wm IMAGE EVALUATION TEST TARGET (MT-3) UP ^ C^ ^. 1.0 t.l ■ 50 ■^™ ^ b£ 12.0 2.2 I 1.25 |U IIM, ^ 6" — . HiotDgTdphic Sciences Corporation as WIST MAIN STRUT WnSTIR N.Y. HStO (716) •72-4503 '9>'' i CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. [U Canadian Inttituta for Historical Microraproductions / inatitut Canadian da microraproductions hiftroriquai T«chnic; signifle "A SUIVRE", le symbols V signifle "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beqinning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre fllm6s & des taux de reducdon diffArents. Lorsque le document est trop grand pour Atre reproduit en un seul cllchA, 11 est fllr^l 6 partir de I'angle supArieur gauche, de gaucne A droite, et de haut en bes, en prenant le nombre d'Images nAcessaire. Les diagrainmes suivants illustrent \l mAthode. 1 2 3 1 — 1 2 3 4 5 6 11 ADVERTISEMENTS A.B'C. CODE TUB WESTERN UNION CODE Thos. Forrester (o. Mining Machinery Compressors Rock Drills Hoisting Engines Pumps, Derricks Wire Rope and Wire Nettings Rubber and Copper Metallic Steam Hose Estimates given on complete Plants, also on all kinds of Mining and Engineers' Supplies. THOS. FORRESTER CO. 337 St. James St. MONTREAL we«.m uitio„ cc. THE A.B£. CODC < ^ ADVERTISEMENTS HI The Liverpool and London and Globe Insurance Company HEAD OFFICE FOB CANADA : 16 PLACE D'ARMES, Corner St. James St, MOSTKEAU Available Assets. - $60,656,420 Invested IN Canada, - $3,300.(XjO BOABD OF DIREGTOBS : EDMOND J. BARBEAU, Esq.. Chalrmfcrt A r CAu.T ; ■i?"^"^"' ^- "'•Puty Chairman A.F.CAyLT.E.q., 8ABIUEL riMLEY. E«,.. B. 8. CLOU8TOH. E«,. lowm'on'S^Ai^. G. F C. SMITH, Chie§ Agent for Canada. The Imperial Insurano Company, Limited OF IvONDON B8TABLI8HKD 1803 A88ET8 OVER $8,000,000 CANADIAN DEPARTMENT! 0. R. KEARLEY, Resident Manager MONTREAL m IV ADVBRTISBMBHTS Canada Life ASSURANCE CO. ESTABLISHED 1847 HEADOFFIC? - - . TORONTO, ONT. ' JuS^o^r" $3,000,000 Assuriices in Force, over Vs'm^ PMSIDMT Alio OCMKRAL MAHACIlt: A.Q.am8Ay,p.i A. IndS^W 5!^"t^ THOMAS. B.,!T.!J^I. Q,... ANftRew ALM.N, HIbq., Monlreal. trr^xT ,. , BOARD OF DIRICTORSi HON. D. MaoINNBS, H»miltOT. ^' ?*UQB,.B;8q.. Q. C, Hii«,iHo«. HON> GEO. A. COX, Tbwnto. B. E. WALKER, Esq., Toronto. VERY REV. DEANINNES, London. N. MERRITT, E^q., Toronto. A^O. RAMSAY, Esq., /V«^«,<, Hamilton. ADAM bROWN. Esq.. Hamilton! J. W. PLAVELLB, Esq., Toronto. Z. A. LA6^^ Esq., Q.0,, Toronto. ASSISTANT OKNCRAL MANAQ)||I^ E. W. COX. TRIASURIR, H. B. WALi^ER. MfiMBTMlYy R. HILLS, ACTUARY, F. SAHDiastiNi M. A. SUPIRINTINDINT, y%. T. RAMSAY. ■ r ADVERTISEMENTS THE STANDARD LIFE ASSURANCE COMPANY OF EDINBURGH. ESTABLISHED 1825, MONTREAL. tiao,ooo,ooo 40,000*000 ■ 20,300,000 0,700,000 i8,aoo,ooo 14,200,000 HBAD OFIMCB FOR CANADA, Toifltl AaauranoMi ToMii InvMUid l^nds Bonuses Dictrlbutsd (o««r) Annual Inoom* Total AMiirano«itin-Olutada> Total Investments in Canada (over) WORLD-AVIDB POUICIS8 I8SUBD FRKE OP CHARQK. Thirteen Months for rerlTsl of Lapsed PolioieB, withoat Medical Certificate, of flre years' existence. cl. nLITTO^! BALPOUR, Secretary. VV. n^ RAMSAY, nanaoer. Corks and JB tings. JOHN AULD 9 GANJIDI^ GORK GUTTING GOT. ^ PATENT /AACMINERY. Office and Factory: 642 Lagauchetiere St., - MONTREAL. Every description of CORKS on hand and cut to order. Also CORK WOOD and CORK l.IPE PRESERVERS. All sizes of Hard and Soft Wood Taps, Bungs, SpUes. Caps. Bottling Wire and .Wax, Cork Driving and Capping y^achlnes. Capsules, Etc GAiaC BOTTLE BASKETS." TIN FSIL. ROYAL PAPER MILLS CO. -MANUFACTURERS OF- rine Book, Writing, Colored and Envelope Papers. Bristol Boards, also Spruce Soda ribre and Lumber. Head. Office : EAST ANflUS* QUE- Warehouses 793 CRAia ST.. AVONTRCAL. r- P. BUCK. Pres. and Gen- l^ov- r. W. TMO;»\PSON. Sec- Treas ^^fmmm vr ADVERTISEMENTS R- D. McGIBBON. Q.C. PERCY C. RYAN. ^"ASE-CASGRAIN. Q.C.. A.P. EDOUARD r. SURVEYOR. ^'CT'OR E. MITCHELL. McGibbon, Casgrain, Ryan & Mitchell Advocates, Barristers, Etc. Canada Xife Buiidi ng. Montreal. We Furnish Homes OR Offices Throughout. Cash or credit. Bell Telephone. East 1294. Office; 4?7 AValsonneuve Street factory: 370 CHA/APLAIN STREET. The Dominion Flour Paste Co. C. GREAVES, Manager. One kind of Paste fOR LEATHER fOR LABEL '^OR WALL- PAPER Used With great advantage by SHOEAVAKERS. PAPERHANfiPDQ |OOKB,ND.^^_BOX ^Sf Vermln-Proof. Bapid Drylnj,. Perfumed. COND. STRICTLY CASH. With FURNITURE CARPETS, OILCLOTH, L'NOLEUM, DESKS, Etc, Etc. IWetropolitan House Furnishing Co., 1678 AND 1680 NOTRE DAME ST., MONTREAL. >>.% \ VIII ADVERTISEMENTS THE Hotel Waiter Corkscrews Will cxliHct CORKS without i>ulling, cat Wircy, cU;. pRENCH COOK'S KNIVES IN ALL SIZES AND SHAPES. The finest F^AZORS in the mat-ket--Comprisin^>- the ''Star" and "Gem" SAFIiTN' RA'/ORS. (lilray's Palenl Ciiriaiii Streicliers Are the only ones ,i^is nii^" entire satisfaction. L. J. A. Surveyer, IMPORTER OF HARDWARE, InOLS, Etc, 6 St. Lawrence Main St, Montreal. Al^VERTISEMBNTS ^ vn &C0 AND Maltsters LACHINE. P. Q, OFFICES : 8 521 St. James St., Montreal 1 209BarringtonSt.,Hali*ax v583 Wellington St., Ottatoa 26 Rue St. Angele, Quebec ADVERTISEMENTS IX ERNEST H. STaART Royal insurance Building, Justice of the Peace A^D Notary to The Canadian ?aoiec Railway. The Qnebec Banlc. The Union Banli: of Canada. The Canadian Bank of Commerce. The Merchants Bank of Halifax. The Dominion Bank. The Guarantee Co. of North America. The Bell Telephone Companv. The Northern Electric & M'f'g. Co. (Ltd.) The Montreal Oas Co. The North British & Mercantile fnBnrance Co, Tho Scottiah Temperance Life Aasarance Co. The Dominion Steamship Co. and Commissioner for Ontario and Manitoba. The National Trast Co. of Ontario. The Manufacturers Life Insurance Co. ROOMS NOS. 101, 102, 1709 NOTRE Dame Street, Montreal. Bell Telephone 2874. Issuer of Marriage Licenses. Telephonei Main 2462. JAS. BALLANTYNE Plumbing and Steam Heciting Contractor Nos. 151 and 153 St. ANTOINE Street MONTREAL. XI^QtimateB given on all kindB of Plumbing, Oas or Klectric Work and Hot Water Heating. Also, High and Loco Pressure Steam, Single or Double Pipe System of Heating, and the using of exhaust from Steam Engine or Pump. ADVERTISEMENTS cJA/neS C. ncARTMUK. CHAS. C. CORNEILLE. McArthur, Oorneille & Oo., AANUrACTURERS and I/*\PORTERS OP White Lead, Colors. Glass, Varnishes, Glues, Oils, Chemicals and Dye Stuffs, 310 to 316 St. Paul Street and 147 to 151 Commissioners St., MONTREAL. J. B. Rolland & Fils 6 TO 14 St. Vincent Street, MONTREAL Paper Manufacturefs^ Blank Books and Bookbinders. -^m THE ROLLAND PAPER CO. OF ST. JEROME, P.Q. The Canadian Rubber Co. OF MONTREAL — MANUFAOTUREBS OF- HiGH Grade Rubber BOOTS and SHOES, Belting, Hose, PACKING, Carriage Cloth, Etc. Etc. Head Office and Works: MONTREAL. Brandies: TORONTO and WINNIPEG. R. A. DUNTON, B. C. L. NOTARY, Etc. COMMiaSfONER FOR ONTARiO, Bto. Offices: Temple Building, 185 St. James Street, MONTREAL. PUNDS rOR INVESTAVENT. ADVERiISEMENTS :ti BANKERS, 3 BT". BJUCRJtBCBMV ■VSKSBV. Commercial Paper Bought and Sold. Bonds and Debentures Negotiated. W. H. D. YOUNG, L.D.S , D.O.8. J694 Notre Dame Street, - - MONTREAL TELEPHONE 2515. Thibaudeau Bros. & Co., 332 to 336 ST. PAUL STREET, Thibaudeau Bros. & Co., LmSSSSd Thibaudeau Bros. & Cie.. dalhousm fuB^w:. Q,TJEIBEO (S. COULSON) H. R. IVES & CO., Manufacturers of Hardware, Iron and Brass Bedsteads, Water Boilers, " The Buffalo " Railings, Crestings, etc. 117 Queen Street, - - - MONTREAL L. J. 0. Beauchemin Emilien Daoust BSTABI^ISHBD IN 184a Eti«nne Roby e. o. pEi3iueyEMi]^ & FliiS Booksellers, Printers, Bookbinders ai|d Bookbinders' Supplies 256 & 258 ST. PAUL ST. MONTREAL Printing and Bookbinding Offloes: 34 and 26 ST. QABEUBL STBBBT Bookbinders' Snppliei: 30 HOSPITAL STBUIST xn ADVERTUEMHNTS Telephone, ."^^aln 1521- W. Herbert Burroughs ADVOCATE, Etc. Commissioner for all Provinces. Rooms: 706 & 707 New York. Life Building, 0. II Place D'Armes Square, - - - MONTREAL. 5' A VER Y CASE V. b.c.l. Barrister, solicitor, Notary Public, etc. Office: 90 Dundas Street, - LONDON, Ont. Special Att«ntion given Commercial Law. J. B. VARLKY BARRISTER, SOUCITOR, ETC Standard Building, - QUBJEN SXRKET, ST. CATHARIN&S P.O. Box 955 Telephone No. 186 GEO. I- CLARKE BARRISTER, SOLICITOR AND NOTARY 3t. Stephen, N.B., Special attention given to ^-^ * -• -|- * .,|-^ * collections. V.**JJ1— IM J^J.^v^.^^ p>? I m^'^^mm^'^^i^m^ ADVERTISEMENTS Xllt JONAS' EXTRACTS Are unequalled as to Strength and Purity. Every lady should use them for cooking. Genuine bears our signature. Henri Jonas & Co, "^ 8t. F»atil Street, MONTBEAL /Aerchants Telephone 1544 P. O. Box 259 Alcide Chausse, architect •153 Shaw Street, Montreal Member Province cf Quebec Association of Architects, Soci /Manitoba «c North-Western Hallway Company. Tht Edinburoh LIff Assurance Company. The Canada Life Assurance Company. The Imperial Life Assurance Company The London & Ontario Investment Company. ADVERTISEMENTS XV ClK Canada Paint Co*, (mm. MONTREAL AND TORONTO ^r MANUFACTURERS AND FIRST HANDS -^m Dry White Lead, Red i^ead, Grange Mineral, Litharge. Dry Colors, Prasaian Blues, Ultraitiarine Bines, Chrome Yellotrs. "Mistletoe," " Everfjreen," and "Imperial" Greens, Vermilions, Lakes. Pigments from our own Mines, Magnetio Oxides, Graphite, Indian and Venetian Reds, Ochres, Siennas and Umbers, Mortar Stains. Colors in Oil, Colors in Japan, Colors, Ready Mixed, ^ Liquid Coach (colors. Artists' Tube Colors, OrDamental Enamels, Painters* Antique Tints, Stains lor Wood. Wall Paper Colore, Paper Stainers* Colors, Kalsomine Wall Tints, Distemper Colois. Superior Carriage Varnishes, Finishing, Uearini ubbin "^. aggon. Japans for Carriage Work, Gold Sise, Brown Japan, Black Japan, Implement VarnishM. "Elephant" White Lead, " Decorators' Pure" White Lead, •'Bull's Head "White Lead, "Rovbl Crown" White Lead, W^hite CrosH Brand. Snow White Zinc, No. 1 White Zinc, Patent Dryers, Putty. Carriage Makers' Specialties, Body Primmg, Rough Stuif, Rub Lead. Fillers, English anc' French, Fillers, Dry and Liquid, Fillers in Puste, Ground Work, Iron Knifing Filler. Linseed Oil, Linoline Oil, Castor Oil, Turpentine. Paris Green, Carbonate of Copper, Chemicals, Glues. Rosin and Pine Tar. Pumice Stone, Smalts and Bronzes, Shellac and Copal Gums. House and Cabinet Vnrpishef>, Hard Polishing, Best Flowing, Hard Oil Finish, Elastic Oak. Spirit Varnishes, Chair Varui»>hee, Piano and Organ Varnishes, Corriaite Top Dressing, Cannery Lacquers. Hftndy Vftrnishcs in snutU iclf-opcning tins* Priced CAtAlogucf *nd Color Cards furnished to the traie on application. The Ganadu PAINT Company, Ltd. XVI ADVBRTISBUBNTS Capital, $l,SOO,000. Ueierve nA Sur|il.. Prdlb, S|,poO,000 Total AsMis, $12,600,000 Bank of HamUton HAMILTON, Ont., Canacia J. XURNBULL. Caehler. Collections carefully and promptly effected at all points in Pan-^o Savings Banks at all Offices. Correspondence solicited! *' Toronto i Hamiltoii Electric Co. Manufacturers of Generators and '^^Motors Arc Machinery and Lamps Electrical Specialties. 255-7 James St North, HAMILTON LOVELL'S '^'^'f CoiDinercial Compeoiliiiiii FOI^ 1900 PRICE, $3.00 Montreal : JOHN LOVEI^L & SON, Publishers. \ Entered according to Act of Parilainent, in the yenr one tbouRand nine hundred, by iIuiin LovBLL ft Son, In the office of the Minister of Agriculture and StAttitlos, at Ottawa. 18 ADVERTISEMENTS i Fredericton Business College and Shorthand Institute, TREDERICTON. NEW BRUNSWICK. BUILDING, Steam Heated, thor- oughly Ventilated, and well Lighted. LOCATION, unequalled in the Mari- time Provinces. TUITION RATES are reasonable. BOARD can be procured at $2.25 and $2.50 per week. FREDERICTON is the great educational centre for the Mari- time Provinces. THE PRINCIPAL has had seven- teen years' experience as a practical Accountant and Busi- ness Educator, and is assisted by a thoroughly competent staff For Catalogue containing full particulars, address, W. J. OSBORNE, Ppincipal, PREDCRICTON, N.B- PAT0N:S scotch Boot and Shoe Laces Paton's name on every Box. ^^^ ^„g 3^3^ tAADE. Demand Paton's and take no other. SOLE* AGENTS Eo. B. i^ess & eo. MONTREAL, TORONTO, WINNIPEG. ADVERTISEMENTS 19 Canada Paper Co'y.^ Limited MQNTREALi & TQRGNTO PAPER MAKERS WHOLESALE STATIONERS AND ENVELOPE MAKERS The paper in this book was made by the GANAD/^ P/^PER CO., Limited, Montreal and Toronto. GENERAL TABLE OF CONTENTS. PAOK A Summary of the Laws of all the Provinces 198 Bank Act annotated 500 Bills of Exchange Act annotated 424 Chartered Accountants.... 606 Commercial Law of the Dominion 380 Commissioners for taking Affidavits to be used in the various Provinces. 587 Customs Tariff,... 615 Incorporation of Joint Stock Companies 33 Insurance Law of Canada 170 List of Banks in Canada and their Branches 607 Notarial Profession in the Province of Quebec 185 Patents, Trade Marks, Designs and Copyrights 190 Private Bill Procedure, Dominion Parliament 187 Procedure for Incorporation of Companies under Dominion and Pro- vincial Acts ..,,..... 33 Succession Duty Acts of each of the Provinces of Canada (with Pre- face) 97 Colin McArthur & Co. MONTREAL WALL PAPER FACTORY, 1030 Notre Dame street, Office and Warehouse t 13 VoItig:eurs Street X- iVLOHTRSAL INDEX TO ADVERTISEMENTS. Page AuldJohn Montreal v Ballantyne .James " ix Bank of Hamilton Hamilton xtI Beauohemin C. O., & Fils Montreal xi Belleville Business College Belleville Fariny 33 Canada Life Assurance Co . . Montreal i v Canada Paint Co " xv Canada Paper Co " 19 Canadian Government System. . . Inside hack cover Canadian Rubber Co Montreal x Chau8s6 Alclde " xiil Dawes & Co " vii Dominion Flpur Paste Co " vi Forrester Co., The Thos " Inside front cover Frederlcton Business College and Shorthand Inst ute Frederlcton 18 Imperial Insurance Co., Ltd Montreal iii Intercolonial Railway. See Canadian Oovemment System. Ives H. R. &Co Montreal xi Jonas Henri, & Co " xlii Liverpool & London & Globe Insurance no Montreal lil Lovell John, A Son " 636 Page LovellJoseph B Montreal 637 Mc Arthur Colin, & Co " 19 Mc Arthur, Corneille & Co " x Metropolitan House Furnishing Co. " vi Powell F. F " Outside back cover Reed George W., & Co Montreal Outside back cover Rogers Co. , The Ellas, Ltd Toronto * Facing 33 Holland J. B., & Flls Montreal x Itoss George D., & Co " 18 Royal Paper Mills Co " v Smith Bros. Granite Co " Fncing inside back cover Smith R. Wilson Montreal Facing 33 Standard Life Assurance Co " y Surveyor li. J. A " viii Thibaudeau Bros. & Co '• xi TimnionsM., &Son Quebec xlU Toronto & Hamilton Electric Co . . .Hamilton xvi Union Assurance Society Montreal Outside back cover Walters C. H., & Co Montreal xi YoungW.H.D " xl INDEX TO LEGAL CARDS. Page BurrougliS W. Herbert Montreal xll Casey Avery, B.C^.L London, O. xli Clarke Geo. J St. Stephen, N.B. xll Dunton R. A., B.<\L Montreal x McGibbon, Caagmln, Hya» & Mitchell, '« vl Page Stuart Ernest H Montreal ix Tuppcr, I'hippen & Tupper Winnipeg xiv Varley J. E 8t Catharines, O. xll White, O'Halloran & Buchanan. . . .Montreal I xiv INDEX. Pao .. 60 Accoontonts, Cliartered ActionH, liimitatlonB of 395 Agency 3»3, 410 AffrelKlttment 421 Itnnk Act Annotatod. (.See Inttex p 574.) 500 Banks in Canada (Ust of) 607 amended to p. 421 Act. {As Bills of Kxchange dtite) ACfEPTANCE. Interpretation of, s. 2. Definition of, «. 17 (1). Of overdue bill, b. 10 (2). Requisites of, s. 17 (2). Mere signaturt- of drawee sufficient, s. 17 (2)('r). Time for, s. IH I)nte of, in case of, after dishonour, s. 18 (2). Oenerai, s 19 (1). Qualified, s. 19 ^2). (•,mditin>Kil,8. 19 (2) (a). Partial, a. 19 (2) (/'). A.^ to time, s. 19 (2) (r). .1.1 to parties, s. 1!» (2) (rf). Wlien presentment for necessary, s. 39 (1). Ewpresn stijmlation as to presentment for, s. 39 (2). Xii presentment in any other rase, a. 39 (3;. Rult's lis to presentment for, s. 41. Himrsfor', a. 41 ("). If two drawees not partners, Iww made, s, ■ 41 (ftl. 1/ drawee dead, s. 41 (r). 7'lirouyh post-qlf'-e, a. 41 (a). K.rrnses for non-j. resentment, s. 41 (2). Jielief that l)ill will be dishonoured, mo ex- ruse, a. 41 (3). Acceptance koe HONOtrR, supra protest, a. 64. May be for part, a. 64 (2). Must l)e written on bill, g. 64 (3) ('()• And signed by acceptor, s. 04 (3) (b). For whose honour ueenied s. 64 {4>, Computation of time, s. 64 (5). Liability of acceptor for hoiu)ur, s. 68. ACCKPTOR. Not entitled to notice of dishonour or protest, 8. 52 (3). Liability of, s. 64. If holder at maturity, bill discharged, a. 60. '/'« what parties, s. W (2). Presentment to acceptor for lionour, s, 60. Time for presentment, s. 6(! (2). Kxcuses for non-presentment or delay, s. 66 13). Protest for non-payment, s. 66 (4). Aci OMMODATION Party, s. 2H. triable to holder for value, s. 28 (2). Ac I ION. Interpretation of, s. 2 (I)), '■After Hioht." Bl IV pay able must be presented for accept- ance, B. 39. Paob Agent. Signature by, 8. 90 (1). Procuration signatures, s. 26. Liability of, signing, s. 26, hi (5). Rule for determining signature, s. 26 (2). Signing In a representative capacity, s. 31 (6). Unauthori7.e', s. 61. Kkpeal of Enactments, s. 95. Schedule of Enactments Kepealeo.. . 190 Sealing. Effect of sealing a note, 8. 90 (2). SECURITY'. Protest for bettor, s. 1 (6). 24 INDEX. '•*■ Paok Sight. {See •' At Sight," " After Sight.") SlOKAl iIRK. EsBeutial to liability, s. 23. In assiinied luitiie sutticient, t). 23 (a). Forged or unauthorized, a. 24. Forged to a che({ue, a. 24. By procuration, f>. 'J5. May be by agent, s. 90. SPECIAL CROHHINO, 8. 75 (2). Special iNDonsEMKNT. (Set Indorsement.) Stolen Bill, s. 51 (8). Sdm Payaule, 8. 9. Sunday. Bill dated on, 8. 13 (2). SnPBA Photest. (.See Honour.) Time. Computation of, 8. 14, 8. 14 (3), 8. 91. Keasonable. (Sie Reasonahlt Time.) Tb^nhkeruor uy Delivkky, 8. 58. Warranty of, 8. 68 (3). Usage op trade. A8 to reasonable time, 8. 40 (3), a. 45 (2) (6), 8. 85 (2). UsuKiuus Consideration, s. 30 (3). Value. Interpretation of, g. 2 ij). Holder for, delined, s. 27 (2). When presumed, s. 30. VALUABr-E Consioeration, 8. 27. Waiver. (.SVe Jlemuneration.) Of presentment, a. 16, a. 46 (2) (e). Of notice of dishonour, s. 60 (2) (6). Warranty of Transfebbor by Dblivbby, 8. 58 (3). mils of E^adine 405, 421 British Colanibia. How to Incorporate a Company in. . W) IjAWS (In alphabetical order of subjects) . 370 Succession Duties 160 CaiTlera 402, 420 Commercial Iaw of tlie Domlnlou 380 Commercial Law of the Province of gnebec 407 Commissioners for taking; Affidavits 687 Companies, How to Incorporate a com- pany in each of the Provinces and under tiie Dominion Act 33 Companies Acts, Lieglslatlon of 1890 relative to . 95 Contracts. 360,407 Copyright 197 Cnstoms Tariff 61) Designs 196 Dominion Commercial Law 380 Dominion Companies' Act, How to form a company under 34 Kvidence. (See the taws in the various pro- rinces.) Incorporation of Joint Stock Cfthipanles. 33 Insurance Law of Canada How to Incorporate a Company. Limitation of Actions Page .. 170 .. 33 .. 396 Manitoba. Laws. (In alphabetical order of subjects) 324 Married Women, Law of. (See the various provinces. ) Mercantile Law. (.Sei Commercial Lavf.) New Brunswick La ff s. (In alphabetical order of subjects) 303 North-west Territories. Laws. (In alithabetical order of subjects) 348 Notarial Profession in the Province of Quebec, The isr Nova Scotia Laws. (In alphabetical order of subjects) £92 Ontario. Assignments for the benefit of Cbe- ditobs 245 Ontario Companies* Act, Uow to form a Company under 44 Ontario. Insolvency Law 246 Ontario, Married Women, Law of 198 Common Law, touching married women's property 198 Equitable doctrine of separate use ^ 199 Legislation as to married women's pro- perty 200 Necessity for husband to join in the con- veyance 203 Married woman as trustee 206 Tenancy by the curtesy 207 What it) statutory separate estate 2ti8 Kestraint upon anticipation 209 Pergonal rights and obligations of mar- ried wome" 211 Rights and obligations arising out of tort 212 Wife's earnings and husband's proprie- tary interest 213 Ki^hts of husband and wife inter se 213 Wids 215 l>ower 215 Maintenance of deserted wives 215 Ontario. Ueal Estate Law 229 On»"-rlt , Successions, Law of 215 Succession duties 103, 226 Table of Descen*; 219 Partnership 398-413 Patent Law and Practice 190 Prescription. (See also Limitation of Ac- tions) 417 Prince Edward Island. Laws. (In alphabetical order of subjects.) 317 Prlocipaland Agent 393, 410 Procednre In Dominion 187 INDEX, Page i Private Bill Parliament Quebec. Abandonment of property in ^gg Assignnieuts for the oeiietit of creditors. 288 Qaeliec. Civil Law, arranged in alphabetical or- der of subjects 252 Quebec. Coiiiniercial Law {See Commerciai Laio ofQ^iebec) ,.,. 407 2d Pagk Quebec. Companies' Act. How to incorporate a company under.. . . 86 Qaebec. Insolvency I-aw 288 Ballwsys 4Q1 Sale of fioo.ix 385 4Qf| Saccenalon Duty In Canada 97 Suretyship (Que.) 45 Tariff of Customs g]g Trade lHarks jg^ Warehousemen 40Q Waiehoune Receipts 40;^ I 1 I 1 1 1 i I II I ADVERTISEMENTS Belleville Business College ESTABLISHED 1889. DEPA RTMENTS : — — — 1^ (. Commercial 2. Shorthand, Typewriting: and Graphophone 3. Telegfraphy, CommT.rcial and Railway W^ork 4. Civil Service Options 5. Mathematics 6. Lang:uag:es, Eng^lish, French, German J. FRITH JEFFEPS, M.A., Princiiial. COAL and WOOD OF=^FlOES 20 King St West 415 Yonge St. 30o Queen St. East 793 Yoncjc St 204 Wtllesley St. 419 Spadinii Ave. 578 Queen St West 1352 Queen St. West Esplanade East, "Bar Berkeley, also iit foot of W. Market Batliurst St., oppoaito Front St. 369 Pape Ave . at O.T.R. CrosHlng 1131 Yonge St-, at O.P.U. Croiaiiig. THE ELIAS ROGERS CO,, Limited, Toronto Municipal Debentures, Government and Provincial Bonds, Railway and other Investment Securities BOUGHT, SOLD OR NEGOTIATED TmUEfHOMM, MM'M 980 CARLn <»DDW£S9 CHRO.'tCL^ R. WILSON=SMITH PiNASCIAC AGBNT 151 St. James Street, MOMxriEAL HHICClAlvTY: Investment Securities — Suitable for Hanks, Trust Estates, Insurance Com- panies, Permanent Iiive:tment or Deposit with Canadian Gjverniujnt. Member of the Montreal Stock Exchange. %s How to Incorporate a Company. Br C. A. MASTEN, BarriBter-at-law OF 08Q00DE HALL, TORONTO. PAOK Dominion of Canada 35 Province of Ontario 41 " " Quebec 66 PAOK ProTince of New Brans wicic .... 69 «' " Nova Scotia 74 Nortli WestTerrltorlea.. 77 •< <* Manitoba 62 I BritiBh Columbia 80 Tliere axb In Canada two methods by which CorporationB are constituted. 1. By special Act either of the Parliament of Canada or of the Legislature of the Province in which incorporation is soutrht. 2. By letters patent issued under the Companies' Act. f W. Market r> MA'M 960 INCORPORATION Hi SPECIAL ACT. If incirporated by special Act, the company's powers, its liabilities, the rigrhts of its shareholders, etc., are determined by The Special Act of Incorporation and by certain e^eneral provisions applicable to all Huch companies where these ai'e not inconsistent with the provisions of the special act. If any Inconsistency arises between the general act and the special act of incorporation, the provisions of the special act govern, The general provisions which govern companies incorporated by special Act of Parliament or of the Legislature are em- bodied in enactments known as the "Companies' Clauses Acts," which, t.iough similar, are not always identical in their pro- visions with the acts governing Companies incorporated by letters patent. The Companies' Clauses Acts are as follows, and apply to all companies lacorporatod by special Act unless excluded by or inconsistent with the terms of the Special Act of Incor- poration. Canada R. S. C, 1886, cap. 118. Quebec R S., Que., 1888, Articles 4661 to 4oJ3. Nova Scotia R. S., N.S., Bth Series, cap. 78. British Columbia R. S., P.C, 1897, cap. 4& In the following Provinces v.>e same Act applies to com- panies incorporated by Special Act as to those incorporated by Letters Patent. 34 UOW TO INCORPORATE A COM PAS Y. Ontario R. S. O., 1897, cap. 191, sec. 6. In the following Provinces the usual method is either to Incorporate in the Special Act of Incorporation in full all the requisite provisions or to incorporate by reference to the Letters Patent Act certain of its provisions, but, unless these are specially so incorporated, they do not e.pply. This practice exists in: New Brunswick. » Nova Scotia, as to R. S. N.S., 5th Series, cap. 79. Manitoba. North West Territories. For the procedure necessary to incorpoi ^ a (.-uinpauy by special Act of Parliament or of a Provincial I^egislature, the reader is referred to the article on Private Bills Procedure of the Dominion and various Provinces embodied in Snow's Liegal Compendium for 1899, at page 120, 134, 136, 140, 149 and 151. The greater number of companies are now incorporated b,- Letters Patent In preference to the method of Incorporation by Special Act, unless the incorporators require some special powers, and the circumstances warrant the grant of these powers; the Incorpoi atlon by Letters Patent is quicker and easier, owing to the facility for subsequent change and modttt- ca.tlv>n, it is more flexible, hence it is better adapted to the requirements of original manufacturing and mercantile under- takings. COMPANIES INCORPORATED UNDER LETTERS PATENT. The subsequent portions of this article deal exclusively with the Incorporation of companies by Letters Patent or registra- tion in the Dominion of Canada and in the various Provinces. The Legislature of Canada, both Dominion and Provincial, with the exception of British Columbia, after a trial of the Registration System, which exists in England and the United States and In France and some other European countries, have returned to the more formal method of Issuing Letters Patent incorporating the proposed company under the Great Seal. The effect of this difference in method is to bring the pro- posed company sought to be incorporated directly under the scrutiny of the executive officers of the Government, and to give to the Governor or Lleutencnt-Oovernor In Council an opportunity to refuse the incorporation or to require modifica- tions of the powers sought by the proposed Company. The following memorandum embraces the Statutory Pro- visions governing the Incorporation of Joint stock companies by the Dr.mlnlon Authority, and also by the various Provinces; also the form? at petlilcn for Incorporation, subscriptions for stock and necessary paperb li; the form officially prescribed by the several departments where any such directions or forms are publ'shed. Where no forms or Instructions are offlclally Issued that fact is stated, and the provisions of the statute are riven. In such cases the forms adoptel by other Provinces will arord a satlstuctory guide. now TO INCORPORATE A COMPANY. 36 DOMINIOr" OF CANADA. Information respecting the Incorporation of Joint stock companies by LiCtters Patent under tlie Provisions of the Com- panies' Act, Kevlsed Statutes of Canada, Chapter 119. as Issued by the Department of the Secretary of State. The sections of the Statute relating to the incorporation of Companies by the Donidnlon are as follows;— REVISED STATUTES OF CANADA. 18S>6, CHAPTER 119, SECTiO.nS 3 TO 9. 3. The Grovernor in Council may, by Letters Patent under the Great "eal, grant a charter to ar" number of persons, not less than live, wh j petition therefor, constituting such persons, and others who thereafter become shareholders in the company thereby created, a body corporate and politic, for any of the purposes or objects to which the Legislative authority of the Parliament of Canada extends, excerpt the construction and working of railways, or thr business of banking, and the issue of paper money, or the business of insurance. 40 V., c. 43, s. 3. 4. The applicants for such Letters Patent shall give at least one month's previous notice, in Canada Oasttti; of their intention to apply for the same, stating therein; a. The proposed corporate name of the company, which snail not be that of any other known company. Incorpor- ated or unincorporated, or any name liable to be con- founded therewith, or otherwise on public grounds, ob- jectionable; 6. The purposes for which this incorporation la sought; c. The p'.aco within Canada which is to be its chief place of business; d. The proposed amount of its capital stock— wi.lch in the case of a loan compan/ shall not be less than one hun- dred thousand dollars; <•. The number of shares and the amount of each share; f. The names In full and tlif address and calUnf of each of the applicants, with special mention of the names of not more than litieen and not les.s than three of their number, who are to be the first or provisional directors of the company, and the majority of whom shall be residonta of Canaxla. 40 V., cap. 43, s. 4. 6. At any time not more than one month after the last publication of such notice, the applicants may petition the Gov- ernor In Council, through the Secretary of State, for the issue of Buch Letters Patent: 2. Such petition shall state the facts set forth In the notl' e, the an:ount of stock taiken by each applicant, the amcvnt paid In upon the stock of each applicant, and the manner In which the same haa been paid In, and is held for the Company; r? ' 86 HOW TO INCORPORATE A VOMFAM'. 3. The ag'grregate of the stock ao taken shall be at least the cne-half of the total amount of the proposed capital stock of the company. 4. The agrgrregato so paid In thereon shall, If the company is not a loan company, be at least ten per cent, of the stock, and shall not be less than one hundred thousand dollar^; 5. Such aggregate shall be paid in cO the credit of tne com- pany, or of trustees therefor, and shall be standing at such credit in some chartered bank or banks in Canada, unless the object of the company is one requiring that it should own real estate — in which caae any portion not exceeding one-half of such aggregate may be taken as paid in, if it is bona fide invested in real estate suit- able to such object, which Is duly held by trustees for the company, and is of the required value, over and above all incumbrances thereon; 6. The petition may ask for the embodying in the Letters Patent of any provision which, under this Act might be made by by-law of the company; and such provision so embodied sJiall not, unless provision to the contrary is made in the Letters Patent, be subject to repeal or al- teration by by-law. 40 V., cap. 43, s. 5. 6. Before the Letters Patent are Issued the applicants shall establish to the satisfaction of the Secretary of State, or of such other oftlcer as la charged by the Governor In Council to report thereon, the sufficiency of their notice and petition, and the truth and sufficiency of the facts therein set forth, and that the proposed name is not the name of any other known incorporated or unincorporated company, and for that purpose the Secretary of State, or such other officer, shall take and keep of record any requisite evidence In writing, by oath or affirmation -f by solemn declaration. 40 V., cop. 43, s. 6. 7. The Letters Patent shall recite such of the establlahed averments of the notice and petition as to the Governor in Council seems expedient. 40 V., cap. 43, s. 8. 8. The Governor in Council may give to the company a corporate name, different from that proposed by the appli- cants In their published notice, if the proposed name is ob- jectionable. 40 v., cap. 43, s. 8. 9. Notice of the granting of the Iioresald, or before any Justice of the Peace, or Commissioner fcr taking affidavits, or Notary Public, who, for that purpose, are hereby auth- orized and empowered to administer oaths or take affirm- ations. 