B. shall, on or before the first day of next, make and execute unto the f>:ud 0. D., his executors, adminivStrators, and assigns, a valid lease of all that piece or parcel of Irnd situate, &c., with the appurtenances tliereunto belonging, for the term of years, from tlie first day of , at the yearly rent of , pay- able half-yearly, clear of all deductions for taxes, or on any other account whatever ; the first payment of LANDLORD AND TENANT. 275 said rent to be made on the first day of next ; and at and under the further yearly rent of for every acre, and so in proportion for a less quan- tity of meadow or pasture ground, which shall bo ploughed or converted into tillage, contrary to :i covenant to be contained in said lease, as hereinafJt-r directed; the first payment of said last-mentioiicu rent to be made on the first half-yearly day at'rci such conversion into tillage as aforesaid. And in t\w said lease there shall be contained covenants on the part of the said C. D., his executors, administrators?, and assigns, to pay the aforesaid rents, and to pay all taxes and assessments; for doing all manner of repairs to the buildings, hedges, ditches, rail, and other fences (the said A. B. providing upon the premises, or within two miles thereof, rough timber, bricks, tiles, and lime for the doing thereof, to be conveyed by the said C. D., his executors, adminis- trators, or assigns); for permission for the said A. B., his heirs or assigns, at all seasonable times, to view the state of the premises; that the said CD., his executors or administrators, shall not carry off from the farm any hay, straw, or other fodder, and that the said C. D., his executors, administrators, or assigns, shall spread on some part of the said lands, in a husbandlike manner, all the manure and com- post which shall arise from the said farm, and shall, in all respects, cultivate the same in a husbandiike manner, and according to the usual course of hus- bandry practised in the neighborhood, and shall leave all the manure and compost of the last year, for the use of the landlord or succeeding tenants. That the t m 278 CANADIAN DOMESTIC LAWYER. JH' mm Mi ! said C. D., his executors, administrators, or assigns, shall, in the summer immediately preceding the deter- mination of the said term, to be granted as aforesaid, prepare for seed, in a husbandlike manner, such part of the land as shall be in a course of fallow, and fit to be sown with a crop the ensuing season, and lay down with clover-seed and rye-grass acres of the arable land which shall be then in tillage, sowing upon each acre thereof pounds of the best clover- seed, and bushel of the best rye-grass seed. And in the said lease there shall be contained a proviso for re-entry by the said A. B., his heirs or assigns, in case of the non-payment of rent for the space of twenty days, or non-performance of the covenants. And there shall be contained covenants on the part of the said A. B., his heirs and assigns, for quiet enjoy- ment. That the said A. B., his heirs and assigns, shall permit the said C. D., his executors, adminis- trators, or assigns, to have the use of the barns and stables adjoining the said premises, and the stack- yard and farm-yard, until one month after the expi- ration or determination of the said term, for the con- venience of threshing out the last year's crops of corn and grain, and feeding his or their cattle with the straw and fodder, so that the same may be made into manure, to be left on the said premises, as afore- said; and also some convenient room in the farm- house for his or their servants to lodge and diet in, until the time aforesaid, without any recompense being made for the same respectively. In Witness, &c. lilt LANDLORD AND TENANT. 277 • 1 H Lease of House. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, and , of the second part, Witnessetii, that in con- sideration of the rents, covenants, and agreements, hereinafter reserved and contained on the part of the said part of the second part, executors, admi- nistrators, and assigns, to be paid, observed, and per- formed, , the said part of the first part. Ha demised and leased, and by these presents Do demise and lease, unto the said part of the second part, executors, administrators, and assigns. All that mes- suage or tenement situate, lying, and being , Together with all houses, out-houses, yards, and other appurtenances thereto belonging, or usually known as part or parcel thereof, or as belonging thereto : To have and to hold the said pre- mises for and during the term of , to be com- puted from the day of , one thousand eight hundred and , and from thenceforth next ensuing, and fully to be complete and ended. Yielding and paying therefor yearly and every year during the said term hereby granted unto the said part of the first part, heirs, executors, administrators, or assigns, the sum of , to be payable on the following days and times, that is to say, the first of such payments tC become due and be made on the day of next. Provided always, and those presents are upon |ii|'|;r m iHkWI ill'* ■ !| ! 1 liii '■■'^ 'i\ 278 CANADIAN DOMESTIC LAWYER. 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 twenty-one days next over or after any of the days on which the same shall become due and payable, then, and in every such case, it shall be lawful for the said j)5irt of the first part, 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, repossess, and enjoy, as if these presents had never been executed. And the said part of the second part, for , heirs, executors, administrators, and assigns, do hereby covenant, promise, and agree to and with the said part of the first part, heirs, executors, administrators, and assigns: That , the said part of the second part, executors, administrators, and assigns, shall and will well and truly pay, or cause to be paid, to the said part of the first part, heirs, executors, adminis- trators, or assigns, the said yearly rent hereby re- served at the times and in the manner hereinbefore appointed for payment thereof. And also shall and will, from time to time, and at all times during the said term, keep in good and suffi- cient repair the said premises hereby demised (rea- sonable wear and tear and accident by fire excepted), and the same so kept in repair shall and will, at the end, expiration, or other sooner determination of the said term, peaceably and quietly yield and deliver up to the said part of the first part, heirs, execu- tors, administrators, or assigns. - LANDLORD AND TENANT. 279 And also shall and will well and truly pay, or cause to be paid, all taxes, rates, levies, duties, charges, assessments, and impositions whatsoever, whether Parliamentary, local, or otherwise, which now are, or which during the continuance of this demise shall at any time be, rated, taxed, or im- posed on or in respect of the said demised premises, or any part thereof. And also that it shall be lawful for the said part of the first part, heirs, executors, administrators, and assigns, and their agents respectively, either ploue or with workmen or others, from time to time at all reasonable times in the daytime, during the said term, to enter upon the said demised premises, and every part thereof, to view and examine the state and condition thereof; and in case any want of reparation or amendment be found on any such exami- nation, the said part of the second part, execu- tors, administrators, or assigns, shall and will from time to time cause the same to be well and suffi- ciently repaired, amended, and made good, within one month next after notice in writing shall have been given to them or left at or upon the said demised premises for that purpose. And if the said part of the second part, executors, adminis- trators, or assigns, fail in making the necessary re- pairs in manner hereinbefore described, that it shall be lawful for the said part of the first part, heirs, executors, administrators, and assigns, and agents, to enter into and upon the said hereby demised premises, and have the same repaired in a proper manner, and to render the account for such m 1 ^' .'ni. h 'I > ! f I. JLi^. '> IMAGE EVALUATION TEST TARGET (MT-3) ^Z^ 1.0 I.I Ui& |||||i.25|||1.4 |,.6 ^ 6" ► ^A "/A /: i>^^ ^j" V y .^ Photographic Sciences Corporation -^ ^ \ s> ^. ;\ 23 WIST MAIN STHiT WHSTIR.N.Y. MSN (716) •72-4903 '^ 280 CAirADIMT DOMESna LAWYER. reptnis'to tbe said part of the second part, exe- outors, administrators, and assigns, and demand pay- ment for the same, and if default is made to sue for the same in any court of law having jurisdiction over the same. And the said part of the secona part, execu- tors, administrators, or assigns, shall not, nor will at any time or times during the continuance of this demise, sell, assign, let, or otherwise part with this present lease, or the said premises hereby demised, or any part thereof, to any person or persons whom- soever, for the whole or any part of the said term, nor alter, change, or remove any part of the said premises, yards, or offices, externally or internally, without the license and consent in writing of the said part of the first part, heirs, executors, adminis- trators, or assigns, from time to time, first had and obtained. And the said part of the first part, for , heirs, executors, administrators, and assigns, cove- nant with the said part of the second part, executors, administrators, and assigns, that , the said part of the second part, executors, administrators, and assigns, well and truly paying the rent hereinbefore reserved, and observing, per- forming, and keeping the covenants hereinbefore contained, shall and mr y, from time to time, and at all times during the said term, peaceably and quietly enjoy the said premises hereby demised, without mo- lestation or hindrance. In Witness whereof, the said parties to these LANDLORD AND TENANT. 281 presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered 1 in the presence of . J Lease of House. ANOTHER FORM. Tins Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, and , of the second part; WITNESSETH, that for and in consideration of the rents, covenants, and con- ditions in these presents contained and reserved, and which are hereby declared U) be incumbent upon the Laid party of the second part, his executors, adminis- trators, or assigns, to pay, do, and perform, he, the said party of the first part, hath demised, leased, set, and to farm let, and by these presents doth demise, lease, set, and to farm let, unto the said party of the second part, his executors and administrators. All that parcel or tract of land, &c. &c. Together with all buildings thereon erected and being, and all privileges and appurtenances whatsoever to the same premises belonging or in any way appertaining. To HAVE AND TO HOLD the Said parcel of land, with the appurtenances as aforesaid hereby demised, unto the said party of the second part, his executors, adminis- trators, and assigns, from the day of , in the year one thousand eight hundred and , for and during and until the full end and term of from thence next ensuing, and fully to be complete and ended . Subject nevertheless to determinft- 24* ■1 t* m i ma 282 CANADIAN DOMESTIC LAWYER. tion or cesser of the said term before tho expiration thereof under the provisoes or conditions hereinafter mentioned, yielding and paying therefor yearly, and every year during tho term hereby demised, unto the said party of the first part, his heirs, executors, administrators, and assigns, the yearly rent or sum of of lawful current money of Canada, to be paid in manner following, that is to say, in each and every year during the said term, with- out any deduction or abatement thereout, for or by reasoi^ or on account of any cause or pretence what- soever. And the said part of the second part do hereby, for , heirs, executors, administrators, and assigns, covenant, promise, and agree to and with the said part of the first part, heirs, executors, administrators, and assigns, in manner fol- lowing, that is to say, that the said part of the second part, heirs, executors, administrators, and assigns, will well and truly pay, or cause to be paid, unto the said part of the first part, heirs, execu- tors, administrators, or assigns, the said yearly sum or rent of of money as aforesaid, on or at the days and times and in the marner hereinbefore men- tioned and prescribed for payment thereof. And ALSO, that the said part of the second part, heirs, executorsj administrators, or assigns, shall and will, at or their own costs and charges, vrell and sufl5- ciently repair, and keep repaired, the now being, or hereafter during the said term to be, erected . or situate upon the said premises, damage happening by accidental fire, tempest, or other inevi- table accident being always excepted. LANDLORD AND TENANT. 288 And further, that at the expiration or other legally premature determination of this lease, the said part of the second part, heirs, executors, administrators, or assigns, will and shall peaceably and quietly leave, surrender, and yield up unto the said party of the first part, his heirs, executors, ■ administrators, or assigns, the whole of the said pro- mises hereby demised, in such goad and sufficient repair as aforesaid. And ALSO, that it shall and may be lawful to and for the said party of the first part, his heirs or assigns, after days* previous notice in writing, if required, times, or oftener, in every year during the said term, at seasonable hours of the day, to enter and come into and upon the said demised premises, or any part thereof, to view the condition of the same, and of all defects and wants of repair or amendment which may then and there be found to leave notice in writing at the said de- mised premises to and for the said part of the second part to repair and amend the same within a reasonable time, not exceeding months. And the said part of the second part do hereby, for , executors, administrators, and assigns, fur- ther covenant, promise, and agree, with and to the said part of the first part, his heirs and assigns, that , the said part of the second part, heirs, executors, administrators, and assigns, will and shall within the said space of months, next after every and any such notice being left as aforesaid, well and sufficiently repair and amend the same accord- ingly. hill S'%"J :.r' 11 284 CAKADIAN DOMESTIC LAWYER. AxD MOREOVER, that , the said part of the second part, heirs, executors, administrators, and assigns, shall not, nor will at any time during ike said term, pull down, or make or permit to be made any alterations in any part of the said without the written consent of the said part of the first part, firstly had and obtained for such purpose. And moreover shall not, nor will at any time during the continuance of this demise, bargain, sell, assign, transfer, or set over this indenture of lease, or let, set, demise, underlet, or underlease the whole or any part of the said demised premises, or in any other manner part with this indenture of lease, or the pos- session or occupation of the whole or of any part or portion of the premises hereby demised, without such written consent and license as aforesaid. Provided ALWAYS, NEVERTHELESS, and thcse presents are upon this express condition, that if the said rent or sum of hereby reserved, or any part thereof, shall be unpaid in part or in all for the space of next after either of the days on which the same ought to be paid, as aforesaid, having been lawfully demanded, or in case the said part of the second part, heirs, executors, administrators, or assigns, shall at any time during the said term of lease hereby granted, without such license as aforesaid, assign, transfer, or set over, underlease or underlet, the whole or any part of the premises hereby demised, or in any other manner part with the possession or occupation of the same, or any part thereof, or if all or any of the covenants, conditions, and agreements in these presents con- tained and prescribed as incumbent upon the said LANDLORD AlH) TENANT. 285 part of the second part, heirs, executors, adminis- trators, and assigns, to do, observe, keep, fulfil, or perform, shall not be done, observed, kept, fulfilled, or performed, according to the true intent and mean- ing of these presents, then and from thenceforth, in any or in either of the said cases, it shall and may be lawful to and for the said part of the first part, heirs, executors, administrators, and assigns, into and upon the said demised premises, or any part thereof in the name of the whole, wholly to re-enter, and the same to have again, retain, repossess, and enjoy, as in his and their first and former estate, and thero out and from thence the said part of the second part, heirs, executors, administrators, or assigns, and all or any occupier or occupiers of the said pre- mises, or any part thereof, to expel, put out, and remove, this Indenture, or any matter or thing herein contained, to the contrary thereof in any wise not- withstanding. And the saiu part of the first part doth hereby, for heirs, executors, administrators, and assigns, covenant, promise, and agree, with and to the said part of the second part, heirs, execu- tors, administrators, and assigns, that , the said part of the second part, heirs, executors, ad- ministrators, and assigns, well and truly paying or earning to be paid the said yearly rent hereby ro- S( i ved, on the days and in the manner hcreinbefbro prescribed and appointed for payment thereof, aiid observing, keeping, and performing all and singular the covenants and agreements in these presents con- tnir.od, and which on or their parts and hv- iiaiv^ Are Aod ottgkt to lie paid, kept, doae, ^lu- . ;l Mm 'I :-|. a- Ill m |: 1:1 286 CANADIAN DOMESTIC LAWYER. filled, and performed, shall and lawfully may, peace- ably and quietly have, hold, use, occupy, possess, and enjoy the said demised premises, and every part and parcel thereof, with the appurtenances, during all the said term of hereby granted, without any lawful let, suit, trouble, interruption, eviction, molestation, hindrance, or denial of or by , the said , heirs or assigns, or of, from, or by any other person or persons claiming, or to claim, from, by, or under him, them, or any or either of them. In Witness, &c. * Lease of Land. This Indenture, made the day of , in the year of our Lord one thousand eight hundred of of the first and , Between part, and , of , of the second part, WIT- NESSETH, that in consideration of the rent, covenants, and agreements hereinafter reserved and contained, and to be paid, observed, and p ^rforrjed by the said part of the second part, executors, adminis- trators, and assigiis, , the said part of the first part, Ha demised and leased, and by these presents Do demise and lease, unto the said part of the second part, executors, administrators, and assigns, All th certain parcel or tract of land and pre- mises situate, lying, and being , To HAVT3 and to hold the said parcel or tra.'Jt of land, with tho appurtt'iianccs, unto the said part of the second part, his executors, administrators, and assign^, from the day of , one thousand eight liundred aud y for tiJXQ t^vm oi from thw&OQ aext LANDLORD AND TENANT. 287 ensuing, and fully to be complete and ended, Yield- ing AND PAYING therefor, unto the said part of the first part, executors, administrators, and assigns, the yearly rent or sum of , of lawful money of Canada, by equal payments, on the days of the months of in each and every year during the said term, the first payment to be made on the day of next ensuing the date hereof. And the said part of the second part do hereby, for , heirs, executors, administrators, and assigns, covenant, promise, and agree with and to the said part of the first part, heirs, executors, adminis- trators, and assigns, that , the said part of the second part, executors, administrators, and assigns, shall and will well and tn'uly pay, or cause to be paid, to the said part of the first part, executors, ad- ministrators, or assigns, the said yearly rent hereby reserved, at the times and in manner hereinbefore mentioned for payment thereof, without any deduc- tion or abatement whixisocvei thereout for or in re- spect of any rates, taxea, assessment, or otherwise : And ALSO shall and will, on or before the day of now next, at own costs and charges, fence in the premises hereby demised in such manner as will effectually protect the land adjoining thereto. And it is hereby agreed, on the part of the said part of the first part, heirs, executors, adminis- trators, and assigns, that if at any time within the said term of the said part of the second part, heirs, executors, administrators, or assigns, shall deeiiro io |Ntfa|;ift0d tibd fdfi auapld of the Ift^d hsathy ^ t 288 CANADIAN DOMESTIC LAWYER. demised, shall be allowed to do so by paying the sum of , of lawful money aforesaid, provided the said rent shall hove been regularly paid up to the time when may so desire to purchase. And it is hereby agreed, on the part of the said part of the second part, executors, administrators, and assigns, that if at any time or times during the said term, the said rent, or any part thereof, shall bo ia arroar and unpaid for the space of thirty days after any of the days or times whereon the same ought to be paid, as aforesaid, then it shall be lawful for the said part of the first part, heirs, executors, ad- ministrators, or assigns, to enter into and take pos- session of the premises hereby demised, whether the same be lawfully demanded or not, and the same to sell and dispose of, either by public auction or private sale, as to may seem best, without the let, hin- drance, or denial of , the said part of the second part, heirs, executors, administrators, and assigns : And further, that the non-fulfilment of the cove- nants hereinbefore mentioned, or any of them, on the part of the lessee or lessees,, shall operate as a forfeit- ure of these presents, and the same shall be consi- dered nyll and void to all intent? and purposes what- soever ; And also, that the said part of the second ])art, executors, administrators, and assigns, sh:dl not, nor will, during the said term, grant or demise, or assign, transfer, or set over, or otherwise, by nny act or deed, procure or cause the said premij^'es hereby demised, or intended so to be, or any part thereof, or any estate, term, or interest therein, to be gv.jnted, &Si>i^ed» traftftfeifed^ or aet «Ter, u&to abj peisou or LANDLORD AND TENANT. 289 persons whomsoever, nor carry on any offensive trade or business on the premises, without the consent in writing of the said part of the first part, heirs or assigns, first had and obtained. 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 1 in the presence of . / Lease of a House and Farm. This Indenture, made the day of , in the year of oar Lord 18 , Between A. B., of , yeoman, of the one part, and C. D., of , yeoman, of the other part, WITNESSETH, that for and in consideration of the rent, covenants, conditions, and agreements hereinafter reserved and contained, and which, on the part and behalf of the said C. B., his executors, administrators, and assigns, are or ought to be paid, done, and performed, the said A. B. Hath demised, leased, set, and to farm let, and by these presents Doth demise, lease, set, and to farm let, unto the said C. D., his executors and administrators, All that parcel or tract of land, &c. [describing the lot], together with the frame dwelliDg-house, barns, stables, and other out-houses thereupon erected, stand- ing, and being, together with all ways, paths, passages, waters, water-courses, privileges, advantages, and ap- purtenances whatsoever, to the same premises belong- ing or in any wise appertaining. To have and TO BOLD the said parcel or tract of land, dwelling-hoase» buildifi^» mi promiaes hereby d9m8e4 W<^ tbo said - 1", n i it' ■J I. I , I i S i 290 CANADUN OOMESTIO LAWYER. C. D., his executors, administrators, and assigns, from the day of the date of these presents, for, and daring, and until the full end and term of years from thence next ensuing, and fully to be complete and ended, Yielding and paying therefor yearly, and every year during the said term hereby granted, unto he said A. B., his heirs and assigns, the yearly rent or sum of , of lawful current money of Canada (by two equal half-yearly payments, to be made on the day of , and the day of ), in each and every year during the said term, without any deduction or abatement thereout for or upon any account or pretence whatsoever. Provided always, nevertheless, that if it shall happen that the said yearly rent hereby reserved, or any part thereof, shall be behind and unpaid for the space of twenty- one days next over or after either of the said days hereinbefore mentioned and appointed for payment of the same (being lawfully demanded) [or if the sa'd C. D., his executors or administrators, shall assign over, underlet, or otherwise depart with this Indenture, or the premises hereby leased, or any part thereof], to any person or persons whomsoever, with- out the consent of the said A. B., his heirs or assigns, first had and obtained in writing, under his or thoir hands, fur that purpose ; then, and in either of the saiil cases, it shall and may be lawful to and for tho said A. B., his heirs or assigns, into the said premises hereby demised, or any pnrt thereof, in tho name of the whole, to re-enter and the same to have again, r^taai\, i:ep.Qa4ei^«,>9^d «nJoy, as^iitkis and their £r.^t and iotvm tsteto or osUda^ tm^ ttung bAMia mm*^ LANDLOUD AND TENANT. 