60 v., cap. 28, s. 12. 14. The Lieutenant-Governor may give to the company a corporate name, wholly or partially different from the name proposed by the applicants In th?ir petition, and may In the Letters Patent varj* the powers of the company from the powers stated In the petition. 60 V., cap. 28, s. i;?. 15. Notice of the granting of I,etters Patent shall be given forthwith by the Provincial Secretary in the Oazcttc, and from the date of the Letters Patent the petitioners and the persona who signed the memorandum of agreement and their suc- cessors, respectively, shall be a corporation by the name men- tioned In the Letters Patent, and shall be invested with all the powers, privileges and immunities which are Incident to such corporation, or expressed or am included In the Letters Patent and The Interpretation Act, and which are necessary to carry Into effect the Intention and objecta of the Letters Patent and such of the provisions of this Act gu3 are appllca*;iA to the company. 60 V., cap. 28, sec. 14. HOW TO INCORPORATE A COMPANY. OFFICIAL FORMS. 47 ATTACH NO PAPERS. To His Honour the Lieutenant-Governor of tne Province of Ontarlo-ln-CouncU. THE PETITION OP write.. IF NAMES iegibly.. ASD and... 8IONATDBE8 in full. DO NOT We... AOBBE, PETITION WILL BE BETliBNED FOB COBB EOTION. ., .names,.,., ..residences.. and .occupations. ....ofthe.... .petitioners . . hert .Humbly Shewelh;— i. That your petitioners are desirous of obtaining by Letters Fatent, under the Great Seal, a Charter under the provisions of The O-itarlo Companies' Ac*.* constituting Your petitioners and such others as may become shareholders in the Company there- by created a body corporate and politic under the name ot The Limited, or such other name as shall appeal to Your Honour to be proper in the premises. 2. That your petitioners have satisfied themselves and are assured that the corporate name under which inoorpi)ration in sought is not on any public ground objectionable, and that U Is not that of any known Company, Incorporated or un'- comporated, or of any partnership, or Individual, or any name under which any known business is being carried on, or so nearly resombWng the same as to deceive. f 3. That your petitioners have satisfied themselves and are assured that no public or private Interest will bo pre.ludicially affected by the Incorporation of your petitioners as aforesaid, t # Tf Incorporation is being sought under any other Act as well, net ont ito title here. t Adu here, when proper, " except the name and your petitlon<5n elf nwhere shew thnt they have reoelved the neoesaary consent In writing, under section 10 of the sala Aot, to the use of the name applied for." t If otherwise, then the Interests llabln to be so nffeoted ihall be Nt ont at length by affldaTlt, to be briefly refer. «w to here. 48 HOW TO INCORPORATE A COMPANY. rli ' t 1 4. That your petitioners are of the full age .ci 10. That the said of the Company. are to be the provisional directors ' 11. That by subscribing therefor In a Memorandum of Agree- ment and Stock-Book duly executed, In duplicate, with a vleiw to the Incorporation of the company, your petitioners have taken the following amounts of stock set opposite their names:— • The DIreotori, who mnit be at least three In number, mint be petl- tloneri and ihtreholders. Each director muit hold stnek nbaolutelu in M$ own right, NoTB.— If any payment, In cash or othnrwiie, has aotually been mada by any petitioner on u!i itock, partlouUn thereof may be set out her**. HOW TO INCORPORATE A COMPANY. 4:» PETITIONERS. Amcuut of stock pubscribed for ...set DULLAKS. ,,.i)Ut DOLLAIIS. ,,. each DOLLABS. amount dollakb. . . , . tn dollabb. . .tBOrds, D0LLAK8. ...not DOLLABS. ... in DOLLABB. .figures dollaks. DOLLAU.S. DOLLABS ' ...DOLL Alts • *>4«^* •••••• ••• ••««t,...# Your petitioners therefore pray that Your Honour may be pleased by Letters Patent unc er the Great Seal to grant a Charter to your petitioners constituting your petitioners and such others as have or may become subscribers In the Memor- andum of Ai,reement and Stock-Book of the Company thereby created, a body corporate and politic for the due carrying out of the undertaking aforesaid. And your petitioners, as in duty bound, will ever pray. (WITNESSES.) (PETITIONERS.) Is 5p • •a 5 a h 2;* « ag,3 2 ^ * Isf M " a 11 ^ |[!^N.H.— Eaoh BliniBtnrfl miiBt bo ▼<^''*\cd bv affidavit, to be made by the wltiie«« Ihere'o. sTuiiRturr* by attorney iiiunt be made under a ttpirifit; not Renernl power, duly eicrnted. wIilcL power niunt aronmpaiiy thti appli- cation. Thli rule alao applies totlie Menioraiiduin of Agreement and Stook- Uook. Dated at thli day of U 4 60 HOW TO INCORPORATE A COMPANY. AFFIDAVIT. Province of Ontario. County of To »ilt: In the matter of the herein ap- plication for the Incorporation by the grant of Letters Patent of The Limited. 1. of the of In the County of Ssquii^ make oath and say:— 1 That I am '^ne of the applicants herein. 2. That I have a knowledge of the matter, and that the allegations in the within petition contained are, to the best of my knowledge and belief, tri\e in substance and in fact. 3. That I am informed and believe that ea,ch petitioner is of the full age of twenty-one years. 4. That the proposed corporate name of the Company Is not on any public ground objectionable, and that it Is not that of any known company. Incorporated or unincorporated, or of any partnership or individual, or any name under which any known business is being carried on, or so nearly resembling the same as to deceive.* 5. That I have satisfied myself and am assured that no public or private interest will be prejudicially affected by the incor- poration of the company as aforesaid Sworn before me at the of this same as to deceive.* in the County of {Signature of Deponent.) (SIg.) day of A.D., 19 . A Justice of the Peace, or a Comminaioner for taking affidavits, etc. (or aa the case may be) FBBS. Memo.— Unless the fee be remitted with this Application, It will not be considered. Extract from tlic Ontario Companies' Act. Sec. 95.— (3) No step shall be taken in any Department to- wards the Issue of nny Letters Patent or Supplementary Letters Patent or License under this Act until after all fees therefor have been duly paid. •rpr- N.B.— Cheques not "marked" will be returned, and no action taken in the meantime. * Add hero, when proper. " except tlip name and yonr potlftonor» olonwhoro Bliew tliat they h»ve recelTod tlio necessary coiiicnt In writing, under lootion 10 of the laid Act, to the URe of thn nanie applied for,' ' HOW TO INCORPORATE A COMPANY. 61 SUGGESTIONS AS TO FORMING COMPANIES UNDER THE ONTARIO C?OMPANIE>S' ACT. I. Letters Patent may, on petition therefor, be granted to any number of applicants not less than five. II. The Memorandum of Agreement and Stock-Book, as per the following statutory form, must be in duplicate. We, tne undersigned, do hereby severally covenant and agree each with the other to become incorporated as a company under the provisions of The Ontario Companl€S8' Act* under the name of The Company of Limited, or such other name as the Lieutenant-Governor-ln- ' Council may give to the company, with a capital of dollars, divided into shares of dollars each. And we do hereby severally, and not one for the other, subscribe for and agree to take the respecti"" «>jmount8 of the capital stock jf the said company set opposite our respective names as hereunder and hereafter v. rltten, and to become alhareholders in such oompamy ito the said amounts. In witness whereof we have signed. Signatures of sub- Seals. Amounts of sub- scription. Dates and places of subscriptiou. Resilience of sub- scribers. Signatures of wit- scribers Dates. I'laces. nesses. t 1 X (At least TWO signatures must appear on page containing the under- taking.) Both of the duplicate originals must bo produced with the application. III. The petition, which may be put In at any time without Gazette notice must state:— (o) The name, residence and occupation of eacf' applicant in full, else it will be rel.;rned for correction. (6) The proposed corporate name of the Company; (c) The object of the company briefly expressed in general terms; (d) The place at or from which the undertaking of the com- pany Is to be carried on; (e) The place in Ontario where the head-ottlco of the com- pany is to be situated; (0 The capital of the company divided into shares; (fli) The names of the provisional directors of the Company and *Tlie name of any other Act. if any, may bo Inserted hero t If a sinnii' tnre Is by power of Atlomey, the power miist be speolflo and must be Sled with the duplicate oriirinal Stock -'Bnok fo bo lotalnod by the Provincial Secretary, t Witnesses must, by affidavit, prove tach signature (In the form in which it is made) in both of the Stook-Books, 62 HOW TO INCORPORATE A COMPANY. (ft) The amount each applicant has subscribed in the Mem- orandum of Agreement and Stock-Book, The petition must further show:— (i) That the proposed name of the company is not open to objection, if suoh "^e the fact, and (K) That no public or private interest will be prejudicially affected by incorporation, if such be the fact. (0 At least two signatures must be written on page contain- ing the prayer of the petition. IV. The fee for the Letters Patent must be remitted with the application, else it will not be considered. The following fees for Letters Patent, et cetera, have been fixed by order-in-Council dated 25th November, 1899. FOR LETTERS PATENT When the proposed capital of the applicant Company Is $40,000 or less, the fee to be $100. When it is more than $40,000, but does not exceed $100,000, the fee to oe $100 and $1 for every $1,000 or fractional part thereof in excess of $40,000. When it is over $100,000, but does not exceed $1,000,000, the fee to be $160 and $2.50 for every $10,000 or fractional part thereof In exce-ss of $100,000. When it Is $1,000,000, the fee to be $385 and $2.50 for every $10,000 or fractional part thereof in excess of $1,000,000. When the Charter is for a Cheese or Butter Company, the fee to be $10. When the Charter is for an Educational Institution not carried on for the purpose or object of gain, the fee to be $10. When the Charter Is for a Cemetery Company which is not to be carried on for gain, or which shall undertsike to dis- tribute In the Improvement of Its property any gain derived by the Company, the fee to be $10. FOR SUPPLEMENTARY LETTERS PATENT Where the capital stock of a company is Increased, the fee to be according to the above list, but on the increase only. Where the capital is not Increased, the fee to be $100. |i ! FOR LICENSES. For a license to an Extra-Provincial Company, (a) To hold land; (6) To do business under The Ontario Companies' Act, or (c) To sell mining stocks, etc., the fee to be according to the above list, and to be levied according to the nominal capital of the company. FOR ORDERS-IN-COUNCIL, ETC. For an Order-ln-Councll changing the name of a Company, 126. For an Order-ln-Councll accepting the surrender of a Char- ter, $50. For an Order-ln-Councll approving of a by-law creating Preference Stock under The Ontario Companies' Act, $50. BOW TO INCORPORATE A COMPANY. 63 For an Order-ln-Councll under R. S. O., cap. 130, ss. 5 and 6 (Trustees Investment Act), JIOO. For an Order-ln-Council authorizing a Company being ac- cepted by the High Cour^ as a Trusts Company for the pur- pose of such Court, $200. The undersigned begs leave to recommend that the above schedule of fees be ordered to take effect on and from the 25th day of November, Instant, but only In respect of such applica- tions as shall thereupon or thereafter come to the official knowledge of the undersigned, and that all Orders-ln-Councll at variance with the above tariff of fees be rescinded. All of which is respectfully submitted (Signed) J. R. STRATTON, Provincial Secretary. Toronto, 23rd November, 1899. The department now requires at least 10 per cent, of the authorized capital stock to be subscribed before application Is riiade for Incorporation, but there is no requirement as to the amount to be paid up on the stock so subscribed. The following additional Information respecting the joint stock companies In the Province of Ontario Is reprinted from Snow's Legal Compendium, 1898:— Directors.— The affairs of the company shall be managed by a board of not less than three directors, elected by share- holders in general meeting of the company, assembled at some place within the Province. The persons named as such In Letters Patent shall be the directors of the company until replaced by others duly appointed In their stead. Under the Dominion of Canada Act, a majority of the directors must be reslilents of Canada; under the Ontario Act the directors may reside where they please. No person shall be elected or ap- pointed a director thereafter unless he Is a shareholder owning stock absolutely In his own right, and not In arrcar In respect of any calls. The directors In certain events are liable to the servants of the company for one year's wages. The directors of every company formed under the general Act are jointly and severally liable upon every written contract or undertaking of the company on the face of which the word "Limited" Is not dlstlnntly written or printed as the last word In the name of the company when it first occurs in such contract or writing, and penalties are Imposed upon the directors and the company for the omlsslf.n of the said word In the company's seal, notices, advertisements or contracts. Stock.— The stock Is deemed personal estate. No share 13 transferable until all pre ious calls have been paid, or the share declared forfeited for non-payment of calls. Preference stock may be Issued by the directors, but only If Issue ap- proved by all shareholders, or under the order of the Lieuten- ant-Governor upon apllcatlon of three-fourths of the share- holders. Capital.— There Is no limit to the capital of the company, and, under certain conditions, this may be Increased or de- 6i HOW TO INCORPORATE A COMPANY. creased, and the shares re-divlded into shares of larger or smaller amount by by-law approved by two-thirds in value of shareholders, and confirmed by supplementary Letters Patent. Calls.— Ten per centum upon the allotted stock must, by means of one or more calls, be called in and made payable within one year from the incorporation of the company; the residue as and when the by-laws direct. Share]iol«ieTi.— Each shareholder is individually liable to the creditors of the company to an amount equal to that not paid up on his stock, but is not liable to an action therefor by a creditor until an execution against the company has been returned unsatisfied in whole or part. No person holding stock as executor, administrator, guardian, or trustee, shall be personally subject to liability as a shareholder, but the estates and funds in the hands of such person shall be liable in like manner and to the same extent as the testator or intes- tate, or the minor, ward or person interested In the trust fund would be if living and competent to act, and holding such stock In his own name. No person holding- stock as collateral security shall be subject to liability as a shareholder. Real Estate.— A company incorporated under the Ontario Companies' Act may acquire, hold and convey real estate necessary for the carrying on of its undertaking; subject to certain restrictions upon holding real estate not required for actual use and occupation for more than seven years. Contracts.— Every contract made, and every cheque, pro- missory note or bill of exchange made, drawn, accepted or en- dorsed on behalf of the company by any agent, officer, or servant of the company in general accordance with his powers under its by-laws and resolutions, binds the company. Trnsts.- The company Is not bound to see to the execution of any trust, nor to the application of any money payable in respect of any share. rioana.— In case a by-law authorizing the same is sanctioned by a vote of not less than two-thirds in value of the share- holders at a general meeting duly called for considering the by-law, the directors may borrow upon the credit of the com- pany, and Issue debentures of not less than one hundred dollars each. The property of the company may, under the like sanction, be mortgaged as security for loans. No loan shall be made to a shareholder under penalty on the part of all directors and officers of the company making, and In any wise assenting to the same of becomlnpr liable to the company to the amount of the loan, and also to third parties to the extent of the loan and Interest, for all debts of the company contracted from the time of the making of the loan to that of Its repayment. Stock of other Corporations.— No company shall use any funds in the purchase of stock in any other corporation, HOW TO INCORPORATE A COMPANY. 56 unless expressly authorized by by-law contlrmed at a general meeting b> a vote of not less than two-thirds in value of the shareholders present. Supplementary Letters Patent-May be Issued to the company: 1. Extending its powers to any objects within the scope of the general Act which may be deslretl. 2. Providing for the formation of a reserve fund. 3. Varying any provision contained in the Letters Patent, so long as the alteration desired is not contrary to the provisions of the general act. 4. Making provision for any other matter or thing in respect of which provision might have been made by the original Letters Patent. Forfeiture of Charter.— The charter of the company Is forfeited by non-user for two consecutive years at any one time, or if the company does not go Into operation within two years after it is granted. Windine Up.— Ontario companies are subject to the pro- visions of the Joint Stock Companies' Wlr ding-up Act, being ch. 22:; of R. S. O., 1897, by which, speaking t'enerally, the com- pany or a contributory may take proceedings to wind up its business. They are also subject to the provisions of the Wind- ing-up Act of the Dominion R. S. Can. 1886, cap. 129, and amending Acts. Those Acts provide the means whereby a company may be wound up at the suit of a creditor. The paramount object of both Winding-up Acts if the division ^bec Official Gazette of the following dates: 3. That the purposes or objects of the said company within the provisions of the Act for which incorporation is sought are: 4. That the chief place of business of the said company is- to be at the of in the Province of Quebec. B. That the amount of capital stock of the company is to be 6. That the said stock Is to be divided into shares of the value of dollars each. I '■! • «o HOW TO INCORPORATE A COMPANY. 7. That the first or provisional directors of the said company shall be (g-ive names in full, ar.d addresses) all (or if the ma- jority state names) are residents in Canada and subjects of Her Majesty. 8. That your petitioners have taken the amount of stock and paid in thereon the se'-eral amounts thereon, set opposite to their respective names, as follows:— ^ Petitioners' names in full Ko. of shares taken. Anit. paid in on stock feubBCiibcd. Total How paid: Total 9. The aggregate cf stock so taken amounts to dollars, being one-half of the total amount of stocK Of the comp,*ny, and the Eugp-rsgate paid in on stock so taken amounts to dollars, being per cent, thereof, ar. aggregate has been paid in to the credit of (1) <1) and Is now standintr at such credit in the Bank of In the of as appears by the certificate of manager of the said Bank at aforesaid, which is hereto annexed. (There has been Invested in real estate, suitable to the ob- jects of the company, the sum of ioi)ar<>. The said real estate consists of and is of t» e value of at. least dollars over and above all Incumbran/jes thereon, being sufficient with the sum so paid in as aforesaid to make per cent, of the aggregate of the stock so taken, and is duly held by aixd as trustees for the company.) (2) Your petitioners therefore pray:— Tliat Your Honorr will be pleased to prant a charter of Incorporation by Letters Patent under the Great Seal to your petitioners and such others as may become shareholders In the company, thereby created r. body corporate and politic, for the purposes and objects aforesaid, under name of "The Company" (L/lmlted). And your petitioners as In duty bound will ever pray. Dated at the cf In the of Quebec, this day of A.D. 19 Signed and executed In the presr nee of (1) Here state if paid In to the credit ol the oonipany, or of trustees for the company, fiirlnx the narao of each trustee. (2) This clause Is only inserted when necessary. HOW TO ^CORPORATE A. COMPANY. 61 AFFIDAVIT VERIFYINQ SIGNATURE OF BANK MANAGER TO CERTIFICATE OF DEPOSIT. In the matter of:— and others for Letters Patent Company" (L«lmlted). of the make oath The application of of Incorporation as "The I, and say:— 1. That I was personally present and did see the an- nexed certificate of deposit duly signed by who Is the manager (agent or cashier) of the Bank at the of aforesaid. 2. That I know the said . That I am the sub- scribing witness to the said document. And I have signed, Sworn before me this day of 19 . A Commissioner for the Superior Court, District of AFFIDAVIT VERIFYING SIGNATURE TO PETITION PRATING FOR LETTERS PATENT OF INCORPORATION. In the matter of: — The application of and others for Letters Patent of incorporation as "The Company" (Limited). I, of the of 'u the County of Province of Quebec, ma lie oath and say: 1. That I waa personally present and did see s'.gn their respective names to the petition (hereunto annexed)' praying for Letters Patent of incorporation as "The Company" (Limited). 2. That I k.iow the said parties. 3. That the slgnatui-es are of the proper handwriting of the said i)art!es respectlv ^ly. And I have signed. Sworn before me this day of 19 A Commissioner for the Superior Court, District of BANK UANAQDR'S CERTIFICATB. In the matter of:— The application of and others for Letters Patent of Incorporation as "The Company" (Limited). I, manager of the In the and District of and Province of Quebec, do hereby certify that there Is deposited In this bank, to the credit of "The Company" (Limited) doMiirs, and said sum la now romnlning at such crwllt. Dated at aforesaid thlB day of 19 And T have signed, Sworn before me this day of 19 . ^, ^ , . , A Commissioner for the Superior Court, District of 62 HOW TO INCORPORATE A COMPANY. AFFIDAVIT VBRIFTINQ TRUTH OF PETITION AND AS TO PROPOSED CORPORATE NAME. INSERTION IN THE GAZETTE. t In the matter of the affldavit of The application of and others for Letters Patent Of Incorporation as "The Company" (Limited). I, of the In the of and Province of Quebec, make oath and aay:-. 1. That I am one of the applicants herein. 2. That the several allegations and statements made aJid contained in the petition for Incorporation of "The Company" (Limited), hereunto annexed are to the best of my linowledge and belief true and correct. 3. That the proposed corporate namv^ of the said company Is not as I truly believe the name of any other known company Incorporated or unincorporated, or liable to be confounded therewith, :>; otharivso on publi:; gijunds obji^ctiontible. 4. That notice of the intention of the applicants herein to apply for the grant of L'Jtters Patent as aforesaid was duly given in four consecutive Issues of the Quebec Otticial Gazette published on the 19 6. That the clipping from the said Otticial Gazette attached to this aflidavit is a true and correct copy of the said notice given as aforesaid. And I have signed, Sworn before me this day of 19 A Commissioner for the Superior Court, District of MANITOBA. The igitatutory Provisions of Manitoba relating to the Incor- corporation of joint stock companies are as follows:— R. S. M. CHAPTER 25, SECTIONS 4 TO 23 INCLUSIVE. INCORPORATION BY LETTERS PATENT. 4. Charter may be granted by Lieut.-GoT. in Coun- cil. Except for rail'ways and inauranoe.— The jjicuienant Governor in Council may, by Letters Patent under the Great Seal of the Province, grant a Charter to any number of per- sons, not le.s.s ihan five, who shall petition therefor, constituting such persons and others who may become sliarehoUlers In the comi)any thereby created a body corporate and politic, for any purposes or olijeets to which the legislative authority of tlie Legislature of Manitoba extends, except the construction and working of railways and the business of Insurance. C S M C. !), Dlv. 7, s, 226, imrt; 44 V. c. 11, a. 41; 46 and 47 V. c. 41. B. 5, part, 5. Notice to be nivon.— Tho applicants for such Lotteips Piitent must give at least one month's previous notice to bo Inserted In the Mmillnhn (hKvttr, of their intention to api>b for the snme, stating therein,— HOW TO INVOliPOHlTE A COMPANY. 63 (a.) Name must be different from ant in use.— The pro- posed corporate name of the Company, which shall not be that of any other known Company, incorporated or unincorporated, or any name liable to be unfairly confounded therewith, or otherwise on public grounds objectionable; (6.) Objects.— The objects for which the incorporation is souebt; (c.) Places of business.- The place or places within the Pro- vince of Manitoba, where its operations are to be carried on, with special mention, if there be two or more such places, of some one of them as Its chief place of business; (d.) Capital stock.— The amount of its capital stock; (c.) Number of shares.— The number of shares and the amount of each share; If.) N\MES AND ADDRESSES OF APPLICANTS.— The names in full and the address and calling of each o* the applicants, with special mention of the names of not less than three, nor more than nine of their number, who are to be the first Directors of the Oompai.y. C. S. M. c. 9, Div. 7, s. 227; 52 V. c. 3, s. 15. 6. Petition for the issue of Letters Patent within one month.— At any time, not more than one mont.fi after the publication of such notice, the applicants may petition the Lieutenant Governor, through the Provincial Secretary, for the issue of such Letters Patent C. S. M. c. 9, Div. 7, s. 22S, part; 62 V. c. 3, s. 16. 7. (('■) To set forth facts as in notice, and amount of stock taken and paid.— Such petition must state the facts required to be set fortn in the notice, und must further state the amount of stock taken by each of such applicants, and also the amount, If any, paid in upon the stock of each ap- plicant; (h.) ilow PAID.— The petition shall also state whether the amount Is paid In cnsh or transfer of property, or how other- wise; (c.) May ASK to he embodied in Letters Patent any pro- vision WHICH MIGHT BE EMBODIED IN BY-LAW.— The petition may ask for the embodying In the Letters Patent of any provision which otluTwise under the provisions hereof might be embodlotl in any by-law of the Company when Incorporated. C. S. M. c, 9, Plv. 7, s. 228, s-ss. 1, 2, 4. 8. When petition not signed by all, Memorandum of Association to bo filed.— In case the pitltlon 1h not signed by all the .shareholders whose names are jyroposed to be in- serted In the Lc-ttcrs I'atPiit, It shall be accompanied by a Memorandum of As.soi'latlon, signed by all the parties whose names are to be so Inserted, or by their attorneys duly author- ized in writing; and suHi Memorandum shall contain the par- ticulars required by the next preceding section. C. S. M. c. 9, Div. 7, B. 228, s-8. S. 0. Applicants to establish sufficiency of notice and that proposed name not the name of another Company. Evidence to be taken and kept.-Htfore the Letters Patent ;■ Ji 64 HOW TO INCOIil'ORATE A COMPANY. art issued, the applicants must establish to the satisfaction of the Provincial Secretary, or of such other offlcer as may be charged by the Lieutenant Governor In Council to report there- on, the sufficiency of their notice and petition, and that the proposed name Is not the name of any other known Incorporat- ed or unincorporated Company. And to that end, the Provincial Secretary or such other officer may take ajnd keep of rejoivi any requisite evidence in writing under oath or otherwise; and he or any justice of the peace or person authorized by "The Oaths Act" to take affidavits for use in Manltolva may aJuiiPisifcr every requ'slte oath. C. S. M. c. 9, Dlv. 7, s. 22&; 49 V. c. 23, p. 2. 10. When notice given of intention to apply for an Act of Parliament this session.— Where a notice has been duly published according to the rules of the Jjegislative Assembly that an application will be made to the Ijeglslature at Its then next session for an Act incorporating any Company, till! incorporation whereof is sought for objects for which incor- ixiration is authorized by the provisions hereof, and, in con- tc-mplation of its passing, a notice of an application for Incor- poration under the foregoing provlsdons shall not be necessary; and the L/ieutenant Governor in Council, upon the report of th(> proper Minister or offlcer that proof has been furnished that the other requirements hereinbefore contained have been com- plied with, may grant a charter of incorporation to such Com- pany. In any application under this section the facts required to be stated In the petition may be verified in any manner that the Provincial Secretary, or other offlcer charged to report thereon, may deem sufficient, and in such case it shall not be requisite that the petition should be signed by all the share- holders to be named in the Letters Patent, or that the Memor- andum of Association or other particulars should be in accord- ance with the requirements hereinbefore contained. C. S. M. c. 0, Dlv. 7, B. 282. 11. Lieut.- Gov. may allow Company to change name in issuing Letters Patent. Notice thereof in Manitoba Gazette. Proof of notice- Form-— In caise it shall appear or became known, at any time before the issue of Letters Patent, that the name of the proposed Company is that of some other Incorporated or unincorporated Company, or liable to be unfairly confounded therewith, or otherwise on public grounds objectionable, it shall be competent for the Lieutenant Governor In Council to allow the proposed name to be changed, on a supplementary petition or request In writing of the appli- cants for lncon>oration or of a majority of them. Including a majority of the first Directors named in the original petition; and the Letters Patent may Issue incorporating the aipplicants therefor under the name proposed to be substituted for that flist given: Provided that the Letters Patent In such a case shall not Issue until after a notice of the application for such change of name shall have been published In at least one Issue of the Afnnltoha Qaxvttr, and one week shall have elapsed after suoh publication without any valid objection being submitted to the Provincial Secretary as to such proposed change; and such I'l I BOW TO INCORPORATE A COMPANY. 65 a on; nts that not of the uoh to uch notice shall be proved by affidavit and may be In the follow- ing form; "Not.ce Is hereby given that, after one week has elapsed from the date of the publication hereof, application will be made to His Honor the Lieutenant Gtovemor in Council to change the name of the proposed (give name as for first notice for incorporation) advertl/'ed In the issue of the Manitoba Oazctto of the (date of publieotion of first notice) to that of the (name proposed to be substituted), and to Issue Letters Patent of incor- poration to the applicants therefor mentioned in such notice under the provisions of the statutes in that behalf. Dated, &c. 46 and 47 V. c. 41, s. 1. 12. Capital stook not to exceed $500,OOU withont anthorltv of supplementary Ioratlng tho shareholders of the said Company as a Company imder the foregoing provisions, and thereupon all the rights and obligations of the former Company shall he transferred to the new Company, and all proooodlngs may he continued or commenced by or against the now Company, that might have been continued or commenced by or against the old Company; and it shall not be necessary In any such Letters Patent to set out the names of the shareholders; and after the Issue of the Letters Patent the Company shall be goveme^l 6 66 HOW TO INCORPORATE A COMPANY. ■n{' I In all respects by the provisions hereof, except that the liability of the shareholders to creditors of the old Company shall re- main as at the time of the issue of the Letters Patent. C. S. M. c. ", I>lv. 7, s. 281. 15. Iietters Patent to recite all material aTeriuents of notice and petition.— The Letters Patent shall recite all tht! material averments of the notice and petition, as established under th'? preceding sections of this Act. C. S. M. c. 9, J->iv. 7, s. 230. 16. Restrictions in Letters Patent.— The Lieutenant Governor in Cc ancil may restrict such Letters Patent oi Incorporation in any manner which may seem desirable, b'i V. c. 22, s. 8. 17. Provisions preliminary to issue of Letters Pat- ent to be directory.— The provisions of this Act relating to matters preliminary to the Issue of the Letters Patent shall be deemeJ directory only; and no Letters Patent issued or which have heretofore been issued under this Act, or "The Manitoba Joint Stock Companies Incorporation Act," shall be held void or voidable on account of any irregularity in any prescribed notice, or on account of the Insufficiency of any such notice, or on account of any irregularity in respect of any other matter preliminary to the issue of suoli Letters Patent. 46 and 47 V. c. 41, s. 3. 18. Notice of Ri-ant to be given in Manitoba Gazette by Frov. Sec. Parties therein named shall be body corporate.— Not;ce of the granting of the Letters Patent shall be forthwith given by the Provincial Secretary in the Manitoba Gazette In the form in Schedule A to this Act; and from the date of the Letters Patent the persons therein named and their successors shall be a body corporate and politic by the name mentioned therein. C. S. M. c. 9, Dlv. 7, s. 231. 10. All powers subject to restrictions and provi- sions of this Act.— All jiowers given to the Company by the Letters Patent granted In Its behalf shall be .tercised subject to the provisions and restrictions herein coi lined. C. S. M. c. 9, Dlv. 7, 8. 242. 20. Lieut.-Gov. in Council may change name of Company; not to affect rights and obligations of Company. Continuation of proceedings.— in case It should be made to appear that any Company Is incorporated under the same name as, or under a name similar to that of, an existing Company, It shall be lawful for the Lieutenant-Governor In Council to direct the issue of supplementary Letters Patent reciting the former Letters and changing the naime of the Com- pany to some other name to be set forth in the supplementary Letters Patent; and no such alteration of name shall affect the rights or obligations of the Company; and all proceedlnga may be continued and commenced by or against the Company by Its new name, that might have been continued or commenced by ■or against the Company by Its former name; and the Court ot HOW TO INCORPORATE A COMPANY. 67 Queen's Bench may compel an application under this section, whenever a Company improperly assumes the name of, or a name similar to that of, an existing Company. C. S. M. c. 9, Dlv. 7, s. 232. 21. Before oommencins bnsineii 10 per cent, to be ■ubscribed, etc.— No Companies Incorporated under '"i'he Manitoba Joint Stock Companies Inco>rporatlon Act," or under this Act, shall commence business until at least ten per cent, of the capital stock of the said Company shall have been sub- scribed, and at least ten per cent, of the amount of stock so subscribed actually paid up. 47 V. c. 20, a. 1. 22. Forfeiture of Charter for non-user.— xne Charter of the Company shall be forfeited by non-user during thro© con- secutive years at any one time, or if the Company do not go into actual operation within three years after it is granted; and no declaration of such forfeiture by any Act of the Legislature shall be deemed an infringement of such charter. C. S» M. c. 9, Dlv. 7, s. 278. 23. Future leRiBlation.— The Company shall be subject to such further and other provis'lons as the Legislature of Manitoba may hereafter deem expedient, in order to secure the due man- agement of Its affadrs and the protection of Its shareholders and creditors. C. S. M. c. 9, Dlv. 7, s. 279. PETITION FOR INCORPORATION. The oflBclal form of petition for incorporation Is as follows: To the Honorable Lieutenant- Governor of the Province of Manitoba in Council. The petition of* Humbly Sheweth: 1. That yoar Petitioners are desirous of obtaining a Charter of Incorporation by Letters Patent under "The Manitoba Joint Stock Companies Act," R. S. M. cap 25, and Acta amending the same, incorporating your petitioners and such others as may become shareholders In the Company thereby created a body corporate and politic under the name of which Is not the name (as your petitioners believe) of any other known Company Incorporated or unincorporated, or liable to be unfairly confounded therewith or otherwise on public grounds objectionable. 2. That your petitioners, in accordance with the provisions of section 5 of the said Act, have given at least one month's previous notice in the Manltoha Uanrttc of your petitioners' in- tention to apply for the .said Letters Patent. 3. That the object for which Incorporation Is sought by your petitioners Is 4. That the operations of the said Company are to be carried o" at within the Province of Manitoba. ♦Note.— Here set out In full, legilbly written, the names, resi- dences, and legal additions or occupations of the petitioners who must be shareholders In the proposed Company, and must be at least five in number. 68 HOW TO INCORPORATE A GOMPAJffT. K. That the chief place of business of the said Company is to be at 6. That the amount of the capital stock of the said Company is to be dollars. 7. That the said stock Is to be divided into shares of dollars each. 8. That the said* are to be t.ie first Directors of the said Company. 9. That your petitioners have taken the aanount of stock set opposite their respective names as follows: h \ ^' PETITIONERS. Amount, t A mount Paid thereon. paid. Your petitioners therefore pray that your Honor will be pleased by Letters Patent under the Great Seal of the Province, to grant a Charter to your petitioners constituting your peti- tioners and such others as may become shareholders in the Company thereby created a body corporate and politic for the purposes and objects aforesaid. And your petitioners, as in duty bound, will ever pray. Dated at this day of U SIGNVTURK OP WlTNESSi:S. SIGXATUKE OF PETITIONEHS. For form of notice of intention to apply for incorporation, see the preceding forms In use in the Dominion of Canada and in the Province of Quebec. The other forms may readily be adapted from those in use in the other provinces. The fees payable for incorporation in the Province of Mani- toba are as follows:— TARIFF OF FEES. On the recommendation of the Honorable the Provincial Secretary, COMMITTuJB ADVISB, That the fees to be charged for Letters Patent of incorpora- tion of Companies under the The Manitoba Joint Stock Com- •Note.— The Directors, who must be at leo'-t three in number must be Petitioners and Shareholders. ' t In these columns shew the amount, if any, paid by each Petitioner upon his stock, and whether it was paid in cash hv transfer of property, or otherwise, and if nothing paid state go HOW TO INCORPORATE A COMPANY. 69 panies' Act, The Foreign Corporations' Act, and the Mutual Hall Insurance Act, and Acts amending the same, shall be aa fol- lows;— FOR LETTERS PATENT. When the capital is $1,000,000, or upwards $300 00 When It is $500,000, but less than $1,000,000 200 00 When it is $200,000, but less than $500,000 160 00 When it is $100,000. but less than $200,000 120 00 When It is more than $40,000, but less than $100,000 100 00 When is it $40,000, or less, but more than $20,000 60 DO When it is $20,000. or less, but more than $2,000 40 00 Not exceeding $2,000 WW When the Charter Is for an incorporation under "The Mutual Hall Insurance Act" 30 00 When the Charter is for an Education Institution not to be carried on f.or the purpose or object of gain.. .. 10 00 FOR SUPPLEMENTARY LETTERS PATENT. Where the capital is increased, the fees to be according to the above list, but on the Increase only. W'hore the capital Is not Increased 10 00 License fee under "The Foreign Corporations Act" 150 00 The above schedule of fees be directed to take effect on and from the 31st day of August Instant, and that all Orders-ln- Counoil at variance with the above Tariff of Fees be rescinded. Certified, (Signed) C. GRABURN. Clerk, Executive Council. NEW BRUNSWICK. The Statutory Provisions relating to the Incorporation of Joint stcK'k companies in the Province of New Brunswick are contained in the Statutes of 1S93, being 5(i Victoria, chapter 7, sections 3, 4, 5, 6, 7. 8, 9, 10, 11, 12 and 13. 3. The Lieutenant Governor in Council may, by Letters Patent under the Great Seal, grant a Charter to any number of persons, not less than live, who shall petition therefor, consti- tuting suoli persons and others who may become sliareholders in the Company thereby created, a body corporate and politic for any purposes or objects to which the legislative authority of the Ij«'f;"i«lature of New Brunswick extends, except the con- struction and working of Railways and the bu.siness of Insur- ance, or for the management of trailes' unions, friendly societies, building societies or other associations of liK.e character. 4. The applicants for such Letters Patent must give two weeks' previous notice in the Royal Gazette, by at least two consecutive Insertions of the notice, of their Intention to apply for the same, stating therein, — (a) The proposed corporate name of the Company, which shall not be that of any other known Company Incor- 70 BOW TO ^CORPORATE A COMPANY. porated. or any name liable to be confounded therewltn. or otherwise on public grounds objectionable; (W The object for which Its Incorporation is sought; (c) The Town or place, or some one of the Towns or places within the Province of New Brunswick. In which Its office or chief place of business Is to be establUhed; (d) The amount of its capital stock, which shall not be less in any case than two thousand dollars ($2,000). actually subscribed; (e) The number of shares and the amount of each -.hare; (0 The name in full, address and calling of each of the ap- plicants, with special mention of the names of not less than three of their number, who are to be the first or Provisional Directors of the Company; 6. (1) At any time, not more than one month after the last publication of such notice, the applicants may petition the Lieutenant Governor, through the Provincial Secretary, for the Issue of such Letters Patent; (2) Such petition must recite the facts set forth in the notice, and must further state the amount of stock taken by each applicant, aind also the amount. If any, paid In upon the stonk of each applicant; (3) The aggregate of the stock so taken must be at least the one-half of the total amount of the stock of the Company; (4) The petition must also state whether such amount is paid in cash or by transfer of property, or how otherwise, and if by transfer of property, shall state briefly the de- scription of property transferred; (5) In case the petition is not siigned by all the shareholders whose names are proposed to be Inserted in the Letters Patent, it shall be accompanied by a Memorandum of Associatlor, signed by all the persons whose names are to be ^o inserted, or by their Attorneys duly authorized in writing, and such Memorandum shall contain the par- ticulars required by the next preceding Section, and shall be In the form A in the Schedule to this Act, or as near thereto as circumstances wUl admit; (6) Any payments which shall have been made in cash, on account of the stock, must have been paid in to the credit of the Company, or of tlie Trustees therefor, and must be standing at such credit In some chartered Bank in the Province; (7) The petition may ask for the embodying in the Letters Patent of any provisions which otherwise under this Act might be made by the bye laws of the Company, when incorporated, and such provisions shall not unless provi- sion to the contrary be made in the Letters Patent, be subject to repeal or alteration by bye law. 6. When a notice has been published according to the Rules of the Legislative Assembly relating to the publication of an Act Incorporating any Company, the incorporation whereof is sought, for purposes for which incorporation is authorized by this Act, EOW TO INCORPORATE A COMPANY. 71 and a Bill has been introduced .nto the Assembly in accordance with such notice, and Is subsequently thrown out or withdrawn, then in case a petition to the Lieutenant Governor for the in- corporation of such Company under this Act Is filed with the Provincial Secretary within one month from the day of the ter- mination of the Session of the Assembly, for which the said notice was given, such notice may be accepted in lieu of the notice required by Section four. 7. The publication of the notice mentioned in Section four shall not be necessary in any case in which the capital stock of the proposed Company shall not exceed five thousand dollars, and in such case the petition to the Lieutenant Grovernor shall state the particulars mentioned in Section four, in addition to those required by Section five. 8. No Order in Council for the Issue of Letters Patent or Supplementary Letters Patent shall be made, until and unless the Attorney General shall Indorse his flat upon the petition to the effect, that in his opinion no objection exists to the granting' of the incorporation applied for. 9. (1) Before the Letters Patent are issued the applicants must establish to the satisfaction of the Provincial Secretary or such other officer as may be charged by Order of the Lieutenant Governor in Council to report thereon, the sufficiency of their notice and petition, and that the proposed name is not the name of any other known incorporated or unincorporated Company; (2) The Provincial Secretary or such other officer may, for the purposes aforesaid, take and keep of record any re- quisite evidence in writing, under oath or affirmation, or by solemn declaration, under any Act of the Parliament of Canada respecting extra-judicial oaths; (3) Proof of any matter which may be necessary to be made under this Act may be made by affidavit before the Pro- vincial Secretary, or before any Jus1;lce of the Peace or Commissioner for taking affidavits, who are hereby auth- orized and empowered to administer oaths for that pur- pose. 10. The Letters Patent shall recite such of the material averments of the notice and petition so established, as the Lieu- tenant Governor may deem expedient, and the Lieutenant Gov- ernor may, if he thinks fit, give to the Company a corporate name different from that proposed by the applicants in the pub- lished notice, and the objects of the Company, as stated in the Letters Patent, may vary from the objects stated in the said notice, provi(lt>d the objects of the Company as stated in the Letters Patent are of a similar character to those contained in the notice published as aforesaid. 11. Noticse of the granting of the Letters Patent shall be forthwith given by the Provincial Secretary In the Royal Gazette, in the Form B in the Schedule appended to this Act, and thereupon, from tho date of the Letters Patent, the persons therein named, and their successors, shall be a body politic and corporate by the name mentioned therein. I— IW Tl HOW TO INCORPORATE A COMPANY. 12. In any application tor Letters Patent under this Act for the incorporation of any fishing, sporting or literar> club or as- Bocdation, ttie petition may, notwitiistandlng anything contained in this Act, ask for the embodying in the Letters Patent of a provision (which shall be therein inserted) that the shares of the capital stock of the Club or Association shall not be trans- ferable to any person not then being a member of and share- holder in the Club, until the name of the proposed transferee or member has been first submitted for the approval of the existing shareholders or members, and approved in such manner as may in such petition be set forth, or as may be prescribed by tine bye laws of the Club or Association when incorporated; and if such provision be embodied In the Letters Patent, It shall not, unless otherwise provided In the Letters Patent, be subject to repeal or alteration by by-law. 13. In case the transfer of the shares of the Club or Associa- tion be prohibited as in the last Section mentioned, no transfer of such shares may be made, otherwise than in conformity with the conditions prescribed, so as bo entitle the transferee thereof to membership in the Club or Association, or to any rights, benefits or privileges in respect of such shares in the said Association. MEMORANDUM OF ASSOCIATION. The official form of memorandum of association referred to Is sub-section 5 of the section 5, and is as follows:— SCHEDULE. Form A. " ■ Section 5, sub-section 5. Memorandum of Association of the Company, a company for which incorporation by Letters Patent is sought under the pT vrisions of the New Brunswick Joint Stock Com- panies' Act ',93, and a petition for which incorporation ac- companies this memorandum agreeably to the said Act. 1. The proposed corporate name of the Company is "The Company." 2. The object for which the incorporation of the Company is sought Is (here state the object of the Company), with such other things as are incident thereto. 3. The office or principal place of business is to be at in the County of 4. The nominal capital of the company Is (here state the amount of each share) dollars each. 5. The names of the provisional directors of the Company are:— .of. .of. .of. .In he County of farmer. .in the County of merchant. .in the County of banker. We, the peveral persons whose names are subscribed, are desirous of being formed into a company in pursuance of this Memorandum of Association and the petition herewith pre- sented, under The New Brunswick Joint Stock Companies' HOW TO INCORPORATE A COMPANY. 73 Act, 1893, and we hereby respectively agree to take the number of shares In the capital of the Company set opposite our naanes: Xaine. Adilrew. Oocupatioii. No. of Sliardi". Dated the day of A.D., 19 No other official forms save and except the above are is- sued by the department or prescribed by the Statute. The other forms required may readily be adapted from the preceding forms used in other Provinces. The fees payable upon the corporation of joint stock com- panies in the Province of New Brunswick are as follows: — REGULATIONS AND TARIFF. His Honor the Lieutenant Governor In Council has been pleased to make the following Order respecting the Incorpora- tion of Companies by Letters Patent under the Act 56th Vic- toria, Chapter 7, which is to take effect from the date here- of, and all previous Orders and Regulations relating thereto are rescinded: — 1. The Honorable the Provincial Secretary is hereby desig- nated as the Officer charged with the Issue of Letters Patent and Supplementary Letters Patent; and the Department of the Honorable the Provincial Secretary as the Department through which such issue shall take place. 2. The signatures of the Subscribers to the Petition for Letters Patent or Supplementary Letters Patent, or to the Memorandum of Association, shall be verified by affidavit to the satisfaction of the Provincial Secretary. 3. The following is the Schedule of Fees payable under the 93rd Section of the said Act:— (1) When the proposed Capital Stock of the Company is $5,000 or less, the fee to be Thirty Dollars ($30.00). (2) When the proposed Capital Stock of the Company la above $5,000 and less than $10,000, the fee to be Forty dollars, ($40.00). (3) When the proposed Cap^.tal Stock of the Company is above $10,000 and less than $25,000. the ^ee to be Fifty dollars, {SSO.vjJ). (4) When the proposed Capital Stock of the Company Is $25,000 and less than $50,000, the fee to be SSxty dollars, ($60.00). (5) When the proposed Capital Stock of the Company Is $50,000 and less than $100,000, the fee to be Eighty dollars, ($80.00). (6) When the proposed Capital Stock of the Company Ig .?100,000 and less than $200,000, and twenty dollars, ($120.00). (7) When the proposed Capital $200,000 and less than $3(JO.()00, and sixty dollars, ($160.00). the fee to be One hundred Stock of tne Company Ig the fee to be One hundred 74 HOW TO INCORPORATE A COMPANY. (8) When the proposed Capital Stock of the CJompany i& 1300,000 and less than |500,000, the fee to be Two hundred dollars, (1200.00). (9) When the proposed Capital Stock of the Company is $500,000 and less than $1,000,000, the fee to be Two hun- dred and fifty riollars ($260.00), (10) For every $500,000 in excess of $1,000,000, an additional fee of Fifty dollars, ($50.00). (11) Supplementary Letters, when application is to increase the Capital Stock, a sum of Twenty dollars ($20.00), amd a further sum in addition thereto, according to the scale aforesaid, upon the increased amount for which Letters are applied for. In all other cases a fee of Fifty dollars, ($30.00). 4. All fees must be paid in cash or by an accepted cheque, payable to the order of the Receiver General or Deputy Receiver General, and must be transmitted by Registered Letter. Provincial Secretary's Office, Fredericton, 14th February, 1896. JAMES MITCHELL. NOVA SOOTIA. The Statutory provisions relating to the incorporation of Joint stock companies in the Province of Nova Scotia are con- tained in the Revised Statutes of Nova Scotia, li*84, cap. 79, known as The Nova Scotia Joint Stock Companies' A.ct, and are a£ follows:— 3. Governor-in-Connoil may Rrant Charter.— 'I'^e uov- ernor-ln-CouncU may by Letters Patent under the Great Seal of the Province grant a charter to any number of persons not les3 than live who shajll petition therefor, constituting such persons and others who may became shareholders in the com- pany thoreby created a body corporate and politic for any of "ab purposes or objects to which the legislative authority of the- Parliament of Nova Scotia extends, except the construction and working of railways and loan companies. 4. Conditioni of application for Letters Patent.— The applicants for such Letters Patent must give at least one month's previous notice in the Royal Gazette of their intention to apply for the same, stating therein: (a) The proposed corporate name of the comi)any, which shall not be that of any other known company Incorpor- ated or unincorporated, or any name liable to b» con- founded therewith, or otherwise on public grounds ob- (5) The purposes within the purview of this chapter for jec'.ionable. , wlilch its Incorporation is nought. (c). The place within the Province of Nova Scotia which 1» to be its chief place of business. (rf) The Intended amount of Its capital stock. («■) The number of shares and amount of each share. HOW TO INCORPORATE A COMPANY. 75 if) The name In full and the address and calling of eaoh of the applicants, with special mention of the names of not less than three nor more than fifteen of their number who are to be the first or provisional directors of the company, and the major part of whom must be resident In Nova Scotia. 5. Petition for Letters Patent.— At any time not more than one month after the last publication of such notice the applicants may petition the Governor through the Provincial Secretary of Nova Scotia for the issue of such Letters Pa.ent. (a) Such petition must recite the facts set forth In the no- tice, and must further state the amount of stock taken by each applicant, and also the amount paid lin upon the stock of each applicant, and the manner in which the saime has been paid in and is held by the company. Such list of shareholders must be sent in with the petition In duplicate. (b) The aggregate of the stock so taken must be at least one-half of the total amount of the stock of the company. ora{eplleant for any TiFtters Patent tinder siald chapter, or Is a provlsloiuil director dt dl- "'clor In any company Incorporated under said chapt(>r need not reside within this Province of Nova Scotia; and tho head HOW TO INCORPORATE A COMPANY. 77 office of any company Incorporated xuider said chapter may be in sue.i place in this Province of Nova Scotia or outside thi» Province, as any company incorporated under the provisions of said chapter shaJl by by-law declare. 3. All provisions of said chapter which are inconsistent with the provisions of this amendment are hereby repealed. FEES. The fees payable on the incoriwratlon of joint stock com- pcuiiee in the Province of Nova Scotia are as follows:— 74. The Governor-ln-CouncU under this chapter may desig- nate the department or departments through which the issue of Letters Patent shall take place, and may prescribe the forma of proceeding and record in respect thereof, and all other matters requisite for carrying out the object of this cliapter. (1) All companies whose capital stock shall be less than ten thousand dollars, the fee shall be twenty dollars. Ten thousand dollars and leas than fifty thousand dollars, the fee shall be thirty dollars. Fifty thousand dollars and less than one hun- dred thousand dollars, the fee shall be forty dollars. One hundred thousand dollars and less than two hundred and fifty thousand dollars, the fee shall be fifty dollars. Two hundred Bind fifty thousand dollars and less than five hundred thousanxl dollais, the fee shall be sixty dollars. Five hundred thousand dollars and upwards, the fee shall be seventy dollars. The fee for supplementary Lietters Patent, changing the name of a company incorporated under this Act, shall be fifteen dollars. The fee for supplementary Letters Patent, Increasing th« capital slock of a company to any sum within the amount for which a fee has already been paid, shall be fifteen do.lars. 1>e fee for supplementary Lettera Patent, Increasing the powers of a company, phall be fifteen dollars. No Oi'fieial forms or instructions regarding the incorporation of joint ttock companies In the Province of Nova Scotia are iss'ied by the department or prescribed by the Statute, but the ppovlsiftis of the Statutes coupled with the forms in us« In tJie oth Provinces will afford a ready guide to parties seeking incorporation in that Province. NORTH WEST TERRITORIEIS. The Statutory Provisions relating to the Incorporation ol joint stock companies in the North-West Terrntorlea are con- tained in the Consolidated Ordinances of the North-West Ter- iltorles, 1898, cap. 61, sections 3 to 15, and are as follows:— 3. Inoorporatlon by liottera Patent.— Tno i^ieutenant Governor in Council may, by Letters Patent under the Seal of the Territories, grant a charter to any number of persons not leas than three, who petition therefor, constituting such persons and others who thereafter become shareholders in the company f 78 HOW TO INCORPORATE A COMPANY. thereby created a body corporate and politic for any of the purposes or objects to which the legislative authority of the Legislative Assembly of the Territories extends. R. O., c. 30, 8. 3; No. 35 of 1892, s. 6. 4. Advertisement of application.— The applicants for such Letters Patent must ae Incorporated In any by-law of the company when incorporat- ed; and such provision so embodied shall not, unless provision to the -contrary is made hi the Letters Patent, be subject to repeal or alteration by by-law. R. O., c. 30, s. 9. 10. Preliminary matters to be proved.— Before the Lietters Patent are issued the applicants must establish to the satisfaction of the Territorial Secretary or such other officer AS may be charged by the Lieutenant Governor In Council to • report thereon, the sufficiency of their notice and petition, and the truth and sufficiency of the facts therein set forth, and that the proposed name is not the name of any other known incor- porated or unincorporated company, and to that end the Terri- torial Secretary or such other officer may take and keep on record any requisite evidence In writing under oath, affirmation or solemn declaration. R. O., c. 30, s. 10; No. 38 of 1S97, s. 34 (2). 11. Letters Patent recitals.— The letters Patent shall recite all the material averments of the notice and petition so established. R. O., c. 30, s. U. 12. Corporate name.— The Lieutenant Governor in Council may give to the company a corporate name different from that proposed by the applicants in their published notice If the pro- posed name is objectionable. R. O., c. 30, s. 12. 13. Restriction of Letters Patent after incorpora- tion.— The Lieutenant Governor in Council may restrict such Letters Patent after incorporation in any manner which may seem desirable. No. 38 of 1897, s. 34 (4). 14. Preliminary requirements directory. Irregu- larities not to avoid.— The provisions of this Ordinance re- lating to matters preliminary to the issue of Letters Patent shall be deemed directory only; and no Letters Patent issued or which have heretofore been issued under this Ordinance or any Or- dinance for which this Ordinance either wholly or in part shall have been substituted, shall be held void or voidable on account of any Irregularity In any prescribed notice, or on account of the Insufficiency of any such notice, or en account of any irregularity in respect of any other matter preliminary to the Issue of such Letters Patent. No. 38 of 1897, s. 34 (4). 15. Notice of grant of Letters Patent.— Notice of granting of every original Letters Patent under the provisions of (his Ordinance .shall be forthwith given In the official Gazette of tlic Territories in form A in the schcdulo to this Ordinance, and thereupon from the date of the Letters Patent the persons therein named and their successors shall be a body politic and corporate by the name mentioned therein. R. O., c. 30, s. 16. The fees payable upon the Incorporation of joint stock companies in the North-West Territories are as follows:— See section 109 of the Joint Stock Companies* Act. 100. Fees on issue of Letters Patent.