291 ^t tained to the contrary thereof in any wise notwith- standing. And the sai 1 C. D. doth iioroby, for him- self, his heirs, executors, administrators, and assigns, covenant, promise, and agree to and witli the said A. B., his heirs and assigns, in manner following (that is to say), that he, the said C. D., his executors, administrators, and assigns, shall and will well and truly pay, or cause to be paid, unto the said A. B., his heirs and assigns, the said yearly rent of , by equal half-yearly payments, on or at the days or times and in the manner hereinbefore mentioned and appointed for payment thereof. And also that he, the said C. D., his executors, administrators, and as- signs, shall and will, at his and their own costs and charges, well and sufficiently repair and keep repaired the dwelling-house, buildings, fences, and gates now erected, or which shall at any time or times hereafter during the said term be erected, upon the said demised premises, he, the said A. B., his heirs and assigns, upon request and notice to them made, finding and allowing on the said premises, or within miles' distance thereof, all rough timber, brick, lime, tiles, and all other materials whatsoever (except straw), for doing thereof, to be carried to the said hereby demised premises at the charge of the said C. D., his executors, administrators, or assigns, or otherwise permitting and allowing him or them, at th"ir like costs and charges, to cut and fell such and so m:iny timbor-troes upon some part of the promises h^r'.by demised as shall be requisite and necessary for the purpose (damage happening by accidental fire, tem- pesty «r other isevitablo accident being always ex ■i ji \\ •: : 1,M 292 CANADIAN DOMESTIC LAWYER. cepted) : And further, that he, the said 0. D., his executors, administrators, and assigns, shall and will at Ul times during the said term cultivate and farm such part or parts of the said lands anil premises as now are or shall hereafter be brought into cultivation duriijg the said term in a proper husbandlike manner. And shall and will at the expiration or other sooner determination of this lease peaceably and quietly leave, surrender, and yield up unto the said A. B., his heirs and assigns, the whole of the said premises hereby demised in such good and sufficient repair as aforesaid (reasonable use and wear thereof, and damage by accidental fire, tempest, or other inevit- able accident, as aforesaid, always excepted) ; And also, that it shall and may be lawful to and for the said A. B., his heirs and assigns, after six days' pre- vious notice in writing, twice or oftoner in every year daring the said term, at seasonable and convenient times in the day, to enter and come into and upon the said demised premises, or any part thereof, to view the condition of the same,, and of all defects and wants of reparation anJ amendment which shall then and there be found to leave notice in writing at the said demised premises to or for the said C. D., his executors, administrators, or assigns, to repair and amend the same within the sp ice of three calendar months. And the said C. D. doth h?rebv, for him- self, his executors, administrators, anil assigns, cove- nant, promise, and agree to and with the said A. B., liis heirs and assigns, that he, the said C. D., his exe- cutors, administrators, or assigns, shall and will, within throe calendar months ae;ct after every and LANDLORD AND TENANT. 293 any such notice liall have been so given oi left as aforesaid, well luid sufficiently repair and aiL'ind the same accordingly (except as before except'»d, and upon being provided or allowed materials for the same, as aforesaid), and also that he, the sal I C. D., his executors, administrators, or assign?,, shall not, nor will at any time during the said term, pull down, or cause or permit to be pulled down, or make, or cause or permit to be made, any alteration by cutting new door-ways or otherwise in the said dwelling- house, or in any of the buildings upon the said de- mised premises, without the consent in writing of the said A. B., his heirs or assigns, for that purpose first had and obtained ; And moreover shall not, nor will at any time during the continuance of this demise, bar- gain, sell, assign, transfer, or set over this Indenture of Lease, or let, set, demise, underlease, or underlet the said dwelling-house and premises hereby demised, or any part thereof, or in any other manner part with this Indenture of Lease, or the possession or occupation of the premises hereby demised, without such license and consent as aforesaid. Provided always, never- theless, and these presents are upon this express con- dition, that if the said yearly rent or sum of , hereby reserved, or any part thereof, shall be unpaid in part or in all by the space of twenty-one days next after either of the days on which the same ought to be paid as aforesaid, being lawfully demanded ; or in case the said C. D., his executors or administrators, shall at any time during the said term hereby granted, without such license as aforesaid, assign, transfer, or set over, underlease or underlet, the premises hereby 2i* |i in. 'I J:1 I ik 11 294 CANADIAN DOMESTIC LAWYER. demised, or any part thereof, or in any other manner part with the possession or occupation of the same, or any part thereof; or if all or any of the cove- nants, conditions, or agreements in these presents contained, on the part and behalf of the said C. D., his executors, administrators, and assigns, shall not be performed, fulfilled, and kept according to the true intent and meaning of these presents, then and from thenceforth, in any or either of the said cases, it shall and may oe lawful to and for the said A. B., his heirs and assigns, into and upon the said demised premises, or any part thereof, in the name of the whole wholly to re-enter and the same to have again, retain, repossess, and enjoy as in his or their first and former estate, and thereout and from thence the said C. D., his executors, administrators, and assigns, and all other occupiers of the said premises, to expel, put out, and amove, this indenture or any thing here- inbefore contained to the contrary thereof in any wise notwithstanding. And the said A. B. doth hereby, for himself, his heirs, executors, adminis- trators, and assigns, covenant, promise, and agree with and to the said C. D., his executors, adminis- trators, and assigns, that he, the said C. D., his exe- cutors, administrators, and assigns, well and truly paying the said yearly rent hereby reserved on the days and in the manner hereinbefore appointed for payment thereof, and observing, keeping, and per- forming all and singular the covenants and agree- ments in these presents contained, and which, on his and their parts and behalves, are and ought to be ~;1^^ kept, done, and performed, shall and lawfully LAKDLORD AKD TENANT. 295 may peaceably and quietly have, hold, use, occupy, possess, and enjoy the said demised premises, and every part and parcel thereof, with the appurte- nances, during ail the said term of years here- by granted, without any lawful let, suit, trouble, interruption, eviction, molestation, hindrance, or de- nial of or by him, the said A. B., his heirs or assigns, or of, from, or by any other person or persons claim- ing or to claim from, by, or under him, them, or any or either of them. In Witness, &c. Indenture of Lease. SHORT FORM UNDER STATUTE. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , in pursuance of the act to facilitate the leasing of lands and tenements, Between , of the first part, and , of the second part ; WIT- NESSETH, that in consideration of the yearly rents, covenants, and conditions hereinafter respectively reserved and contained by the said lessee, exe- cutors, administrators, and assigns, to be respectively paid, observed, and performed, the said lessor Ha demised and leased, and by tl^se presents Do demise and lease, unto the said lessee All th certain parcel or tract of land and premises situate, lying, and being in the , Together with all the rights, members, and appurtenances whatsoever to the said premises belonging or appertaining: To HAVE AND TO HOLD the said hereby demised premises, ; i VI t ■I :i: "f m m H d Urn 296 CANADIAN DOMESTIC LAWYER. i with their appurtenances, unto the said lessee, executors, administrators, and assigns, for the term of , to be computed from the day of , one thousand eight hundred and . Yielding AND PAYING therefor unto the said lessor, heirs or assigns, the clear yearly rent or sum of , of lawful money of Canada, in even portions, on the days of in each and every year during the continuance of the said term, without any de- duction, defalcation, or abatement whatsoever — the first payment to be made on the day of ; And the said lessee, for heirs, executors, admi- nistrators, and assigns, hereby covenants with the said lessor, heirs and assigns, to pay rent, and to pay taxes and to repair ; And to keep up fences, and not to cut down timber ; And that the said lessor may enter and view state of repair ; And that the said lessee will repair according to notice ; And will not assign or sub-let without leave ; And will not carry on any business that shall be deemed a nuisance on the said premises ; And that will leave the premises in good repair; And also, that if the term hereby granted shall be at any time seized or taken in execution or in attachment by any creditor of the said lessee, or if the said lessee shall make any assignment for the benefit of creditors, or, becoming bankrupt or insolvent, shall take the benefit of any act that may be in force for bankrupt or insolvent debtors, the then current quarter's rent shall imme- diately become due and payable, and the said term shall immediately become forfeit and void, but the next cur- rent quarter . i... > ^ ..^^ ./. ertheless be at once duj CO in LANDLORD AND TENANT. 297 and payable. Proviso for re-entry by the said lessor on non-payment of rent, or on non-performance of covenants, or seizure or forfeiture of the said term for any of the causes aforesaid. The said lessor covenants with the said lessee for quiet enjoyment. In Witness whereof, the said parties have here- unto set their hands and seals. Signed, sealed, and delivered ) in the presence of . | Statutory Lease. ANOTHER FORM. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , in pursuance of the act to facilitate the leasing of lands and tenements, Between [lessor], of the first part, and [lessee], of the second part: WITNESSETH, that in consideration of the rents, covenants, and agreements hereinafter reserved and contained on the part of the said lessee, executors, administrators, and assigns, to be paid, kept, and performed, , the said lessor, ha demised and leased, and by these presents do de- mise and lease, unto the said lessee, executors, administrators, and assigns. All th Together with the appurtenances : To have and to hold the same unto the said lessee, executors, adminis- trators, and assigns, from the day of , one thousand eight hundred and , for and during and unto the full end and term of froii thence next ensuing, and fully to be complete and ended ; Yielding and paying therefor unto the said lessor, r.^i^ •t., 298 CANADIAN DOMESTIC LAWYER. heirs, executors, administrators, or assigns, the clear yearly rent or sum of , of lawful money of Ca- nada , in each and every year during the said term, without any deduction whatsoever — the urst payment to be made on the day of next ensuing the date hereof. And the said lessee covenant with the said lessor to pay rent, and to pay taxes, and to repair, and to keep up fences, and not to cut down timber, and that the said lessor may enter and view state of repair; and that the said lessee will repair according to notice ; and will not assiga or sub-let without leave; and that will leave the premises in good repair; and will not carry on nny business that shall be deemed a nuisance on said premises. Proviso for re-entry by the said lessor on non-payment of rent or non-performance of covenants. The said lessor covenant with the said lessee for quiet enjoyment. In Witness whereof, the said parties have hereto set their hands and seals. Signed, scaled, and delivered in the presence of } Lease of Fart of a House. Memorandum of an agreement made and entered into the day of ? 1^ 5 by and between A. B., of , and C. D., of, &c., whereby the said A. B. agrees to let, and the said C. D. agrees to take the rooms or apartments following, that is to say, J being part of a house and premises in which the said A. B. now resides, LANDLORD AND TENANT. 299 situate and being No. , in Street, in the city of , To HAVE AND TO HOLD the said rooms and apartments for and during the term of half a year, to commence from the day of , instant, at and for the yearly rent of , lawful money of Canada, payable monthly, by even and equal portions, the first payment to be made on the day of next ensuing the date hereof; and it is further agreed that, at the expiration of the said term of half a year, the said C. D. may hold, occupy, and enjoy the said rooms or apartments, from month to month, for so long a time as the said 0. D. and A. B. shall agree, at the rent above specified ; and that each party be at liberty to quit possession on giving the other a month's notice in writing. And it is also further agreed that, when the said C. D. shall quit the premises, he shall leave them in as good condition and repair as they shall be in on his taking possession thereof, reasonable wear excepted. In Witness, &c. Notice to Quit, by Landlord. To A, B., Esq. I hereby give you notice to quit and deliver up, on or before the day of , 18 , the peaceable and quiet possession of the premises you now hold of me, with the appurtenances, situate at , in the •ownship of , in the county of , in this province. Dated this day of , a.d. 18 . Yours, &c. Witness: E. F. C. D. r. I 1. I 800 CANADIAN DOMESTIC LAWTEB. Hotioe to Qnit, by Tenant. To C. D., Esq. I hereby give you notice that it is my intention to quit and deliver up to you, on or before the day of 7 IS ) the peaceable and quiet possession of the premises now held by me, with the appurtenances, situate at , in the township of , in the county of , in this province. Dated this day of , a.d. 18 . Yours, &c. A. B. Witness : E. F. CHAPTER XIII. OF MASTEB AND SEBVAN: The relation of Master and Servant is so extensive, entering into all the walks of life, that this work would be incomplete without a chapter devoted to the subject. In order to constitute a contract of hiring and ser- vice, the contract creating the relation of master and servant, there must be either an express or an im- plied mututl engagement, binding one party to em- ploy and reiiunerate, and the other to serve, for some determinate term or period. If the employer merely agrees to pay so long as the servant contiuuea to ^'-'-■^<--i ' ■ ■•* L.tn^:.' MASTER AND SERVANT. 301 serve, leaving it optional either with the servant to serve or with the employer to employ, there is no contract of hiring and service; but if the servant binds himself to serve for some determinate term, and the employer, expressly or impliedly, agrees or promises to retain the servant in his service for the term, there is a contract of hiring and service. A contract of hiring and service need not be au- thenticated by writing unless the hiring exceeds a year in duration. The Master and Servant Act (Cons. St. U. C, cap. 75, s. 3) provides that "a verbal agreement shall not exceed the term of one year." In the absence of an express contract be- tween the parties, a hiring may be presumed from the mere fact of the service, unless the service has been with 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 any thing being said as to wages, the law presumes that the parties agreed for customary and reasonable wages. But if the service has been with the parent or uncle, or other near relation, of the party serving, a hiring cannot be implied or presumed from it, but an ex- press hiring must be proved in order to support a claim for wages ; for the law regards services rendered by near relations to one another as gratuitous act of kindness and charity, and does not presume that they are to be paid for unless there is an express agreement to that effect. Mil *IM 1 I !'i 302 CANADIAN DOMESTIC LAWYER. i %i When the employment of a servant is of a per- manent nature, and ann - ' - ges are to be paid, the hiring is in all cases a yearly hiring; and when the servant is not a household or domestic servant, the hiring cannot be put an end to by either party, without the consent of the other, before the ter- mination of the current year. A general hiring of household or domestic servants, where no time is mentioned for the duration of the service, is a hiring for a year, and so on from year to year, determinable by custom and usage, at the option of either of the parties, on giving a month's warning or trndering a month's wages. When wages are to be paid weekly, and there is nothing in the original contract import- ing a different agreement, the hiring is a weekly hiring, and may be terminated by a week's warning or a week's wages. It is the first duty of the master, after the contract of hiring and service has been entered into, to take the servant into his employ, and enable him to earn the hire or reward agreed to be paid, and if he neglects so to do, he renders himself liable forthwith to an action for a breach of contract. Every servant, on the other hand, impliedly undertakes to obey the just and reasonable commands of the master, and to be careful, diligent, and industrious in the perform- ance of the work intrusted to him to execute. He is not bound to fulfil the unjust and unreasonable commands of a hard taskmaster, nor to perform work and services not fairly coming within the scope of his employment. If a servant wilfully disobeys or habitually neglects MASTER AND SERVANT. 308 the just and reasonable orders of the master, if he ab- sents himself repeatedly from the service, or refuses to perform his work or to submit to the domestic regulations of the house, or is guilty of gross moral misconduct, the contract may be dissolved by the master, and the servant dismissed. 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 incapacitated for the performance of his ordinary work. And if after having taken the servant in his service he improperly dismisses him, or prevents him by a continued system of persecution from continuing in his service, he is bound to make compensation to the servant for all the damages sustained by the latter; for the law implies, from a person who contracts to pay a salary for services for a certain term, a 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 appren- ticeship. Contracts o^ apprenticeship, being usually for more than one year, require to be in writing. An indenture of apprenticeship is sufficiently exe- cuted by the apprentice desiring a bystander to write his name opposite the seal, and by his then taking the deed and delivering it to his master. As the contract of apprenticeship is invariably 'V I i' Mi '. i Ui 804 CANADIAN DOMESTIC LAWYER. created by deed, the liabilities resulting therefrom will depend upon the torms and covenants of the par- ticular contract. The apprentice and his father, or some one or more of his relations or friends, usually covenant that he shall faithfully serve the master during the term of the apprenticeship, keep his secrets, obey his lawful command.^, and preserve and protect his property, and, generally, that he shall behave himself in all things as a faithfal apprentice. The master usually covenants to take the appren- tice into his service and teach him the art or trade he himself exercises or carries on ; to find him in meat, drink, and lodging, and sometimes with wearing-ap- parel, washing, and all other necessaries, during the term. The sickness of the apprentice, or his inca- pacity to serve and to learn by reason of ill health, or 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 Upper Canada are not binding for a longer period than nine years from the day of the date of the contract. There are two acts of Parliament bearing par- ticularly upon the subject of this chapter, — the "Master and Servant Act," Cons. St. U. C, cap. 75, and the "Act respecting Apprentices and Minors," Cons. St. U. C, cap. 76. The former of these acts provides that if after any engagement has been entered into, and during jjfc*. -lif .'i. OP MASTER AND SERVANT. 805 the period of such engagement, the servant refuses to go to work, or without permission 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 punish- ment provided by the act ; and that if any tavern or boarding-house keeper, or other person, induces or persuades any servants or laborers to confederate for demanding extravagant or high wages, and prevents their hiring, then, on due proof of offence, such tavern-keeper shall forfeit his license, in addition to any fine, and be subject to fine or imprisonment. The penalty for contravention of the foregoing pro- visions is a fine not exceeding twenty dollars, or im- prisonment not exceeding one month nor 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. Any person who thinks himself aggrieved by any such conviction, or order for payment of wages, may appeal to the Quarter Sessions against such con- viction or order. The act respecting apprentices and minors pro- vides that where a minor (that is, a person under twenty-one years of age) over the age of sixteen, who has no parent or legal guardian, or who does not reside with such parent or guardian, enters into an 26* MM f;. t 306 CANADIAN DOMESTIC LAWYER. engagement, written or verbal, to perform any service or work, such minor shall be liable upon the same, and shall have the benefit thereof in the same manner as if of legal age. A parent or other person having the care or charge of a minor not under the age of fourteen years may, with consent of the minor, put and bind him as an apprentice, by indenture, to any master-mechanic, farmer, or other person carrying on a trade or call- ing, until such minor attains twenty-one. When the father of an infant child abandons and leaves the child with the mother, the mother, with the approbation of two justices of the peace, may bind the child as an apprentice until the child attains twenty-one if a male, or eighteen if a female. The mother and the justices must sign the indenture. No child fourteen years old or upwards is to be so ap- prenticed without his or her consent. The mayor, recorder, or police magistrate of any city or town, and in a county the chairman of and at the Quarter Sessions, may apprentice orphan chil- dren, and children who have been deserted by their parents, or whose parents have been committed to If the master of an apprentice dies, the apprentice, by operation of law, and without any new writings, becomes transferred to the person (if any) who con- tinues the master's business. A master may transfer his apprentice to any person who is competent to receive or take an apprentice, and who carries on the same kind of business. Every master must provide to his apprentice suit- OF MASTEB AND SERVAXT. 307 ■»;.#. able board, lodging, and clothing, or such equivalent therefor as is mentioned in the indenture, and must also properly teach and instruct him, or cause him to be taught and instructed, in his trade or calling. Every apprentice must faithfully serve his master, obej all his lawful commands, and not absent him- self from Jiis service, day or night, without con- sent. A master convicted before any justice, mayor, or police magistrate, on the complaint of the appren- tice, of any ill usage, cruelty, or refusal of necessary provisions, is liable to a fine not exceeding twenty dollars and costs, and to imprisonment in default for a term not exceeding one month. An apprentice convicted of refusal to obey lawful commands, or of waste or damage to property, or of any other improper conduct, may be imprisoned for a term not exceeding one month. An apprentice absenting himself before the time of service expires may be compelled to make good the loss by longer service or pecuniary satisfaction, and if he refuses or neglects to do so may be com- mitted to gaol for a term not exceeding three months ; but the master must proceed to enforce such service or satisfaction within three years after the expiration of the term for which the apprentice contracted to serve. Persons harboring or employing an absconding ap- prentice are liable to pay the master the full value of the apprentice's labor. The apprenticeship indentures may be cancelled if the apprentice become insane, or be convicted of '}^ < , ,! .■ ) '•;! 308 CANADIAN DOMESTIC LAWYER. felony, or be sentenced to the provincial penitentiary, or abscond. The master must, within one month, give notice in writing to the other parties to the indenture of his intention to cancel the indentures, which notice must be served on the parties, or pub- lished in the gazette or in a local county or city newspaper. Masters or apprentices may appeal to the Quarter Sessions against any magistrate's decision. Apprenticeship Indenture. This Indenture, made the day of , 18 , Between William Jones, of the town of Strat- ford, in the county of Perth and Province of Canada, Esquire, of the first part, Henry Jones, his son, now of the age of fifteen years, of the second part, and Thomas Mcintosh, of the same place, printer, of the third part, Witnesseth, That the said William Jones, with the consent of his said son Henry Jones (a minor now of the age of fifteen years or thereabouts), testified by his being a party to and executing these presents, doth hereby put, place, bind, and indent him, the said Henry Jones, to the said Thomas Mcintosh, to learn the art and trade of a printer, and with him, the said Thomas Mcintosh, his execu- tors, administrators, and assigns, after the manner 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 William Jones doth hereby, for him- self, his heirs, executors, and administrators, cove- n OF MASTER AND SERVANT. 309 nant, promise, and agree to and with the said Thomas Mcintosh, his executors, administrators, and assigns, that during the said term of years the said Henry Jones shall well and faithfully serve the said Thomas Mcintosh, his secrets keep and lawful com- mands at all times obey, and shall give and devote to him his whole time and labor; that he shall not marry during said term, nor use ardent spirits, nor practise gaming or any other unlawful sports, nor waste, injure, or destroy the property of his master, but conduct himself in a sober, temperate, honest manner, and as a good and faithful apprentice ought to do, ''nring all the time aforesaid. And the said Thomas Mcintosh, for himself, his heirs, executors, and administrators, doth hereby cove- nant, promise, and agree to and with the said Wil- liam Jones, his executors and administrators, that he, the said Thomas Mcintosh, his executors and ad- ministrators, shall and will teach and instruct, or cause to be taught and instructed, the said Henry Jones in the art, trade, and mystery of a Printer, and shall and will find and provide for the said apprentice sufficient meat, drink, apparel, washing, and lodging during the said term ; and at the ex- piration thereof shall and will give his said appren- tice two suits of apparel [any other special terms may he here inserted)^ and the said Thomas Mcintosh further agrees to pay to the said William Jone.