— In addition to the cost of all necessary advertising In the official gazette of the Territories, the following fees shall be paid on application for Letters Patent of Innorporation and supplementary Letters Patent under this Ordinance: 80 HOW TO INCORPORATE A COMPANY. r V 1. When the capital stock of the company Is $400,000 and upwards, the fee to be $200; 2. When the capital stock of the company is $200,000 and upwards, and under $400,000, the fee to be $150; 3. When the capital stock of the company is $100,000 and upwards and under $200,000, the fee to be $100; 4. When the capital stock of the company is $50,000 and • upwards and under $100,000, th j fee to be $50; 5. When the capital stock of the company is $40,000 and upwards and under $50,000, the fee to be $40; 6. When the capital stock of the company is over $10,000 and under $40,000, the fee to bo $30; 7. And when the capital stock of the company is $10,000 or under, the fee to be $20; 8. On application for supplementary Letters Patent the fees to be one-half of that charged on the original Letters Patent. R. O.. c. 30, s. 113; No. 38 of 1897, s. 34 (19). No official forms or letters of Information for use in the incorporation of joint stock companies are Issued by the Gov- ernment, but the directions contained in the sections above quoted together with the forms of petition and affidavits in use in the other Provinces will guide the applicant with reepect to the forms and procedure. BRITIShl COLUMBIA. R. t B. C, 1897. PART 1. Constitution and Incorporation of Companies and Associa- tions UNDER THIS ACT. Mcmorandtim of Association. 9. Mode of forming Company.— Any five or more persons Bssociated for any lawful purpose within the scope of this Act may, by subscribing their names to a Memorandum of Associa- tion, and otherwise complying with the requisitions of this Act In respect of registration, form an Incorporated company, with or without limited liability. 25 and 26 Vict., c. 89, s. 6. 10. Mode of Itmltingr liability of member!.— The liability of the members of a company formed under this Aot, may, according to the Memorandum of Association, be limited olther to the amount, if any, unpaid on the shares respectively held by them, or to such amount as the members may respective- ly undertake by the Memorandum of Association to contribute to the assets of the company. In the event of its being wound up. 25 and 26 Vict., c. 89, s. 7. 11. Memorandnm of Asiooiation of a Company limited by share*.- Where a company Is formed on tho prln- ctple of having th<» liability of Its members limited to the amount unpaid on their shares, hereinafter referre*^ to as a company limited by sluirofl, the Memorandum of Association shall con- tain the following things, that Is to say:— W now TO INCORPORATE A COMPANY. 81 (1.) The name of the proposed company, with the addition of the word "Limited" as the last word in such name; (2.) The part of th* Province in which the registered office of the company Is supposed to be situate; (3.) The objects for which the proposed c" upany Is to be established; (4.) The time of existence of the proposed company, if it is intended to secure incorporation for a fixed period; (5.) A declaration that the liability of the members is limited; (6.) The amount of capital with which the company proposes to be registered, divided into shares of a certain fixed amount; Subject to the following regulations:— (1.) That no subscriber shall talce less than one share; (2.) That each subscriber of the rtemorandum of Association shall write opposite to his name the number of shares he takes. 25 and 26 Vict., c. 89, s. 8. (3.) That each subscriber of the Memorandum of Association shall be the bona fide holder in his own right of the share or shares for which he has subscribed in the Memoran- dum of Association. m 12. Memorandnm of Association of a Company limited by guarantee.— Where a company is formed on the principle of having the liability of its members limited to such amount as the members respectively undertake to contribute to the assets of the company in the event of tlie same being wound up, hereinafter referred to as a company limited by guarantee, the Memorandum of Association shall contain the following things, that is to say:— (1.) The name of the proposed company, with the addition of the words "Limited by guarantee" as the last words in such name; (2.) The part of the Province in which the registered office of the company is proposed to be situate; (3.) The objects for which the proposed company is to be establiahed; (4.) A declaration that each member undertakes to contribute to the assets of tlie company, In the event of the same being wound up, during the time that he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceases to be a member, and of the costs, charges, and expenses of winding up the company, and for the adjustment of the rights of the contrlbutorles amongst themselves, such amount as may be required, not exceeding a specified amount. 25 and 26 Vict., c. 89, s. 9. 13. Memorandum of Association of an unlimited Company.— Where a company is formed on the principle of having no limit placed on the liability of Its members, here- inafter referred to as an unlimited connpany, the Memorandum of Assoclat'on shall contain the following things, that is to say: (1.) The name of the proposed company; 6 I rfM ■% t' ■I i 82 BOW TO INCORPORATE A COMPANY. (2) The part of the Province in which the registered office of the company Is proposed to be situate; (3.) The objects for which the proposed company is to be established. 25 and 26 Vict., c. 89, s. 10, a8 amended by C. A. 1888, c. 21, a. 67. ^or the purposes of Part HI. of that Statute only. 14. Stamp, signature and effect of Memorandum of ABBOciation.— The Memorandum of Association shall be signed by each subscriber In the presence of, and attested by one witness at the least; it shall, when registered, bind the company and the members thereof to the same extent as if each member had subscribed his name and affixed hJs seal thereto, and there were in the Memorandum contained, on the part of himself, his heirs, executors, and administrators, a covenant to observe all the conditions of such Memorandum, subject to the provi- sions of this Act. 25 and 26 Vict., c. 89, s. U, as amended by C. A. 188^, c. 21, 8. 68, for the purposes of Part III. of that Statute only. 15. Power of certain companies to alter Memoran- duni of Association.— Any Company limited by shares may so far modify the conditions contained in its Memorandum of Asso- ciation, if authorized to do so by its regulations as originally framed, or as altered by special resolution in manner herein- after mentioned, as to increase its capital, by the issue of new .'.hares of such amount as it thlnlis expedient, or to consolidate and divide its capital into shares of larger amount than its existing shares, or to convert its paid-up shares into stocl^, but save as aforesaid, to the location of the registered office of the company, and as hereinafter provided, no alteration shall be made by any company In the conditions contained in its Memorandum of Association. 25 and 26 Vict., c. 89, s. 12. Articles of issociation. 16. Regulations to be prescribed by Articles of Association.— The Memorandum of Association may. In the case of a company limited by shares, and shall, in the case of a company limited by guarantee or unlimited, be accompanied, when registered, by Articles of Association, signed by the sub- scribers to the Memorandum of Association, and prescribing such regulations for the company as the subscribers to the Memor- andum of Association deem expedient. The Articles shall be expressed in separate paragraphs numbered arithmetically; they may adopt all or any of the provisions contained in the table marked A In the First Schedule hereto; they shall, in the case of a company, whether limited by guarantee or unlimited, that has a capital divided into shares, state the amount of capital with which the company proposes to be registered; and In the case of a company, whether limited by guarantee or unlimited, that has not a capital divided into shares, state the number of members with which the company projwses to be registered, for the purpose of enabling the Registrar to deter- mine the fees payable on registration. In a company limited by guarantee or unlimited, and having a capital divided into shares, fach subscriber shall take one share at the least, and shall HOW TO INCORPORATE A COMPANY. 83 write opposite to his name in the Memorandum of Association the number of shares he takes. 25 and 26 Vict., c. 89, s. 14. 17. Application of Table A— In the case of a company limited by shares, If the Memorandum of Association Is not ac- companied by Articles of Association, or in so far as the Articles do not exclude or modify the regulations contained in the tabit' marlced A in the First Schedule hereto, the last-men- lioned regulations shall, in so far as the same are applicable, be deemed to be the regulations of the company in the same manner and to the same extent as if they had been Inserted in Articles of Association, and the Articles had been duly regis- tered. 25 and 26 Vict., c. 89, s. 15. 18. Stamp, signature and effect of Articles of As- sociation.— The Articles of Association shall be printed, and shall be s;(.;ned by each subscriber In the presence of, and be attested by, one witness at the least. When registered, they shall bind the company and the members thereof to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were in such Articles contained a covenant on the part of himself, his heirs, executors, and ad- ministratiirs, to conform to all the regulations contained in such articles, subject to the provisions of this Act; and all moneys payable by any member to the company. In pursuance of the rondltlons and regulations of the company, or any of such conditions or regulations, shall bo deemed to be a debt due from such member to the company in the nature of a specialty debt. 25 and 26 Vict., c. 89, s. 16. Oencral Proviaiom. 19. Registration of Memorandum of Association and Articles of Association, with fees as in Table B.— The Memorandum of Association and the Articles of Associa- tion, If any, shall be delivered to the Registrar of Joint Stock Companies, who shall retain and register the same. There shall bo paid to the Registrar by a company having a capital divided into shares, In respect of the several matters mentioned in the table marked B. in the First Schedule hereto, the several fees therein specified, or such smaller fees as the Lieutenant-Gov- ernor in Council may from time to time by order or orders in council direct; and by a company not having a capital divided Into shares, In respect of the several matters mentioned In the table marked C. in the First Schedule hereto, the several fees therein specified, or such smaller fees as the Lieutenant-Gov- ernor in Council may from time to time by order or orders in Council direct. All fees paid to the said Registrar In pursu- an'-e of this Act shall be paid, and be carried to the account of the Consolidated Revenue Fund of the Province. 25 and 2fi Vict., c. 89, s. 17. 20. Effect of registration.— Upon the registration of the Memorandum of Association, and of the Articles of Association in cases where Articles of Association are required by this Act or by th- rtpslr.^ of the parties to be registered, the Registrar 84 HOW TO INCORPORATE A COMI'AM'. I i"'.'i shall issue a certiflcate of incorporation, showing the corporate name of the company, the part of the Province where the registered office of the company is proposed to be situate, the objects for which the company has been established, the amount of the capital of the company, the numl)er of shares into which the same is divided, and the amount of each share, the time of existence of the company if incorporated for a fixed period, and in the case of a limited company that the company is limited, and In the case of a mining company the liabr.ity of the members whereof is specially limited under sectiun oB, hereof, that tlie company is so specially limited under said sec- lion 56; and such certificate shall be published for four weeks in the British Columbia Gazette. The subscribers of the Mem- orandum of Association, together with such other persons as may from time to time become members of the company, shall thereupon be a body corporate by the name contained in the Memorandum of Association, capable forthwith of exercising all the functions of an incorporated company, and liaving per- petual succession and a common seal, with power to hold lands, but with such liability on the part of the members to contri- bute to the assets of the company in the event of the same being wound up as hereinafter mentioned. A certificate of the incorporation of y company given by the Registrar shall be conclusive evi^ ice that all the requisitions of IhiH Act in respect to registration have been complied with. 21. Subject to the provisions of this Act, any company re- gistered under this Act may, by special resolution, alter the provisions of its Memorandum of Association, so far a-s may be required for any of the purposes hereinafter specified, but in no case shall any alteration take effect until confirmed on petition, by the Supreme Court: 2. Before confirming any such alteration the Supreme Court must be satisfied:— (I. That sufficient notice has been given to every holder ot debentures or debenture slock of the company, and any person or class of persons whose interests will, in the opinion of the Court, b*- effected by the alteration, and h. That with respect to every creditor who, in the opinion of the Court, is entitled to object, and who signifies his objection in manner directed by the Court, either his consent to the alteration has been obtained, or his debt or claim has been discharged or has determined or has been secured to the satisfaction of the Court; Pro\ .(icd that the Court may in the case of any per- son or class of persons, for special reasons, dispense with the notice required by this section; 3. An order confirming any such alteration mav be made on such terms and subject to such orders as to the Court seems fit, and the Court may make such orders as to costs a.s it deems proper. 4. The Court shall, in exercising its discretion under the provialons of this section, have regard to the rights and interesta of the creditors, and may, if it thinks fit. adjourn the pro- ceedings In order that an arrangement may be made to the mow TO INCORPORATE A COMPANY. 86 satisfaction of the Court for the purpoh's of the Interests of dissentient members; and the Court may give such directions and make such orders as It may think expedient for the purpose of facilitating any such arrangement or carrying the same into effect; Provided always that It shall not be lawful to expend any part of the capital of the company in any wuch purchase. 5. The company may coni'^m, either wli 'lly or In part, any such alteration as aforesaJd wliti respect to the objects of the company if It appears that the alteration is required in order to enable the company:— u. To carry on Its business more economically or more ettl- clently; or 6. To attain its main purpose by new or improved means; or c. To enlarge or change the local area of its operations; or <1. To carry on some business which, under existing circum- stances may, conveniently or advantageously, be combined with the business of the company; or e. To restrict or abandon any of the objects specified In the Memorandum of Association. 22. Where a company has altered the provisions of its Memorandum of Association with respect to the objects of the Company, and such alteration has been confirmed by the Court, an office copy of the order confirming such alteration, together with a printed copy of tht Memorandum of Association, so altered, shall be delivered by the company to the Registrar within fifteen days from the date of the order, and the Regis- trar shall register the same, and shall certify under his hand the registration thereof, and his °riiflcate shall be conclusive evidence that all the requisitions jf this Act with respect to such alterations and the confirmation thereof have been com- plied with, and thenceforth (but subject to the provision of this Act) the Memorandum so altered shall be the Memorandum of Association of the company. 2. If a company makes default In delivering to the Registrar any documents required by this section to be delivered to h!m, the company sliall upon summary conviction, be liable to a penalty not exceeding fifty dollars for every day during which It is in default, and every director, manager, secretary and officer of the company who shall knowingly and wilfully auth- orize or permit such default, shall, upon summary conviction, be liable to tho like penalty. 23. Copies of Memorandum and Articles to be given to members.— A copy of the Memorandum of Association, hav- ing annexed thereto the Articles of Association, if any, shall be forwarded to every member at his request, on payment of the sum of one dollar or such less sum as may be prescribed by the company for each copy; and if any company mf.kes default In forwarding a copy of the Memorandum of Association and Articles of Association, if any, to a member. In pursuance of this section, the company so making default shall, upon summary conviction, for each offence Incur a penalty not exceeding five dollars, and every director, manager, secre- tary and officer of the company who shall knowingly and wU- r: ' 86 UOW TO INCORPORATE A COMPANY. ll fully authorize or permit such default shall, upon summary conviction, be liable to the like penalty. 25 and 26 Vict., c. 89, a. 19. 24. Prohibition Against identity of names in Com- panies.— No company shall be registered under a name identi- cal with that by which a subsisiing' company is already rit;;3- tered, or so nearly resemV'ngr the same as to be calculated to deceive, except in a case whi re such subsisting company is in the course of being dissoh ed, and testiflea Its consent In such manner as the Registrar requires; and If any company, through inadvertence or otherwise, is, without such consent as aforesaid, registered by a name identical with that by which a subsisting company Is registered, or so nearly resembling the same as to be calculated to deceive, such flrst-meationed com- pany shall, with the direction of the Registrar, change its name, and upon such change being made the Registrar shall enter the new name on the Register in place of the former name, and shall issue a certiflcsjte of incorporation altered to meet the circumstances of the crise; but no such alteration of name shall affect any rights or obligations of the company, or render defective any legal proceedings Instituted or to be instituted by or against the company, and any legal proceedings may be continued or commenced against the company by its new name that might have been continued or commenced against the company by Its former name. 25 and 26 Vict., c. 89, s. 20. TABLE B. Table of Fees to be paid to the Registrar of Joint Stock Companies by a Company having a capital divided Into shares. For registration of a company whose nominal capital does not exceed $10,000, a fee of $25 00 For rbjristratlon of a company whose nomlna". capital ex- ceeds $10,000, the above fee of $25.00, with the fol- lowing additional fees, regulated according to the amount of nominal capital; (that is to say)— For every $5,000 of nominal capital, or part of $5,000 after the first $10,000 up to $25,000 $5 00 For every $5,000 of nominal capital, or part of $5,000 after the first $25,000, up to $500,000 2 50 For every $5,000 of nominal capital, or part of $5,000 after the first $500,000 125 For registration of any increase of capital made after the first registration of the company, the same fees per $5,000 or part of $5,000, as would nave been payable if such increased capital had formed part of the original capital at the time of registration. For a license to or registration of any extra-provincial company, the same fees as are payable for regis- tering a new company. For registration under this Act of any existing company, the certificate of registration whereof is issued pur- 1? HOW TO INCORPORATE A COMPANY. 87 suant to section 56 hereof, or the capital whereof is increased pursuant to section 5 (b) hereof, in lieu of the fee of ten dollars prescribed by section 5 of this Act, the same fees as are payable for register- ing a new company hereunder, allowing credit as part of such fees for the amount oi fees paid by such company in respect of its original registration. Poi- a license to or registration under this Act of any extra-provincial company already registered in this Province as a foreign comipany 26 00 And in addition thereto, if the license or certificate of re- gistration under this Act is Issued pursuant to sec- tion 56 hereof, the same fees as are payable for re- gistering a new company hereunder, allowing credit as part of such fees for the amount of fees paid by such extra-provincial company in respect to its original registration in this Province. For a licence to an extra-provincial insurance ccrm- pany under section 125 of this Act 26 00 For registering any document hereby required or auth- orized to be registered, other than the Memoran- dum of Association 100 For making a record of any fact hereby authorized or required to be recorded by the Registrar, a fee of.. 1 GO Publication in the Gazette, according to the scale of charges as defined in Schedule B of the "Statutes and Journals Act." TAjBLiE C. Table of Fees to be paid to the REaisTRAR of Joint Stock Companies by a company not having a capital divided into shares. For registration of a company whose number of mem- bers, as sitated in the Articaes of Association, does not exceed 20 $10 00 For registration of a company whose number of members, as stated in the Articles of Association, exceeds 20, but does not exceed 100 25 00 For registration of a company whose number of members, as stated in the Articles of Association, exceeds 100, but is not stated to be unlimited, the above fee of $25 with an additionaQ $1 for every 50 members or less number than 50 after the first 100 For registration of a company in which the number of members is stated in the Articles of Asisociatlon to be unlimited, a fee of 100 00 For registration of any increase on the number of mem- bers made after the regisitration of the company In respect of every 50 members, or less than 50 mem- bers, of such increase j OO Provided that no company shall be liable on the whole to pay a greater fee than $100 in respect of its number of members, taking into account the fee paid on the first registration of the company. 1 1 m HOW TO INCORPORATE A COMPANY. For regrlsterliig any document hereby rea^'ired or author- ized to be registered, otaer than the Memorandum of Aaeoclatlon 1 0* For making a record of any fact hereby authorized or I quired to be recorded by the Registrar of Com- panies, a fee of 1 00 SKCOND SCHEDUI-E. ■i ■ ; w .1 Form A. Memorandum of Association of a Company limited by aharea. 1. The name of the company Is "The Company, Limited." 2. The registered office of the Company will be situate in 8. The objects for which the company is established are "the conveyance of passengers and goods in ships or boats be- tween such places as the company may from time to time de- termine, and the doing all such other things as are incidental or conducdve to the attainment of the above objects." 4. The liability of the members Is limited. 5. The capital of the company is dollars divided into shares of dollars each. yfV-, the several persons whose names and addressee are sut>- ecrlbed, are desirous of being foi-med into a company, In pursuance of this Llemorandum of Association, and we re- spectively agree to take the number of sharee set opposite our respective names. Names, Addregeei), and Pescrlptions of Subscribers. •• 1. John Jonen of " 2. John Smith of " 3. Tboniiis (ireen of "4. John Thonmon of "6. Caleb White of in the County of ill the County of ill the County of in the County of in the County of Merchant. No, of Shares taken by each ^ub8crlber. 200 26 30 40 16 Total shares taken 310 Dated the day of Witness to the above sigr.aturee, A. D., No. Street, . 19 . British Columbia. II ■; It il 111 i^' .1 Form B. MBMORANnt^M AND ARTICLES OF AssoriATioN of a Company limited by guarantee, and not having a capital divided into shares. Urmorandum of Asuorlatlon. 1. The name of the company is the Llmltf.l." HOW TO INCORPORATE A COMPANY. 89 lO ,1 2. The registered head office of the company wUl be situate In 3. The objects for vhich the company is established are "the mutual Insurance of ships belonging to members of the company, and doing all sHch other things as are Incidental or conducive to the attainment of the above objects." 4. Every member of the company undertakes to contribute to the assets of the Company in the event of the same being wound up during the time that he is a member or within one year afterwards, for payment of the debts and liabilities of the ccimpany contracted before the time at which he ceases to te- a member, aJid the costs, charges and expenses of -winding up' the same, and for the adjustment of the rights of the con- tributories ajnong themselves, such amount as may be required, not exceeding dollars. We, the several persons whose names and addresses are sub- scribed, are de^hjus of being formed into a company, In pursuance of this Memo' dum of Association. Names, Addresses a' 1. John Jones of 2. John Smith of 3. Thomas Green of 4. John Thompson of 5. Caleb White of DateKl the aocrlptlons of Subscribers. 'i; the County of In the County of In the County of In the County of in the County of day of Merchant. 19 Witness to the above signatures, A. v.. No. Street, British Columbia. Articles of Association to accompany preceding Memoran- dum OF Association. (1> The Company, for the purpose of registration, Is declared to consist of five hundred memberH. (2) The directors hereinafter mentioned may wher.evfir the business of the Aspociatlon requires it, reglsier an Increase of members. FOKM C. Memorandum and Articles ov Association of a Company limited by guarantee, and having a capital divided Into shares. Memorandum nf Asuoctatton, 1. The name of the Company Is the " Com- pany, I/lmlted." 2. The registered offlco of the Company will be situate In 3. The objects for which the Company is established are "the faclIltatinfiT travelling In the Province by providing liotelft and oonvoyancPR hy sea and by land, for the accommodation of traveller.^, and the doing of all such other things as are lnc!ienlal and conducive to the attainment of tho abov<> object." 4. Every member of the iA)nipany undertaki^s to contribute to the assets of the Company in tiie event of the same being wound up during the time that he la a member, or within one i 'iff . f;. 90 now TO INCORPORATE A COMPANY. year afterwards, for payment of the debts and liabilities of the Cc>-mpany, contracted before the time at which he ceases to he- a member, and the costs, charges and expenses of winding up the same, and for the adjustments of the rights of the con- tributories amongst themselves, such amount as may bs re- quired, not exceading dollars. Wk, the several persons whose names and addresses aie sub- scribed, are desirous of being formed irito a Company, In pursuance of this Memorandum of Association. Names, Addresses and Descriptions of Subscribers. 1. John Jones of 2. John Smith of 3. Thomas Green of 4. John Thompson cf 5. Caleb White of Dated the in the County of In the County of in the County of in the County of in the County of day of 19 Merchant, •Vltness to the above signatures, A. B., No. St-.eet, British Columbia. Articles of Associtition to accompanv pieceding Memorandum of Association. t i 1. The capital of the company shall consist of dollars, dlvidciT into shar-'^ A dollars each. 2. The directors may, rvlth the sanction of the Company in general meeting, cancel any shares belonging to the Company. 3. The directors -luy, with the sanction of the Company In general meeting, cancel any shares belonging to the Com- pany. 4. All th<^ arllcUs of Table A. shall be deemed to be incor- porated with ihfiae articlec, and to apply to the company. We, the several persons whose names and addresses are s>ib- scribed, agree to take the number of shares in itte capital of the Company set opposite our respective names. Names, Addr«Mefl, iind Descriptions of Subsorlbors. " 1. .lolm JonoR of *'2. doliii Nmltli of "3. ThoniJiK (Iroi'ii of •' 4. 'John Tlioiiipnoii of " B. C«l«b White of la the County of Merduint. !ti ilio County of — In tlin County of — in th 0» «» a ^ ^ -uiuo in g\\ aoiu )( oj ft iM( ?1 -! >- *» . i; lllili Sc£5S5 »' «« If^iS? ^.lis^j ^ ^ o a .a § ■a S « av O o <23 K.,11-1 W CB ® ■•* A -T -; O C J3 0. 5 «i " -•« 5 - * • a » « - J* '^1 HOW TO lyCOItl'OliATl-J A COMPANY. 93 lis 5 M m ill = §15 '^ IM — ftcs ® 0! 2 ^ I *» « « O wo t. > ». « — . . (0 ex's g5 li 0^ £ ■I 2j= g g s 93 00 O — o s o S* en - ^ ^ ots-.a ^ E 3 fco « o £.S ClCB ■"■"5 5 H * H § iS S^ E 2 2 g«M <»^ 2 « ® *" « S e £ P ■- 4) c 3 2 08 a 2o2pic| fj .2 m b. v " c £8 t« — f5d l5§ c ^.^a != fl.2 5! .ss^a u be| V B i2 s^S 1 5.3 1 ■4' Iff: c4 ] ll ■ 94 HOW TO INCORPORATE A Ct PANT. :i I 31 § M CO a •» 4" a a o gas U.3 o « s5 sis a o . DO _ tj S3 9 Ui O *^ , QJ " « '^ fl 1 1 2 I !^i-S, - 9 ® iliff 00 I ^ r/3 E^a.S2 . V «^ B S CD 3 tfiM of ^ OQ 3 w ^ [fj ^ --4 !l I o HOW TO INCORPORATE A COMPANY. 95 LEGISLATION OP 1899, RELATIVE TO COM- PANIES. Resume of Company Legislation in the Dominion and in the various Provinces for the year 1899. DOMINION OP CANADA. Chapter 40.— Companies heretofore or hereafter incorporated, and to which either The Companies Clauses Act, cap. 118, or The Companie.s Act, cap. 119, of the Revised Statutes, is applicable, may create or issue any part of the capital stoclc of tho Com- pany as preference stock. This Act does not apply to any Insurance or Trust Company. Chad)ter 42.— The Winding-Up Act is amended so as to empower tlie Court to appoint one or more inspectors to advise and assist tho liquidators in the liquidation of the Company and providing for the remuneration of such ins-pector or inspectors. Chapter 43.— Amends the "Winding-Up Act and provides -Jiat the Court may summon a »w>etinK of creditors to consider any proposed compromise, and that if a majority in number representing three-fourth* in valu* of sU'C'h creditors or classes of creditors, agree to »ny arransememt or >ompromise, such arrangement or comprv>mi»e, sanctioned by an order of the Court, shall be binding on all such crediijors, and also on the liquidator and contributories of the Company. ONTARIO. 62nd Victoria, 2i»fi session, cap. 11, se^. 20, makes section 23, sub-sec. 2 and 3, of the Ontario Companies Act retroactive, except in any case Jn which judgment has been heretofore de- QUBBKC. Cap. 41.— No bonus to be granted for establishing factory fimllar lo one already estabHshcnl. No bonus for removal of Industry in operation. Bonus so granted null. NEW BRUNISIWICK. 62 Vic, cap. 14.— An Act relating to the making and Issuing of rti'benturos by municipal and other incorporated bodies. 1. Debenture, how to bo made. 2. Interest coupons, how to bo made, form of* 3. Departure of form not to invalidate debenture, remedy for such departure. 4. In what Act shall apply Schedule. ^^ ,,. . ,r^^' ft- -.—^..^—^ .,».,.-,.<»■>. % HOW TO INCORPORATE A COMPANY. % ': NOVA SCOTIA. No Legislation relating to Company Law was passed \n this Province in the Session of 1899. MANITOBA. 62 Victoria Assented to 13th April, 1899. "The Joint Stock Companies Windlng-Up Act." It contains the usual clause in respect to Application, In- terpretation—Registration of Order— Consequences of commenc- ing to wind up when they may be wound up — Powers of liqui- dators—Liability of contrlbutorles— Liquidator's duties— Ex- penses— Meetings— Assistance of the Court— Maitters of Practice— Diseolutlon of Companies— Distribution of Assets. NOiiTH-WEST TERRITORIES. 62 Vic— In this Province an Act, Cap. 12, was passed pro- viding for the voluntary winding up of joint atoclt companies. This Act, like other voluntary Winding Up Acts, is not of any great moment or importance, judging by tho slight use that luiH jjfen made of them in tiie older Provinces. Joint Stock Companies are seldom wound up voluntarily, the principal winding up has been done compulsorily In the event of tfie Insolvency of the Company, and subject to the provisions of the Dominion Winding up Act. The Provinces have no Jurisdiction In the ease of Insolvency. BRITISH COLUMBIA. 62 Vic, cap. 15.— All Abt to a.ftinn(i |the Companies noirt^ianles Act hot to apply 16 Hudson iiay i olticers, etc, sliall fie |l«.b!e fof penally for d holding or altering report, also provides iov mortgages securing debentures. les that— reglstraliou iff I i Amendment to Dominion Companies Act and Dominion Companies Clauses Act. i;2G;1 Vict., Chap. 40. Sec. 1. Preference stock may be created by law. Sec, 2. Holders may be given control of affairs. Sec. 3. By-law must be unanimously sanctioned by a vote of the shareholders, present In person or by proxy at a general meeting duly called for considering the same, and representing tuo-thirds of the stock of the Company; provided, however, that If the by-law be sanctioned by not less tlian three-fourths In value ct the shareholders of the Company, the Company may, through the Secretary of State, petition the Governor-ln- Councll for an order approving the said by-law, and the Gov- ernor-ln-Councll may. If he sees fit, approve thereof, and from the date of such approval, the by-law shall be valid and may be acted upon. Succession Duty in Canada. BT R. A. BAYLY, LL.B., Bairister-at-Law, LONDON, ONT. (Registered in accordance with the Copyright Act.) Defiuition.— Succession Duty may be defined as a govern- mental impost, duty or excise upon the privileg< secured by the municipal or civil law to devisees, legatees, grantees, heirs and personal representatives of taking, holding and enjoying all property, real and personal, or any interest therein, passing (to auch of them as are not especially excepted) by will, by Intiestate law, or by any grant or gift made inter vivos, and iiuended to take eftecl at or after the death of the grantor. Theory of the Tax.— From long use the right of inherit- ance has come to be looked upon in these days as a natural inalienable right, but it is not so. Blackstone, in treating of this question uses the following words: "All property must " cease upon death, considering men as absolute individuals, " iineonnected with civil society, and the next immediate oc- ' CAfpffut would acquire a right to all the deceased possessed. " Slit, an ifiia would be productive of endless disturbances, " power is given to a man to continue his possessions by dls- " MOfliic' of them by will, or, if he neglect to do so, the munl- -teps In and declares who shall be his successor. " ';",v of nature, but a civil political establishment. '■ a man a good citizen, since if he work • t)h b to a greater extent than his fellows. " he J ' J" saying who shall enjoy the fruits of " his lalKii.s wath." The object v the legislature for taxation is the "privilege" refened to li lotation. Everything to which the legislative power extti,... „,,iy be the subject of taxation, whether it be person or property, or possession, franchise or privll'gc. Nothing but express constitutional limitation upon legislative authority cn/i exclude anything to which the authority extends frofti the i(nifii> of the tpjxing jiower. If the leglsJature, In its discretion, should at any time select it for /iyenue purposes. Consldfraitons of general policy alone deter- Aine and limJt the selection of Mi// nubjects of taxation. The fact. that, an individual lives in modern civilized society, and enjoys Its manifold prlviiep-f-, and Is sheltered under its pro- tecting laws, gives that goelM.y a riglil to expect that he shall contrlbite to the .support of its Institutions, and render.'? a tax on sunh a privilege as the right of su'v-esslon to property a just nnd equitable tftX. f 1 f i 1 ! i i ) it 'm 98 .SUCCESSIOX DLTY IX f'AXADA. The laws regulating the succession to property confer at the utmost a mere privilege upon the parties benefiting by them, and the legislature has the constitutional power to tax the privilege conferred, as it has the right to tax any other privilege within its jurisdiction. In the recii)rocal duties of protection and support between the state and those who are subject to its authority, and the exclusive sovereignty and jurisdiction of the state over all persons and property wltliln its limits for governmental pur- poses, lie, therefore, the foundations of this tax, as of ;'.'l other just and equitable taxes. The principles underlying the tax are very clearly enunciated in the judgments of several learned judges in the American Courts. Rodman, J., In Pullen v. Comrs, of Wake Co. (1872), 66 N. C. 363, says:— We do not regard the tax in question a,s a tax on prop'irty, but rather as a tax imi osed on the "succession." on the right of the legatee to take under the will. The legis- lative power declares what oljjects in nature may be held :ia property; it provides Ijy what forms and on what conditions it may be transmitted from one person to another; ii conlir.es the right of inheriting to certain persons whom it defines heirs, and, on the failure of such, it taltes the property to the State on an escheat. The right to give or take property is not one of those natural and inalienable rights, which are supposed to precede all government, and whicli no government can right- ly Impair. May not the legislature lay conditions on the enjoy- ment of such a right? And the condition it has imposed in this case is a tax. The principle of protection by the State render- ing private property liable to taxation is at the foundation of this tax. The death of the owner would leave his property at the mercy of the strongest were it not for the protection of the State, which takes care of the property, and guides it into the proper hands. In State v.. Dalrymple (1889), 70 Md., 294; 17 Atl., 82, the tax is said to be the price exacted by the State for the privilege accorded in permitting property to be transmitted by will or descent. Field, C. J., in a recent case in Massachusetts, Mlnot V. Winthrop (1894), 162 Mass. 113, thus refers to the tax:— Taxes on legaoieg and inheritances, or on succession in any form to property on the death of the owner, have generally been con- sidered, not as taxes upon property, but as excises upon the privilege of taking or transmitting property in this way. These cases bear out the theory of the "taxation of a privi- lege" as the foundation upon which successilon duty rests. In other American cases, however, it is said to be immaterial whether succession duty be called or assessed as a tax or not. Lee, J., in the case of Eyre v. Jacob, 14 Grat. (Va), 427, after rociting the powers of the State with reference to the right of inheritance, thus speaks of the principles upon which this tax is based. "Possessing this sweeping power over the " whole Rub.ieot, it is difllcuU to see upon what ground its right " to approiiriate a modicum of the estate, call it a tax or what "you will, as the cordltlon unir which those who take the SUCCESSION DUTY IN CANADA. 99 I " estaie .shall be permitted to enjoy It, can be successfully " questioned." Again, in the case of Strode v. Cum., 52 Pa. St 181, the Supreme Court of Pennsylvania uses these words:— "Now, th's is not to be viewed as a tax assessed upon the estate of the decedent, or of anyone, but a restriction upon the right of acQUisition by those who, undei- the law reg-ulating the trans- mission of property, are entitled to take as beneficiaries without consideration. The State is made one of the beneiiciaries. It lays its land upon estates under such circumstances, and claims a share, and whether the shar.- 1h exacted ;is a tax or duty or whatever else is of no consequence." And it ia furthe; said: "The tax is therefore an exercise of the same powti as a change In tlie law of descent." Taney, C. J., in Mager v. Grima (1849), s How, (U. S.) 49'J, considered the law to ))e "notliing more than the exercise of " the power possessed by every state of regulating thf manner " and terms upon wbich property wi^nin its domain may be " transmitted by will or inheritance, and of prescrihing who " shall and who shall not be capable of talcing it." In these latter decisions two distinct legislative powers seem to have become confused, viz.— (1) Thi sovereign power of government to levy taxes and to select the objects to be taxed, and (2) 'he power of the S'tate to regulate the succession to property. All will admit the absolute right of the State to regulate or even to aljolish the law of succession, and will allow that the right of succeeding to property is a mere privilege, and that such a privilege is a lawful object of taxation. But the decisions quoted above, ;n which it is stated that the State "has apin-opriated a modicum of the estate," or "has constituted itself one of the benefi. iries," or that the tax is "an exercise of the same power a.-- a change in the law of descent," assume that the government in passiing these laws did so In the exorcise of their undoubted power to ristrict the right of inheritance; wliereas it is clear from the wording and form of the different statutes under discussion that they are all Kevenue Acts, and that in passing them the intention was to exercise the equally undoubted power of taxing a privilege. The weight of authority is therefore that Succession Duties are legitimate taxes levied on the privilege of succession in consideration of the protection .afforded by the State, and aje neither in the nature of penalties or confiscations. All authorities are agreed that this tax is one of the least burdensome that can be devised. It conforms to the recognized principles of taxation, bedng equal and uniform, duly pro- portioned to the protection afforded by the State to the party taxed, certain as to the time and manner of its payment and the sum to be paid, and levied at a time convenient to the contributor and at little expense of collection. It presents the most complete system of reaching the class of personal property and privilep s which It Is framed to em- brace, because Us collection is aided by the requirement ol the law that a dead man's property shall somewhere and at some time pass through a Surrogate or Probate Court for set- tlement, which gives little opportunity for concealment, anft places the property -.vithln easy reach of the tax-collector. I li J! i! "^ ^ jr. A IMAGE EVALUATION TEST TARGET (MT-3) ^t? A- ''a o 1.0 I.I Ui|2^ 12.5 |50 ■■^ ■■■ ■^ IM 122 iif li£ 12.0 L25 i U M 1.6 V] /5 v.. >> ^^ r ?> Photographic Sciences Corporation '23 WIST MAIN STRUT WHSTIM.N.Y. I4SM (716) 173-4503 iV \\ 4 *.. 6^ ^ nw 100 SUCCESSION DUTY IN CANADA. Succession Duty is not a tP-x on property. This lias been decided in the American Courts In Wallace v. Myers (1889), 38 Fed. 184, where the Court said. "The circumsiaiices that, " inciuentally, under such a statute, such bonds may have to '• be valued in order to ascertain the amount of the tax, doi;3 " not afftot its essential nature, as one upor. tiie privilege and " not upon the bonds. The bonds are the subject of apprais.il, " but the privilege is tiho subject of the tax." The rat'o In which the tax should be borne lb a perplexing question to ma^iy students tf taxation. In England Sir William Haroourt, when Chancellor of the Exchequer, boldly ialHrmcd his belief in a graduated 'tax on realized wealth In proportion to the size and value of the estate— and the tax at present In force in Engla:)d known as "Esiate Duty" is so graduated. The Liberal party in England were prac- tically unanimous that the time lial come when large es- tates should pay death duties In proportion to their size, and while they recognized that taxation of this nature has no well-deflned limV.' and could be pushed by irresponsible power to the extent of confiscation, still they judged that the good sense and moderation of the great body of the people could be trusted to protect realized wealth from the attacks of small but mischievous societies of communist;' and anarchists whoso doctrines might push the tax beyond reasonable 11-nlts. To the far-seelnp wisdom of English states- men, such a progressive tax was deemed necessary as a fair concession to the demands of democracy, while it is a barrier to the advance of unreasonable opinions and loose theories ot taxation. In a country where wealth is so vf.si and so un- equally oistributed as it !s in England, progressive taxation may he beneficial, as It tends to equalization, but In Canada this InequuUty Is but slightly felt, and vast foit\iiies are rare. In the United Slates Mr. Justice Brewer, of the S'upreme Coiirt, a(lvoe;it"s a progrosslotml Inhcrllatu'c ttix in tlic follow- ing words:— "I have oftrn urged that taxation on successions " is on" of the most Just of taxes; mnd if it were giadiiated In " proportion to the amount of property passing, I Milnk Ic " would be most benellcUil. It would tend largely to prevent " the accumulation of property In a family line, and to work "that dlstrii)iitlon which is for the Interest of all." Most of the act.s In frrco, however, in tlie difterent States do not exact more than a level tax of five per cent., with the oxccptlon ot the State of Illinois, where It la progressive. While such Americans nw Mr. Andrew Carnegie and Mr. Bellamy favor a progressive tax of a radical nnturo, reaching as high as 50 per cent. In the case of millionaires, still no State, except Illinois, has hod the courage to put such a tax tipon Its Statute Books, and it would seem that American statesmen have not ihe same faith In the "moderation of th« ffreat l>ody of the people," as was shown In iOngland, and they fear the abuse of such a form of taxation, which might occur In their less consorvatUe form of government. Suoceaslon Duty seems to be an Institution of democracy. It Is In the most truly democratic countries in the world, 1''"n(r1ni>'V SwH-'erlnnd nn I tb" AiistrnMnn ColonlcM tlint thlH form of taxation flnds Its highest development. SUCCES:^IOX DlTi IX CANADA. iJl The United States has been ahead of am then In force in Holland, but only succeeded in extending the tnx against por- Bonat property. It was not until ISM that Gladstone was successful in taxing all su.'oessions to real property, chattels real, and a vast vmrlety of j)ersonal property anil rights not reache<1 by the former act. From that time, the tax has been grndunlly ex- tended until In 1804 the "EInance Act" introaviest inheritance taxes are levied In Switzerland. In Geneva distant relatives pay 15 per cent. In six cantons the rates are pro&rts^lve. When there Is no will, ihe IKtle canton of Uri taxes distant relatives 25 per cent., and even more, on the excess above 10,000^ francs. In Germany the erbschafts-zteuer nowhere ap- plies to direct heirs, except in Alsace-Lorraine. The rates in Prussia are from 1 to 8 per cent., according to relationship. The French law taxes the gross value of the property with- out allowing a deduction for debts. This maximum Is 114 per cent. Austria, Holland, Russia, Italy, Spain, Porciigal, Greece, Denmark, Poland, Sweden, Norway, Roumania, Monaco and other States also have the inheritance tax in some form. But it is the American forms of the tax which are of most Interest to the student of Succession Duties in Canada, ;he Acts now In force In the various Provinces havin,? been modelle;!, not from the complicated English, but from the simpler and more modern American Statutes. The first American State to pass a collateral inheritance Act was PeniiHylvanla in 18.;<5, and under various Statutes the tax remained in force until 1887, when the whole subject was coiilfled by " An Act to provide for the better collection of Collateral Inheritance Taxes." In New York State the tax was first introduced in IJiSR, by an Act modelled after the Pennsylvania Acts exlwling prif)r to 1855. As the Act was crude and carelessly drawn an entlr'2ly new Act was passed in 1892 (after various previous attempts at amendment), known as "An Act In Relation to Taxa!)le Transfers of Property. ' Various forms of the tax are now to be found also in Mary- land, Illinois, Virginia, West Virginia, Connecticut, Delaware, Ohio, Maine, Massachusetts, California, New Jersey, Tennessee and Minnesota. In Louisiana and Noith Carolina the Acts once in force have been repealed. During the American War of the Rebellion, an inheritance tax was imposed of from 1 to 5 per cent, upon lineal and colla- teral heirs In terms very similar to the English Act in force at that time. This was repealed in 1870. Under the Income Tax Act of 1894 a tax of 2 per cent, was imposed by the Federal Government upon money and the value of personal property acquired by gift or Inheritance, liut the Supreme Coiiri liy a recent decision declared the whole Act to be unconstitutional. "There is no art whleh one Government sooner lenrns from " another, than that of draining money from the pockets of "the people," says Adam Smith, so It is not surprising that the attrnilon of all the Canadian I'rovlnces .«eim.s tT have been attracted by the passage of the new Act above referred to in New York In 1892, for In that year Acts Imposing "Succession Duty" were passed In Ontario, Nova Seotia, New Brunswick and Quebec. Manitoba followed the lead In 1893, and In 1894 SUCCESSION DUTY IN CANADA. lOS Prince Edward Island and British Columbia completed the list. No such tax has yet been Imposed in the North-west Territories. The first Canadian Act was drafted in the ofHce of the Attorney General for Ontario, and wks modelled upon the Acts of New York anil Pennsylvania mentioned above. I'nlike ancient Rome and modern England, the military necessities of Ontario would not justify the imposition of such a tax, but, as it was deemed necessary to find a plausible ex- cuse, "charily," that cloak which is said to cover a multitude of sins, appears in the preamble. to the Act, as the reason for its introduction. The Ontario Act of 1892 was used as a model, with very Blight variations in anything but the tax rate, by all the other Provinces, with the exception of Quebec. Even the "charit- able" excuse was repeated in them. The similarity of the various Acts in fcrce and their deri- vation from and likeness to the American Statutes, renders the decisions of the Courts in one Province of value in con- struing the Act in another, and on many points American cases and text books will be found of value. The full text of the Act at present in force In each of the Provinces, as amended to date, is given below— together with a synoijsis of the -8 appeal !• When bequest to executor sub- ject to (luty ... 1(1 when duty becomes payable. 11-13 Wheri'as this Province expends very large sums annuall.v for asylums for the Insane and Idiots, and for Institutions for the blind and for deaf mutes, and towards the support of KxccutorB.eto., to (Ifduct duty jd or iiuiy ni'll to ennble pay- '<*'• nii'nt 14-t8 Kofuiiil III CBrlniii cHses 17 Kiitorciiii; payment J8 ("octH 19 l.iniilKtion of HctlonH (or 20 Fees of ottlcers 21 KcnulHtioim under Act 22 ri .;• f 1 i 104 iiUCVEiiSWy DUTY IX CANADA. hospitals and otner chrritles, and It is expedient lo provide a fund for defraying part of the said expenditure by a succes- sion duty on certain estates of p<;rfons dying as hereinafter mentioned: Therefore Her Majesty, by and with the advice and con- sent of the Legislative Assembly of the Province of Ontario, enacts as follows:— 1. This Act may be cited as "The Succession Vitty Art/' and shall apply to the estates of persons dying on or after the 1st day of July, 1892, unless where it Is herein otherwise expressly provided. B5 V. c. 6, s. 1. 2. The word "property" In this act incluaes real and personal property of every description, and every estate or interest therein capable of being devised or bequeathed by will or of passins on the death of the owner to his heirs of personal representatives. 55 V. c. C, s. 2. 3. This Act shall not apply:— 1. To any estate the value of which, after payment of all debts and expenses of administration, does not exceed |10,000; nor 2. To property given, devised or bequeathed for religious, charitable or educational purposes; nor 3. To property passing under a will, Intestacy or otherwise, to or for the use of the father, mother, husband, wife, child, grandchild, daughter-in-law or son-in-law of the deceased, where the aggregate value of the property of the deceased does not exceed $100,000 In value. 55 V. c. 6, s. 3. 4. (1) Save as aforesaid, the following property shall be BUbfect to a successon duty as herenafter provided, to be paid for the use of the Province over and above the fees payable under The Surrogate Courts Act; (n) All property situate within this Province, and any interest therein or Income therefrom, whether the deceased person owning or enliUed thereto was domiciled in Ontario at the time ot his death or was domiciled elsewhere, passing either by will or Intestacy; (li) Ail property situate as aforesaid or any interest therein or income therefrom, which shall be voluntarily transferred by deed, grant, hiirgain, sale or gift miule ill eontemplatlon of the death of the grantor, bargainor, vendor or donor, or made or Intended to take effect, In possession or enjoyment after Buch death, to any person in trust or otherwise, or by reason whereof any <)erson shall become bene- ficially entitled In possession or expectancy to any properly, or the income thereof; (r) Any property taken as a donatio mortis causa made by any person dying on or after *he 7th day of April, 180(5, or taken under a disposition made by unv I)erson so flying. puriHirting to operate as nn Im- ; mediate gift inter vivos, whether by waj of tran«- T .SUCCEHi^WX DUTY IN VAX AD A. 105 fer, delivery, declaration of trust, or otherwise, which shall not have been bona fide made twelve months before the death of the deceased. Including property taken under any gift, whenever made, of which property botia fldr possession and enjoyment shall not have been assumed by the donee imme- diately upon the gift and thenceforward retained to the entire exclusion of the donor, or of any beneht to him by contract or otherwise; (d) Any property which a person dying on or after the 7th day of April, 1896, hjivlng been absolutely entitled thereto, has caused, or mry cause to be transferred to, or vested In himself, and any other person joint- ly, whether by disposition or otherwise, so that the beneficial interest therein, or in some part thereof, passes or accrues by survivorship on his death to such other person, Including also any purchase or Investment effected by the person who was abso- lutely entitled to the property either by himself alone, or in concert, or by arrangement with rmy other person; 1'>, ('"> and (f). shall not bo constrtied to restrict the generality of the descriptions contained In clauses («) and (h), and sub- ject to the provisions of subsection 8 of this section, the ex- pressions "all prop(>rfy" and "any property" In this section slinll be restricted to property situate within this Province. (?) Where the aggregate value of the property of tb" de- ceo/sed exceeds Jlon.OM, and passes in manner aforesaid, either in whole or in part, to or for the benefit of the father, mother. 106 NU WE a HI ON DUTY IN CANADA. husband, wife, child, ^andchlld, or other lineal descendant or daughter-in-law or son-ln-Iaw of the deceased, the same or so much thereof as so passes (as the case may be) shall be subject to a duty of $2.50 for every |100 of the value. (4) Where the aggregate value of the property exceeds $200,000, the whole property which passes as aforesaid shall be subject to a duty of $5 for every »iOO of the value. (5) Where the value of the property of the deceased exceeds $10,000 so much thereoi as passes to or for the beneilt of the grandfather or grandmother or any other lineal ancestor of the deceased, except the father or mother, or to any brother or sister of the deceased, or to any descendants of such brother or sister, or to a brother or sister of the father or mother of the deceased, or of any descendant of such last mentioned brother or sister, shall be subject to a duty of $5 for every $100 of the value. (6) Where the value of the property of the deceased exceeds $10,000 and any part thereof passes to or for the benefit of asiy person in any other degree of collateral consanguinity to the deceased than Is above described, or to or for the benefit of any stranger in blood to the deceased, save as hereinbefoio provided for, the same shall be subject to a duty of $10 for $100 of the value. (7) Provided that where the whole value of any property devised, bequeathed or passing to any one person under a will or Intestacy does not exceed $200, the same shall be exempt from payment of the duty Imposed by this section. (8) Provided also that any portion of the estate of any de- ceased person, whether at the time of his dpath such person was domiciled In the Province of Ontario or was domiciled elsewhere, which Is brought into the Province by the executors or admin- istrators of the estate to be administered or distributed in this Province shall be liable to the duty hereinbefore imposed; but If any succession or legacy duty or tax ha>< been i)aiil upon such property elsewhere than in Ontario, and such duty or tax is equal to or greater than the duty payable on property In this Province, no duty shall be payable thereon in this Pro- vince; and If the duty or tax so paid elsewhere is less than the duty payable on property in this Province, then the pro- pertv upon which such duty nv tax ha« tieeii paid elsewhere shall be subject to the payment of such portion only of the succession duty provided for in the preceding subsections of this section as will equal the difference between the duties payable under this Act with respect to property in the Pro- vince of Ontario and the duty or tax so paid elsewhere. (9) In case an executor or administrator shall' in order to escape pajTnent of succession iluty, Imposed by this Act, dis- tribute any part of the said estate without bringing the same Into this Province, such executor or administrator shall be liable personally to pay to Her Majesty the amount of the duty which woulil have been payable hajd the assets so distri- buted been brought within this Province. Provided that this sul)sectlon shall not ariply to i)ayments made to persons domi- ciled without the Province out of assets situate without the Province. i > SUCCESSION DUTY IN CANADA. 107 (10) Nothing herein contained shall render liable for duty any property bona fide transferred for a consideration that Is- of a value substantially equivalent to the property transferred. 59 V. c. 5, s. 1. 5.— (1) An executor or administrator applying for letters probate or letters of administration to the estate of a deceased. persen shall, before the Issue of letters probate or administra- tion to him, ma^ and file with the Surrogate Registrar a full, true and correct statement under oath showing: («) A full itemized inventory of all the property of the deceased person and the market value thereof, and (b) The several persons to whom the same will pass under the win or Intestacy and the degree of relationship, if any, in which they stand to the deceased; and the executor or administrator shall before the issue of letters probate or letters of administration deliver to the Sur- rogate Registrar a bond in a penal sum equal to ten per centum of the sworn value of the property of the deceased person liable, or which may become liable, to succession duty, executed by himself and two sureties, to be approved by the Registrar, conditioned for the due payment to Her Majesty of any duty to which the property coming to the hands of such executor or administrator of the deceased may be found liable. 55 V. c. 6, s. 5 (1); 59 V. c. 5, s. 8. (2) This section shall not apply to estates In respect of Which no succession duty is payable. 55 V. c. 6, s. 5 (2). (3) Where property passes on the death of the deceased and no executor or administrator can be made accountable for suc- cession duty in respect of such property, every person to whom any property so passes for any beneficial Interest in possession, and also, to the extent of the property actually received or disposed of by him, every trustee, guardian, com- mittee, or other person in whom any Interest In the property BO passing, or the management thereof, is at any time vested, and every person In whom the same is vested in possession by alienation or other derivative title shall be accountable for the succession duty on the property, and shall, within two months after the death of the deceased, or such later time as the Treasurer of the Province for the time being shall allow deliver to the Surrogate Registrar of the county in which the said propprtv is situate, anil vcrlfv an account tn the b'st ot his knowledge and belief of the property. 59 V. c. 5, s. 2. 6. In case the Treasurer of the Province is not satisfied with the value so sworn to, or with the correctness of the said Inventory, the Surrogate Registrar of the county in which any property subject to the payment of the said duty is situate shall at the Instance of the Provincial Treasurer, his solicitor or agent, direct in writing that the Sheriff of the County shall make a valuation and appraise the said property, and also appraise any property alleged to have been improperly omitted from the said inventory. 59 V. c. 5, s. 3, part. 7. In such case the Sheriff shall forthwith give due and Bufflciont written notice to the executors and administrators I lit ' 'V' : i 108 aUCCEHSlOX DUTY IX CAXADA. f!:[ and to such other persons as the Surrogate Registrar may by order direct of the time and place at which he will appraise tiie property Included In the Inventory, or any property which in the opinion of the Provincial Treasurer, his solicitor or agent should be included therein, and shall appraise the same accordinB-ly at its fair market value, and make a report thereot in writing to the Surrogate Registrar, together with such other facts in relation thereto, as the Surrogate Registrar may by order require, and such report shall be ifiled In the office of the Surrogate Registrar, and for the purposes of the said enquiry and appraisement the said Sheriff shall have all the powers which may be conferred upon Commissioners under The Act respecting Inquiries concerninff Public Matters. The Sheriff shall be entitled to receive the sum of )6 per diem for services perffumed under this Act, and his actual and necessary travel- ling expenses, and the same shall be paid to him by the Trea- surer of the Province. 