«, father of the said Hcnrj^ones, 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 > ood for «aoh m^ ^t^x^ mi^mc^^uX year. i 4 il 'J\ 810 CANADIAN DOMESTIC LAWYER. nntil the completion of his term, one hundred dollars ; which said payments are to be made on the first day of May in each year. And for the true performance of all and singular the covenants and agreements hereinbefore contained, the said parties bind- themselves each unto the other, jointly by these presents. In Witness whereof, the said parties to these pre- sents have hereunto set their hands and seals, the day and year first above written. William Jones. [l.s.] Henry Jones. [l.s.] Thomas McIntosh. [l.s.] Signed and scaled in the presence Robert Johnson. led -v )N. J Indenture of Apprenticeship for a Girl to learn Housework, etc. This Indenture, made the day of , 18 , Between Mary Flannigan, of the township of Elma, in the county of Perth, Widow, of the first part, Sarah Flannigan, her daughter, now of the age of fifteen years, of the second part, and Robert Halifax, of the same township, Farmer, of the third part, WITNESSETH that the said Sarah Flannigan, by and with tiie consent of the said Mary Flannigan licr Tnothcr, testified by her execution of these pre- sents, hath bound and put herself, and by these pre- sents doth bind and put hc^Self, .ipprcntice to the said Robert Halifax, with him to dwell and servo from the day of the date hereof until the full end of tkd tern of tU /Mrs uexi dOBuiag, fuller t> be oom* pletl Sar| Willi powj alltl OP MASTER AND SERVANT. 311 pletcd and ended ; during which term ' the said Sarah Flannigan her said master faithfully shall and will serve in all lawful business, according to her power and ability, and honestly and obediently in all things demean and behave herself toward her said master during the term aforesaid. And the said Robert Halifax shall and will teach and instruct, or cause to be taught and instructed, the said apprentice in sewing, knitting, and house- wifery, the management of the dairy, and all matters connected with the calling of a farmer, properly to be taught to her the said apprentice, together with reading, writing, and the other usual branches of a common school education; and shall and will during the said term find, provide, and allow her e'lfficient meat, drink, clothing, lodging, washing, and all other necessaries; and at the expiration of the term afore- said shall and will give unto the said apprentice two suits of apparel. Ijj Witness, &c. {Conclude as in last form), * Mary Flannigan. [l.s.] Sarah Flannigan. [l.s.] Robert Halifax. [l.s.] Signed, &c., Thomas Jones. Assignment of an Icdsnture of Apprenticeship. Know all men by these presents, that I, the within named Thomas Mcintosh, by and with the con- sent of Henry Jones, my within jjamod apprentice, and William Jones, his father (or as the coie may be\ parties to tho witkm I&dcnture, testis bj t^oir I 'M ^VU «'.:V. I",.;i < ! i\ n'J v^Mi 312 CANADIAN DOMESTIC LAWYER. signing and sealing these presents, for divers good causes and considerations have assigned and set over, and do hereby assign and set over, the within Inden- ture, and the said Henry Jones, the apprentice within named, unto Joseph Thomson, of the City of London, Canada West, Printer, his executors, administrators, or assigns, for the residue of the within mentioned term, he and they performing all and singular the covenants therein contained on my part to be kept and performed. And I, the said Henry Jones, do hereby covenant on my part, with the consent of my father, the said William Jones, faithfully to serve the said Joseph Thomson as an apprentice for the residue of the term within mentioned, and to perform toward him all and singular the covenants within mentioned on my part to be kept and performed. And I, the said Joseph Thomson, for myself, my executors, administrators, and assigns, do hereby cove- nant to perform all and singular the covenrints within mentioned on the part of the said Thomas Mcintosh to be kept and performed toward the said apprentice. Witness our hands and seals this day of ,18 . Thomas McIntosh. [l.s.] Henry Jones. [l.s.] William Jones. [l.s.] Joseph Thomson. [l.s.] Signed, sealed, &c., OF MORTGAGES. 813 {>'••!. t'J ( CHAPTER XIV. OF MOBTOAOES. A Mortgage is a contract whereby a debtor grants or conveys some estate or interest in land, or transfers certain goods and chattels, to his creditor, subject to a proviso that, if the debt is discharged by a day named, the grant or transfer shall be void, and the debtor shall be entitled to repossess himself of his lands or of his goods and chattels, and hold and enjoy them as if the grant or transfer had never been made. The debtor who makes the grant or transfer is called the Mortgagor^ and the creditor to whom it is made, the Mortgagee. By a contract of this de- scription the right of property in the thing mort- gaged passes to the creditor, subject to be divested by the payment of the debt at the appointed time. If the debt be then paid, the property revests in the mortgagor without any conveyance ; but if not paid the property, at law, becomes the absolute property of the mortgagee, and he may proceed to take pos- session of it. The Court of Chancery will, however, give the mortgagor liberty to redeem at any time within twenty years, on payment of what is due for principal and interest. When the debt is paid after the appointed day, a reconveyance becomes necessary to revest the property in the mortgagor. The ordi- Dary mortgage disoharge 6][)et&tto ae ft l^90oavej'aAC6| 17 ; i I i ! ■?Vi 'm tiA 814 CANADIAN DOMESTIC LAWYER. and is sufficient, without any more formal instrument, to restore the title to the mortgagor. It will not be expected that we should enter very deeply into the law of mortgages : the subject is much too voluminous and intricate to be discussed at large. Mortgages require to be in writing, and must be ^y deed under seal. The mode of executing a mort- gage is the same as that of any other deed ; and they require to be registered in the County Registry Office. There are several ways of enforcing payment of a mortgage. The mortgagee may bring an action at law, or he may foreclose or sell in chancery, or he may proceed to sell, without any suit or action, where the mortgage contains a power of sale. Sometimes, though rarely now, instead of takiag a mortgage deed, the creditor takes an absolute convey- ance and gives back a bond to reconvey. The Court of Chancery looks upon such a transaction in the same light as a mortgage, and, notwithstanding the money may not be paid at the time named in the bond, will order the creditor to reconvey the land on payment of principal and interest any time within twenty years. The wife should be made a party to the mortgage, in the same way as to a deed, in order to bar her dower in the lands. A mortgage may be made of a lease as well as of any other property, We have already given the form of a Chattel Mortgage : the following forms will make the list complete for all ordinary purposes. Mortgage in Fee of Beal Sstate. OF MORTGAGES. 315 in the year of our Lord one thousand eight hundred and , Between , of the first part, , wife of the said party of the first part, of the second part, and , of the third part, WITNESSETH, that the said party of the first part, for and in consideration of the sum of of lawful money of Canada, to him by the said party of the third part in hand well and truly paid (the receipt whereof is hereby acknowledged), IIatii granted, bargained, sold, aliened, released, enfeoffed, con- veyed, and confirmed, and by these presents Doth grant, bargain, sell, alien, release, enfeoff, convey, and confirm, unto the said party of the third part, heirs and assigns. All and singular th cer- tain parcel or tract of land and premises situate, lying, and being in the of , in the County of , of the Province of Canada, Leing composed of , Together with all and sin- gular the houses, out-houses, buildings, woods, ways, water-courses, easements, profits, privileges, emolu- ments, hereditaments, and appurtenances whatsoever to the said parcel or tract of land, tenements, hereditaments, and premises belonging, or in any wise appertaining, or therewith used and enjoyed, or known or taken as a part or parcel thereof, or any part thereof, and the reversion and reversions, re- mainder and remainders, rents, issues, and profits thereof, and every part and parcel thereof, and all the estate, right, title, interest, use, trust, claim, pro- perty, and demand, both at law and in equity, of him, the said party of the first part, of, in, to, or out &£ tlta . aAOAiL mi. evecy pa^t d&d paio^ thereof. To . ■;» h.i-,y I': i 'S; 816 CANADIAN DOMESTIC LAWYER. HAVE AND TO HOLD the Said lands, tenements, here- ditaments, and premises, and all and singular other the premises hereby conveyed or mentioned, or in tended so to be, with their and every of their appur tenances, unto the said party of the third part, heirs and assigns, to the sole and only use of the said party of the third part, heirs and assigns, forever. Subject nevertheless to the reservations, limitations, provisoes, and conditions expressed in the original grant thereof from the Crown ; And this Indenture FURTHER WITNESSETH, that the Said party of the second part, with the privity and consent of her said husband, testified by his execution hereof, in con- sideration of the premises, and also in consideration of the further sum of five shillings, of lawful money of Canada aforesaid, to her by the said party of the third part in hand well and truly paid (the receipt whereof is hereby acknowledged), hath remised, re- leased, and forever relinquished and quitted claim, and by these presents doth remise, release, and for- ever relinquish and quit claim, unto the said party of the third part, heirs, executors, administrators, and assigns, all dower, and all right and title thereto, which she, the said party of the second part, now hath, or, in the event of surviving her said husband, can or may or could or might hereafter in any wise have or claim, whether at common law or otherwise howsoever, of, in, to, or out of the lands, tenements, hereditaments, and premises hereby conveyed, or hereinbefore mentioned or intended so to be con- veyed, with the appurtenances, or of, in. to, or out of tho Borne, or an^ part thereof: P&ovidi^d always, OP MORTGAGES. 817 and these presents arc upon this express condition, that if the said party of the first part, his heirs, exe- cutors, or administrators, or any of them, do and shall well and truly pay, or cause to bo paid, unto the said party of the third part, executors, admi- nistrators, or assigns, the just and full sum of , of lawful money of Canada, with interest thereon at the rate of per cent, per annum, on the day and time and in manner following, that is to say : without any deduction or abatement out of the same for or in respect of any taxes, rates, levies, charges, rents, assessments, statute-labor, or other impositions whatsoever, already rated, charged, assessed, or im- posed, or hereafter to be rated, charged, assessed, or imposed, by authority of Parliament or otherwise howsoever, on the said lands, tenements, heredita- ments, and premises, with their appurtenances, or on the said party of the third part, in respect of said premises or of said money, or for or in respect of any other matter or thing whatsoever; and, more- over, until default shall happen to be made of or in the payment of the said sum of money in this proviso mentioned, or of or in the interest thereof, do and shall well and truly pay, do, and perform, or cause or procure to be paid, done, and performed, all the taxes, rates, levies, charges, rents, assessments, sta- tute-labor, and other impositions aforesaid ; Thex, from and immediately after such payment, so made as aforesaid, and the observance, performance, and fulfilment of all tiA every of the provisions, agree- ments, and stipulatiois in this proviso particularly set forth, these presbL^ts. and every clause, covenant, 37* li 818 CANADIAN DOMESTIC LAWYER. matter, and thing herein contained, shall be abso- lutely null and void to all intents and purposes what- soever, as if the same had never been made : And the said party of the first part doth hereby, for him- self, his heirs, executors, and administrators. Cove- nant, Promise, and Agree to and with the said party of the third part, heirs and assigns, in manner following, that is to say : That he, the said party of the first part, his heirs, executors, or administrators, or some or one of them, shall and will well and truly pay, or cause to be paid, unto the said party of the third part, heirs, executors, adminis- trators, or assigns, the said sum of money in the above proviso mentioned, with interest for the same as aforesaid, at the day and time and in manner above limited for payment thereof, and shall and will in every thing well, faithfully, and truly do, observe, perform, fulfil, and keep all and singular the pro- visions, agreements, and stipulations in the said above proviso particularly set ^ rth, according to the true intent and meaning of these presents and of the said above proviso : And also, that he, the said party of the first part, at the time of the ensealing and de- livery hereof, is and stands solely, rightfully, and lawfully seised of a good, sure, perfect, absolute, and indefeasible estate of inheritance, in fee simple, of and in the lands, tenements, hereditaments, and all and singular other the premises hereinbefore de- scribed, with their and every of their appurtenances, and of and in every part and parcel thereof, without any manner of trust, reservations, limitations, pro- visoes, or conditions, or any other matter or thing, to OF MORTGAGES. 819 alter, charge, change, encumber, or defeat the same : And also, that he, the said party of the first part, now hath in himself good right, full power, and lawful and absolute authority, to alien, convey, and dispose of the said lands, tenements, hereditaments, and pre- mises, and every part and parcel thereof, with the appurtenances, unto the said party of the third part, heirs and assigns, in manner and form afore- said: And also, that from and after default shall happen to be made of or in the payment of the said sum of money in the said above proviso mentioned, or the interest thereof, or any part thereof, or of or in the doing, observing, performing, fulfilling, or keeping some one or more of the provisions, agree- ments, or stipulations in the said above proviso par- ticularly set forth, contrary to the true intent and meaning of these presents and of the said proviso, then and in every such case it shall and may be law- ful to and for the said party of the third part, heirs and assigns, peaceably and quietly to enter into, have, hold, use, occupy, possess, and enjoy the aforesaid lands, tenements, hereditaments, and pre- mises hereby conveyed, or intended so to be, with the appurtenances, without the let, suit, hindrance, interruption, or denial of him, the said party of the first part, his heirs or assigns, or any other person or persons whomsoever, and that free and clear, and freely and clearly acquitted, exonerated, and dis- charged of and from all arrears of taxes and assess- ments whatsoever, due or payable upon or in respect of the said lands, tenements, hereditaments, and pre- mises, Or any part thereof, and of and from all former ■\.:h 'IJ n 'n •. ^ 320 CANADIAN DOMESTIC LAWYER. 3% Ml h*'^ conveyances, mortgages, rights, annuities, debts, judgments, executions, and recognizances, and of and from all manner of other charges or incumbrances whatsoever : And also, that from and after default shall happen to be made of or in the payment of the said sum of money in the said proviso mentioned, or the interest thereof, or any part thereof, or of or in the doing, observing, performing, fulfilling, or keep- ing some one or more of the provisions, agreements, or stipulations in the said proviso particularly set forth, contrary to the true intent and meaning of these presents and of the said proviso, he, the said party of the first part, his heirs and assigns, and all and every other person or persons whomsoever having or law- fully claiming, or who shall or may have or lawfully claim, any estate, right, title, interest, or trust of, in, to, or out of the lands, tenements, hereditaments, or premises hereby conveyed, as aforesaid, or intended so to be, with their appurtenances, or any part there- of, by, from, under, or in trust for him, the said party of the first part, shall and will from time to time and at all times thereafter, at the proper costs and charges in the law of the said party of the third part, heirs and assigns, make, do, suff'er, and execute, or cause or procure to be made, done, suffered, and exe- cuted, all and every such further and other reason- able act and acts, deed and deeds, devices, convey- ances, and assurances in the law, for the further, better, and more perfectly and absolutely conveying and assuring of the said lands, tenements, heredita- ments, and premises, with the appurtenances, unto the said party of the third part, heirs and assigns, OF MORTGAGES. 321 as by the said party of the third part, heirs and assigns, or , or their counsel learned in the law, shall be lawfully and reasonably deviso'l, advised, or required: And lastly, it is hereby declared and agreed, by and between the said parties to these pre- sents, that until default shall happen to be made of or in the payment of the said sum of money in the above proviso mentioned, or of or in the interest thereof, or of or in the doing, observing, performing, fulfilling, or keeping some one or more of the pro- visions, agreements, or stipulations in the said above proviso particularly set forth, contrary to the true intent and meaning of the said above proviso, it shall and may be lawful to and for the said party of the first part, his heirs and assigns, peaceably and quietly to have, hold, use,occupy, possess, and enjoy the said lands, tenements, hereditaments, and premises, and every part thereof, with the appurtenances above mentioned to be hereby conveyed, as aforesaid, and receive and take the rents, issues, and profits thereof, to his and their own use and benefit, without the let, suit, hindrance, inter- ruption, or denial of or by the said party of the third part, heirs, executors, administrators, or assigns, or of or by any other person or persons whomsoever law- fully claiming, or who shall or may lawfully claim, by, fr^m, or under , thtm, or any or either of them. In Witness whereof, the parties to these presents liave hereunto set their hands and affixed their seals, the day and year first above written. Signed, sealed, and delivered 1 in the presence of . J i ■ii 1 ■>!: 1|< ^^t i B: f 1 -""^ 1 1 I i| 822 CANADIAN DOMESTIC LAWYER. Received, on the day of the date of this Inden- ture, the sum of , of lawful money of Canada, being the full consideration therein mentioned. Mortgage in Pee. SHORTER FORM. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, , wife of the said party of the first part, of the second part, and , of the third part, Witnesseth, that the said party of the first part, in consideration of the sum of , of lawful money of Canada, to him hy the said part of the third part in hand 13aid at or before the sealing and delivery of these presents (the receipt whereof is hereby acknow]edged), Doth grant, bargain, sell, release, convey, and con- firm unto the said part of the third part, heirs and assigns. All and singular th certain parce or tract of land and premises situate, lying, and being Together with the appurtenances, and the rever- sion and reversions, remainder and remainders, rents, issue's, and profits thereof, and all the estate, right, title, interest, use, trust, claim, property, and demand, both at law and in equity, of him, the said party of the first part, of, in, to, or out of the me. To HAVE AND TO HOLD the Said lands, tenements, hereditaments, and premises, and all and singular other the premises hereby conveyed, or intended so to be, with the appurtenances, unto the said part r''^^ OP MORTGAGES. 323 of the' third part, heirs and assigns, to the sole and only use of the said part of the third part, heirs and assigns, forever. Subject to the reserva- tions, limitations, provisoes, and conditions expressed in the original grant thereof from the Crown. AND THIS Indenture further witnesseth, that the said party of the second part, wife of the said party of the first part, with the privity and consent of her said husband, testified by his being a party to and executing these presents, in consideration of the premises and of the sum of five shillings to her paid by the said part of the third part, the receipt whereof is hereby acknow- ledged, Doth hereby remise, release, and forever relin- quish and quit claim unto the said part of the third part, heirs, executors, administrators, and assigns, all dower and all right and title thereto which she, the said party of the second part, now hath or in the event of surviving her said husband can or may hereafter have or claim, whether at common law or otherwise, of, in, to, or out of the said lands, tenements, heredita- ments, and premises, or any part thereof. Provided always, and these presents are upon thi? express condition, that if the said party of the first part, his heirs, executors, administrators, or as- signs, or some or one of them, do and shall well and truly pay, or cause to be paid, unto the ^ aid part of the third part, executors, administrators, or assigns, the said sum of , with interest there- on, at per cent, per annum, at the times and in manner following, that is to say : without making any deduction, defalcation, or abatement thereout in respect of any taxes, assessments, or 324 CANADIAN DOMESTIC LAWYER. otherwise, now or hereafter to be assessed or imposed on the said lands, tenements, hereditaments, and pre- mises, or any part thereof, by authority of Parlia- ment or otherwise howsoever, then and from thence- forth this Indenture, and every clause, matter, and thing herein contained, shall absolutely cease, deter- mine, and be void to all intents and purposes what- soever, as if the same had never been made. And the said party of the first part doth hereby, for himself, his heirs, executors, administrators, and assigns. Covenant, Promise, and Agree to and with the said part of the third part, heirs and assigns ; That he, the said party of the first part, his heirs, executors, administrators, or assigns, or some or one of them, shall and will well and truly pay, or cause to be paid, npto the said part of the third part, executors, administrators, or assigns, the said prin- cipal sum and interest in the above proviso men- tionrl, on the days and times and in manner above limited for payment thereof, according to the true intent and meaning of these presents. And also, that ho, the said party of the first part, at the time of the sealing and delivery of these pre- sents, is lawfully seised in fee of the said lands, tenements, hereditaments, and premises, without any manner of use, trust, reservation, limitation, or con- dition, to alter, change, charge, incumber, or defeat the same. And also, that ho, the said party of the first part, now has in himself good right, full power, and lawful and absolute authority to convey and assure the said F 1! OP MORTGAGES. 325 m premises hereby conveyed, or intended so to be, unto the said part of the third part, heirs and as- signs, in manner aforesaid, and according to the true intent and meaning of these presents. And also, that from and ^fter default shall happen to be made in payment of the said principal sum, or the interest thereof, in the above proviso mentioned, it shall and may be lawful for the said part of the third part, heirs and assigns, peaceably and quietly TO have, hold, use, occupy, possess, and ENJOY the said lands, tenements, hereditaments, and premises, without the let, suit, hindrance, interruption, or denial of the said party of the first part, his heirs or assigns, or any other person or persons whom- soever, and that free and clear of and from all in- cumbrances whatsoever. And also, that from and after such default as aforesaid, he, the said party of the first part, his heirs and assigns, and all other persons having or lawfully claiming any estai right, title, or interest in the said lands, tenements, hereditaments, and pre- mises, hereby conveyed, or intended so to be, by, from, under, or in trust for the said party of the first part, shall and will, from time to time, and at all times hereafter, at the costs and charges of the said part of the third part, heirs or assigns, make, do, and execute, or cause and procure to be made, done, and executed, all such further and other lawful and reasonable conveyances and assurances in the law of the said premises as by the said pait of the thiri part, heirs or assigns, or , their counsel in the law, shall be reasonably devised, advised, and required. 88 "'\- I'n 826 CANADIAN DOMESTIC LAWYER. Provided always, and it is hereby declared and agreed, that until default shall be made in payment of the said sum and interest on 'the days and times in the above proviso limited and appointed for the payment thereof, it shall be lawful for the said party of the first part, his heirs and assigns, peaceably and quietly TO hold and enjoy the said premises, and to receive and take the rents and profits thereof to his and their own use and benefit, without the let, suit, hindrance, or interruption of the said part of the third part, or any person or persons claiming, or to claim, by, from, ' r under In Witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered ) in the presence of . J Mortgage, in Fee, with Insuraice Oovenant. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, , wife of the said party of the first part, of the second part, and , of the third part, WITNESSETH, that in consideration of the sum of , of lawful money of Canada, to the said party of the first part paid by the said part of the third part, the receipt whereof is hereby acknowledged, He, the said party of the first part, DoTH grant bargain, sell, release, convey, and confirm, unto th9 said part of the third part, heirs and assigns, All th certain parcel or tract of land and pre- OF MORTGAGES. 32T mises situate, lying, and being in the , Together with the appurtenances, and all reversions, remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, use, trust, property, possession, claim, and demand of the said party of the first part therein or thereto. To HAVE AND TO HOLD the Same, with the appurte- nances, unto the said part of the third part, heirs and assigns, to the sole and only use of the said part of the third part, heirs and assigns, for- ever; Subject, nevertheless, to the reservations, limit- ations, provisoes, and conditions expressed in the original grant thereof from the Crown. And this Indenture further witnesseth, that the said party of the second part, with the privity and consent of her said husband, testified by his being a party to these presents, in consideration of the premises and of the sum of five shillings to her by the said part of the third part paid, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, DoTH remise, release, and forever relinquish and quit claim unto the said part of the third part, heirs, executors, administrators, and assigns, all Dower, and all right and title thereto, which she, the said party of the second part, now hath, or in the event of sur- viving her said husband can or may hereafter have or claim, at common law or otherwise howsoever, in, tu, or out of the said lands and premises hereby conveyed, or any part thereof. Provided always, that if the said party of the 'i! 'ii,i ^ hi 15. '11; 323 CANADIAN DOMESTIC LAWYER. : ! first part, his heirs, executors, or administrators, do and shall pay unto the said part of the third part, executors, administrators, or assigns, the full sum of , with interest for the same at per cent, per annum, at the times and in manner following, that is to say, , without any deduction or abatement whatsoever, then these pre- sents shall cease and be absolutely void to all in- tents and purposes whatsoever as if the same had never been executed. And the said party of the first part doth hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said part of the third part, executors,, administra- tors, and assigns. That he, the said party of the first part, his heirs, executors, or administrators, or some or one of them, will well and truly pay, or cause to be paid, unto the said part of the third part, executors, administrators, and assigns, the said principal money and interest, at the times and in manner hereinbefore appointed for payment thereof, without any deduction or abatement what- soever, and according to the true intent and. mean- ing of these presents. And that the said party of the first part now hath in himself good right to convey the said premises unto the said part of the third part in manner aforesaid and according to the true intent and mean- ing of these presents. And that it shall be lawful for the said part of the third part, heirs and assigns, after default in payment of the said principal money and interest, OF MORTaAGES. 829 peaceably and quietly to enter into and upon and to hold and enjoy the said premises, without any in- terruption or disturbance by the said party of the first part or any other person whomsoever, free from all incumbrances. And that the said party of the first part and his heirs, and all persons having or lawfully claiming any estate or interest in the said premises, will at all times hereafter, upon every reasonable request, and at the costs and charges of the said part of the third part, heirs, executors, administrators, or as- signs, make, do, execute, and perfect such further assurances for more effectually conveying the said premises unto the said part of the third part, heirs and assigns, in manner aforesaid, as by the said part of the third part, heirs, executors, admi- nistrators, or assigns, shall be required. Provided always, that until default shall be made in payment of the said principal money and interest as hereinbefore provided, it shall be lawful for the said party of the first part, his heirs and assigns, to hold, occupy, and enjoy, and receive and take the rents and profits of, the said lands and pre- mises, without any molestation, hindrance, or disturb- ance of , the said part of the third part, heirs or assigns, or any person claiming under or them. And the said party of the first part doth hereby, for himself, his heirs, executors, and administrators, lastly covenant, promise, and agree with and to the said part of the third part, heirs, executors, administrators, and assigns, that he will forthwith 28* i I f', •:i )'■ 1 !• m m' >iiv ■■X ?■ ':' i ii J 330 CANADIAN DOMESTIC LAWYER. insure, and during the continuance of this security keep insured, the said messuages and erections on the said land and premises hereby conveyed, in the sum of at the least, in some respectable insurance oflSce, to be approved of by the said part of the third part, in the names of the said parties of the first and third parts respectively, and from time to time pay the premiums for keeping the said policy on foot as the same shall become due, and produce the receipts therefor when required by the said part of the third part, and in case of fire shall and will forthwith rebuild the said messuages and premises and apply the money to be received from such insu- rance office therefor or apply the same in payment of the principal money and interest hereby secured, so far as the same will extend; and that in case the said party of the first part shall omit or neglect to effect or keep on foot such insurance, it shall be lawful for the said part of the third part so to do, and that the sums paid for such purpose shall form a lien on the premises hereby conveyed, and carry interest at the rate of six per cent, per annum, from the times of such advancement until repay- ment, and that the said premises shall not be re- deemed or redeemable until repayment thereof. In Witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered 1 in the presence of • / OF MOHTGAGES. 331 f '^ U\ Memorial to Mortgage in Fee. A Memorial (to be registered pursuant to the Act of Parliament in that behalf) of an Indenture of Bargain and Sale, by way of Mortgage, bearing date the day of , in the year of our Lord one thousand eight hundred and , and made Between , of the first part. wife of the said party of the first part, of the second part, and , of the third part. Whereby it is Witnessed, that the said party of the first part, for and in consideration of , of lawful money of Canada (the receipt whereof is thereby acknowledged), granted, bargained, sold, aliened, released, transferred, conveyed, assured, and confirmed, unto the said parties of the third part, their heirs and assigns. All th certain parcel or ^ tract op land and premises situate, lying, and being, Together with all and singular the tenements, hereditaments, and appurtenances thereto in any wise belonging : to hold to the said part of the third part, heirs and assigns, to the use of the said part of the third part, heirs and assigns, forever, subject to the reservations, limitations, pro- visoes, and conditions expressed in the original grant thereof from the Crown. And the said party of the second part, in con- sideration of five shillings to her paid by the said part of the third part, hath remised, released, and forever relinquished her Dower in the said premises unto the said part of the third part, heirs, executors, administrators, and assigns. Subject, . ■I i:.i:, 832 CANADIAN DOMESTIC LAWYER. NEVERTHELESS, to a proviso therein contained, that the said Indenture shall be void on payment by the said party of the first part, heirs, executors, or administrators, to the said part of the third part, executors, administrators, or assigns, of the sum of , of lawful money of Canada, with interest thereon at per cent., on the days and times and in manner following, that is to say Which said Indenture, as to the execution thereof by the said , is witnessed by . And this Memorial thereof is hereby required to be regis- tered by me, the said party of the part therein mentioned. As Witness my hand and seal, this day of ,18 . Signed and sealed in the "1 presence of . / County of TO wit: , in the within memorial named, maketh oath that he was present and saw the said grantor duly execute the deed to which the within memorial relates: Also (together with another subscribing witness) saw duly execute the said memorial ; and that he, Deponent, is a subscribing witness to said Deed and Memorial, and that both the said instruments were executed at Sworn before me, at , ) ' this day of , a.d. 18 • / Commissioner for taking Affidavits^ ^c. OP MORTGAGES. 383 Mortgage in Fee, with Power of Sale. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, , wife of the said party of the first part, of the second part, and , of the third part : WITNESSETH, that in consideration of the sum of , of lawful money of Canada, to the said party of the first part this day lent, advanced, and paid by the said party of the third part, the receipt whereof the said party of the first part do hereby acknowledge, and of and from the same do hereby release the said part} of the third part, heirs, executors, administrators, and assigns, , the said party of the first part, Ha granted, bargained, sold, aliened, released, transferred, conveyed, assured, and con- firmed, and by these presents Do grant, bargain, sell, alien, release, transfer, convey, assure, and con- firm, unto the said party of the third part, and to heirs and assigns. All th certain parcel or tract of land and premises situate in the , being composed of , Together with all houses, edifices, buildings, yards, gardens, orchards, ways,* waters, water-courses, trees, woods, fences, liberties, privileges, and appurtenances whatsoever, to the said lands, hereditaments, and premises belonging, or in any wise appertaining: And all remainders, rever- sions, yearly and other rents, issues and profits, of and in the same lands, hereditaments, and premises, and all the estate, right, title, use, trust, property, posdCSsioQ) daim, a&d demand whatsoever, of the said r\ i h fitf ' .J" i! 384 CANADIAN DOMESTIC LAWYER. party of the first part, of, in, or to the same lands hereditaments, and premises : To have and to hold the said lands, tenements, and all and singular other the p**omises hereby granted, sold, and released, or intended so to be, with the appurtenances, unto and to the use of the said party of the third part, heirs and assigns, forever. Subject, nevertheless, to the reservations, limitations, provisoes, and con- ditions expressed in the original grant thereof from the v-rown. And this Indenture further wit- neseeth, that the said party of the second part, with the privity and full approbation and consent of her said husband, testified by his being a party to these presents, in consideration of the premises, and also in consideration of the further sum of five shillings, of lawful money of the Province of Canada aforesaid, to her '>7 the said party of the third part in hand well and truly paid at or before the sealing and delivery of these presents (the receipt whereof is hereby ac- knowledged), hath remised, released, and forever re- linquished and quitted claim, and by these presents doth remise, release, and forever relinquish and quit claim, unto the said party of the third part, heirs, executors, administrators, and assigns, all dower, and all right and title thereto, which she, the said party of the second part, now hath, or in the event of her surviving her said husband can or may or could or might hereafter in any wise have or claim, whether at common law or otherwise howsoever, of, in, to, out of the lands, tenements, hereditaments, and )\' premieres hereby conveyed or hereinbefore mentioned ^r iAU4uii4.i^.< l>6i MBW^dd, wUli Um jippvti«oaa6M, . m OF MORTGAGES. 385 or of, in, to, or out of any part thereof: Provided ALWAYS, that if the said party of the first part, heirs, executors, or administrators, do and shall pay unto the said party of the third part, executors, administrators, or assigns, the full sum of , with interest for the same, in manner and at the times fol- lowing, that is to say, , without any default or abatement whatsoever, then these presents shall cease and be void, to all intents and purposes what- soever; And the said party of the first part doth hereby, for heirs, executors, and administrators, covenant, promise, and agree to and with the said party of the third part, executors, administrators, and assigns, that , the said party of the first part, heirs, executors, or administrators, some or one of them, shall and will well and truly pay or cause to be paid tinto the said party of the third part, executors, administrators, and assigns, the said prin- cipal sum of and interest, at the times and in manner hereinbefore appointed for payment thereof, without any deduction or abatement whatsoever, ac- cording to the true intent and meaning of these presents : And also, that the said party of the first part now ha in good right to grant, bargain, sell, and convey the said lands, hereditaments, and premises, unto the said party of the third part, heirs and assigns, according to the true intent and meaning of these presents: And further, that it shall and may be lawful to and for the said party of the third part, heirs and assigns, after default shall be made in payment of the said sum of and "*^li ^1 ; r 4 1 0- i .1 « I 336 CANADIAN DOMESTIC LAWYER. tained, peaceably to enter into and upon said lands, hereditaments, and premises, and to hold and enjoy the same, without any interruption or denial by the said party of the first part, or any other person whomsoever: And that free and clear of and from all estates, titles, troubles, liens, charges, and incum- brances whatsoever: And moreover, that , the said party of the first part, and heirs, and all persons whomsoever claiming any estate or interest in the premises, shall and will, at all times hereafter, during the continuance of the said sum of or any part thereof, on this security, upon every reason- able request of the said party of the third part, heirs, executors, administrators, or assigns, but at the costs and charges of the said party of the third part, heirs, executors, and administrators, make, exe- cute, and perfect all such further conveyances and assurances in the law whatsoever, for the further, better, or more perfectly granting, conveying, or otherwise assuring the said lands, hereditaments, and premises, unto and to the use of the said party of the third part, heirs and assigns, subject to the pro- viso aforesaid, or the equity thereof, and for the ends, intents, and purposes herein expressed, of and concerning the same, according to the true intent and meaning of these presents, as by the said party of the third part, heirs, executors, administrators, or assigns, or any of their counsel learned in the law, ghall be reasonably devised and required and tendered to be made: And it is further declared and agreed by and between the parties to these presents, that if ^be fiftid party of the first part^ * OF MORTGAGES. 837 heirs, executors, or administrators, shall not pay to the said party of the third part, executors, admi- nistrators, or assigns, the said sum of , and interest, or any part thereof, according to the true intent and meaning of the proviso hereinbefore in that behalf contained, and the said party of the third part, executors, administrators, and assigns, shall, after the time limited for such payment of principal or interest has expired, have given to the said party of the first part, heirs, executors, or adminis- trators, or have left for or them, at , or their last or most usual place of abode, in this Province, notice in writing, demanding payment of the said principal money or interest, and calen- dar months shall have elapsed from the delivery or leaving of such notice, without such payment of principal or interest having been made (of which latter default in payment, as also of the continuance of the said principal money and interest, or some part thereof, on this security the production of these presents shall be conclusive evidence), it shall and may be lawful to and for the said party of the third part, heirs, executors, administrators, and assigns, without any further consent or concurrence of the said party of the first part, heirs and assigns, to enter into possession of the said lands, hereditaments, and premises, and to receive and take the rents and profits thereof, and, whether in or out of possession of the same, to make any lease or leases thereof as shall think fit, and also to sell and absolutely dispose of the said lands, hereditaments, ^xvi pcQnuse0». witb the appurtonaaoea^ either b^ 'mM' . 4 :ll 338 CANADIAN DOMESTIC LAWYER. 1 public auction or private sale, and in such way and manner as to shall seem meet, and to convey and assure the same, when so sold, unto the pur- chaser or purchasers thereof, his, her, and their heirs and assigns, or as he, she, or they shall direct and appoict: And it is h.^tieby declared and AGREED, that the said party o.' the third part, heirs, executors, administrators, and assigns, shall stand seised and be prssessed of the said lands, tene- ments, and hereditaments, and of the rents - id profits thertof, until sale, and, after sale, of the proceeds therefrom arising, upon trust in the first place, to deduct thereout all expenses which may be necessarily incurred in and attending the execution of the trusts and powers hereby created, together with interest for the same, and after payment thereof do and shall retain and pay unto and for themselves or the said principal sum of , or so much thereof as shull then remain unsatisfied, and all interest then due, and in arrear, in respect thereof, and arter such j,ayment in trust, to pay or transfer the surplus (if any) of the said rents and profits, or proceeds of the said sale, unto the said party of the first part, exe- cutors, administrators, or assigns, and also to recon- vey and assure such part of the said lands, heredita- ments, and premises as shall remain umold, for any of the purposes aforesaid, unto the said purty of tlio first part, heirs and assigns, or as or they t-huli direct or appoint: An© it is hereby further de- clared AND ag.re£iD, that tiiB receipts of the £aid piirty of iUe third par^ iieiie, 'CoOMutCfrfi, admi- dis be^ OP MORTGAGES. 33& discharges for all moneys therein expressed to have been leceived, and that the person or persons paying any moneys or taking such receipt shall not afterwards be required to see to the application thereof, nor be answerable or accountable for tho misapplication or non-application of the same: And the said party of '.he third part doth hereby, for heirs, executors, and administrators, covenant, pro- mise, and agree to and with the said party of the first part, heirs a id assigns, that no sale or notice of sale of the said lands, hereditaments, and premises shall be made or given, or any lease made, or any means taken for obtaining possession thereof, by che said party of the third part, until such time as calendar months' notice, in writing, as aforesaid, shall have been given to the said party of the first part, heirs, executors, administrators, or assigns, or have been left at last or most usual place of abode, in this Province, demanding payment of the principal and interest moneys which at tho end of that time shall be due, and the said party oF the first part, executors, administrators, and assigns, shall have made default in payment of the f^r.me at that time: And also, that , the f-aid p:!rty of the third part, heirs and assigns, shall and will, at tlic exp'^nsc of the said party of tho fir-t part, ]v i<- , ex cntors, administrators, and assign-, at ;.i!y lim • before such sale or sales shall take place, on p ym. nt or tender by the said party of the firtt part, heir. , executors, or administrators, of tho said principal sum of and interest, which, at the time of .^ujh teniler, shall bo due and owing upon or b^ vktue of .!:i is 840 CANADIAN DOMESTIC LAWYER. ■i ! this security, with all costs as aforesaid, reconvey and reassure the said lands, hereditaments, and premises, or such parts thereof as shall then remain unsold, with the appurtenances, unto the said party of the first part, heirs or assigns, or as or they shall direct or appoint, free from all incumbrances, to be made or done by the said party of the third part, heirs, executors, administrators, or assigns, in the mean time: Provided always, that until default shall be made in payment of the said sum of and interest, after notice in writing, demanding payment of the same, as hereinbefore provided, it shall be lawful for the said party of the first part, heirs and assigns, to hold, occupy, and enjoy the said lands, hereditaments, and premises, with the appurtenances, without any molestation, hindrance, interruption, or denial of, from, or by the said party of t' e third part, heirs, executor 3, administrators, or asf^^igns, or any person claiming by, from, through, under, or in tiust for , them, or either of them : Provided lastly, that , the said party of the third part, heirs, executors, administrators, and assigns, shall not be answerable or accountable for any more moneys than or they shall actually receive by virtue of these presents, nor for any mis- fortune, loss, or damage which may happen to the said estate and premises in the execution of the trusts aforesaid, save and except the same shall happen by or through or their own wilful neg- lect or default. In Witness whereof, the parties to these presents OF MORTGAGES. 841 have Iiereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered 1 in the presence of . / ^^ Received, on the day of the date of this Inden- ture, the sum of , of lawful money of Canada, being the full consideration therein mentioned. Witness M 1 ' Mortgage, with Power of Sale and Insnranoe Olanse. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the first part, , wife of the said party of the first part, of the second part, and , of the third part: WITNESSETH, that in consideration of the sum of , of lawful money of Canada, to the said party of the first part this day lent, advanced, and paid by the said party of the third part, the receipt whereof the said party of the first part do hereby acknow- ledge, and of and from the same do hereby release the said party of the third part, heirs, executors, administrators, and assigns, , the said party of the first part. Ha granted, bargained, sold, aliened, re- leased, transferred, conveyed, assured, and confirmed, and by these presents Do grant, bargain, sell, alien, release, transfer, convey, assure, and confirm, unto the said party of the third part, and to heirs and assigns, all th certain parcel or tract of land and premises, situate in the 29* being composed of V, ■111 i k'i 842 CANADIAN DOMESTIC LAWYER. , Together with all houses, edifices, build- ings, yards, gardens, orchards, ways, waters, water- courses, trees, woods, fences, liberties, privileges, and appurtenances whatsoever, to the said lands, heredita- ments, and premises belonging, or in any wise apper- taining: And all remainders, reversions, yearly and other rents, issues, and profits, of and in the same lands, hereditaments, and premises, and all the estate, right, title, use, trust, property, possession, claim, and demand whatsoever, of the said party of the first part, of, in, or to the same lands, hereditaments, and premises : To have and to hold the said lands, tenements, and all and singular other the premises hereby granted, sold, and released, or intended so to be, with the appurtenances, unto and to the use of the said party of the third part, heirs and assigns, forever : Subject, nevertheless, to the reserva- tions, limitations, provisoes, and conditions expressed in the original grant thereof from the Crown: And THIS Indenture further witnesseth, that the said party of the second part, with the privity and full approbation and consent of her said husband, testi- fied by his being a party to these presents, in con- sideration of the premises and also in consideration of the further sum of five shillings, of lawful money of the Province of Canada aforesaid, to her by the said party of the third part in hand well and truly paid at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), hath remised, released, and forever relinquished and quitted claim, and by these presents doth remise, re- lease, and forever relinquish and quit claim, unto f'-ff. OF MORiaAQES. 