59 V. c. 5, s. 3, part. 8. Where the Provincial Treasurer, his sollc'tor or agent and the other parties Interested do not agree thereon, the Surrogate Registrar shall isseiis and fix the cash value at the date of the d«ath of the deceased of all estates. Interests, annuitio.s and life estates or terms of years growing out of such estate, and the duty to which the same is liable, and shall imme- diately give notice thereof, by registered letter, to such i)arties as by the rules of the High Court would be entitled to notice Ir respect of like interests in an analogous proceeding; and the Surrogate Registrar may appoint for tte purpose of this Act a guardian for infants who have no guardians; and the value of every future or contingent or limited estate, income or interest In respect of which the duty is payable at the death of the deceased, either by the terms of this Act or by arrariKement made under - ul)section 3 of section 11, shall, for the purposes of this Act, be determined by the rule, method and standards of mortality and of value, which are employed by the Provincial Inspector of Insurance in ascertaining the ^'alue of i)olicies of life Insurance and an- nuities for the determination of the liabilities of life insur- ance companies, save that the rite of interest to be taken for the purpose of computing the precent value of all future inter- ests and contingencies shall be Ave per centum per annum; and the Inspector of Insurance shall, on the application of any S'uirogate Registrar, determine the value of such future or con- tintreiit tir 11mit<^il estate, income or interest. ui)nn th" facts contained in such application, and certify the same to the Siirrnpate Ret-istrnr, and his certificate shall b:; coiidnsive as to the matters dealt with therein. 55 V. c. 6, s. 8; 59 V. c. 5, s. 4. 9. Any person dissatisfied with the aiipralsement or assess- ment may appeal therefrom to the Surrogate Judge of the oounty within thirty days after the making and filing of such assessment and upon such appeal the said Judge shall have jurisdiction to determine all questions of valuation and of the liability of the appraised estate or any part thereof for such dutv. and the decision of the Surrogate Jnde:e sliall "be final, unless the property in respect of which such appeal SUCCEiSiilOX DUTY IN CA^^ADA. 1(» Is taken shall exceed In value the sum of $10,000, when a further appeal shall lie from the decision of the Surrogate Judge to a Judge of the High Court and from such Judge of the High Court to the Court of Appeal, whose decision shall be final. 55 V. o. 6, s. 9; 59 V. c. 5, s. 5. 10. Where a bequest or devise of property, which other- wise would be liaible to the payment of duty under this Act, is made to an executor or trustee in lieu of commission or allowance, and said bequest or devise exceeds what wouid be a reasonable compensation for the services of the executor or trustee, such excess shall be liable to said duty, and the Judge of the Surrogate Court having jurisdiction In the case shall fix such compensation. 56 V. c. 6, s. 10. 11.— (1) In all cases where there has been a devise, descent or bequest of property liable to succession duty, to take effect In possession or to come Into actual enjoyment after the expira- tion of one or more life estates or a period of years, the duty on such fulii~c; estate or interest shall not be payaViIe, nor interest begin to run thereon, until the person or persons liable for the same shall come Into actual possession of such estate or interest, by the determination of the estate or estates for lift' or years, and the duty shall be assessed upon the value of the estate or Interest at the time the rlglit of possession accrues as aforesaid. 55 V. c. 6, a. U. (2) Provided that where no person is entitled to the present enjoyment of such property or the Income thereof, or where there Is some part of such property or income to the present enjoyment of which no person is entitled, the duty on such property or income or such part of such property or income shall l)o payal)le as in section 12 is provided. (3) Notwithstanding the duty may under this section not bs payable until the time when the right of possession or actual enjoyment ajccrues, any executor, administrator, guardian, or trustee, or person owning a prlo.- Interest, when such executor, administrator, guardian, or trustee, or person has the custody or control of the property, miy agree upon or commute for a present payment out of the property in discharge of the said duty; and the Treasurer of the Province r^.r.y upon the appli- cation of any such person commute the iiuccession duty which would or might, but for the commutation, become papable In respect of such interest, for a certain sum to be presently paid, and for determining that sum shall cause a present value to be set upon such duty, regard being had to the contingencies affecting the liability to and rate and amount of such duty and interest; and on the receipt of such sum the Treasurer shall give a certificate o2 discharge from such duty. (4) Provided that the duty chargeable upon any legacy given by way of annuity, whether for life or otherwise, shall be paid by four equal payments, the first of which payments of duty shall be made before or on completing payment oi the first year's annuity, and the three others of such payments of duty shall be made In like manner successively, before or on completing the respective payments of the three succeeding years' annuity respectively. In case the annuitant dies liefore u 5iSl I IWtMIBjtj, ,. 110 8UCCESSI0X DUTY IX C AX AD A. the expiration of the said four years only payment of Instal- ments which fall due before his death shall be required. (5) The duty Is to be paid on the caah value of all estates, interests, annuities and life estates, or terms of years men- tioned in section 8 of this Act, in the same manner as on the other assets of the estate; but the Judge may grant further time for payment thereof, or of a part thereof, where it appears to the Judge that having reference to the condition of the estate, the available moans of making such payment, and the Interest of others, that payment within the time prescribed by this Act would be unreasonable or unjust; in surh cases, as between executors or • Jmlnlstrators of the estate and the person who is to become entitled to the possession or enjoy- ment at a future period only, the duty payable and paid by the executors or administrators In respect of such future estate or Interest shall bo a charge on such future estate or interest, and shall be paid to them by the person aforesaid with interest at the time the estate or interest comes into actual possession; but the executors or administrators shall be entitled to receive the amount, or any part thereof, at an earlier date It the person to pay desires to pay the same at an earlier data, 59 V. c. 5, s. 6. i 12.— (1) The duties imposed by this Act, unle. ;! otherwise herein provided for, shall be due and payable at the death of the deceased, or within eighteen months thereafter, and if the same are paid within eighteen months no interest shall be charged or collected thereon, but if not so paid Interest at the rate of six per centum per annum from the death of the (1p('paf50fl slia!l he cliarjrpd and collected, and such duties together with the interest thereon shall be and remain a lien upon the property in respect to which the}- are payable until the same is paid. 55 V. c. 6, s. 12. (2) The Treasurer of the Province on being satisfied that the full amount of succession duty has been or will be paid In respect of an estate or any part thereof, shall, if required by the person accounting for the clnty. give a certiiicate to that effect, which shall discharge from any further claim for suc- cession duty the property shown by the ceriificate to form the estate, or such part thereof, as the case maj' be. (3) Such certificate shall not discharge any person or pro- perty from succession duty in case of fraud or failure to dis- close material facts, and shall not affect the rate of duty payable in respect of any property afterwards shown to have passed on the death, and the duty in respect of such property shall be at such rate as would be payable if the value thereof were added to the value of the property, in respect of which duty has been already accounted for. (4) Provided, however, that a certificate purporting to be a discharge of the whole succession duty payable in respect of any property Included In the certificate shall exonerate from the duty a bona flde purchaser for valuable consideration without notice, notwithstanding any such fraud or failure. 50 V. c. 5, s. 9. ISUCVEtiislOS DiTY IX VAX AD A. HI IS. '''he SurroBate Judge may make an oraer upon the application of any person liable for the payment of said duty, extending the time Hxed by law for payment thereof where It appears to such Judge that payment within the time pre- scribed by this Act is imviosslble owing to some cause ove»* which the person liable has no control. B5 V. c. 6, 8. 13. 14. Any administrator, executor or trustee having In charge or trust, any estate, legacy or property subject to the said duty shall deduct the duty therefrom, or collect the duty there« on upon the appraised value thereof from the person entitled to such property, and he shall not deliver any pro.ierty sub- ject to duty to any ptrson until he has collected the duty thereon. 55 V. c. 6, s. 14. 15. Executors, administrators and trustees shall have power to sell so much of the property of the deceased as will enable them to pay the said duty In the same manner as they may by law do for the payment of debts of the testator or Intestate, 5S V. c. 6, 8. 15. 16. Every sum of money retained by an executor, adminis- trator or trustee, or paid Into his hands for the duty on any property shall be paid by him forthwith to the Treasurer of the Province, or as he may direct. 55 V. c. 6, s. 16. i . 17. Where any debts shall be proven against tin; estate of a deceased person, after the payment of legacies or d-Ktri- bution of i.roperty from which the duty has been deducted, or upon which it has i.een paid, and a refund is maJc by the legatee, devisee, heir ni- next of kin, a proportion of the duty so paid shall be repaid to him by the erecutor, administrator or trustee, if such duty has not been paid to the Treasurer of the Province, or by the Treasurer If It has been so paid. 55 V. c. 6, s. 17. 18. If It appears to the Surrogate Judge that any duty accruing under this A ct has not been paid according to law, he shall make an order dlrectlrg the persons Interested in the property liable to the duty to appear before the Court on a day certain to be therein named and show cause why sa!ci duty should not be paid. The service of such ordei und the time, manner and proof thereof, and fees therefor, and the hearing and determining thereon, and the enforcement of the judgment of the Court thereon shall be according to the practice in or upon the enforcement of a judgment of the High Court. 55 V. c. 6. s. 18. 19. The costs of all such proceedings shall be In the dis- cretion of the Court or Judge and shall be upon the County Court scale unless and until another tariff shall be provided, save as to the costs of an appeal and then upon the scale of the court appealed to. 55 V. c. 6, s. 19. 20. Any action, matter or proceeding by or against the Province in respect of duties or claims arising upon or out of :i 112 HVCVEEMON DUTY IN C AX A DA. ! Ci y succession, shall be commenced witiiln six years from the tim< when such duties or claims became payable. 59 V. c. 5, s. 7; GO V. c. 15, Sched. A. (VI). 21> The Judges and Registrars of the several Surrogate Courts shall h:- entlUtd to take for the performancf of duties anu services under this Act, similar fees to those payable to them under and by virtue of The Siinogatr Vouitx Act and the Surrogate Court rules for similar proceedings, and section 83 of such Act shall apply to the fees payable under this Act to the tJurrogate Judge. 55 V. c. 6, s. 20. 22. The Lleuienant-Governor in Council may make regu- lations for carrying into tffcct the provisions of this Act, and such rcKulatioiis shall be lald before the LeKislativi' Assembly forthwith, if the legislature is in session at *he date of such regulations, and If the Legislature is not in session such regu- lations shall be laid before the House within the first seven days of the session next after th-? same are made. 55 V. c. 6, s. 22. See also "Surrogate Courts Act," R. S. O. (1897), c. 50, s. 12. AN ACT RESPECTING SUOCBSfJION DUTIES. (62 Vic. cap. 9.) Absented tu iBt April, i899. Secb. Rooovery of guccegsion duties un- der Kev. Stat., c. 24, by Hctlon. 1 Matters to he deterniiueu by High Court in action 2 Action may be brought before time for pnyi.)ent of duty 3 Production of do.;baiid of the deceased becomes entitled on llie decease of such person. IJJ. In determining for tlie purposes of sub-sections 3 to (> of section 4 of The iiuccvstiioii Dull/ Act llie aggregate value of the property of any person dying after this section takes effect, tlie value' of his iiroperty situate outside of this Pr>)vince shall be included as well as the value of the property situate within this Province. 13. No foreign executor or anminlstrator shall assign or transfer any btocka or shares in this Province standing In tho name of ii (leceiiHe the value of the property does not exceed |10,00"». (b) 1)11 propiTly given devisi'd or bequfatlied for religious, charitahle oi educational purposes, (f) Property passing to parties mentioned in section a, sub-s. 3, of tlu! Act, where the value does not exceed ?100,000. (tf) W licit" bequest or devise does not exceed $200 ulLliough value of property exceeds $10,000. 4. Till? .succession duUcrf payable are as follows:— («) VViiere the property passes to or for the use of the piirtios named in section 4 of the Act, sub-ss. 3 and 4. If aggregate value oxceeds $100,000, $2.50 on each $100 of till' %\linl'> value. If aggHKiili! value exceeds $200,000, $5 on each $100 of tho whole value. (6) Where the property piusscs to or for the benelll of tho parties named In section ■', sub-s. 5 of the Act, and the aggregate value exceeds »10,000; $5 on evi ry $100 of the whole value. (c) Where the property passes to or for tli.' !)• ti 111 of the Iifirii<'s nainii'il In snctlon •!. siih-s. i; oi' tlii' At, and the aggregate value exceeds $10,000: $10 on every $100 of tlie wlioli' value. 5. Where the eslnte left by tho dfcea.sed does not exceed $200,000. and Ihi^ same passes In various aimounts to lartiea named in section 4, sub-s.-i. 3, 5 and 6, of the Act, the succession duties payable on each amount respectively will bo as in para- graph I iK rcnf. Thui-i, if the nggregal.' value of the rstate in 1150,000, of which say $50,000 p.iases to parties named 1m sub-s. 3, there will be $2 PiO .Inly piyahle in re.'ipetit of oaeh *liiO of this $50,000; and If the Heriiul tU(),m) passes to parties nanuMl in sub-8. 5, there will be $5 duty payable on each 5100 of this 116 SUCCESSION DUTY IN CANADA. 160,000; and if the third $50,000 passes to parties named in sub-s. 6, there wiU be |10 duty payable on each $100 of this $50,000; and so on according to the amounts passing: to the various classes of persons specified. In case the aggregate value of the whole property left by the deceased exceeds $200,000, the duty payable by the parties named in sub-s. 3, will be $5 for every $100, instead of $2.50 as above mentioned. RnauLATioNS by the Lieutenant-Governor in Council. 1. The principal in the bond under section 6 of the Succes- sion Duty Act shall be bound In the whole amount; and the sureties in such bond are required to justify eath in an amount equal to the sum for which he is to be liable, and the aggregata shall equal the amount of the penalty of the bond. 2. One week's notice of valuation and appraisement unde« sec. 7 of the Act to all the parties interested or their solicitors or agents before proceeding therewith shall prima facie be con- sidered sufficient notice. 3. All appointments of a guardian by the Registrar must be made with the privity and consent of the Official Guardian. 4. The fees payable under section 21 of the Act shall be the same as those payable in contentious matters under The Surrogate Courts Act. 5. The subjoined forms are to be followed as nearl' circumstances of each case allow. as the FORM 1. Bond by Executors or Administrators. (Section 5.) The Succession Duty Act. In the Surrogate Court of the In the matter of the estate of A. B., deceased Know all men by these presents that we. CD., of the of • '" t»^" County of . e.F., of the Of in the County of , a.H., of the of bonn.i ,.n.' V^Xs^TI^^ °' ' ^"^ ^'"""y a"*^ severally bound unto Her Majesty the Queen In the sum of $ to he paid to the Treasurer of the Province of Ontario for the ^me being for which payment well and truly to be made we bind ourselves and er.c'i of us for the whole and our Tnd ealh ple^ems '"• '"''"^^'■^ *^"' administrators flrmT/ ^ th'e se Sealed with our seals. Dated the the year of jur Lord, 18 nam'^e'd' T/f 'the" ^LTn'r^t"'!"'"''"" '^ ^"'^'^ *'^'^* '' ^^e above S'n r:? °' ^ ^ «^-^-^<'. Who died on or about 'the '"'' ' •• " • do well and truly pay or cause day of . Itt SUCCESSION DUTY IN CANADA. 117 to be paid to the said Treasurer of the Province of Ontario for the time being, representing Her Majesty the Queen In t^at behalf, any and all duty to whloh the property estate ana effects of the said A.B. coming into the hands of the said V.u. may be found liable under the provisions of The Succession Duty Act, within eighteen months from the date of the deain of the said A.B. or such further time as may be given for payment thereof under section 13 of The Succession Duty Act, then this obligation shall be void and of no effect, otherwise the same to remain in full force and virtue. Sig-ned, sealed and delivered in the presence of • . FORM 2. Aff-idavit of Value and Relationship. (Section 5.) The Succession Duty Act. Canada, Province of Ontario. In the Surrogate Court of the In the matter of the estate of A.B., deceased. I, , of. the of . m the County of , malce oath and say:— 1. That I am the party applying for letters to the estate of the above named A.U. 2. That I have caused to be filed in the office of the Regis- trar of the above named court a petition praying that letters be granted by said court to me of the estate of the said A.B. 3. That I have made diligent enquiry and search as to the value of the property whlcli the said A.B. died seised or pos- sessed of or entitled to. 4. That the paper writing hereunto annexed marked "A," Is an itemized Inventory and true and correct statement of the property which the said .i.B, died seised or possessed of or entitled to and of the market value thereof, and the amount and value of the debts due to him. 6. That the paper writing hereunto annexed marked "B," contains a true and correct list of all the persons to whom the said property will pass and the degree of relationship in which ea^h of them stand to the said deceased, together with their addresses so far as I can ascertain them. 6. That to the best of my knowledge, Information and belief the said did not voluntarily transfer by deed, grant or gift, made In contemplation of his death or made or intended to take effect in possession or enjoyment after his death, any property or any Interest therein or Income therefrom, to any person in trust or otherwise or by reason whereof any person has or shall become beneficially entitled in possession or ex- pectancy In or to the said properly or Income thoreof. Sworn before me at the of , In the County of ,thls day of , A.D., 18 A Commissioner, ete. 118 SUCCESSION DUTY IN CANADA. FORM 3. Direction to the Sheriff to hake Valuation. (Section 6.> The Succession Duty Act. In the Surrogate Court of the In the matter of the estate of A.B., deceased. To the Sheriff of the Count of At the request of the Treasurer of the Province of Ontario^ I hereby direct that you do make a valuation and appraisement of all property of the deceased and report to me the result of such valuation and appraisement forthwith after making the same. Dated at , this day of , A.D. 18 To FORM 4. Notice by Sheriff. (Section 7.) The Succession Duty Act. In the Surrogate Court of the In the matter of the estate of .i.H.. deceased. Take notice that by an order made by the Registrar of the Surrogate Court, of the on the day of 18 , I have been directed to make a valuation and appraise- ment of the property which the said A.H. died seised or poa- dessed of or entitled to, and further take notice that pursuant to the said order, I will on the day of , at of the clock, in the noon, at " . proceed to make such valuation and appraisement of which all parties are required to take notice and gov3rn themselves accordingly. Dated the day of , A.D. 18 . CD.. Sheriff of the County of FORM 5. Report of Sheriff. (Section 7.) In the Surrogate Court of the In the matter of the estate of A.B., deceased. To the Judge of the said Surrogate Court: Pursuant to an order made In this matter and dated the a valuation L, . • ^•°- ^^ • '"'•ecting me to make an appraisement and vahmtion «<• =„n . maKe Da ea a, " "■"7,' '™"' "■- --eOule her«„ ..„Vt ' *"'« day of A.D 18 CD., Sheriff of SUCCESSION DUTY IN CANADA. 119 FORM 6. CERTIFICATE OF INSPECTOR OF INSURANCE. (Section 8.) The SurcvHHion Duty Act. In THE Surrogate Court of In the matter o: the est Ue of A.B., deceased. To the Surrogate Registrar of the above Bunogutc Vourt: J , of , Provincial Inspector ot Insurance, having been applied to by the Surrogate Registrar of this court to determine the value of . and hav- ing determined such value, in accordance with the provisions of section 8 of the above Act, hereby certify to the said Regis- trar the said values as follows:— Dated at . this day of . A.D. 18 . J.D.. Provincial Inspector of Insurance. FORM 7. Order of Judge. (Section 18.) ' ' The SiticcvHion Uutfi Act. In the Surrogate Court of In the matter of the estate of A.B., deceased. It appearing to me that there is duty unpaid accruing under The Sucicanion Duty .U't, in respect of the property of the above deceased and that the same has not been paid, I do hereby order and direct that do appear before this court at , on the day of , 18 , at of the cloclt in the noon, to show cause why he should not forthwith pay to the Treasurer of the Province of Ontario the sum of , being duty payable to said Treasurer in respect of the property of the above deceased under the said i'/jc Succc»8ion Duty Act, and why such payment should not be enforced according to the practice in or upon tha enforcement of a judgment of the High Court. FORM 8. The Succession Duty Act. Bond by Registrar. (R. S. O. [1897], c. 59, s. 12.) Know all men by these presents, that we are held anil firmly bound unto our Sovereign Lady Queen Victoria, Her heirs and successors. In manner and In sums following, that Is to say, the said In the sum of dollars of lawful money of Canada, the said In the sum of dollars of lawful money; and the said In the sum of dollars of like lawful money, to he paid to Our Sovereign T^udy the Queen, her heirs and seccessors, for which payments to be well and faithfully made, we sevent.ly and not each for the other, hind ourselves, our helr.s, executors and ailmlnls- trators, and each of us binds himself, his hers, executors and administrators, firmly by these presents. :i 120 SUCCESSION DUTY IN CANADA. Sealed with our seals and dated this day of In the year of Our Lord one thousand eight hundred and Whereas the above bounden as Registrar of the Burropate Court of the Count of has been required pursuant to I'he Succession Duty Act. to give se- curity for the due and punctual performance of duties imposp.l upon him by the said Act. and that he will not receive any dutv payable under the said Act. Now the condition of this obligation is such, that if the said shall duly and punctually perform the duties Imposed upon him by The Suc- cession Duty Act, and shall not lecelve any duty payable under the said Act. then this obligation to be null and void; otherwise to remain in full force, virtue and effect. Signed, sealed and delivered » in the presence of Revenue.— The Annual Revenue from Succession Duties In Ontario has been: 1892 I 758B3 1893 45,507 42 1894 150.754 04 1895 298,824 99 1896 165.383 40 1897 228.818 46 '898 206,185 59 Deoiiions.— The following are the only reported decialons of the Ontario Courts respecting Succession Duties:— Attorney-General v. Cameron— 27 O. R. 380; 28 O. R. 571; and 26 Ont. App. R. 103. Special case stated for the opinion of the Court for the purpose of ascertaining the amount of Success'on Duty payable under 55 Vic, cap. 6. Judgment by Rose, J. (27 O. R. 880):— (1) Where a testator divides up his estate so as to create present and future estates or Interests, the duty under the above Act is to be assessed on the whole estate at the time of his death, including both the present and future estates or interests, 'but duty Is only payable at the death, or within elgliteen months thereafter, on the present estates or interests; the payment of duty on the future estates being deferred until they become estates in possession or enjoyment, and the duty then payable Is not the duty fixed at the time of the death, but that assessed upon the value of such estates or Interests at the time the right of possession or enjoyment accrues. (2) In computing the duty on an annuity payable on a tes- tator's death, and of which there Is present actual enjoyment, the duty thereon must be assessed on its then cash value; on a deferred annuity, duty is payable when the right to enjoy It commences. (3) Duty is '^'so payable on the capital producing an an- nuity, when it b« comes distributable, as legacies or as part of the final distrlnutlon of the estate. Also in 28 O. R. 571, Rose, J., further decided:— (4) That, under the above Statute, the duty payable on the capital was deferred until the final distribution thereof, which SUCCESSION DUTY IN CANADA. 121 was the time when the moneys under the directions of the will reached the hands of the persons who should become en- titled thereto, and that the duty then payable would be on the amount then actually distributed, whether Increased by accu- mulations, or by the rise In value of the lands or securities, or decreased by loss. 26 Ont. Appeal Rep. 103— Osier, J. A., gave Judgment of the Court:— (1) When the Provincial Treasurer and the parties Interested do not agree as to the Succession Duty payable under the above Act, the question must be settled by the tribunal ap- pointed by the Act. namely the Surrogate Registrar, with the right of Appeal given by the Act. The High Court has no Jurisdiction to decide the quest' i In a stated case. The Court of Appeal refused, therefore, to entertain an appeal from the Judsrment of Rose, J. Re Renfrew (29 O. R. 565), Judgment of Street, J.:— (1) The Judge of a Surrogate Court has Jurisdiction to de- termine whether a particular estate, of which probate or admin- istration Is sought. Is liable or not to pay Succession Duty under R. S. O. (1897), cap. 24, and the amount of such duty; his decision being subject to appeal. (2) Where a deceased person had his domicile, prior to and at the time of his death. In another Province, and the value of his i>roperty. In Ontario, Is under $100,000— although his whole estate. Including property In the Province of his domicile, exceeds $100,000— and his whole estate In Ontario Is by his wl'l devised and bequeathed to his wife and children, the property in Ontario Is not liable to pay duty under R. S. O. (1897), cap 24. For judgment of Surrogate Court Judge In this case, see 34 Can. Law Jour. 318. Kennedy v. Protestant Orphans' Home (25 O. R. 235). Judgment of MacMahon, J.:— Where a testator devised and bequeathed all his real and personal estate to his executors and trustees for the purpose of paying a number of pecuniary legacies, some to personal legatees, and others to charitable associations, and provided that the residue of his estate should be divided, pro rata, among the legatees:— Held— that It was the duty of the execu- tors to deduct the Succession Duty, payable (under 55 Vic, cap. 6) In respect to the pecuniary legacies, before piylng the ba'a.nof over tn the legatees respectively, and thf>y had no right to pay such Succession Duty out of the residue left after paying the legacies In full. QUEBEC. 1892—55-56 Vie, cap. 17.— "An Act respecting Duties on Succes- sions and on Transfers of Property." 1894—57 Vic, cap. 16, — Amendment. 1895—58 Vic, cap. 16.— Amendment. 1896—59 Vic, cap. 17.— Amendment, The following Is the text of the amended law as In force at the present time under the above Acts:— 11916. 221 SVCCESiilON DUTY IN CANADA. " All transmissions, owinK to death, of the property in- usufruct or enjoyment of moveable and Immoveable property In the Province shall be liable to the followinK taxes, calculated upon the value of the property transmitted, after deducting debts and charges existing at the time of the death: " 1. In the direct line, ascending or descending; between consorts; between father or mother-in-law and son or daugh- ter-in-law. "In estates the value of which, after deducting the debts and charges existing at the time of the death, " (a) Docs not exceed the sum of three thousand dollars, no tax shall be exigible. " (b) Exceeds three thous-and dollars, but dees not exceed five thousand dollars, on every hundred dollars of value over three thousand dollars J per cent. " (c) Exceeds five thousand dollars, but does not exceed ten thousand dollars, on every hundred dollars of value over thite thousand dollars.. 1 per cent. " (d) Exceeds ten thousand dollars, but does not exceed fifty thousand dollars, on every hun- dred dollars of value over three thousand dollars li per cent. '•(e) Exceeds fifty thousand dollars, but does not exceed one hundred thousand dollars, on every hundred dollars of value over three thousand dollars IJ per cent. " (0 Kxreods one hundred thousand dollars, but does not exceed two hundred thousand dollars, on every hundred dollars of value over three thousand dollars 2 percent. " ((/) Exceeds two hundred thousand dollars, on every hundred dollars of value over throe thousand dollars 3 per cent. " 2. In the collateral line. " (a) If the succession devolves to the brother or sister, or descendant of the brother or sister of the deceased 3 per cent. " (6) If the succession devolves to the brother or sister or descendant of a brother or sister of the father or mother of the deceased 5 percent. " (c) If the succession devolves to the brother or sister or descendant of the brother or sister of the grand-parents of the deceased 6 per cent. " (d) If the succession devolves to any other colla- teral 8 per cent. "If the succession devolves to a stranger 10 per cent. *' In case of property transmitted in usufruct or with sub- stitution, the tax shall be paid by the usufructuary or the in- stitute and shall not be exigible from any further beneficiary under the same deed. "Every heir, universal legatee, legatee by general or par- ticular title, executor, trustee and administrator, or notary before whom a will has been executed, shall within thirty days after the death of the testator or, dc cujus, forward to the Col- lector of Provincial Revenue for the District wherein the SUCCEStilOy DUTY I\ C AX AD A. 123 testator died or the succession devolved, a copy of the will. If there is one, and said persons, excepting the notary, shall also transmit, within three months, to such Collector of Pro- vincial Revenue, a declaration under oath setting forth the name, surname, residence and calling of the declarant, the name, surname, and residence of the testator or d- vuiun, the description and real value of all the property transmitted, the amounts in detail of the debts and charges of the succes- sion, with the names, surnames, residence and calling of all creditors; and, further, the nature and value of the share of the declarant in the succession, after deducting the debts and charges payable by him, of which a detailed statement, with the names, surnames, residence and calling of the creditors must also be given. " The declaration duly made by one of the above named persons relieves the other as regards such declaration. " 2. If, however, within the said three months, an interim declaration, under oath, is made by any of the beneficiaries, that It Is Impossible, within the said delay, to furnish the declaration mentioned In the preceding paragraph, the said Collector may extend such delay for sixty days, and a further delay, not exceeding six months, may be granted by the Pro- vincial Treasurer. " 3. On receipts of such first mentioned declaration, the said Collector shall cause to be prepared a statement of the amount of the duties to be paid by the declarant. *' 4. Such Collector of Provincial Revenue shall Inform the declarant of the amount due as aforesaid, by registered letter mailed to his address, and notify him to pay the same within thirty days after the notice is sent; and, if the amount is not then paid to him on the day fixed, the said Collector of Provin- cial Revenue may sue for the recovery thereof before any court of competent jurisdiction in his own district. " 5. No transfer of the properties of any estate or Hucces- slon shall be valid, nor shall any title vest In any person, it the taxes payable under this section have not been paid; and no executor, trustee, administrator, curator, heir or legatee shall consent to any transfers or payments of legacies, unless the said duties have been paid. Note.— See remarks on this sub-aec. In Ah-bott'B Railway Law of Canada at p. 60. " 6. If any declaration, so required, Is not made within the prescribed delay, or within any extended delay that may have been granted, or if any false or Incorrect statement Is made In any such declaration, either as to value or otherwise, double duties shall become due and exacted in favor of Her Majesty, and the person in default shall, in addit'on to any other re- course against him, be liable to a pen&.lty of one hundred dollars and in default of payment Imprisonment of onr- month. " All fines Imposed by this section shall be paid to the Collector of Provincial Revenue for the district In which such fines are Incurred and collected, and shall be rocovercd before the Superior or Circuit Court, according to the amount thereof, by suit, on behalf of Her Majesty, taken by the Collector of Provincial Revenue In his own name. " Any sum that may become due to the Crown In virtue of 124 SUCCESSION DUTY IN CANADA. this section shall constitute a privileged debt, ranking concur- rently with any other privileges o£ the Crown, immediately ufter law costs. "The Collector of Provincial Revenue who collects any sums In virtue of this section shall be entitled to retain such per- centages as the Lieutenant-Governor in Council may determine. "The Ueutenant-Govemor .'n Council may make, amend, replace and repeal all regulations and forms that he may con- sider necessary for the purpose of carrying out the provisions of this section, which reguiationa and forms shall come into force as soon as they are published In the Quebec Official Hazette. "This Act shall not affect any deed passed or succession opened before the coming into force thereof; and such ueeds sjid successions shall continue to be liable to the duties under the said Act 55-56 Vic, cap. 17, as if this Act had not been passed. \^ " 6. This Act shall come into force on the day of its sanc- tion." 55-56 Vic, cap. 17, P. Q., sanctioned, 24th June, 1892; 57 Vic, cap. 16, P.Q., sanctioned 8th January, 1894; 58 Vic, cap. 16, P. Q., sanctioned 12th January, 1895. 59 Vic, cap. 17, in force from 21st Dec, 1895. 1. Article 1191& of the Revised Statutes, as enacted by the Act 55-56 Victoria, chapter 17, section 1, and replaced by the Act 57 Victoria, chapter 16, section 2, and amended by the Act 58 Victoria, chapter 16, section 1, Is further amended by adding, after clause a of paragraph 1, the following clause: 59 Vic, cap. 17, Q. : "For the purposes of clauses o, 6, c, d, e, f and g, the sum of three thousand dollars, therein mentioned, is to be deducted out of the whole estate, and not out of the share of each heneiflciary." " 2. This Act shall not be interpreted as declaxing that the law was previously different from that herein expressed. Note.— Persons roquiring detailed information regarding Succes- sion Duties Id the Province of Quebec are referred to an article entitled "Des Droits sur les successions," by L. P. Slrois, Lit..D., cember, 1898 (No. 12, vol iv.); also to hand-book entitled "Duties of Quebec City, and published in "La Revue Legale" of De- on Successions," published in 1896, by Mr. Wm. B. Lambe, of Iblontreal — from which the following information is obtained. Notes on the Acts.— The ordinary forms of wills in Quebec are:— (1) The authentic or notarial form, not requiring proof. (2) The English form, signed by two wlt.iesses, requiring proof. (3) The holograph form, or will written and signed by the testator, declare<1 to be intended as his will, re lulling proof. An authentic copy of the will (if in notarial form) or a copy of the probate, should be filed with the Collector of Provincial Revenue where the testator died or the succession devolved, by any heir, the universal legatee, any legatee of general or par- : SUCCEStSION DUTY IN CANADA. 12& ticular title, any executor, any trustee, any administrator, or by the notary before whom the testament was passed. The fUlnK of the will should be made within thirty days after the testator's decease. No special form of declaration is prescribed by the Statute. It should be a sworn statement in writing, detailing the fol- lowing points: — (1) The name in full, and occupation, quality and domicile of the declarant. (2) Name, residence and. occupation of testator. (3) When, where and before whom the will was executed, whe:her authentic or otherwise, with proof in the latter case. If intestate, or no Wnl can be found, these facts should be stated. (4) Place and date of testator's- death. (5) Whether community or other matrimonial rights exist and under what title. (6) Name, residence and occupation of beneficiaries, with relationship (If any) and degree stated. If strangers, to be so stated. (7) Detailed statement of assets and liabilities. Property outside the Province of Quebec is not taxable under the Statute. The property of persons not domiciled in Quebec, but holding property therein at death, is subject to the duties under the Statute. The declaration phould be filed with the same ottlcer as the copy of the will, w.thin three months after testator's death. Time for flllng may be extended by the collector on cause shown for sixty days, and a further extension may be granted by the Provincial Treasurer for a further time limited to twelve months in all. On receipt of the declaration, the collector shall furnish the declarant with a statement of the duties to be paid, by registered letter, requiring payment within thirty df^vg after notice. The succession is liable for the whole duty, and the party administering ought to collect the share of each person liable, and pay over the whole to the collector, and obtain a discharge. The will and declaration must be filed, even if no duties are payable, or the estate be Insolvent. No orders in council have been passed, making, amending, replacing or repealing regulations of forms under the Acts. Revenne.— 1892-3 $40,313 59 1893-4 149,823 4« 1894-5 162,535 50 1895-6 163,365 33 1896-7 229,44172 1897-8 163,455 26 1898-9 287,995 63 Decl»Ion«.— Heneker et cl v. Bank of Montreal (7 R. O. C. S. 257); Thlvlerge v. Cinq Mars (13 R. O. C. S. 398). i2() aUCCE^^SION DUTY IN CANADA. NOVA S30TIA. AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING SUCCESSION DUTIES. (58 Vic.oap. 8.) (Passed tliu -inh aay of March, / . D. 1S93.) Section. Preamble. 1, Af-t, hov» cited, a. MDiiuiiii; of woril "property." 3 Guiioml ilelluilioiiot' teriiiH used in Act. 4. CastuH where Act shall not ap- ply. 5. Suceojtiiiin dutv iniposeu. 6. Oiiai' of i)','iiuesi in lieu of eoni- luis-tiuii, 7. Si;>;citBsii»i> duties, when pay- ;ilile. 8. ExcuuLor or (ulininislnitor to Ui« Bt.itiitniMii,. 9. Aii|(')iriliii(!iit of appraiser. 10. .AppralsiT sliall j;ivo nolico. tl, I'oivers iiuil ditios of uppniisor. 12. liegiMr ir to prepare sialomi-nt of faoi.'<. 13. Ifosjistr ir lo assiiss a'ld llx duty. 14. Appjil lo .luilito of I'robalo. 15. Duiy, how piiid. t(j. I'r ivi--iou wluiro piopi'iiy be- iiuo.itln^il to dilCorrai per- HOI18 Ml .suucef<:sioii. Preamble.— Vv'hereas, the Province of Nova Scotia oxpends a larKii .sum annually for the care of the Insane and the 9lcK and in il'i' support of other chariliof!, and it is expedient to provide ;i, fund for defraying part of KUe!; expenditure by a SuceeMsJon i'ilv. 2 '. Duty p lyalile to tr'^aaurer. 21. I'rovislon as to r(diind. ■J2. Juilt,'i) ol Probate may order piyrimno. 23. Provisi )iis of certain sections of oliapter Htu, Kovised Sta- luio.<, to .ipply. 24, I'riivHiDU ;is 1. 1 (MSts. 2j. Iti-yisi.'.Mr to nialio quarterly roi.iir.iK 2(i. i'ayiiivMit of iti'Kistrar 27. Hi^Ki.sirur to ivo iMiiids. 28. Fei'.- ot jiiilm'S and rii«istrRr8. 21i. Uoj;id.itiopis lor carrviug Act into .■tf,.(.t ,{0. Inconsistjiit law repealed. 1. Act, how cited.— Tnls Act may bo cited as cession Duly Act, IS'.to." 'The Suc- 2. M«>aMin8: c£ ■word "property."— 'I'He word pro)ieiiy in this Ari shall include real and personal properly of every liind and di srrlplion. aiul the income therefrom, and evi'ry estate anil ii.iri'fsl therein caiial>le of liciuu' clexised nr liiMpicatUed by will, or pasBltig on the death of the owner to his hulrs or personal rijiresentatix i :-. 3. General definition of terms used in Aot.— Tn the COnstr\iclleii aim for 'he i)uriii -.■.-. nl ilii,-; .Vet; ((I) Tlie word "reRistrar" .shall mean the registrar of pro- hate for the county or district of which the JudKo of probaite shall have powei- to prant letters testamentary lU- letters ot administration to the representatives of the deceased, (ft) "Executor" Bhall also mean and Include "executrix" and "administrator" shall also moan and Inelmle "adminis- tratrix." SUCCESSION DUTY IN CANADA. 127 ((') The term "trustee" shall include any person taking upon himself the administrailon of property affected by any express or implied trust. ((/) The term "person" shall Include a body corporate, com- pany or society. 4. Cases where Act shall not apply.— This Act shall not apply— (1) To any esLate the value of which after payment of the debts and expenses of atlr|iinis; ration, does not exceed five thonsaiiil dollar.s. (2) Tn property passing: under a will, intestacy, or other- wise, to or for the father, mother, husband, wife, child, grand- child, daiiKhter-in-law, or son-in-law of deeia-sed, wliere the value of the property so passinK: as aforesaid does not exceed tweiiiy-tive thousand dollars. 5. Succession duty impos'sd.— Save as aforesaid all pro- perty sitiiatt^ or biinj^ waiiiii liic piovincc of Nova Scotia, and any interest tht>rein or income therefrom, whetlier the de- ceaycil person owning or entitled iherelo last dwelt within said proNiiice or not, passing eithii' by will or Intesiaey, or whieii shall bo voluntarily transferred by deed, grant or gift made ill I'onieniplation of the death of the grantor or bar- gaiiior, or made or ii. tended to take effect in possession or enjoyineiU after such death, ^o any person in trust or other- wise, or by reason whereof i>,ny person shall become bineiiciaiiy entitled in possession or exiiectancy to any property or the Incuine thereof, and all property wlurever situate or being over which the trustee, executor or administrator shall or may exercise control, and which shall or may ciMue into his pos- session, shall be subject to a succession duty, to be paul lor the t!se of the province, over and above the tees jirovirted by chaiiter 12S of the Revised Statutes, fifth series. (11 When the value of the proiierty of th(» deceased after paynient of all debts and exi liemlit of tne father, mother, hiisliaiiil. wife, eliild. >,'raii(lchild, ilaiighter-in-law or soii-m-law p£ the deceased, the same or so much thereof aa so passes shall be suli.te •! to a duly (if two dollars ami llfty eiiis for every one Iniiidred dollars of the valtie. (2) When the value of tho property after payment as afore- said excel (Is out! liiin if ii tliousiind ilolhus, the whole [iroiierty whleli passes lus aforesaid ;ihall be snb.leet to a duty of live dolliirs for every on hiiiulred dollars of th" value. (3) When the value of the proparty after payment as afore- said exceeils tlve tlioiisiind dollurs, so much thereof :i I pusses to or for the beiietlt ot' the gnunlt'ather or graiultnwt tier or any otiier lineal aiUMsstor of the dec(^a.sed, except the father and mother, to or for any brotlier or sister of the de(>,ea8ed, or to any descemlanl of such brotlier or sister, or to tne brother or sister of the father or mother of the dofiased. or any descendant of such last mentioned brother or slHter, shall be »nb.ieet to a duty of live dollars for ovory one hundred dollars: of \^lue. 128 SUCCESSION DUTY IN CANADA. (4) When the value of the property of the deceased, aitter payment as aforesaid, exceeds tive thousand dollars, and any part thereof passes to or for the benefit of any person in any other degree of collateral consanguinity to the deceased than Is above described, or to or for the benefit of any stranger in blood to the deceased, save as hereinbefore provided for, the same shall be subject to a duty cf ten dollars for every one hundred dollars of the value. (5) Provided that when the whole value of any properly devised, bequeathed or passing to any one person under a will or intestacy doe? not exceed two hundred dollars, the same shall be exempt from payment of the duty imposed by this section. 6. Cnse of beauest in lieu of oommlssion.— Where a bequest or devise of property, which otherwise would be liable to the payment of duty under this Act, I.-* made to an executor or trustee In lieu of commissions or allowance, and said be- quest or devise exceeds wliat would be a reasonable compensa- tion for the services of the executor or trustee, such excess only shall be liable to said duty, and the judge having juris- diction in the case shall fix such compensation. 7. Snooessiom duties wben payable.— i'l^e duties im- posed by this Act, uni'ii.s otherwise herein provided for, shall be due and payable at the death of the deceased, or within eighteen months thereafter, and if the same are paid within eighteen months no interest will be charged or collected there- on, but if not so paid, Interest at the rate of six per ceiitum per annum shall be charged and collected from the death of the deceased. 8. Executor or administrator to file statement.— The executor or administrator to whom lietters testamentary or letters of administration to the estate of a deceased person shall have been granted, shall, at or before exhibiting and filing the inventory required by section 18 of chapter 100 of the Revised Statutes, fifth series, make out and Hie with the registrar a true and correct statement under oath showing the several persons to whom such estate will pass under the will or intestacy and the degree of relationship, it any, in which they sitand to the deceased, and the age, address and occupation of each of them. 9. Anvointment of appraiser.— In case the treasurer of the province of Nova Scotia Is not satisfied with the valuation of the property of deceased, as shown by the Inventory and appraisement provided for by chapter 100 of the Revised statutes, fifth series, the registrar shPll, at the instpnce of the treajsurer, his solicitor cr agent, direct in writing that the appraiser appointed by the treasurer of the province shall make a valuation and appraise .ne said property under oath, 10. Annraiser sball alve notice.— In such case the ap- praiser shall forthwith give due and sufflclent notice by regis- tered letter to the executor or e^lmlnlstrator, and to such other persons as the registrar may direct, of the time and place at which he will appraise such property; and he shall SUCCESSION DUTY IN CANADA. 129 appraise the same accordingrly at Its fair market value, ami make a report in writing thereof to the registrar, together •with such other facts in relation thereto as the registrar may require, and such report shall be tiled in the office of the re- gistrar. The appraiser shall be en''iled to receive the sum of five dollars per diem for services performed under this Act and his actual and necessary travelling expenses, and the same shall be pa'd to him by the treasurer. 11. Powers and duties of appraiser.— The treasurer of the pro*'lnce may, in any case in which he is not satlstted with the valuation of the property of the deceased, as aforesaid, appoint an appraiser whose duty it shall be to examine such Inventory and the property therein enumerated, and the ap- praisement thereof, and the correctness of the same. He shall have power to summon before him witnesses, and to require them to give evidence on oath, orally or in writing (or on solemn declaration, if they be parties entitled to affirm in civil matters) and to prod by the treasurer of the province, an 1 such accountant shall forthwith proceed to assess and fix the value of such Interests, liioome, ann-\ltles and contingent or llmitrd estates, and shall certify the samo to the registrar, and his certificate shall be conclusive as to the matter dealt with therein. 13. Reeistrar to assess and fix duty.— The registrar shall upon rocolving the accountant's certificate, proceed to assess and fix the duty payable under the provlsion.s of section 5 of this Act, and shall Immediately glvo notice thereof and of the accountant's valuation by registered letter to all parties known to be interested therein, and the registrar may appoint for the purposes of this Act a guardian for Infants who have no guardians. 14. Appeal to .IndRO of probate.— Any person alTectetl thereby who is dis.'iatlsllod wltli the appraisement provided for by section 22 and other sections of chapter 101 of the Revised l) l:;o SUCCESSION DUTY IN CANADA. Statutes, fifth series, or with the appraisement provided for by sectlotij 9 and 10 of this Act, or with the registrar's assess- ment of duty provided for In the last above section hereof, may appeal therefrom to the judge of probate of the proper county or district wlthdn thirty days after the registration of the notice to such person, on giving security, approved by the judge, to pay all costs, and upon such appeal to the Judge of probate the judge shall have jurisdiction to determine the matter of such appeal and the costs thereof, with power to direct for the purposes of such appeal any inquiry, valuation or report to be maxle by any officer of the court, or other person, as the judge may think Jit, and the decision oi the judge shall be subject to a further appeal to a judge of the supreme court, who shall have similar powers, and whose decision shall be final. 15. Duty, how paid.— The duty payable In respect to an annuity shall be paid In four equal payments, the first of which payments shall be made before or on completing the pay- ment of the first year's annuity, and the three others of such payments shall be made in like manner successively before or on completing the respective ijaymeints of the three suc- ceeding years' annuity respectively, provided always that If such annuity shall determine by the death of any person or other contingency before said payments have been completed, no further duty shall be payable In respect of said annuity. 16. Provision vrhere property becineathed to dif- ferent persons in snecession.— Where any property is de- vised, bequeathed, descended, transferred or given to or for the benefit of, or so that the same shall be enjoyed by different per- sons in succession:— All persons who under or In consequence of such devise, bequest, descent, transfer, or gift, shall be en- titled for life only or any other temporary interest, shall be ehargeial)le with duty in respect thereof as if the annual pro- duce thereof had been given by way of annuity, and the siald duty shall be payable when such persons shall respectively bicome entitled to and begin to receive such produce, amd at the times and In the instalments in the last preceding sec- tion provldeioh imii i reof as shall be so received, or of which the benefit shall be so enjnyrd, in the same manner as If the same had come to such person or persons Immediately on the death ' of the person by whom such property shall have been given to be enjoyed or In aueh manner that the same shall be enjoyed In succession. 17. Duty to be a first charce.— The duty Imposed by this Act shall be a first charge on the Interest of any person chargeaible with said duty and of all persons claiming In his right In aa the real property In respect whereof such duty shall be assessed, and such duty shall also be a first charge on the SUCCESSION DUTY IN CANADA. Ul interest of any person chargeable with said duty in the per- sonal property in respect wnereof the same shall be assessed, while the same shall remain In the ownership or control o£ such person or of any trustee, guardian or husband of such person, and such duty shall be payable by the person receiving the property in respect whereof the same shall be assessed. 18. liist of persons personally accountable tu Irea- •nrer.— The following persons beside the person receiving the property subject to duty shall be personally accountable to the treasurer of the province of Nova Scotia for the duty payable in respect of such property, but to the extent only of the pro- perty or funds actually received or disposed of by them re- spectively, after the time appointeald. and a refund has been made by the legatee. (levlso' owing to some cause over which the person liable ha» no control. 15. Duty to be deducted by Executor, etc. from legaoy or property subject thereto, or collected from the person entitled to such property.— Any atlmmistraior, executor or trustee, having In charge or trust any estate, legacy or property subject to the said duty, shall deduct the duty therefrom, or collect the duty thereon, upon the appraised value thereof, from the person entitled to such property, and he shall not deliver any property subject to duty to any person until he has collected the duty thereon. 16. Poller of Executor, etc.. to sell property of deceased to pay duty.— Executors, administrators and trus- tees shall have the power to sell so much of the property ot the deceased as will enable them to pay said duty, In the same manner as they may be enabled by law to do for payment of debts of the testatjr or Intestate. 17. Duty retained or collected by Executor, etc. to be forthwith paid over to Reoeiyer Oeneral.— i^^very sum of money retained by an executor, administrator, or trustee, or paid Into his hands for the duty on any property, shall be paid by him forthwith to the Receiver General of the Pro- vince, or as he may appoint. 18. Where duty has been paid by legatee or heir on receipt of leeacy or distribution of property, and refund made owins; to debts being proyen against •state, proportion of snch duty to i*e repaid.— When the 140 SVOOESSION DUTT IN CANADA. debts shall be proved against tho estate of a deceased person, after the payment o* legaclea, or distribution of property rom which the said duty has been deducted, or upon which It has been paid, and a refund has been made by the legatee, devisee, h3lr, or next of kin, a proportion c^t the duty fo paid, shall be repaid t:^ him by the executor, administrator or trustee; if the said duty has not been paid to the Receiver General of the Province, or by the Receiver General, If it has been so paid. 19. In case of ForeiKn Ezeontor, etc., tramsfevring •took, funds cr debentures of any Oompany Uable to dnty, the Company or Corporation having notice shall 1- ' liable to the dnty if it permits snoh transfer to be made 'orithont the dnty being paid.— When any foreign executor, administrator, or trustee, assigns or transfers any stock, funds or debentures of any company or corporation in this Province, standlnj^ In the name of a deceased person, which are liable to the said duty, the said duty if not pre- viously paid, shall be paid to the Receiver General of the Province, on the transfer thereof, otherwise the company or corporation permitting such transfer, shall become liable to pay sucl. duty; provided that such company or corporation, had notice before such transfer, the said stock, or bonds, or debentures are liable to the said duty. 20. ProoeedinKft vrhere it appears to Jndge of Pro« bate that any dnty acorning ander this Act has not been i>aid.— If it appears to the Judge of Probate, thafrany duty accruing under this Act, has not been paid according to law, he shall make an order directing the persona interested in the property liable to the duty, to appear before the Court In a day certain, to be named therein, and show cause why said duty should not be paid. The serv^lce of such order, and the time, manner, and proof thereof, and the hearing and deter- mining thereon, and the enforcement of the judgment of the Court thereon shall be according to the practice In or upon the enforo^ment of a Judgment of the Supreme Court. 21. Costs.— No costs shall be allowed In or by the Probate Court, except as herein otherwise provided. In respect oil any of the proceedings therein taken under this Act. In case of any appeal to the Supreme Court, the costs of appea> ahall be oc- lordlng to the Supreme Court scale. 22. Registrar of Probate to give bond or other seonrity satisfactory to Lientenant-OoTernor in Conn- oil.— Every Registrar of a Court of Probate shall, before en- terlnpr upon the duties of his office, or > the case of Registrars appointed prior to the passing of this Act, Immediately here- after deliver to the Receiver General a bond or other security or securities. In such sum, and with such sufficient security or securities as may be approved of by the Lieutenant-Gov- ernor ^In Council, for the due and punctual performance of ths duties Imposetl upon such Registrar by this Act, aud that he will not receive any duty payable under this Act; and the provisions of any Act relating to the giving of security by public officers shall, whpn not Inconsistent with this Act, apply to such bonds or other securities. SUCCESSION DUTY IN CANADA. Ul 23. In certain oatea Exeontora, etc. may agree with, the Keoeiver General as to amount to be paid as Snccr.asion Dnty on any estate. Amount so agreed nnon to be a lien on tbe estate.— It shall be lawful for the executors and trustees of the estates of deceased persons liable to Succession Duties under this Act, in cases where the Lieu- tenant-Governor in Council may consider It In the public interest, as well as just and equitable to the persons beneficially Interested in the estate of such persons, so to do, to agree to, and with the Receiver General of the .'^rovlnce, as to the amount to be paid to the said Receiver General as the Succes- sion EKity upon any estate, and such amount so a^eed upon shall be a first charge upon the estate of the deceased, and after payment of the same such executors or trustees shall administer the resloue of such estate acccrdlng to the rrovl- sions of the Will in the case In which such settlement is made under this Act, as near as may be, as If the estate of the de- reased in such case had been less than It Is by the amount of the duty paid under the terms of the settlement herein provided for. 24. Power eiven to liieutenant-Governor in Gonn- oll to direct enquiry as to any estate and duty pay- able thereon and issue commission for such purpose. Powers of Commissioner.— Whenever there shall be doubts as to whether all the property and estate of any deceased person, or which such person had prior to his decease trans- ferred, has been fully accounted for, Inventoried or disclosed for the purposes of Succession Duty under the Succession Duly Act of 1892, or this Act, the Liieutenant-Governor In Council may b.v order in Council authorize and direct an In- quiry to be made for the purpose of ascertaining whether the whole of the property of anv person subject to duty, ha« been made known, and may duly commission any person (the fact that such person is a member or ofllcer of the Provincial Gov- ernment not being a disqualification for such appointment) to malte such inquiry and such Commissioner so appointed shall be fully authorized and empowered to Inquire; ((I) Into the value, nature and particulars of all pro- perty of the deceased; (6) Into any and all iransfers of any property which the Commissioner may suspect or believe to have been transferre'' Succession Duties under the said Act of 1S92, or this Act, or the estate and properly of the person making such transfer, according as the same shall be adjudged and determii.ed by the Commissioner, shall be liable to the payment of double the amount of duty to which the property so transferred would have been subject If such transfer had not been made, and such double duty may be recovered, in addition to othn remedies provided by this Act, or any other remedies al'uwed by law by action brought oi behalf of the Crown in the name of the Receiver General of the Province, in any Court of com- petent Jurisdiction, from the transferee of such properly or from the estate of the decea.sed, as the case may be. In any such action proof that the Commissioner had found such ducy to be payable 'n respect of the property so transferred shall be conclusive evidence as to the fact of the trannfor having been r.iade to ev.i>le such duty, and the Crown shall be entitled to judgment in such action, provided that the transferee, having received notice of the inquiry by the Commissioner, and having an oi)i>ortunlty of being hoard thereupon, had either not ap- peared, or, having appeared, had not appealed against the Com- missioners finding ns hereinafter provl, of Tirith Victoria, being the? Suc- cession Duiy Act o' ISltl! is hore))y repealed as to the estates of all persons dying after the passing hereof; but such repeal shall not prejudlpe or prevent the enforcement of any of the provisions of the .said Act ii4;a.lnst the estate or property of any person dying since the passing thereof and prior to the passlnfc of this Act, and all proceedlncrs ta''"n or commenced thereunder for the enforcement ihereof nay be continued aa fully as If the said Act haJ not been hereby repealed. 144 SUCCESSION DUTY IN CANADA. AN ACT IN AMBNDMKNT OF THE SUCCESSION DUTY ACT, 1896 (60 Vie, cap. 86.) Passed ISth March, 2897. Be It enacted by the Lieutenant-Governor and Legislative Assembly as follows: 1. Section 4 of "The Snooeaiion Dnty Act 1896." amended.— ^Section 4 of "The Succession Duty Act, 1896," is. hereby amended by inserting between the word "child," and the words "daughter-in-law" In the sixth line of the Section the word "grandchild." 2. Section 5 of the Act amended.— Section 5 of the Act B9th Victoria, Chapter 42, being "The Succession Duty Act, 1896," is hereby amended by adding at ih© end thereof following paragraph: "(a) The provisions of this Section are not Intended to apply, and shall not apply to property outside this Province, owned at the time of his death by a person not then having a place of residence within the Province, except so much thereof as may be devised or transferred, to a person or persons residing within the Province." Revenue.