843 the said party of the third part, heirs, executors, administrators, and assigns, all dower, and all right and title thereto, which she, the said party of the second part, now hath, or in the event of surviving her said hushand can, or may, or could, or might hereafter in any wise have or claim, whether at com- mon law or otherwise, howsoever, of, in, to, or out of the lands, tenements, hereditaments, and premises hereby conveyed or hereinbefore mentioned or in- tended so to be conveyed, with the appurtenances, or of, in, to, or out of any part thereof: Provided : > WAYS, that, if the said party of the first part, heirs, executors, or administrators, do and shall pliy unto the said party of the third part, executors, administrators, or assigns, the full sum of , with interest for the same, in manner and at the times following, that is to say, , without any default or abatement whatsoever, then these pre- sents shall cease and be void to all intents and pur- poses whatsoever: And the said party of the first part doth hereby, for heirs, executors, and ad- min '"trators, covenant, promise, and agree to and with the said party of the third part, executors, ad- ministrators, and assigns, that , the said party of the first part, heirs, executors, or administra- tors, some or one of them, shall and will well and truly pay, or cause to be paid, unto the said party of the third part, executors, administrators, and as- signs, the said principal sum of , and interest, at the time and in manner hereinbefore appointed for payment thereof, without any deduction or abate- ment whatsoever, according to the true intent and I i> I ': 344 CANADIAN DOMESTIC LAWYER. ■ i meaning of these presents: And also, that he, the said party of the first part, his heirs, executors, administrators, or assigns, or some or one of them, shall and will from time to time during the continu- ance of the said sum of money and interest, or any p^rt thereof, on this security, insure and continue to be insured upon the buildings now standing, or here- after to be erected, upon the said premises, or upon such of them as are specified in and by a certain schedule to these presents prefixed, the sum of money in and by the said schedule particularly stated and set forth, and shall and will moreover in all things well and truly perform, fulfil, and keep all and singular other the covenants, agreements, and stipu- lations in the said schedule contained, according to the true intent and meaning of the said schedul^ and of these presents. And also, that the said party of the first part now ha in good right to grant, bargain, sell, and convey the said lands, heredita- ments, and premises unto the said party of the third part, heirs and assigns, according to the true intent and meaning of these presents : And fur- ther, that it shall and may be lawful to and for the said party of the third part, heirs and assigns, after default shall be made in payment of the said sum of , and interest, contrary to the proviso hereinbefore contained, peaceably to enter into and upon the said lands, hereditaments, and premises, and to hold and enjoy the same, without any in- terruption or denial by the said party of the first part, or any other person whomsoever: And that free and clear of and from all estates, titles, troubles, OF MORTGAGES. 345 liens, charges, and incumbrances whatsoever: And MOREOVER, that , the said party of the first part, and heirs, and all persons whomsoever, claiming any estate or interest in the premises, shall and will, at all times hereafter, during the continuance of tno said sum of , or any part thereof, on this secu- rity, upon every reasonable request of the said party of the third part, heirs, executors, administra- tors, or assigns, but at the costs and charges of the said party of the third part, heirs, executors, and administrators, make, execute, and perfect all such further conveyances and assurances in the law, whatsoever, for the further, better, or more perfectly granting, conveying, or otherwise assuring the said lands, hereditaments, and premises unto and to the use of the said party of the third part, heirs and assigns, subject to the proviso aforesaid, or the equity thereof, and for the ends, intents, and purposes herein expressed of and concerning the same, ac- cording to the true intent and meaning of these presents, as by the said party of the third part, heirs, executors, administrators, or assigns, or any of their counsel learned in the law, shall be reasonably devised and required, and tendered to be made : And it is further declared and agreed by and between the parties* to these presents that if the said party of the first part, heirs, exe-i- cutors, or administrators, shall not pay to the saiu party of the third part, executors, administra- tors, or assigns, the said sum of , and interest, according to the true intent and meaning of the proviso hereinbefore in that behalf contained, - > i '". ■•t 'I \ 346 CANADIAN DOMESTIC LAWYER. ; and the said party of the third part, executors, administrators, and assigns, shall, after the time limited for such payment has expired, have given to the said party of the first part, heirs, executors, or administrators, or have left for , or them, at , or their last or most usual place of abode, in this Province, notice in writing, demanding pay- meAt of the said principal money and interest, and calendar months shall have elapsed from the delivery or leaving of such notice, without such payment having been made (of which latter default in payment, as also of the continuance of the said principal money and interest, or some part thereof, on this security, the production of these presents shall be conclusive evidence), it shall and may bo lawful to and for the said party of the third part, heirs and assigns, without any further consent or concurrence of the said party of the first part, heirs and assigns, to enter into possession of the said lands, hereditaments, and premises, and to receive and take the rents and" profits thereof, and whether in or out of possession of the same, to make any lease or leases thereof as shall think fit, and also to sell and absolutely dispose of the said lands, hereditaments, and premises, with the appurtenances, in such way and manner as to shall seem meet, and to convey and assu^-e the same, when so sold, unto the purchaser or purchasers thereof, his, her, and their heirs and assigns, or as he, she, or they shall direct and appoint; And it is hereby declared AND AGREED, that the said party of the third part, heirs, executors, administrators, and assigns, OF MORTOAQES. 347 shall stand seised and be possessed of tho said lands, tenements, and hereditaments, and of the rents and profits thereof, until sale, and, after sale, of the pro- ceeds therefrom arising, upon trust in tho first phict , to deduct thereout all expenses which may be neces- sarily incurred, and attend the execution of the triisi and powers hereby created, together with interest for the same, and after payment thereof do and shall retain and pay unto and for the said principal sum of , or so much thereof as shall then remain unsatisfied, and all interest then due, and in arrear, in respect thereof, and after such pay- ment in trust, to pay or transfer the surplus (if any) of the said rents and profits, or proceeds of the said sale, unto the said party of the first part, executors, administrators, or assigns, and also to re-convey and assure such part of the said lands, he- reditaments, and premises as shall remain unsold, for any of the purposes aforesaid, unto the said party of the first part, heirs and assigns, or as shall direct or appoint: And it is hereby further de- clared AND AGREED, that the receipts of the said party of the third part, heirs and assigns, shall be good and sufficient discharges for all moneys therein expressed to have been received, and that the person or persons paying any moneys and taking such receipt shall not afterwards be required to see to the application thereof, nor be answerable or accountable for the misapplication or non-appli- cation of the same : And the said party of the third part do hereby, for heirs, executors, and ad- ministrators, covenant, promise, and agree to and m 1,1 : r "k i . ^' :JffI i I m r~ ■ i 848 CANADIAN DOMESTIC LAWYER. with the said party of the first part, heirs and assigns, that no sale or notice of sale of the said lands, hereditaments, and premises shall be made or given, or any lease made, or any means taken for obtaining possession thereof, by the said party of the third part, until such time as calendar months' notice, in writing, as aforesaid, shall have been given to the said party of the first part, heirs, executors, administrators, or assigns, or have been left at last or most usual place of abode, in this Province, demanding payment of the principal and interest moneys which at the end of that time shall be due, and the said party of the first part, executors, administrators, and assigns, shall have made default in payment of the same at that time : And also, that , the said party of the third part, heirs and assigns, shall and will, at the expense of the said party of the first part, heirs, executors, administrators, and assigns, at any time before such sale or sales shall take place, on payment or tender by the said party of the first part, heirs, executors, or administrators, of the said principal sum of , and interest, which at the time of such tender shall be due and owing upon or by virtue of this security, with all costs as aforesaid, re-convey and re-assure the said lands, hereditaments, and premises, or such parts thereof as shall then remain unsold, with the appurtenances, unto the said party of the first part, heirs or assigns, or as or they ehall direct or appoint, free from all incumbrances to be made or done by the said party of the third party heirs or assigns, in the mean time; Pro- OF MORTGAGES. 349 VIDED ALWAYS, that, until default shall be made in payment of the said sum of , and interest, after notice, in writing, demanding payment of the same, as hereinbefore provided, it shall be lawful for the said party of the first part, heirs and assigns, to hold, occupy, and enjoy the said lands, hereditaments, and premises, with the appurtenances, without any molestation, hindrance, interruption, or denial of, from, or by the said party of the third part, heirs or assigns, or any person claiming by, from, through, under, or in trust for , them, or either of them; Provided, lastly, that , the said party of the third part, heirs, executors, administrators, and assigns, shall not be answerable or accountable for any more moneys than or they shall actually receive by virtue of these presents, nor for any misfortune, loss, or damage which may hap- pen to the said estate and premises in the execution of the trusts aforesaid, save and except the same shall happen by or through or their own wilful neglect or default. In Witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered 1 in the presence of . / ■f Jl If t Received, on the day of the date of this Inden- ture, the sum of , of lawful money of Canada^ being the full consideration. Witness, The Schedule above referred to, IQ ■' i ill 350 CANADIAN DOMESTIC LAWYER. II Mortgage, with Power of Sale and Insurance Clause. SHORTER FORM. , This Indenture, made the day of , in the year of our Lord one thousand eight hundred and , Between , of the of in the county of , and Province of Canada, of the first part, , the wife of the said part of the first part, of the second part, and , of the third part, WITNESSETH, that in con- sideration of the sum of , this day paid to the said part of the first part by the said party of the third part (the receipt whereof the said part of the first part do hereby acknowledge), he, the said part of the first part, do hereby grant, and she, the said party of the second part, for the purpose of releasing her right of dower in the hereditaments and premises hereinafter described, and with the con- currence of the said part of the first part, doth hereby release, unto the said part ot the third part, heirs and assigns. All and singular th certain parcel or tract of land and premises situate in the , Together with all houses, buildings, ways, lights, waters, water-courses, trees, woods, fences, jights, privileges, easements, advan- tages, and appurtenances wli atsoevor to the said here- ditaments or any part thereof appertaining, or with the same or any part thereof held, used, or enjoyed, or reputed as part thereof or appurtenant thereto, AND all the estate and interest of the said part of the first part in the said premises: To hold the said premises unto the said part of the tliird part. OP MORTGAGES. 351 heirs and assigns, to the use of the said part of the third part, heirs and assigns, forever. Sub- ject, NEVERTHELESS, to the reservations, limitations, provisoes, and conditions expressed in the original grant thereof from the Crown. Provided always, and it is hereby agreed and declared, that, if the said part of the first part, heirs, executors, ad- ministrators, or assigns, shall pay unto the said part of the third part, executors, administra- tors, or assigns, the sum of , together with interest for the same, at the rate of six per cent, per annum, in manner and at the times following: that is to say, , without any deduction, then these presents shall cease and be void to all intents and purposes whatsoever. And THE said part of the first part do hereby, for heirs, executors, and administrators, covenant with the said part of the third part, executors and administrators, that , the said part of the first part, heirs, executors, or ad- ministrators, will pay to the said part of the third part, executors, administrators, or assigns, the said sum of , and interest, at the times and in manner hereinbefore appointed for payment thereof, without any deduction or abatement whatsoever, ac- cording to the true intent and meaning of these presents. And it is hereby declared, that if default shall be made in payment of the said principal money hereby secured, or any part thereof, or the interest thereof, or any part thereof, at the time hereinbefore appointed for the payment of the same, contrary to ii ;}'|[^By - 9 ■;i- j. i. '■ i . ■ f ,:l| I if ' ill h* !f; p ' m '.r« 'm: I 352 CANADIAN DOMESTIC LAWYER. t the true intent and meaning of the proviso and cove- nant hereinbefore in that behalf contained, then, and at any time thereafter, it shall arid may be lawful for the said part of the third part, executors, ad- ministrators, or assigns, either with or without the concurrence of the said part of the first part, heirs or assigns, to sell the said premises herein- before expressed to be hereby granted, or any part or parts thereof, either together or in parcels, and either by public auction or private contract, for such price as may appear reasonable, and to buy in or rescind any contract for sale, and re-sell, without being responsible for loss occasioned thereby: And to execute and do all such assurances and things for effectuating any such sale as or they shall think fit. Provided, nevertheless, that the said part of the third part, executors, administrators, or assigns, shall not execute the power of sale herein- before contained until he or they shall have given to the said part of the first part, heirs, executors, administrators, or assigns, or left at , or their last place of abode in Upper Canada, or upon the said premises hereby granted, a notice in writing, to pay off the moneys for the time-being owing upon the security of these presents, and until default shall have been made in payment of the whole, or any part of such moneys for four calendar months after giving or leaving such notice : Provided also, that, upon any sale purporting to be made in pur- suance of the afo .said power, no purchaser shall be bound to inquire whether the case mentioned in the clause lastly hereinbefore contained has happened, OP MOKTQAGES* 353 nor whether anj money remains upon the security of these presents, nor as to the propriety or regu- larity of such sale; and, notwithstanding any im- propriety or irregularity whatsoever in any such sale, the same shall as regards the purchaser or purchasers be deemed to be within the aforesaid power, and be valid accordingly. And it is hereby DECLARED, that the said part of the third part, executors, administrators, or assigns, shall, outv of the moneys arising from any sale in pursuance of th*^ aforesaid power, in the first place, pay the ex- penses incurred on such sale, or otherwise in relation to the said premises: And, in the next place, apply such moneys in or towards the satisfaction of the said principal sum of , or so much thereof as shall then remain undischarged, and all interest then due in respect thereof, and all other moneys then owing upon the security of these presents, and then pay the surplus (if any) of the moneys to arise from such sale unto the said part of the first part, heirs or assigns: Provided always, that the said part of the third part, executors, ad- ministrators, or assigns, shall not be answerable for any involuntary losses which may happen in the exercise of the aforesaid power and trusts, or any of them. And the said part of the first part dr hereby, for heirs, executors, and administr: ^rs, covenant with the said part of the third part, heirs and assigns, that , the said part of the first part, now ha power to grant all and singular the said premises unto and to the use of the said 30* ' If- »' I: 1*1 1 m 354 CANADIAN DOMESTIC LAWYER. part of the third part, heirs and assigns, in manner aforesaid, and free from incumbrances : And THAT , the said part of the first part, and heirs, and every other person lawfully or equitably claiming any estate or interest in the premises, will, at all times, at the request of the said part of the third part, heirs, executors, administrators, or assigns, but at the cost of the said part of the first part, heirs, executors, or administrators, execute and do all such assurances and acts, for further or better assuring all or any of the said pre- mises to the use of the said part of the third part, heirs and assigns, in manner aforesaid, as by him or them shall be reasonably required. Provided lastly, and it is hereby declared and agreed, that until default shall be made in payment of the said principal money, secured by these pre- sents, or the interest thereof, or any part thereof respectively, contrary to the form and effect of the proviso and covenant for payment of the same herein- before contained, it shall be lawful for the said part of the first part, heirs or assigns, to hold and enjoy and to receive the rents and profits of the said hereditaments and premises, without any eviction, claim, or demand whatsoever from or by the said part of the third part, heirs or assigns, or from or by any person rightfully claiming under him or them. In Witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered 1 in the presence of . J OP MORTGAGES. 355 Received, on the day of the date of this mort- gage, from the party thereto of the third part, the sum of , being the full consideration money therein mentioned. Witness. ' K;"! V' Covenant to be taken as part and parcel of the within Indenture of Mortgage, and to be treated and con- strued in all respects as if inserted therein. The within named part of the first part, for heirs, executors, and administrators, do hereby co- venant to and with the within named part of the third part, executors, administrators, and assigns, in manner following, that is to say, that , the said part of the first part, executors, admmis- trators, and assigns, will, so long as any money shall remain on this present security, keep all the mes- suages and buildings upon the hereditaments and premises hereby granted insured against loss or damage by fire, in some reputable British or Ca- nadian Insurance Office, to be approved of by the said part of the third part, executors, admin* tra- tors, or assigns, in the sum of pounds at least, and will duly and punctually pay all premiums and sums of money necessary for such purpose, and will forthwith assign and deliver to the *said part of the third part, executors, administrators, and assigns, the policy or policies of such insurance and the receipt for every such payment. And also, that if default shall be made in keeping the said premises so insured, it shall be lawful for, but not !l!^ -. ; ' 356 CANADIAN DOMESTIC LAWYER. ii incumbent on, the said part of the third part, executors, administrators, or assigns, out of or their own moneys to insure and keep insured the said premises in any sum, not exceeding pounds, and that the said part of the first part, executors, administrators, or assigns, will repay r I file £»aid part of the third part, executors, ad- iTjiBisi .; tors, or assigns, all moneys expended for thtit puip':"e by or them, with interest thereon at the rate aforesaid, from the time of the same respectively having been advanced or paid, and that until such repayment the same shall be a further charge upon the said premises hereinbefore expressed to be hereby granted. And it is hereby declared that all sums of money to be received in respect of such policy or policies of insurance shall be received by the said part of the third part, executors, administrators, or assigns, and be held by him or them in trust, for better securing tha repayment of the said principal money, secured by these presents, and the interest thereof, and any moneys which shall have been paid or expended by him or them in and about such insurance and insurances, and interest thereon as aforesaid ; and subject thereto, Tn trust for the said part of the first part, executors, administrators, and assigns. In Witness whereof, the said part of the first part ha hereunto set hand and seal , this day of , in the year of our Lord one thousand eight hundred and Signed, sealed, and delivered 1 in the presence of . J OF MORTQAOES. 857 Mortgage Memorial, with Power of Sale. A Memorial (to be registered pursuant to the Acts of Parliament in that behalf) of an indenture of mortgage, bearing date the day of , in the year of our Lord one thousand eight hundred and , and made Between •, of the first part, , the wife of the said party of the first part, of the second part, and ^ of the third part ; Whereby the said party of th? f st part, for and in consideration of of lawful money of Canada, the receipt whereof is thereby acknowledged, did grant, bargain, sell, release, convey, and confirm, and the said party of the sec id part, for the purpose of releasing her right of Dower, did release, unto the said ^arty of the third part, heirs and assigns, all and singular th certain parcel or tract of land and premises situate in the , To hold the same, with all the privileges and appurtenances thereof, to the said party of the third part, heirs and assigns, to and their own use forever; Sub- ject, nevertheless, to a proviso therein contained, that the said Indenture, and every thing therein, should be absolutely void on payment by the said party of the first part, his heirs, executors, adminis- trators, or assigns, to the said party of the third part, executors, administrators, or assigns, of the sum of , of lawful money of the province of Ca- nada, with interest thereon, on the day and time and in manner following, that is to say , which Indenture contains a power to the said party of the tlurd part to sell aad dispose of HLq said loads and m in H u ■if I ■•'.'i . ■ 858 CANADIAN DOMESTIC LAWYER. premises in case of default made in the payment of the said sum of money and interest, or any part thereof, contrary to the above proviso: And is wit- nessed by , of . And this Memorial thereof is hereby required to be registered by me, the said party of the part therein mentioned. As Witness my hand and seal, this day of ,18 . Signed and sealed in the ) presence of . j County op , to wit : , of , in the said county , in the within Memorial named, maketh oath and saith, that he was present and did see the Indenture to which the said memorial relates, duly executed, signed, sealed, and delivered by the therein named , and that he is a sub- scribing witness to the execution of the said In- denture : — that he, this deponent, also saw the saia memorial duly signed and sealed by the therein named for registry thereof, which said memo- rial was attested by him, this deponent, and another subscribing witness, and that both said in^^trurnellts were executed at Swoi-n before me, at , in tlie county of , this d.iy of , 18 . A Commisiiontir in D. R.y ^c. . v> ..V . OP MORTGAGES. 359 Mortgage in Fee. SHORT FORM UNDER STATUTE. This Indenture, made day of , one thousand eight hundred and , in pursuance of , the act to facilitate the conveyance of real property, Between , of the first part, , wife of the said party of the first part, of the second part, and , of the third part, WITNESSETH, that in consideration of , of lawful money of Canada, now paid by the said part of the third part to the said party of the first part (the receipt whereof is hereby acknowledged), he, the said party of the first part, Doth grant unto the said part of the third part, heirs and assigns forever, All and singular th certain parcel or tract of land and premises situate, lying, and being in the , To HAVE AND to HOLD unto the Said part of the third part, heirs and assigns, to and for and their sole and only use forever, Subject, nevertheless, to the reservations, limitations, provisoes, and con- ditions expressed in the original grant thereof from the Crown. Provided always, and these presents are upon this express condition, that if the said party of the first part, his heirs, executors, administrators, or assign?, do and shall pay unto the said part of the third part, heirs, executors, administrators, or assigns, the full sum of , with interest thereon, at the rate of six per cettt. per annum, in manner following, that is to say, , without any de- duotio&i dcfalcatktt|4»: abatement out of tba amdt Af 860 CANADIAN DOMESTIC LAWYER. fji for or in respect of any taxes, rates, levies, charges, rents, assessments, statute labor, or other imposi- tions whatsoever, now or hereafter to be rated, charged, assessed, or imposed, by authority of Parlia- ment, or otherwise howsoever, on the said lands and premises, or any part thereof, or on the said sum of money and interest, or any part thereof, or on the said part of the third part, heirs, executors, administrators, or assigns, in respect thereof, or for or in respect of any other matter or thing what- soever; and, moreover, until default shall be made in payment of the said sum of money in ihis pro- viso mentioned, or the interest thereof, do and shall well and truly pay, do, and perform all the taxes, rates, levies, charges, rents, assessments, statute labor, and other impositions aforesaid; Then, from and immediately after such payment so made as aforesaid, and the observance, performance, and ful- filment of the provisions, agreements, and stipulations in this proviso particularly set forth, these presents, and every clause, covenant, matter, and thing herein contained, shall be absolutely null and void, to all intents and purposes whatsoever, as if the same had never been made; And the said party of the first part doth hereby, for himself, his heirs, executors, and administrators, Covenant, promise, and agree, to and with the said part of the third part, heirs, executors, administrators, and assigns, That he, the said party of the first part, his heirs, executors, or jidministrators, shall and will pay unto the said part of the third part, executors, administrators, or aBsigns, the said dum of moxiejf ia tlie above proviso OP MORTGAGES. 361 )'• mentioned, with interest for the same as aforesaid, at the days and times and in manner above limited for payment thereof; And shall and will in every thing well, faithfully, and truly do, observe, perform, fulfil, and keep all and singular the provisions, agree- ments, and stipulations in the said above proviso particularly set forth, according to the true intent and meaning of these presents and of the said above proviso, and indemnify the said part of the third part, heirs, executors, administrators, and assigns, therefrom; And the said party of the first part covenants with the said part of the third part, that he hath the right to convey the said lands to the said part of the third part, ; And that from and after default shall happen to be made in the payment of the said sum of money in the above proviso mentioned, or any part thereof, or in the payment of the interest thereon, or of any part thereof, or in the doing, performing, or keeping some one or more of the covenants, agreements, and sti- pulations in this Indenture contained, contrary to the true intent and meaning thereof, then and thence- forth the said part of the third part shall have quiet possession of the said land, free from all incum- brances of what nature or kind soever and whenso- ever and by whomsoever made, done, or suffered; and also free from all manner of taxes, rates, and assessments, and free from all judgments; And ALSO, that the said party of the first part hat) !ono no act to incumber the said landj And also, that ^ftpjp 4efaul^ ^ O'foredaid, th& sa^d part^ of %1^q fy(0i ft t; -^T-rgT'iffi""--^^ i ; 362 CANADIAN DOMESTIC LAWYER. part will execute such further assurances of the said land as may be requisite; And the said party of the second part, wife of the said party of the first part, hereby bars her Dower in the said lands. Pro- vided LASTLY, that until default shall be made in payment of the said sum of money in the above pro- viso mentioned, or the interest thereof, or of or in Jie doing, observing, porforming, fulfilling, or keep- ing some one or more of the provisions, agn ements, or stipulations in this Indenture contained, contrary to the true intent and meaning of the said Indenture, it shall and may be lawful to and for the said party of the first part, his heirs and assigns, peaceably and quietly to have, hold, use, occupy, possess, and enjoy the said hinds, tenements, hereditaments, and pre- mises, with the appurtenances, and receive and take the rents, issue.^, and profits thereof, to his and their own use and benefit, without the let, suit, hindrance, interruption, or denial of or by the said part of the thirvlip shall e: ercise the foregoing power of sale after the full payment of all moneys hereby secured or before the expiriiiion of months from the date hereof, without the written consent of the said party of the first part, his heirs or assigns, shall be answerable to the said party of the first part, his heirs or assigi s, as fo>- a breach of trust, and also ii duniges, biU no pur- chaser shall be cougerned to ascertain that any money lii'i' i' *. I 368 CANADIAN DOMESTIC LAWYER. •v is owing on this security, or that such time has ex- pired, or be aflfected by notice that such sale is irre- gular or unauthorized. Provided always, and it is further agreed by and between the said parties of the first and third parts, that upon any sale being made by the said party of the first part, his heirs or assigns, during the said period of months from the date thereof, or before fore- closure or sale by the said party of the third part, his heirs, executors, administrators, or assigns, of any part or portion of the said lands and premises hereby conveyed or intended so to be, for the full value thereof, and upon payment thereof, by the said party of the first part, his heirs or assigns, to the said party of the third part, his heirs, executors, adminis- trators, or assigns, or upon security being given therefor to the said party of the third part, his heirs, executors, administrators, or assigns, to his or their entire satisfaction, not only as to security, but as to time for payment thereof, then he, the &aid party of the third part, his fieirs or assigns, shall thereupon, at the request and at the costs of ^he said party of the first part, his heirs or as- signs, rele.ise such part or portion so sold as afore- said to tho purchaser or purchasers thereof freed ati'i absolutely discharged from this mortgage se- ^uri y, but not in discharge of the other heredita- ments, lands, and premises comprised in this security, or of the said party of the first part, his heirs, exe- -utors, or administrators, from the residue of the moneys hereby secured. And the said party of the first part, for himself, nf OF MORTQAQES. 369 his heirs, executors, administrators, and assigns (but so as in any action which may be brought after foreclosure or sale of all or any part of the said hereditaments, lands, and premises, to render him or them liable only for the acts and defaults of himself and all persons claiming or to claim through, under, or in trust for him), covenants with the said party of the third part, his heirs, executors, adminis- trators, and assigns, that the said party of the first part hath power hereby to assure the said he- reditaments, lands, and premises, in manner afore- said, free from incumbrances, except those parti- cularly mentioned in the said Schedule hereto. And that the same shall be held and enjoyed accord- ingly, and shall at any time or times, at the costs of the said party of the first part, his heirs, execu- tors, administrators, or assigns, before foreclosure or sale and conveyance thereof and afterwards at the costs of the person or persons requiring the same, be further and more eff'ectually or satisfactorily as- sured to the use of the said party of the third part, his heirs or assigns, or otherwise by such acts, deeds, or assurances as the said party of the third part, his heirs, executors, administrators, or assigns, shall reasonably require and tender to be done, executed, or made. And the said party of the second part, wife of the said party of the first part, hereby bars her dower in the said land and premises. In Witness, &c. Signed, &c. The Schedule above referred to. ■mia'r 870 CANADIAN DOMESTIC LAWYEE. Mortgage of Lease. This Indenture, made the day of , in the year of our Lord one thousand eight hundred and Between , of the first part, and , of the second part. Whereas, by an Indenture of Lease, bearing date on or about the day of , in the year of our Lord one thousand eight hundred and , and made between ; The said lessor therein named did demise and lease unto the said lessee therein named, executors, administrators, and assigns. All and singular th certain parcel or tract of land and premises situate, lying, and being in the , To hold the same, with their appurtenances, unto the said lessee, executors, administrators, and assigns, from the day of , in the year of our Lord one thousand eight hundred and , for and during the term of years from thence next ensuing, and fully to be com- plete and ended, at the yearly rent o* , and under and subject to the lessee's covenants and agreements in the said Indenture of Lease reserved and contained Now THIS Indenture witnesseth, that in con- sideration of the sum of , of lawful money of Canada, now paid by the said part of the second part to the said part of the first part (the receipt whereof is hereby acknowledged), , the said part of the first part, Do hereby grant, bargain, sell, assign, transfer, and set over unto the said part of the second part, executors, administrators, and OP MORTGAGES. 871 or assigns, All and singular the said parcel tract of land, and all other the premises coiiipvisci in and demised by the said hereinbefore in part ro- cited Indenture of Lease: Together with the !s:ti'! Indenture of Lease, and all benefit and advantugc U) be had or derived therefrom: To have and to iioli> the same, together with all houses and other building.^, easements, privileges, and appurtenances tlicreuntn belonging, or in any wise appertaining, unto the sai'. V4 372 CANADIAN DOMESTIC LAWYER. '•I I! I; ■V 'I 1: '' h and purposes whatsoever, as if the same had never been executed. And the said part of the first part do hereby, for heirs, executors, and administrators, covenant, promise, and agree to and with the said part of the second part, executors, administrators, and assigns, in manner following, that is to say. That , the said part of the first part, heirs, executors, and administrators, or some or one of them, shall and will well and truly pay, or cause to be paid, unto the said part of the second part, executors, administrators, or assigns, the said principal sum and interest in the above proviso mentioned, at the times and in manner hereinbefore appointed for payment thereof, without any deduction or abatement whatsoever, and according to the true intent and meaning of these presents. And that the said hereinbefore in part recited In- denture of Le^ase is, at the time of the sealing and delivery of these presents, a good, valid, and subsist- ing lease in the law, and not surrendered, forfeited, or become void or voidable; and that the rent and covenants therein reserved and contained have been duly paid and performed by the said part of the first part, up to the day of the date thereof. And that the said part of the first part now ha in good right, full power, and lawful and absolute authority to assign the said lands and premises in manner aforesaid, and according to the true intent and meaning of these presents. And that in case of default in payment of the said principal money or interest, or any part thereof, OF MORTGAGES. 373 contrary to the proviso and covenant aforesaid, it shall be lawful for the said part of the second part, executors, administrators, and assigns, to enter into and upon and hold and enjoy the said pre- mises for the residue of the term granted by the said Indenture of Lease, and any renewal thereof (if any), for their own use and benefit, without the let, suit, hindrance, interruption, or denial of the said part of the first part, executors, administrators, or as- signs, or any other persons whomsoever; and that free and clear, and freely and clearly acquitted, exonerated, and discharged, or otherwise, by and at the expense of the said part of the first part, heirs, executors, and administrators, well and effect- ually saved, defended, and kept harmless of, from, and against all former and other gifts, grants, bargains, sales, leases, and other incumbrances whatsoever. And that the said part of the first part, heirs, executors, administrators, and assigns, and all other persons claiming any interest in the said pre- mises, shall and will, from time to time, and at all times hereafter, so long as the said principal sum or any part thereof shall remain due and owing on this security, at the request and costs of the said part of the second part, executors, administra- tors, or assigns, make, do, and execute, or cause and procure to be made, done, and executed, all such further assignments and assurances in the law of the said premises for more effectually assigning and as' suring the said premises for the residue of the sail term, and any renewal thereof (if any), subject to the proviso aforesaid, as by the said part of the second t2 ^ ^f^^. ^ \r ^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 >u Ui 12.2 2.0 ^ V2 ^ w Photographic Sciences Corporation <^ 39 WBT MAIN STRUT WIMTH.N.Y. MSM (716) •73-4S03 ^^% 374 CANADIAN DOMESTIC LAWTER. part, executors, administrators, or assigns, or counsel in the law, shall be reasonably advised or re- quired. And that the said part of the first part, executors, administrators, or assigns, shall and will, from time to time, until default in payment of the said principal sum or the interest thereof, and until the said part of the second part shall enter into possession of the said premises as aforesaid, well and truly pay, or cause to be paid, the said yearly rent by the said Indenture of Lease reserved, and all taxes payable on the said premises, and perform and keep all the lesseeV covenants and agreements in the said lease contained, and indemnify and save harmless the said part of the second part therefrom, and from all loss, costs, charges, damages, and expenses in respect thereof. And also shall and will, from time to time, and at all times hereafter, so long as the said principal money and interest, or any part thereof, i:hall remain due on this security, insure and keep injured the buildings erected or to be erected on the land hereby assigned, or any part thereof, against loss or damage by fire, in some one of the public Fire Insurance Ofiices (English or Canadian), in the full amount hereby secured, at the least, and, at the expense of the said part of tbo first part, immediately as- sign the Policy, and all benefit thereof, to the said part of the second part, executors, administra- tors, and assigns, as additional security for the pay- ment of the principal money and interest hereby secured; and tnat in default of such insurance it OF MORTGAGES. m shall be lawful for the said part of the second part, executors, administrators, or assigns, to effect the same, and the premium or premiums paid there- for shall be a charge or lien on the said premises hereby assigned, which shall not be redeemed or re- deemable until payment thereof, in addition to the said principal money and interest as aforesaid. Provided, lastly, that until default in payment of the said principal money and interest hereby secured, it shall be lawful for the said part of the first part, executors, administrators, or assigns, to hold, occupy, possess, and enjoy the said lands and premises hereby assigned, with the appurtenances, without any molestation, interruption, or disturbance of, from, or by the said part of the second part, executors, administrators, or assigns, or any person or persons claiming or to claim by, from, through, under, or in trust for him, them, or any of them. In Witness whereof, the said parties to these presents have hereunto set their hands and affixed their seals, the day and year first above written. Signed, sealed, and delivered ) in the presence of . I !l; ! m If? i mm. Received on the date hereof, the sum of being the full consideration above mentioned. In Presence of •■ '*tif' 876 CANADUN DOMESTIC LAWTEB. Belease of Mortgage. UNDER STATUTE. To the Registrar of the County of . I, A. B., of , Do CERTIFY that C. D., of , hath satisfied all money due upon a certain mortgage jiade by the said C. D. to me, bearing date the day of , one thousand eight hundred and , and registered at of the clock in the forenoon of the day of following, and that such mort- gage is therefore discharged. As Witness my hand, this day of , 18 . (Signed) A. B. ^'ll'^'i 'Witnesses. G. H., of , / •} Affidavit of Execution, Canada, County of to wit. E. F., above named and described, maketh oath and saith that he and the other subscribing witness to the foregoing certificate of discharge of mortgage were present and saw the same duly executed by the therein named ; and that he is one of .the subscribing witnesses to the same; and that the same was executed as aforesaid, at Sworn before me, at in the county of , this day of 18 •} A Conmunontr^ ^e. tn and /or thi Countjf of im;i OF NATURALIZATION. 877 CHAPTER XV. OF HATUBALIZATIOV. Naturalization is the act by which an alien, or foreigner, becomes invested with the rights and pri- vileges of a native-born subject. In Canada a per- son duly naturalized is entitled *o all the privileges, rights, and capacities which a natural-born subject of the British Crown can enjoy or transmit. The law relating to aliens is to be found in the Cons. St. Canada, cap. 8. That act provides that every alien residing in any part of Canada imme- diately before the 18th day of January, 1849, or who at any time thereafter came or comes to reside in any part of Canada, with intent to settle therein, and who, after a continued residence therein for a period of three years or upwards, has taken the oaths or affirmations of residence and allegiance (or the oath or affirmation of residence only, if a female), and procured the same to be filed of record as therein- after prescribed, so as to entitle him or her to a cer- tificate of naturalization as thereinafter provided, shall thenceforth enjoy and may transmit all the rights and capacities which a natural-born subject of Her Majesty can enjoy or transmit. The first step for a foreigner to take for the pur- 878 CANADIAN DOMESTIC LAW7£R. pose of getting naturalized is to take the oaths of residence and allegiance. These oaths must be taken before a justice of the peace within the city, town, parish, village, or township in which the alien resides. When taken, the justice will grant a certificate B3tting forth that such alien has taken and subscribed tho said oath or affirmation, and (if the fact is so) that such justice has reason to believe that such alien has been so resident within the province for a period of three years or upwards, that he or she is a person of good character, and that there exists to the knowledge of the justice no reason why the alien should i:ot be granted all the rights and capacities of a natural-born British subject. This certificate must then be presented to the Court of Quarter Sessions or to the Recorder's Court of the county or city within the jurisdiction of which he resides in Upper Canada, or to the Circuit Court in and for the circuit ' within which he resides in Lower Canada, in open court, on the first day of some general sitting thereof. The court will thereupon order the certificate to be openly read ; and if the facts mentioned in the cer- tifioate are not controverted, or any other valid ob- jection made to the naturalization of such alien, the court v.'ill, on the last day of such general sitting, direct that such certificate be filed of record ir. the court, and thereupon the alien will be admitted and confirmed in all the rights and privileges of British birth, to all intents whatever, as if he or she had been born within the province. These formalities having been gone through, the alien will be entitled to receive from the court a OF NATURALIZATION. 879 certificate of naturalization under the seal of the court and the signature of the clerk thereof. A copy of this certificate may, at the option of the party, be registered in the registry office of any county or registration division within the province, and a certified copy of such registry is sufficient evi- dence of such naturalization in all courts. A woman alien married to a natural-born British subject or naturalized alien becomes herself natu- ralized and entitled to all the rights of a natural-born British subject, without going through any legal for- malities whatever. The justice of the peace who administers the oaths or affirmations of residence or allegiance is entitled to receive a fee of twenty-five cents, and no more ; and the clerk of the court, for reading and filing the certificate of residence, and preparing and issuing the certificate of naturalization under the seal of the court, is en- titled to receive twenty-five cents, and no more ; and the registrar, for recording the certificate of natu- ralization, is entitled to receive a fee of twenty-five cents, and a further fee of twenty-five cents for every search find certified dopy of the same, and no more. ■t;! i' li ;l". . Oath of Besidenoe. I, A. B., do swear {or, being one of the persons allowed hy law to affirm in judicial cases, do affirm) that I have resided three years in this province, with intent to settle therein, without having been during that time a stated resident in any foreign country. So help me God. 880 CANADIAN DOMESTIC LAWYER. Oath of Allegiance. I, A. B., do sincerely promise and swear (or, being one of the persons allowed by law to affirm in judicial cas^a, do affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, as lawful Sovereign of the United Kingdom of Great Britain and Ireland, and of the Province of Canada, depend- ent on and belonging to the said United Kingdom, and that I will defend her to the utmost of my power against all traitors, conspiracies, and attempts what- ever which shall be made against Her Person, Crown, and Dignity; and that I will do my utmost en- deavor to disclose and make known to Her Majesty, Her Heirs and Successors, all treasons and traitor- ous conspiracies and attempts which I shall know to be against Her or any of them; and all this I do swear without any equivocation, mental evasion, or secret reservation, and renouncing all pardons and dispensations from any person or persons whatever to the contrary. So help me God. OF PARTNERSHIP. 881 t\} H.1 CHAPTER XVI. 07 PABTVBB8HI?. A Partnership is an association of two or more persons contributing, in equal or unequal proportions, money, labor, skill, care, attendance, or services in the prosecution of some trade or manufacture, or 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 proportions. The con- tract of partnership is founded wholly on the consent of parties, and may be created by their acts and deeds, and their common participation in the profit and loss of a trade or bu^siness, or of a particular ppeculation or adventure, as well as through the mediiim of an express contract. If parties are not to share the profit an^! loss, there can be no partner- ship as between themselves, whatever may be their apparent situation and position as regards the public. If one man joins another in the furtherance of a particular undertaking, and contributes work and labor, services and skill, towards the attai^^mcnt of the common object, upon the understanding that th o remuneration is to depend upon the realization of profiWri^ Aft(y4f»^iit \miwmi9 # im^ hm^^ 882 CANADIAN DOMESTIC LAWTEB. he is to get nothing, he stands in the position of a partner in the undertaking, and not in that of a la- borer or servant for hire. But a person who merely receives out of the profits the wages of labor, or a commission as a hired servant or agent, such as a factor, foreman, clerk, or manager, and who has no interest or property in the capital stock of the busi- ness, is not a partner in the concern, although his wages may be calculated according to a fluctuating standard and may rise and fall with the accruing profits. A partner in a private commercial partnership (not being a public joint-stock company with trans- ferable shares) cannot introduce a stranger into the firm as a partner without the consent of all the members of the co-partnership. Every person who stipulates with another for a share of the profits of a business is a partner in the business as regards the public and third parties, and liable as such, whatever may be the private stipu- lations and agreements between him and the parties who appear to the world as the managers and con- ductors of the business, the profits forming a portion of the fund on which the creditors have a right to rely for payment. A general partnership is one formed for trade or business generally, without limitations; a special partnership is one in which the joint interest extends only to a particular concern, as, for example, in the erection of a hotel; a limited partnership is one in which one or more of the partners piit in a certain OP PARTNERSHIP. 888 of the firm, but beyond that amount the party ad- vancing is not liable. A person who lends his name as a partner, or who suffers his name to continue in the firm after he has actually ceased to be a partner, is still responsible to third persons as a partner. A partner may buy and sell partnership effects ; make contracts in reference to the business of the firm ; pay and receive money ; draw and indorse and accept bills and notes; and all acts of such a nature, even though they be upon his own private account, will bind the other partners, if connected with mat- ters apparently havii;j 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 p:irt- nership transaction by one partner, or the commis- sion of any fraud in such transaction, will bind the entire firm, even though the other partners may have no connection with or knowledge of the same. Dormant and secret partners, whose names do not appear to the world, may be made responsible for the engagements of a trading firm of which they are members. Persons may become clothed with the legal liabili- ties and responsibilities of partners as regards the public and third parties, by holding themselves out to the world as partners, as well as by contracting tlie legal relationship of partners among themselves. If a m in, therefore, allows himself to be published to the world as a mQX&biiQjr o| |>artil I ? i '^1 *' 884 CANADIAN DOMESTIC LAWYER. his name to appear in the partnership 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 responsible for the non-performance of contracts entered into by the firm before he became an actual or reputed mem- ber of it. Dormant and secret partners may release them- selves irom 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-partnersbip must be given. A general notice is sufficient as to all but actual customers: these must have some kind of actual notice. If no time has been limited for the dissolution of a general trading partnership, it is a partner- : liip at will, and may be dissolved at any time at the pleasure of any one or more of the partners, IC the p^tttor^bl^ wttH ^0U(Hi9li^ bjr ck^i (bo r«&u&< OP PARTNERSHIP. 885 elation 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, ifc may be re- nounced in the same manner. If the partners have agreed that the partnership shall continue for a de- finite period, it cannot be dissolved before the ex- piration of the term limited, except on the mutual consent of all the parties, or by the outlawry, felony, or death of any one or more of them, or by the de- cree of a court of equity. If a partnership for a definite term has been created by deed, the mutual agreement of the parties, to dissolve it, must be by deed also. The partnership is dissolved by the death or insolvency of one of the partners, or by an assign- ment by any partner of his snare and interest in the business. A dissolution by one partner is a dissolu- tion as to all. An executor, administrator, or personal represent- ative continuing in the business after the death of a partner, is personally responsible as partner for all debts contracted. Immediately after a dissolution, a notice of the same should be published in the public papers, for general information, and a special notice sent to every person who has had dealings with the firm. If these precautions be not taken, each partner will still continue liable for the acts of the others to all per- sons who have had no notice of the dissolution. Under the "Act respecting Limited Partner- ships," Const. St. Caix. cap, 60, limited partnerships fvr ^ ^mv?^va of* anxmevt^tjileri ^^fya^;(»Lf xtj; li 886 CANADIAN DOMESTIC LAWYER. manufacturiDg business within the province of Canada may be formed by two or more persons, upon certain terms and conditions ; but the pro v^isions of the act are not to be construed to authorize any partnership for the purpose of banking or insurance. Such partnerships are to consist of one or more persons, called "general partners," and of one or more persons who contribute in actual casLi payments a specific sum as capital to tie common stock, and* who are styled "special partners." General part- ners are jointly and severally responsible for all debts and engagements of the partnership, in the same manner as ordinary partners in any trade or business ; but special partners are not liable for any debts beyond the amounts contributed by them to the capital. All business is to be transacted by the gene- ral partners alone, and they only are authorized to sign for and bind the partnership. Persons desirous of forming a limitc^. partnership must make and sign a certificate which is to contain, firstly, the name or firm under which the partner- ship is to be conducted ; secondly, the general nature of the business intended to be transacted; thirdly, the najaes of all the general and special partners interested therein, distinguishing which are general pnd which are special partners, and their usual places of residence; fourthly, the amount of capital stock which each special partner has contributed; fifthly, the period at which the partnership is to commence, and the period at which it will terminate. The certificate is to be in the form given in the act, a&d wiuoli will be fou&d lior&aft€r> aud must bo signed OF PARTNERSHIP. 387 by the several persons forming such partnership, be- fore a notary public, wl will duly certify the same. The certificate so signed and certified must, in Upper Canada, be filed in the office of the clerk of the county court of the county in which the principal place of business of the partnership is situate, and in Lower Canada in the office of the prothonotary of the ) $100.00.w Two months after date,^*^ I promise to pay^*> to C. D. {thepayeey^- or order,^'> at the City Bank, Toronto,<"> the sum of one hundred dollars,^'^ value received.^®^ A. B. (the maker),^^^ {Indorsed] C. D. (first indorser). 1 (y| E. F. (second indorser), } 400 CANADIAN DOMSSTIC LAWTBR. REMARKS ON THIS FORM. (1) The place at which the note is dated or sup- posed to he made. (2) The date of the note. (3) The sum superscribed in figures. (4) The time when payable. (5) "I promise to pay." • (6) To whom payable. (7) Or order. (8) The place where mentioned in the body to be vayable. (9) The sum payable. (10) Value received. (11) The maker, (12) The form of the indorsements. 1. The Place at which the Note is dated or supposed to be made. The observations we have made on the correspond- ing part of a bill of exchange equally apply here. 2. The Date of the Note. The remarks before made on the date of a Bill are equally applicable to the date of a Note. 3, 4. See the observations, ante, 4 and 5, on the corresponding parts of a bill of exchange. OF PROMISSORY NOTES. 401 9 5. ^^ I promise to pa^.'' No particular or precise form or set of words is necessary to constitute a valid promissory note.' Neither the word promise nor the word pai/ is indis- pensable; bat there must be equivalent expressions. But there must be words importing a promise to pay. A mere "I. 0. U." such a sum, is not, there- fore, valid as a promissory note. Where a note is signed by several persons as makers, it is usually joint and several, so as to give the holder a right of action against all of them jointly, or each .separately, at his election; although of course the note is satisfied by being once paid by all or either of the parties. The words then are, "We jointly and severally promise," &c. But where a note began, "I promise," &c., and was signed by several makers, it was held, the note was several as well as joint. If a note purport to be made, and be signed, by A. on\y, B. cannot be sued thereon, although he was, jointly with A., liable for the debt for which the note was given. But if a note begin, "I promise to pay," &c., and A. and B. be partners in trade, and A. sign the note as for himself a7id B.y on the face of the instrument, the note is several against A. and joint against the firm. ■.p.: T Ji 6, 7. See the observations {ante, 6, 7) on the !orrosponding parts of a bill of exchange, and which .ire equally appropriate to the case of a promissory note. ^ 402 CANADIAN DOMESTIC LAWTER. 8. The Place where mentioned in the hody of the Note to he payable. The place of payment need not be stated in the body or other part of the note. But where the maker desires that he should not be responsible unless presentment for payment ha^ been previously made at a particular house or banc, at which he intends that the money should be ready, he should introduce these words in the hody of the instrument, adding after them, ^^and not otherwise or elsewhere." By so doing he will render a pre- sentment for paymetit at the specified place essential to complete his liability. 9. The sum payahle; and 10, The words "value received." It is only necessary to refer to the re- marks made on these parts of a bill. 11. The Maker, Nor is there any thing to distinguish the form c^ the signature of the maker of a note from that of the drawer's signature to a bill. We may here again advert to the cases relative to the effect of the signa- ture to a note by or for several makers, where the note begins, "I promise to pay," &c. If the maker, instead of subscribing his name, address the note to himse^.f, and then write ** accepted" across it, and sign his name thereto, the instrument may be treated as a note. OP PATENTS. 403 12. The Form of the Indorsements. The law on this suhject affecting notes is the same as in the case of bills. CHAPTER XVIII. OF PATENTS. A PATENT is the name usually given to a grant from the Crown, by letters-patent, of the exclusive privilege of making, using, exercising, and vending some new invention. The granting of such letters- patent is an ancient prerogative of the Crown, — a prerogative which was stretched far beyond its due limits in the reign of Queen Elizabeth and her suc- cessor, and the monopolies thus created formed one of the grievances which King James was u,t last obliged to remedy. The granting of patents fw inventions — to which our attention will be confined — is now regulated by the "Act respecting Patents for Inventions," Cons. St. Can. cap. 34. Any British subject resident in Canada, being the discoverer or inventor of any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereon, may obtain a patent therefor, which will secure to him the exclu- sive property therein for a period of fourteen years 11;; 11 404 CANADIAN DOMESTIC LAWYEB. from the granting of the patent. This exclusive right may, on certain conditions, be extended for a further period of seven years. Similar rights may also be obtained by the inventor or producer of any new or original design for a manufacture of metal or other material, or for the printing of woollen, silk, cotton, or other fabrics, or of any new or original design for a bust, statute, or bas relief, or composi- tion in alto or basso relievo, or any new or original impression or ornament in marble or other material, or any new or useful pattern, or print, or picture, to be either worked into, or worked on, or printed, or painted, or cast, or otherwise fixed, on any article of manufacture. The application for a patent must be made by petition to the Governor-General. The art, &c. in re- spect of which the patent is desired must have been unknown and unused in the province before the peti- tioner discovered, invented, designed, or produced it. The fact of a patent having issued for the same invention in a foreign country will not, however, de- prive the original and true inventor of the right to a patent in this province. Before receiving a patent, the inventor must make a declaration that he verily believes that he is the true inventor or discoverer of the art, machine, or improvement for which he solicits a patent. This declaration may be made before a justice of the peace, or, when the applicant is not residing in the province, before any minister plenipotentiary, charge- d'affaires, consul, or agent of Great Britain, or notary (jg^blio of tke oountry in nrhich such appli- ca H( in th( Thl OF PATENTS. 405 cant happens to be at the time of making the same. He must deliver a written description or specification in duplicate of his invention or improvement, and of the manner or process of compounding lAhe same. This specification ^must be full, clear, and exact in its terms, so as to distinguish the invention from all other things before known, and to enable any person skilled in the art or science of which it is a branch, or with which it is most nearly connected, to make, compound, and use the same. In the case of a machine, he must fully explain the principle and the several modes in which he has contemplated the application of that principle or character by which it may be distinguished from other inventions. He must accompany the whole with drawings and written references, made in duplicate^ where the nature of the case admits of drawings, or with specimens of the ingredients, or of the composition of matter, suflScient in quantity for the purpose of experiment. The description or specification must be signed by himself, and attested by two witnesses, and filed in the office of the Minister of Agriculture. Whenever the case admits of drawings, the same must be fur- nished in duplicate, one to be deposited in the office of the Minister of Agriculture, and the other an- nexed to the patent and to be considered a part of the specification thereof; and a copy of the specifi- cntion will, in all cases, be annexed to the patent. When the patent is for a machine, the inventor muht deliver a model of such machine to the Minister of Agriculture, if he deems such model to bo necessary. ' tfi 11^ I i i\ ■■■» 406 CANADU17 DOMESTIC LAWYER. miut be recorded in a book to be kept for that pur- pose in the office of the Minister of Agriculture. As soon as recorded, it is to be delivered to the patentee, or his ord^. The rights and privileges granted to in\ enters and discoverers under the Patent Act are extended to any British subject resident in Canada, who, whilst tra- velling in any foreign country, may have discovered or obtained a knowledge of any new and useful art, machine, manufacture, or composition of matter not known or not in use in Canada; but inventions and discoveries made or used in the United States, or any of the British dominions in Europe or America, are protected. A person desiring to introduce into Canada any invention discovered by him in a foreign country must, previous to obtaining a patent for the same, make a solemn declaration, in the manner prescribed in the case of inventors and discoverers, that he be- lieves himself to be the first introducer or publisher of such invention, art, machine, manufacture, or com- position of matter in Canada, and that he discovered or obtained a knowledge thereof while on his travels in some foreign country, not being one of the United States of America, or any of the British dominions in Europe or America. Patents are assignable, either in whole or in part, and the patentee may grant to any person the exclu- sive right to use and sell the patented invention or discovery in any county or other locality. Assign- ments and graQts of exclusive rights must be in writ- OV PATENTS. 407 ter of Agriculture within two months from the exe- cution thereof. When an assignment is made before the issuing of the patent, it may issue to the assignee. When an inventor or discoverer dies before obtain- ing a patent for his invention or discovery, the right to such patent will devolve on his executor or admi- nistrator, or other legal personal representative ; but they will take such patent in trust for the heir-at-law of the deceased, if he died intestate. If two persons apply for a patent for the same invention or discovery, the application will be sub- mitted to the arbitration of three skilled persons, one to be chosen by each of the applicants, and the third by the Minister of Agriculture. The de- cision of the arbitrators or any two of them is to be final. If either applicant refuses or fails to choose an arbitrator when required so to do by the Minister of Agriculture, the patent will issue to the opposite party ; and when there are more than two interfering applicants, and the parties applying do not all unite in appointing three arbitrators, the Minister of Agri- culture may appoint the three. Patents may be renewed and extended for seven years. The application for extension must be made ill writing to the Governor-General, and the grounds upon which the application is based must be set forth, and notice of the application must be published three times each in the Canada Gazette and in two other newspapers published in the English and French languages in that section of the province in which the applicant resides. The notice must state the tiiao wboa t!k» ^jylioitiflft ^rHI 1» -ttaide) so that •m M 1 I fr t & .11 408 CANADIAN DOMESTIC LAWYER. any person may appear and show cause why the ex- tension should not be or;antod. The application will be heard before a Board, com- posed of the President of the Council, the Attorney- General for that part of the province in which the applicant resides, and the Finance Minister, who will sit for that purpose at the time designated in thu published notice at the Bureau of Agriculture. The patentee must make a statement upon oath of the as- certained value of the invention, and of the receipts and expenditure in detail, exhibiting a true and faith- ful account of the loss or profit in any manner ac- cruing from the same; and if upon the hearing of such application it appears to the Board, having due regard to the public interest, that the term ought to be extended by reason of the patentee, without fault on his part, having failed to obtain from the use and sale of his invention a reasonable remuneration for the time, ingenuity, and expense bestowed thereon, and in the introduction thereof into use, the patent will be extended for seven years; but no extension will be granted after the expiration of the term sought to be extended, nor unless the petition or ap- plication therefor be presented six months at least before the expiration of such term. Whenever a patent becomes inoperative or invalid by reason of some accidental error in the description or specification, the patent may be surrendered, and a n'^w one issued. If by accident or mistake the patentee has made his specification too broad, and has claimed to be the OF PATENTS. 409 was in fact the first inventor, he may disclaim, as to those parts of which he was not the first inventor, by a writing signed by him, and attested by one witness, and recorded in the- oflSce of the Minister of Agri- culture. A person infringing patent rights is liable to an action for damages and to the payment of treble costs. All patented articles must bear stamped or en- graved upon them the date of the patent thereof; and any person neglecting this regulation will be deemed guilty of a misdemeanor, and will be liable to fine or imprisonment, or both, at the discretion of the court. The fees payable on taking out a patent ar^ twenty dollars, which must be paid when the application is first made. Petition for Patent. To His Excellency the Right Honorable Charles Stanley, Viscount Monck, Governor-General of British North America, ^c. ^c. ^c. The Humble Petition of A. B., of , &c. &c. Sheweth : That your petitioner has invented a new and im- proved Thrash ing-Machine, which ho truly believes has not been known or used in the province of Canada prior to the invention thereof by your petitioner; and that the same is not now in public use or on sale in the said province with your petitioner's consent and allowance. •; ",**- -— ^^t"'.*--;*'—- r^-. Yanr p eli ^ e rt iyB wfor ftftu& % y ^^ 410 CANADIAN DOMB0TIC LAWYER. jMitent -under t][ke ^teat seal of the province of Canada may iBsve to your petitioner, granting to him, his heirs, lawful represetitatives and assigns, for the period of fourteen years, the full and exclusive right and liberty of making, constructing, using, and vend- ing to otiiers to be used, the said invention. *'.' 412 CANADIAN DOMESTIC LAWYER. Surrender for Be-Issne. To His Excellency the Right Honorable Charles Stanley, Viscount Monck, Governor-General of British North America, ^c. ^c. ^c. The Humble Petition of A. B., of, &c. &c. humbly shiiweth : That your petitioner did obtain letters -patent under the great seal of the province of Canada for a new thrashing-machine, which letters-patent are dated the day of , a.d. 18 . That your petitioner now believes that the same letters-patent are inoperative, or invalid, by reason of a defective description or specification, which defect has arisen from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention. Your petitioner therefore humbly prays that he may be allowed to surrender the said letters-patent, and that new letters-patent may issue to him for the same invention for the residue o. t-he period for which the original patent was issued, in accordance with the corrected description and specification herewith presented. And your petitioner will ever pray, &c. (Signed) A. B. {A corrected specification and declaration must ac- company this petition.) Disolaimer. Know all Men by these presents, That I, A. B., of, &c. &c., to whom letters-patent under the great OF PATENTS. 418 seal of the province of Canada, for a new thrashing- machine, did issue on the day of , A.D. 18 , did by mistake, accident, or inadvertence, and without any wilful default, or intent to defraud or mislead the public, make my specification of claim too broad, claiming more than that of which I was the original or first inventor, — some material and substantial part of the said thrashing-machine being, nevertheless, truly and justly my own invention [or, claiming to be the original and first inventor or discoverer of a material and substantial part of the said^ thrashing-machine, of which I was not the first and original inventor, and \hich I have no legal or just right to claim]. Now Know ye, That I, the said A. B., do hereby disclaim that part of the specification and claim which is in the following words, to wit : [/w- 8ert here that part which is disclaimed, in the words of the original. State also the extent of the interest which the disclaiming parti/ has in the patent, whether an entire or partial interest,'] Witness my hand, this day of , A. D. 18 . A. B. Signed in the presence of C. D., of, &c. &c. Petition for Patent for Design. To His Excellency the Right Honorable Ohables Stanley, Viscount Monck, Governor- 0-eneral of British North America, ^c. ^c. The Humble Petition of A. B., of, &c., Sheweth That your petitioner has invented or produced a it i m '1 414 CANADIAN DOMESTIC LAWYER. new and original design for a bust (or as the case may he\ which he truly believes has not been known or used in the province of Canada prior to the inven- tion thereof by your petitioner. Your petitioner therefore humbly prays that let- ters-patent under the great seal of the province of Canada may issue to your petitioner, granting to him, his heirs, lawful representatives, and assigns, for the period of fourteen years, the exclusive pro- perty or right therein, to make, use, sell, and vend the same, or copies of the same, to others, to be by them made, used, sold, or vended. And your petitioner will ever pray, &c. (Signed) A. B. (The petition must he accompanied hy a specification and declaration, in the form already given, which may he altered to suit the circumstances.) - Assignment of an Entire Interest in a Patent. To ALL TO WHOM THESE PRESENTS SHALL COME, A. B., of, &c. &c., SENDS Greeting : Whereas the said A. B. has invented a certain thrashing-machine, and has applied for and obtained letters-patent under the great seal of the province of Canada, granting to him and to his assigns the exclusive right to make and vend the same ; which letters-patent are dated on the day of , a.d. 18 . And Whereas C. D., of, &c. &c., has agreed to purchase from the said A. B. all the right, title, and int«r«9t which he, the said A. B., now hath in the eaid OF PATENTS. 4irj invention under the said letters-patent, for the price or sum of dollars. Now THESE Presents witness that foi- and in consideration of the said sum of dollars, by the said C. D. paid to the said A. B. at or before the serJing 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 all his interest therein or right thereto. In Witness whereof, the said A. B. hath hereunto set his hand and seal, this day of , a.d. 1863. A. B. [L. s.] Signed, sealed, and delivered 1 in the presence of / X. Y. (An assignment of a partial interest may he readily framed from the foregoing.) !£ i] ii ( i M 416 OAKAl)tAN OOM£0I1O tiAWYEtt* CHAPTER XIX OF BECEIFT8 AND BELEASES. A RECEIPT is an acknowledgment in writing that the party giving the same has received from the per- son therein named the money, or whatever may be specified in the receipt. A creditor receiving money from his debtor is not bound to give a receipt therefor, although it is usual to do so. If the debtor wants a receipt, he ought to have one ready-written for the creditor to sign, and should be provided with pen and ink for the use of the creditor. But, although it may be legal for a creditor to refuse to give a receipt for money paid to him, it would be very unfair, and legal rights should in such cases be waived, unless there be some good reason for acting strictly. A receipt in full of all demands is only prima facie evidence of what it purports to be. Evidence may be given to show that it was obtained by fraud, or given by mistake or in ignorance of law; so that, if such a receipt be given unintentionally, and with- out a knowledge of all the facts, the wl^ole debt, or so much of it as may remain unpaid, may yet be recovered, notwithstanding the giving of such receipt. A release is the discharge of a right of action which a man has or may claim against another, and OF RECEIPTS AND RELEASES. 417 is commonly given where parties have had numerous dealings together, and, on closing up their connec- tion, give and take mutual discharges. There is this difference between a receipt and a release, that if a receipt be given in full, as we have seen, the whole debt being in fact not paid, the unpaid portion may, under ccitain circumstances, be recovered ; whereas if a release be given, it, being under seal, operates as a total discharge, notwithstanding a very small por- tion, or, indeed, none at all, of the debt may have been paid. Beoeipt for Bent. LoNDOM, C.W., Ist Sept., 1863. Received from Mr. John Smith the sum of one hundred dollars, for half-year's rent of store on Dun das Street, due this day. Robert Jones. Beceipt in Full. Received the day of , A.D. 18 , from Mr. William Brown, the sum of fifty dollars, in full of all demands. $50^. Henry Pipes. ill ! :! J i Beoeipt on Aooonnt. Stratford, C.W., 12lh Oct., 1803. Received from Mr. Thomas Hintoff the sum of ninety-six dollars and fifty cents, on account of pur- chase-monoy of horse and buggy sold to him this day. J96j/\j^. William Purcell. i 418 CANADIAN DOMESTIC LAWYER. Beoeipt to Ezecntor. Received, the day of , a.d. 1863, from Joseph Creighton and William Thomson, Esquires, executors of the last will and testament of Aaron Creighton, deceased, the sum of one thousand dollars, in full of all demands against the estate of the said Aaron Creighton. JlOOO^o^. John Huntingdon. Belease of all Demands. This Indenture, made the day of in the year of our Lord one thousand eight hundred and , Between A. B., of, &c., of the first part, and C. D., of, &c., of the second part. Whereas there have been divers accounts, deal- ings, and transactions between the said parties hereto respectively, all of , which have now been finally ad- justed, settle \. and disposed of, and the baid parties hereto have respectively agreed to give each other the mutual r'^leases and discharges hereinafter contained, in manner hereinafter expressed. Now THEREFORE THESE PRESENTS WITNESS that in consideration of the premises and of the sum of five shillings of lawful money of Canada to each of them, the said parties hereto respectively, paid by the other of them, at or before the sealing and delivery hereof (the receipt whereof is hereby acknowledged), each of them, the said parties hereto respectively, doth hereby, for himself and herself respectively, his and her respective heirs, executors, administrators, andi assigns, remise, release, and forever acquit and dis- charge the other of them, his and her heirs, ezeou OP RECEIPTS AND RELEASES. 419 tors, administrators, and assigns, and all his, her, and their lands and tenements, goods, chattels, estate, and eflfects respectively, whatsoever and wheresoever, of and from all debts, sum and sums of money, accounts, reckonings, actions, suits, cause and causes of action and suit, claims and demands whatsoever, either at law or in equity, or otherwise howsoever, which either of the said parties now have or has, or ever had, or might or could have, against the other'of them, on any account whatsoever, of and concerning any matter, cause, or thing whatsoever between them, the said parties hereto respectively, from the beginning of the world down to the day of the date of these presents. In Witness whereof, the said parties to these pre- sents have hereunto set their hands and seals, the day and year first above written. A. B. [l.s.] C. D. [L.S.] Signed, sealed, and delivered ( in the presence of f X. Z. liH ^;^'| .^h^^JL, 420 CANADIAN DOMESTIC LAWYEB. CHAPTER XX. PF WILLS AND INTE8TACT. A WILL is the instrument by which the owner of property declares the mode in which he desires that property to be disposed of after his death. When a man makes a will, h is called a testator ; and when a woman makes a will, she is called a testatrix. When movable property is given by will, it is said to be bequeathed, and the property given is calleii a legacy ; on the other hand, when land is given, it is said to be devised, and the property given is called a devise. Thb person taking a legacy is called a legatee; but he tt whom land is given is called a devisee. Any person of sound mind may make a will; but the will of a married woman is subject to some restric- tions, to be noticed presently. No person under the full age of twenty-one years can make a will of lands, but a will of personalty may be made by males at the age of fourteen, or by females at the age of twelve, if of sufficient discretion. What may amount to suffi- cient discretion cannot be defined here: it must remain for the decision of the proper tribunal, whenevsr a will is impeached on that ground. The right to dispose of landed property by will was first given by an act of Parliament called the Statute of Wil^, passed in the OP WILIS AND INTESTACY. 421 reign of Henry VIII. Personal or movable pro- perty was always subject to such a disposition, but not to its present extent. Anciently, by the general common law, a man who left a wife and children could not deprive them by his will of more than one equal third part of his personal property; if, however, he left a wife and no children, or children and no wife, he was then enabled to dispose of one-half, leaving the other half for the wife, or for the children. At the present day, however, there is no such limitation. A man may, if suflBciently devoid of all natural affec- tion, bequeath the whole of his property to strangers, and leave his wife and children penniless. All wills require to be in writing, except the wills of soldiers, made when on actual military service, and of seamen, when at sea. A will of lands must not ouly be in writing, but must also be signed by the testa tor or testatrix, in the presence of Uvo witnesses ; and these two witnesses must subscribe their names in the presence of each other. A will of movable or personal property does not require the same for- malities, although in practice it is usual to observe them. It is neither necessary that th: writing should be signed, nor, as a consequence, that it should be witnessea. A writing, however, it must be, though it does not require signing or attesting. If a man should give instructions to his lawyer to prepare his will, and those instructions are in writing, or a draft iviJl jirepared from them, it is sufficient. Such a v.i'itiufi^ operates as a will of movables, although it may be informally drawn up and neither signed nor attested. Notwithstanding, however, that Buch is the •il m 422 CANADIAN DOMESTIC LAWYER. case, it is highly desirable that all wills should be signed and attested, if for no other reason, yet for this, — that a will so signed and attested is more sus- ceptible of easy and satisfactory proof. In every will of personalty there should be an appointment of some person or persons as executor «r executrix. Any person may be appointed; but if an infant — that is, a person under twenty-one — be appointed, he will not be allowed to exercise his office during his minority; but during this time the admi- ministration of the goods of the deceased will be granted to the guardian of the infant, or to such other person as the surrogate court may think fit. If a married woman should be appointed an executrix, she cannot accept the office without the consent of her husband; and, having accepted it, with his con- sent, she is unable, without his concurrence, to per- form any act of administration which may be to his prejudice ; for, as the general rule of law is that a husband and wife are but one person, the power, and, with it, the responsibility, are vested in the husband. There is this difference between a will of lands and a will of personal property. Under the former, the devisee, or person to whom the land is given, takes the land direct, without tlie intervention of any executor; while, on the other hand, a legatee of personal property can only get the same through the executor. The moment a testator dies, the exe- cutor becomes entitled to the possession of the whole of the personal property, and is bound to see that all ihe testator's debts are paid, before he pays a til OP WILLS AND INTESTACY. 423 single legacy, or parts with any of the property to the legatees to whom it may be given. Before an executor can act, he must get himself lawfully clothed with the necessary authority. This he does by proving the will. Wills must be proved in the surrogate court of the county where the tes- tator had, at the time of his death, his fixed place of abode; and if he had no fixed place of abode in, or resided out of, Upper Canada, at the time of his death, then in the court of any county in which he had any personal or landed property. The first thing, then, for an executor to do is, to take the will 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 documents will be filled up and the will proved in due form. A surro- gate clerk will be found in every county town. When the will has been proved, it is the duty of the executor to pay the testator's debts out of the personal estate, to which such executor becomes en- titled by virtue of his office. For this purpose the executor has reposed in him by the law the fullest powers of disposition over the personal estate of the deceased, whatever may be the manner in which it has been bequeathed by the will. When the debts have been paid, the legacies left by the testator are then to be discharged. In order to give the executor sufficient time to inform himself of the state of the assets and to pay the debts of the deceased, he is allowed a twelvemonth from the date of the death of the testator, before he is bound to pay any legacies, ififot withstanding the lapse of a year from the tes- m fe I m •Ax *hi 424 CANADIAN DOMESTIC LAWYER. tator's death, the executor is still liable to any cre- ditor of the deceased to the amount of the property which may have come to the executor'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 chan- cery, in which case the court undertakes the adminis- tration, and the executor is consequently exonerated from all risk. The executor, however, is of course not answerable to the testator's creditors beyond the amount of property which has come to his hands, unless he should, for a sufficient consideration, have given a written promise to pay personally, or should do any act amounting to an admission that he has property of the testator sufficient for the payment of the debts. After payment of the testator's debts and legacies, the residue of his personal estate must be paid over to the residuary legatee, if any, named in the will; and if there be no residuary legatee, then to the testators next of kin. When a person dies without making a will, he is said to die intestate, and his property is then dis- tributed according to the provisions of the acts of Parliament passed to regulate such matters. The lands of a person dying intestate descend first to all his children, sons and daughters, equally, and if any child should be dead leaving children, these graodolulidreii wiU fitand ia their paveut's plape, :Jtiie>itiixafk,^f,jssm. OP WILLS AND INTESTACY. 425 and be entitled to the share which would have fallen to their parent had such parent been alive. Fail- ing children, the lands will go to the intestate's father ; and if the father be dead, then to the mo- ther ; and if the mother be dead, then to the brothers and sisters and collateral relatives. If, however, the land came to the intestate in right of his mo- ther, then upon his death without children such land will revert to the mother if living, and if dead, to the father for life, and then to the brothers and sisters. We have not pretended to give the whole law of descent of real property : we have only given an out- line of the way in which land of an intestate will go in an ordinary and simple case. It would be useless to do more, and would swell the limits of this work far beyond our design. The law of descent of real property is much too intricate to warrant any attempt to popularize it. The application of an intestate's personal property, after payment of all his debts, is now regulated by statutes of the reign of Charles II. ani James II., commonly called the Statutes of Distribution, by which statutes the rights of the relations of the de- ceased appear to ha'^'^e been first definitively ascer- tained and rendered legally available. Under these statutes, if the intestate leave a widow and any child or children, the widow shall take a third part of the surplus of his effects. If he leave no child or de- scendant of a child, she takes one-half. If the in- testate leave children, two-thirds of his effects if he leave a widow, or the whole if he leave no widow, 38« ft I 426 CANADIAN DOMESTIC LAWTBK. shall be equally divided among his children, or, if but one, to such child. If the intestate leave no children or representatives of them, his father, if living, takes the whole; or, if the intestate should have left a widow, then one-half*. If the father be dead, the mother, brothers, and sisters of the intestate shall take in equal shares, subject, as be- fore, to the widow's right to a moiety. If there be no brother or sister, the mother shall take the whole, or, if the widow be living, a moiety only , as before ; but a stepmother can take nothing. The children of brothers or sisters who are dead stand in their parent's place. If a married woman is possessed of property, real or personal, in her own separate right, she may dispose of the same by her will to or ampng her children, and, failing children, then to her husband. Such will must be in writing, and signed by the tes- tatrix in the presence of two witnesses, neither of whom, however, must be the husband. The separate personal property of a married woman dying in- testate is to be distributed in the same proportions between her husband and children as the personal property of a husband dying intestate is to be dis- tributed between his wife and children. When a person dies intestate, any of the next of kin may obtain letters of administration from the surrogate court, which will clothe the party obtaining such letters with the same authority that an execu- tor has. An administrator's duties and liabilities are precisely the same as those of an executor, so that it is unnecessary to refer to them again. OP WILLS AND INTESTACY. 427 A codicil is a supplement or addition made to a will by the testator, to be taken as part of the same, — being intended for its explanation or alteration, or to make some addition to, or subtraction from, the former disposition of the testator. It should be exe- cuted in the same manner and with the same formality as the original will. No precise form of words is essential to the validity of a will ; but great care should be exercised that the wishes of the testator are clearly expressed in proper terms. Wills are revoked by the marriage of the testator or testatrix, and by subsequent wills and codicils, so far as such subsequent wills and codicils are incon- sistent or incompatible with the original will. * Short form of Will. This is the Last Will and Testament of me, A. B., of , &c. &c., made this day of , in the year of our Lord one thousand eight hundred and , as follows: I Give, Devise, and Bequeath all my messuages, land^, tenements, and hereditaments, and all my household furniture, ready money, securities for mo- ney, money secured by life assurance, goods and chattels, and all other my real and personal estate and effects whatsoever and wheresoever, unto C. D., his heirs, executors, administrators, and assigns, to and for his and their own absolute use and benefit, according to the nature and quality thereof respec- tively; Subject only to the payment of my just debts, funeral and testamentary expenses, and the charges \ 428 CANADIAN DOMESTIC LAWYER. of proving and registering this my will. And 1 appoint E. F., of , executor of this my will; And hereby, revoking all other wills, I declare this only to be mj' last will and testament. In Witness whereof, I have hereunto set my hand and seal, the day and year above written. A. B. [l.s.] Signed, sealed, published, and declared by the said A. B., the testator, as hnd for his last will and testament, in the presence of us, who at his request, and in the presence of each other, have hereunto subscribed our names, as witnesses to the due execution thereof. R. S. • X. Z. General form of a Will disposing of Beal and Personal Estate, in Legacies. I, ^. T., of , in the county of , gentle- man, being in good health [or in ill health, as the case may he] and of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills by me at any time heretofore made. First. I hereby constitute and appoint my wife, E. T., to be sole executrix of this my last will, directing my said executrix to pay all my just debts and funeral expenses, and the legacies hereinafter giyen, out of my estate. OP WILLS AND INTESTACY. 429 Second. After the payment of my said debts and funeral expenses, I give to each of my children the sum of dollars, to be paid to each of them as soon after my decease, but within one year, as con- veniently may be done. Third. And for the payment of the legacies afore- said, I give and devise to my said executrix all the personal estate owned by me at my decease (except my household furniture and wearing-apparel), and so much of my real estate as will be sufficient, in ad- dition to the said personal estate herein given, to pay the said legacies. Fourth. I give to my said executrix all my house- hold furniture and wearing-apparel, for her sole use. Fifth. I devise to my said executrix all the rest and residue of my real estate, as long as she shall remain unmarried, and my widow, with remainder thereof, on her decease or marriage, to my said chil- dren and their heirs respectively, share and share alike. In Witness whereof, I hereunto set my hand and seal, this day of , in the year of our Lo^d one thousand eight hundred and T. T. [l. sJ Signed, sealed, published, and declared by the said T. T., as and for his last will and testa- ment, in the presence of us, who in the presence of each other, and at his request, have subscribed our names as wit- nesses hereto. X. Z. 480 CANADIAN DOMESTIC LAWTEB. Oodioil to a Will. This is a codicil to the last will and testament of me, A. B., of, &c. &c., bearing date the day of , A.D. 18 {the date of the will). I do hereby revoke the bequest of all my house- hold furniture to my son John, and do give and be- queath the same to my daughter Jane, to and for her own absolute use and henefit forever. I give and bequeath to my daughter Mary, in addition to the legacy bequeathed to her by my said will, the further sum of $400. In all other respects I do confirm my said will. In Witness whereof, I have hereunto set my hand and seal, this day of , a.d. 18 . A. B. [l. s.") Signed, sealed, published, and declared by the said A. B., the testator, as and for a codicil to his last will and testament, in the presence of us, who at his request, and in the presence of each other, have hereunto sub- scribed our names as witnesses to the due execution hereof. R. S. X.Z. i\\ INDEX. AFFIDAVITS. General directions as to 9, 10 General form of Affidavit 10 General form of Affirmation 11 Form of Oath 12 Form of Affirmation ib. AGREEiMENTS. See Contracts. ARBITRATION. Amicable method of settling suits 50 Benefits of, extended by act of W. 3 62 Submission cannot be revoked without leave 53 Witnesses may be examined on oath 54 How authority of arbitrators determined ib. Within what time award to be made 55 Power of arbitrator to enlarge time ib. Proceedings upon reference ib. How award should be signed 56 How award set aside 57 Authority of umpire, and how chosen 58 Award, how enforced 59 Forms of arbitration deed 69, 63 Form of Bond 65 Appointment of umpire 66 Enlargement of time for making award 67 The like by parties ih. Appointment of third arbitrator 69 Oath to witness....- ib. Appointment to proceed 68 in nn 'ti 432 INDEX. ARBITRATION {Continued). pao« Form of Peremptory appointment 68 Award (general form) ib. Of award ^here submission by bonds 70 Award where by agreement 71 Award spec- al as to costs 72 Affidavit of execution of bond 73 ASSIGNMENT. Definition of .•.>«M*»t»«««M 74 When to be registered ib. Form of assignment of agreement to purchase.... 75 Assignment of bond 78 Assignment uf crown lands 80 Assignment of lease SI Shorter form 85 Assignment of lease by administrator 87 Assignment from trader to secure debt 89 Assignment of judgment 93 Special form of judgment 95 Assignments of mortgage 97, 114 Memorial of mortgage 115 Assignment for benefit of creditors 117 Assignment by indorsement 123 Assignment of partnership property 124 Assignment of debt 129 Assignment of policy of insurance 130 Assignment of goods — bill of sale 131, 135 AUCTIONS. Auctioneer cannot buy 136 Is agent for buyer and seller 137 Sale must be conducted fairly ib. Form of agreement 138 Forms of conditions of sale 139, 141 BILLS OF EXCHANGE. Definition of. 143 Foreign ib. Inland ib. Distinction between them 144 Form of inland bill ib. Obeervatione on form. 145,158 M^ .'hBSl . INDEX. 488 BOND. Mo> What 159 Penalty ih. What can be recovered on ih. Form of single bond 160 Money bond ih. Bond to convey land 161 Bond for ^..yment of purchase money 162 Bend of indemnity 164 Bond to pay rent < 165 CHATTEL MORTGAGE. What 167 Enactments relating to 167,172 Must be registered within five da^s 186 What affidavits required ib. To secure future advances 169 Description of property in 170 When to be registered ih. How registered when goods removed 171 Must be renewed eveiy year ih. How renewed ih. Form of chattel mortgage 172,179 Affidavit of mortgage 177 Affidavit of witness 178 Chattel mortgage to indemnify against in- dorsement 182 Affidavit of mortgage 188 Affidavit of witness 189 Chattel mortgage to secure future advances.. 190 Affidavit of mortgage 194 Affidavit cf witness ih. COLLECTION op DEBTS. See Division Court. CONTRACTS. Definition of. 13 Are express or impliad... ih. Simple or special ih. Consideration essentipl in eveiy contract. ih Different so/ts of consideration ib Good or valuable 14 When agreements must be in writii^g tb. Btatute of frauds ••%... ib VI \ ) 434 INDEX. CONTRACTS (Conpurt 217 Form of affidavit to sue in adjoining division.... 218 Particulars of claim 219 « Particulars of set-oflF. ih. Notice of defence 220 Notice of admission to bave proof. ih. Affidavit for attachment ih. Warrant of attachment 221 EQUITY OP REDEMPTioN. SeeMort^^^ EXECUTORS AND ADMINISTRATORS. Appointment of executors 422 Who may be appointed ih. Infant executor ih. Married woman executrix ih. Cannot act without husband's consent ih. Must prove will 423 Must pay iiebts before legacies ih. Liabilities of executor 424 Who may be administrator 426 His duties and liabilities ih. FENCES. See Line Fences and Watee-Courses. FIXTURES. See Landlord and Tenant. FRAUDS, STATUTE or. See Contracts. GIFT OP LANDS, DEED of. Form 263 GOODS, SALE op. Contracts for 16 Necessary requisites on sale depend partly on value ih. What necessary when under $40 ih. What necessary when over $400 17 Contraotfi not to be performed within a year 18 INDEX. 487 GOODS, SALE of {Continued). tAn Form of agreement for sale of stock 48 Agreement for sale of grain.... 49 Bill of sale of goods 131 HOUSE. See Landlord and Tenant. HIRINGr. See Master and Servant. LANDLORD and TENANT. Of a lease 263 For what term leases may be made ib. Agreement for lease ib. Letting for a year 264 Use and occupation.... ib. From what time to commence ib. Holding over ib. What constitutes a yearly tenancy 265 Remedies for rent ib. Distress ib. Distress after expiration of term 266 When and how to be made 267,269 At what period of the day rent payable 267 Distraining goods clandestinely removed ib. Distraining goods seized in execution 268 Costs of distresses under $80 270 Action for rent ib. Repairs 271 Notice to quit ib. Form of distress warrant 272 Notice of distress 273 Agreement for farming lease 274 Lease of house 277 Another form 281 Lease of land 286 Lease of house and farm 289 Statutory lease 295 Another form 297 Lease of part of house 298 Notice to quit by landlord 209 Notice to quit by tenant 300 L.BASES. See Landlord and Tenant. LINE FENCES and WATER-COURSES. Act relating to 255 37* l^,-.}ki:' 488 INDEX. LINE FEN ':5ES and WATER-COUKSES ( ContmueSt). t ao« Liability to repair 255 What constitutes a lawful fence ih. When line fence may be taken down ih. Water fences to be made in equal parts 256 Ditches to be opened in fair proportions ih. Fence-viewers to decide disputes 257 Decision to be in writing ib. Notice of investigation ih. How second award to be obtained 258 Penalty for disobeying award 259 How payment enforced ,.. 260 Fence-viewers to report 261 Justice of peace to transmit to clerk of division court 262 Execution to issue after 40 days ib. Fees '. ib. MASTER AND SERVANT. Contract of hiring 300 Need not be in writing 301 Unless for more than one year ib. When hiring will be presumed ib. Hiring of domestic servants 302 Relative rights and duties of master and servant ib. No deduction of wages for sickness 303 Contracts of apprenticeship ib. Usual provisions in apprenticeship deeds 304 Master and Servant Act ib. Act respecting apprentices and minors 305 Summary proceedings, servants ib. The like against master ib. Binding of apprentices 306 Penalty for ill usage of. 307 Penalty for misconduct ib. Form of apprenticeship indenture 303 Form of apprenticeship for a girl 310 MORTGAGES. What constitutes a mortgage 313 What passes under ib. Right to redeem '. tb. Discharge to operate as re-conyeyance 314 INDEX. 489 ib. MORTGAaES(Con^inwcrf). fa«k Must be in writing 314 How enforced ih. Form of mortgage of real estate 314 Shorter form 322 The like, with insurance covenant 326 ^ Memorial to insurance covenant 331 Mortgage with power of sale 83o Mortgage with power of sale and insurance covenant 341 Shorter form 350 Memorial with power of sale 357 Short forms under statute 359,366 Mortgage of lease 370 Discharge of mortgage 376 NATURALIZATION. Statutes relating to 377 Proceedings to be taken for 378 Certificate of justice ib. To be filed at Quarter Sessions ib. Certificate of naturalization 379 May be registered if desired ib. Fees payable ib. Form of oath of residence 379 Oath of allegiance 380 NOTICE TO QUIT. See Landlord and Tenant. PARTNERSHIP. What it is 381 Founded wholly on consent of parties ib. General partnership 382 Special partnership ib. Limited partnership ib. Authority of partners 383 Dormant and secret partners... ib. Ostensible partners 384 Term of partnership ib. Executor of partner 385 Dissolution of partnership ib. Statutes relating to limited partnership 385 Provisions of 386 Mode of formation of limited partnerships.... 386, 389 440 INDBX. PARTNERSHIP (Continued). voi Form of partnership deed 389 Another form 392 Dissolution of partnership 397 Notices thereof. 397, 398 Limited liability certificate 398 PATENTS FOR INVENTIONS. How regulated 40l> Who may obtain ih. Mode of obtaining 404 Declaration, how made ib. Description and specification 405 Patents for discoveries 406 How obtained ib. Patents may be assigned ib. Rights of executors 407 Contested applications ib. Renewing patents ib. Notice of application for 408 Surrendering patent ib. Mistake in patent ib. Penalty for infringing 409 Patented articles to be stamped ib. Form of petition ib. Specification 410 Declaration 411 Surrender for re-issue 412 Disclaimer ib Petition for patent for design 413 Assignment of entire interest ib PROMISSORY NOTES. Form of a note 399 Observations upon 403 404 See also Bills of Exchange. RECEIPTS AND RELEASES. Parties receiving money not generally bound to give receipt 410 Efiect of receipt in full ib. Effect of release ib. Difference between receipt and release 417 Release must be under seal ib. INDEX. 441 ■n>. 04 ih. K05 RECEIPTS AND RELEASES {Ccmtinued). paoi Form of receipt for rent 417 Receipt in full ih. Receipt on account, ib. Receipt to executor 418 Release of all demands ih. RENTS. See Landlord and Tenant. SALE OF GOODS. See Contracts. SERVANT. See Master and Servant. WILLS AND INTESTACY. Who may make a will 420 Will of lands..... ih. Will of personality ih. A will must be in writing 421 Except of soldiers and sailors ih. How to be executed ih. Appointment of executor 422 Who may be executor ih. Diflference between wills of lands and personality ih. Executor must prove will 423 Duty of executor ih. Payment of debts and legacies 424 Of intestacy ih. How intestate's estate distributed ih. Rights of widow and children 425 Distribution of personal property ih. Wills of married women 426 Letters of administration ih. Codicils 427 Revocation of will ' ih. Form of will 427,428 Codicils 429 Codicil to a will 430 THE END. ■ -irmssnt ivmmi v'^m^r^T'! '^ lr./^itira£^^.klt:iX-J;- .-.a