— 1892 $1,690 48 1893 3,500 00 1894 4,804 01 1895 9,729 32 1896 10,365 80 1897 9,294 67 1898 8,197 83 Decisions.— (1) Attorney-General v. Sears— 32 N.B. Rep. 412. This was a special case, submitted for the opinion of the Court. The defendants represented estates valued respectively at over $30,000, and the testators whom they represented died before 6th July, 1893. Lieutenant-Governor in Council, on 6th July, 1893, approved of the following regulation, purporting to be made under the au.iiorlty of s. 23 of B."i Vic, c. 6:— "It is hereby ordered, under "and by virtue of the power and authority ve.sted in the " Lieutenant-Governor ;n Council under the provisions of s. "23, o. 6, of 55 Vic, as follows:— The rate of duty upon all " estates, which, under the above Act, are subject to a Suc- " cession Duty, shall be $1.25 upon every $100 value thereof up " to LfiCOOO." The questions submitted to the Court were:— (1) Are the above estates, which in value exceed $50,000 each, subject to Succession Duty upon the first $50,000 thereof, and (2) Is the above regulation authorized by the Act 55 Vic, c. 6, and had the Lleutonnit-Onvernor In Council power under the Act to pass the same so as to apply to the said Estates? Held:— That the regulation by order in Council was ultra virrs, and that the first $50,000 of each estate was exempt. f SUCCESSION DUTY IN CANADA. 14 (2) In re Botsford's Will. 33 N.B. Rep. 55. Unless otherwise stated by the terms of a will, the Succes- sion tax is payable out of the specific legacy and not out of the residuary estate. A direction that a sum of money be paid yearly to a legatee, or that interest be allowed, until the specific legacy is paid in full, cannot be construed as an Inten- tion, on the part of the testator, that such legacy is to be paid free from Succession Duty. (3) In re Chubb: Judgment of Trueman, J., in Probate Court on 23rd March, 1896. The testatrix devised "to A.B., one of my executors, $500, and to CD., the other of my said executors, |oOO." Duty was collected on these legacies, and on an application to the Court for an order for a re-fund, it was held that the devises were In lieu of commission and not liable to duty. (4) The Queen t. Earle: Judgment 11th June, ^ jI. It was provided by the amendment of 1893 that where pro- perty went to strangers in blood, resident out of the Province, double duty should be payable thereon. Testator died in 1892, after the passing of the Act of 1892, but in 1896 the Succession Duty Acts were consolidated, and s. 29 of the Act of 1896 pro- vides that all the provisions thereof shall be applicable to the case of any and all persons who have died since the passing" of the Act of 1892. Held:— That the retroactive section was valid, and that the estate ot the defendant was liable to double duty. PRINCE EDWARD ISLAND. AN ACT TO PROVIDE FOR THE PAYMENT OF SUCCES- SION DUTIES IN CERTAIN CASES. (57 Vic, cap. 5.) [Assented to May 9th, 1894.] Preamble.— Whereas, the Province of Prince Edward Is- land cxptnds larfTe sums annually for tlio care of tlic Ir.^ane and the poor, and It is expedient to provide a fund for defray- ing part of such expeiiditurp by a succession tax on certain estates of persons dying as hereinafter mentioned: Then-fore, be it enacted by the Llcutenant-Qovernor and Legislative Assembly as follows: 1. Short Title.— This Act may be cited as "The Succes- sion Diity Act, 1S94." 2. "Property"— meaniuK of.— The word "property" in this Art inrUides real and personal property of every kind and description, and every estate or Interest therein capable of being devised or bequeathed hy will, or of passing on the death of the owner to his heirs or per.-^onal representatives, 3. "Executor" and "Administrator."— meanlnfc of.— "Executor" shall mean and include "executrix," and "Admin- istrator" shall mean and Include "adminlatratrlx." 10 146 SUCCESSION DUTY IN CANADA. 4. Where Act sliall not apply.— This Act shall net apply:— (1). To any estate the value of which, after payment of all debts and expenses of administration, does not exceed three thousand dollars; nor (2). To property given, devised, or bequeathed for religious, charitable or educational purposes ■within this Province; nor (3). To property passing under a will, Intestacy or other- wise, to or for the father, mother, husband, wife, child, grand- child, brother, sister, brother's child, or sister's child, daugh- ter-in-law or son-in-law of the deceased, where the ^ alue of the property of the deceased, after payment of all debts and expenses of administration does* not exceed ten thousand dollars In value. 5. Property pasaixiK on death of o^vner liable to Bnocession duty.— Save as aforesaid all property situate or being within this Province, whether the deceased person owning or entitled thereto last dwelt within said Province or not, passing either by will or intestacy, and any interest therein or income therefrom which E'.iall be voluntarily tn^nsferred by deed, grant or gift, made In contemplation of the death of the grantor or bargainor, or made or Intended to take effect, in possession or enjoyment after such death, to any person in tr !dt or 'otherwise, or by reason whereof any person shall become beneficially entitled in possession or expectancy, to any property or the incdne thereof, and all property wherever situate or being, over which the executor or administrator shall or may exercise control and which shall or may come into his possession, shall be subject to a succession duty tj be paid for the use of the Province over and above all Probate and Surrogate fees. (1). Where rate of duty shali. be 14 per cent.— Where the value of the property of the deceased, after payments of all debts and expenses aforesaid, exceeds ten thousand dollars, and passes in manner aforesaid, either In whole or in part, to or for the benefit of the father, mother, husband, wife, child, erra*! ichlld, brother, sister, brother's child, or sister's child, daugiiter-ln-Iaw or son-in-law of the deceased, the same or so much thereof as so passes (as the case may be) shall be subject to a duty of one doiiar and fifty cents for every one hundred dollars of the value; or (2). Where rate shall be 2i per cent.— Where the value of the property, after pajrment as aforesaid, exceeds fifty thousand dollars, the whole property which passes as aforesaid shall be subject to a dut> of two dollars and fifty cents for every one hundred dollars of the value; and (3). Where rate shall be 2} per cent.— Where the value of the property, after payments as aforesaid, exceeds three thousand dollars, so much thereof aa passes to or for the benefit of the grandfather or grandmother, or any other lineal ancestor of the deceased, eotcept the father and mother, or to a brother or sister of the father or mother of the deceased, or any descendant of such last-mentioned brother or sister, shall be subject to a duty of two dollars and fifty cents for every one hundred dollars of value. .1 I SUCCESSION DCTY IN CANADA. 147 El (4). Where bate shall be 71 per cent.— Where the value of the property of the deceased, after payments as aforesaid exceeds three thousand dollars, and any part thereof passes to or for the benefit of any person In any other degree of col- lateral consanguinity to the deceased than is above described, or to or for the benefit of any stranger In blood to the de- ceased, save as hereinbefore provided for, the same shall be subject to a duty of seven dollars and fifty cents for every one hundred dollars of the value. 6. Ezeoutori, etc., to file InTemtory. Bond for pay- ment of duty.— An Executor or Administrator applying for Letters of Probate or Letters of Administration to the estate of a deceased person, s) all, before the Issue of Letters of Probate or Administration to him make and file with the Surrogate or Judge of Probate a fu 1, true and correct statement under oath showing («) A full, itemized Inventory of all the property of the deceased person imd the market value thereof. (6). The several persons to whom the same will pass under the will or intestacy and the degree of relationship, if any, in which they stand to the deceased, and the age, address and occupation of each of then so far as then can b6 ascertained. And the Executor or Administrator shall, before the issue ol Letters of Probate or Letters of Administration, deliver to the Surrogate or Judge of Pi-obate a bond in a penal sum equal to ten per cent, of the sworn value of the property of the deceased person liable to succession duty, executed by himself and two sureties (each of whom shall justify on oath) to be approved by the Surrogate- or Judge of Probate, conditioned for the due payment to Her Majesty of any duty to which the property coming into the hands of such Executor or Adminis- trator of the deceased may be found liable. Such bond shall be in the form Schedule A to this Act. 7. Attorney General may obtain Letters of Ad- ministration, etc., wlien no application is made for same within thirty days after death of owner of estate. Proviso.— If hereafter any person shall die whose estate or any part thereof is liable to succession duty under this Act, and Letters oC Administration or Probate be not applied for and actually granted, within thirty days of the death of such person, It shall be lawful for the Attorney General to apply for and obtain Administration or Probate, as the case may be, without giving any security, either in his own name or of that of any other person to be appointed by him, and when ho iioes so the estate shall thereafter be ad- ministered under the direction of the Court of Chancery. Pro- vided always that any r-erson having such an Interest in the estate as would entitle him to Letters of Administration or Probate may at any time upon application to the Court of Chancery, by petition or summons, and giving security for the due payment of all succession duty payable in respect of Buch estate to the satlsfacUon of the said Court, assume the administration of said cutato. 6. Witea appraisement to be dlrected.-In oaat, th« Provincial Secretary and Treasurer of the Province of Prince i48 aUVCElSiilON DUTY IN CANADA. Edward Island is not satisfled with the value of the property of the deceased, so sworn to, the Surrogate or Judge of Pro- bate shall, at ihe Instance of the Provincial Secretary and Treasurer, his solicitor or agent, direct In writing that an ap- praiser appointed by the Lieutenant Governor in Council of the Province shall make a valuation and appraise the said pro- perty under oath. 9. Valnation of Property.— in such case the appraiser shall forthwith give due and sufficient notice by delivery there- of or by registered letter to the executor or administrator, and to such other persons as the Surrogate or Judge of Probate may direct, of the time and place at which he will appraise such property, and he shall appvalse the jame accordingly at its fair market value, and make a report in writing thereof to the Surrogate or Judge of Probate, together with such other facts in relation thereto as the Sqrrogate or Judge of Probate may require, and such report shall be filed in the office of the Surrogate or Judge of Probate. The appraiser shall be en- titled to receive, for services performed under this Act, such remuneration as the Lieutenant Governor in Council may de- cide, not exceeding PMve Dollars per day. 10. IVhcrto Provincial Secretary ia not ■atisfied urith value of property, appraiser may be appointed by Lientenant Governor. Powers of appraiser.— i'ne Lieutenant Governor in Council of the Province may, In any case In which the Provincial Secretary is not satisfied with the value of the property of the deceased, as aforesaid, appoint an appraiser, whose duty it shall be to examine such In- ventory and the property therein enumerated, and the appraise- ment thereof, and the correctness of the same. He shall have power to summon before him witnesses, ana to require them to give evidence on oath, orally or in writing (or on solemn declaration if they be parties entitled to affirm in civil matters), and to produce such documents and things as he may deem requisite to the full investigation of the matter of the correctness of said Inventory and appraisement. l"'or the purpose of such investigation he shall have all the powers that an executor or administrator has heretofore had when making an inventory. He shall alter, amend, add to or take away from the said Inventory and appraisement as to him shall appear just and proper, and shall. If necessary, make a new Inventory and appraisement. He shall as soon as possible conclude such investigation, and make his report thereon without delay. 11. Mode of aasessine property liable to duty.— The Surrogate or Judge of Probate shall upon receiving the Inventory and appraisement from the executor or administrator unless the appraiser Is directed to value and appraise, and In such case upon receiving the report of the appraiser, forth- with proceed to assess and fix the then cash value of all estates, interests, annuities and life estates or terms of years growlnff out of such estate, and the duty to which the same Is liable, and shall immediately give notice thereof by ser- vice of a copy of such notice or by registered letter, to all li SUCCESSION DUTY IN CANADA. 149 parties known to be Interested therein; and the value ot every future Oi contingent or limited estate, Income or in- terest shall, for the purpose of this Act, be determined by the rule, method and standards of mortality and of value to be fixed by an accountant named by the Provincial Secretary and Treasurer of the Province, and the accountant shall, on the application of a Surrogate or Judge of Probate, determine the value of such future or contingent or limited estate, in- come or interest upon the facts contained in the statement of the Surrogate or Judge' of Probato hereinafter provided for, and shall certify the same to the Soirrogate or Judge of Prd- bate and his certificate shall be conclusive as to the matters dealt with therein. 12. Appeals from appraisemejit or asiessment.— Any person affected thereby who is dissatisfied with the appraise- ment or with the assessment of the Surrogate or Judge of Probate provided for in the last above section hereof, may appea! therefrom to the Supreme Court of Prince Edward Island within thirty days after the registration of the notice to such person on giving security approved by a Judge of the Supreme Court to pay all costs, together with whatever duty shall be fixed by said Court, and upon such appeal to the Supreme Court the Court shall ha;'° jurisdiction to determine all questions of valuation and of the liabilities of the ap- praised estate or any part thereof for such duty, and such de- cision shall be final. 13. Bond of Exeontor to be delivered to Frovinoial Secretary.— The Surrogate or Judge of Probato shall require every executor or administrator as soon as the vaUv of the property liable to succession duty has been a'^certai. d, as hereinbefore provided, to deliver to him such bond as Is pro- vided for in section 6 of this Act, and shall forthwith upon receipt of puch bond deliver the same to the Provincial Sec- retary and Treasurer of the Province at Charlottetown. 14. Snrroeate to prepare statement of fact'^ neces- sary to determine value of estate.— The Surrogate or Ji'dtre of Probate shall in every case where he is required to assess and fix the cash value of future or contingent or limited estates. Income or interest, prepare a statement of facts neces- sary to determine the value of such estate. Income or Interest, and deliver or mall a copy thereof, postage prepaid and re- gistered, to the accountant named bv the Provincial Secretary and Treasurer. He shall, upon request of such accountant furnish him In the same way with such additional facts as may be necessary for such determination. 15. Snrroeate to make monthly returns to Pro- vincial Secretary of particulars of estate under ad- ministration, etc.— The Surrogate or Judge of Probate shcM make monthly returns to the Provincial Secretary and Treasurer showing the following facts:— (1). The name and address of every ex'cutor or adminis- trator to whom letters testamentary or letters of administra- tion have been granted, the date of granting the same, and thb name of the deceased person to whose estate the same relate. 150 acccEssioy duty /iY caxada. (2). The date of filing every inventory, together with the amount of the appraised value of the property therein. (3). A copy of every statement filed under section 6 of this Act. (4). Every valuation and appraisement by the appraiser ap- pointed by the Lieutenant Governor In Council. (5). A statement of every assessment by the Surrogate or Judge of Probate of the cash value of property liable to duty, showing the duty payable In respect of the same. (6). A statement showing what appeals have been taken under section 12 of this Act, and what appeals have ..been de- cided, with the results of the same. 16. Beaneats. etc., to ezecntors or trnsteea.— wnere a bequest or devise of property which otherwise would be liable to the payment of duty unuer this Act, is made to an executor or trustee in lieu of commissions or allowance, and said bequest or de\'ise exceeds what would be a reasonable compensation for the services of the executor or trustee, such excess only shall be liable to said duty, and the Judge having jurisdiction in the case shall fix such conpensation. 17. When dnty payable on future estates or in- terests.— In all cases where there has been a devise, descent or bequest of property liable to succession duty, to take effect In possession, or to come into actual enjoyment after the ex- piration of one or more life estate or estates for a period ot years, the duty on such future estate or interest shall not be payable nor interest begin to run thereon until the person or persons taking such future estate or interest shall come into actual possession of such estate or interest by the determin- ation of the estates for life or years, and the duty shall be assessed upon the value of the estate or interest at the time the right of possession accrues as aforesaid, and the person or persons so taking shall upon coming into actual possession become liable to pay such duty. 18. Duties nayable within eiehteen months from death of owner.— The duties Imposed by this Act, unless ctherwise herein provided for, shall be due and payable at the death of the deceased, or within eighteen months thereafter, and if the same are paid within eighteen months no Interest win be charged or collected thereon, but If not so paid Interest at the rate of six per centum per annum shall be charged and collected from the death of the deceased, and such duties, together with the Interest thereon, shall be and remain a lien upon the property In respect to which they are payable until the same are paid. 19. Extension of time for payment of duty.— The Judge of Probate having jurisdiction In the case may make an order, upon the application of any person liable for the pay- ment of said duty, extending the time fixed by law for pay- ment thereof where it appears to such Judge that payment within the time prescribed by this Act Is Impossib'.e owing to some cause on er which the person liable has no control, pro- vided, however, that such time shall in no case bo extended ?cr a greater period than one year beyond the time so fixed. 8UVCES8I0X DUTY IN CANADA. 161 20. Administrators, etc., to deduct duty before de- liverine property.— Any administrator, executor or trustee, having in charge or trust any estate, legacy or property sub- ject to the said duty, shall deduct the duty therefrom, or col- lect the duty thereon, upon the appraised value thereof from the person entitled to such property, and he shall not deliver any proi>erty subject to duty to any person until he has col- lected the duty thereon. 21. Power to sell for payment of duty.— Executors, administrators and trustees shall have power to sell so much of the property of the deceased as will enable them to pay said duty in the same manner as they may be enaijled by law so to do for the payment of debts of the testator or In- testate. 22. To whom duty to be paid.— Every sum of money re- tained by an executor, administrator or trustee, or paid Into his hands for the duty on any property, shall be paid by him forthwith to the Provincial Secretary and Treasurer of the Province, or as he may appoint. 23. Refnndine duty upon subsequent payment of debts.— Where any debts are proven ag'ainst the estate of a deceased person, after the payment of legacies or distribution of the property from which the said dutj has been deducted, or upon which it has been paid, and a retvind has been made by the legatee, devisee, heir or next of kin, a proportion of the duty so paid shall be repaid to hiro by the executor, ad- ministrator or trustee, if the said duty has not been paid to the Provincial Secretary or Treasurer of the Province, or by the Provincial Secretary and Treasurer if it has been so paid. 24. Collection of duty upon stocks, bonds, etc.— Where any foreign executor, administraior or trustee assigns or transfers any stocks, bonds or debentures of any company or corporation in this Province, standing in the name of a deceased person, or in trust for a deceased person, which are liable to the said duty, the said duty. If not previously paid, shall be paid to the Provincial Secretary and Treasurer of the Province on the transfer thereof, otherwise the company or corporation permitting such transfer shall become liable to pay such duty, provided that such company or corporation had notice before such transfer that the said stocks, bonds or debentures were liable to the said duty. 25. Mode of enforcine payment of duty.— If it ap- pears to the Judge of Proiiate that any duty accruing under this Act has not been paid according to lt.,w, he shall make an order directing the person or persons interested in the pro- perty liable to the duty to appear before him on a day certain to be therein named, and show cause why said duty should not be paid. Such order shall be served either personally or by registered letter ten clear days liefore the day named in said order. Upon said day the Judge, upon being satisfied that such order has been duly served, may hear and determine all ques- tions regarding said duty, and the person or persons liable therefor, and may make an order directing the person or w 162 SUCCESSION DUTY IN CANADA. persons liable to pty the same to make payment thereof to the Provincial Secretary and Treasurer forthwith, or within such reasonable time as may appear proper to the Judge. Such order shall be considered as a judgrment of a Court of Record, and may be enforced by execution In the form Schedule U hereto annexed. 26. Additional remedies for oolleotiom of dnty.— In addition to or In lieu of the remedy hereinbefore provided. If It shall at any time appear to the Attorney General that the duty payable In respect of any estate or any part thereof under the provisions of this Act has not actually been paid within the time allowed by the Statute he may: (1). Proceed In the Court of Chancery to enforce the lien hereinbefore created; or (2). He may in the Court of Chancery or the Supreme Court proceed by suit to be begun by ordinary Writ of Summons or Capias to enforce the bond which may have been given as provided by this Act; or (3). He may in the same suit, notwithstanding that different parties may be required, proceed to enforce the Hen and the bond. 27. Cost*-— The costs of all proceedings under this Act shall be in the discretion of the Court or Judge. 28. Fees of SnrroKate.— The Surrogate or Judge of t' Court of Probate shall be entitled tc take for the performa of duties and services under this Act similar fees to tl payable under the Statute in force relating to Probate Courts.. 29. Lieutenant Governor in Council may make re- Kulations.— The Lieutenant Governor in Council may make regulations for carrying into effect the provisions of this Act, and such regulations shall be laid before the Legislative Assembly forthwith, if the Legislature is in session at the date of such regulations, and If the Legislature is not in session, such regulations shall be laid before the Legislature within the first seven days of the session next after such regulations are made. SCHEDULE A. Know all men by these presents that we, A. B. (the Ad- ministrator or ExvcHtor), C. D. and E. F., all of , in the County of , Province of Prince Edward Island, are held and firmly bound unto our Sovereign Lady the Queen in the sum of dollars (tc» per centum of the value will or intestacy, or any inlerest therein or income therefrom which shall be voluntarily transferred by deed, grant, or gift made in contemplation of *'ie death of the grantor or bargainor, or Intended to take effect, In possession or enjoyment after such death, to any per.'^on in trust or otherwise, or by reason whereof any pefson shall become benellciaHy entitlel to the sajne or any part thereof or the Income thereof, in possessiou or expectancy, shall be subject to a succession duty to be paid for the use of tho Province over and above the fees provided by "The Surrogate Courts Act." (2.) ScAi.H UPON WHICH DUTY coMPUTBP.— The duty payable upon all property liable tt duty under this Act shall be computed upon the following scale, that is to say: Upon the value up to $25,000.00 a duty of Ix.OO on every $100. (X); In cases where said value reaches $2D,ouu.OO but does not reach $50,000.00 a duty of $2.00 on every $100.00 of its value. Where said value reaches $50,000.00 but does not reach ♦100,000.00, a duty of $3.00 on every $100.00 of the value. auccEasioN duty ly ciam/ja. 165 •'here said value reaches 1100,000.00 but does jicK reach $250,000.00, a duty of WOO on every JIOO.OO of the value. Where said value reaches $250 000.00 but does not reach $500,000.00, a duty of $5.00 on every $100.00 of the value, and Where said value reaches $500,000.00 but does not reach $600,000.00, a duty of $6.00 on every $100.00 of the value. Where said value reaches $600,000.00 but does not reach $700,000.00, a duty of $7.00 on every $100.00. Where aaid value reaches $700,000.00 but does not reach $800,000.00, a duty of $8.00 on every $100.00. Where said value reaches $800,000.00 but does not reach $1,000,000.00, a duty of $9.00 on every $100.00. Where said value reaches $1,000,000.00 or more, a duty of $10.00 on every $100.00. (3.) Exemption.— Provided that where the whole value of any property devised, bequeathed or passing to, or for the use of any one persoii being the father, mother, husband, wife, child, grandchild, daughter-in-law or son-in-law of the deceased, under a will or intestacy does not exceed $10,000.00 the same shall be exempt from payment of the duty imposed by this section. {4.) DCTY COLLECTED PRO RATA UPON WHOLR ESTATE.— Pro- vided that all duties under this Act shall be levied and collected pro rata upon the whole of the estate of the deceased person liable to the duty. 5. Executors, et al, to file inventory and bonds for iiayment of duty.— An executor or administrator applyin«r for letters probate or letters o*" administration to the estate of a deceased person shall, before the issue of letters probate or administration to him, make and llle with the Surrogate Clerk a full, true i^nd correct statement under oath showing («) a full itemized inventory of all the property of ^he de- ceased porsnn and the market value thereof; (h) the several persons to wliotn the same will pass undi r the wll' or intestiicy so far as known and the degree of relatlonshli), if any. In which they stand t(» t!i(> deceased; and the executor or admln- istrntor, except the ntllclal administrator, shall before the Issue of letters prnliate or letters of administration deliver to the Surrocrate Clerk a bond In a penal sum eciual to ten per centum of the sworii value of the property of the dt'oeased person liable to suecesslon duty, exeeule oa every $100 of the value. Where said value reaches $200,000 but does not reach $700,000, a duty of $3 on every $100 of the value. Where said value reaches $700,000 but does not reach $1,000,000, a duty of $4 on every $100 of the value. Where said value reaches $1,000,000 or more, a duty of $5 on every $100 of the value. (3.) Duty on property devolving on certain relations, at one-half above rates.— Provided that property pasf- Ing under a will. Intestacy or otherwise, to or for the use of the father, mother, husband, wife, child, grandchild, daughter- in-law or son-in-law of the deceased shall be charged with duty at one-half the several aforesaid rates. (4.) Levied pro rata.— Provided that all duties under this Act shall be levied and collected pro rata upon the whole of the estate of the deceased person liable to the duty. 1894, c. 47, 8. 4, & 1896, c. 44. s. 2. 5. Executors and administrators to file inventory, etc.. on letters of administration issued.— An executor or administrator applying for letters probate or letters of ad- ministration to the estate of a deceased person shall, before the issue of letters proltate or administration to him, or within U !l 162 !?UCCESFION DUTY IN CANADA. such time as may be limited by the Court Issuing such letters probate or administration, make and file with the Registrar of the County Court of the County or District in which any property of the deceased is situate, a full, true and correct Statement under oath showing (o) a lull Itemized Inventory of all the property of the deceased person, and the market value thereof; (b) the several persons so far as known to whom the same will pass under the will or Intestacy, and the degree o- relatlonship, If any, in Wiilch they stand to the deceased; and the executor or administrator, execept the offlcial administrator, shall, before the Issue of letters probate or letters of adminis- tration, deliver to the Registrar a 'oond in a penal sum equal to ten per centum of the sworn value of the property of the deceased person liable to succession duty, to be approved by the Registrar, conditioned for the due payment to Her Majesty of any duty to which the property coming to the hands of such executor or administrator of the deceased may be found liable, or shall furnish such other security in lieu of Ruch bond as may be required by the Lieutenant Governor In Council. (2.) This section not to apply where no duty payable.— This section does not apply to estates in respect of which no succession duty Is payable. 1894, c. 47, s. 5. I 6. If Minister of Finance not satisfied with value ■worn to. Sheriff to appraise. ^In case the Minister of Finance Is not satisfied with the value so sworn to the Regis- trar of the County Court of the County or District in which any property subject to the payment of the said duty is situate shall, at the Instance of the Minister of Finance, his solicitor or agent, direct In writing that the Sheriff for such County or District shall make a valuation and appraise the said property. 1891, c. 47, s. 6. 7. Duties of Sheriff in such case.— In such case tne Sheriff shall forthwith give due and sufflcient written notice to the executors and administrators, and to such other persons as the Registrar may by order direct, of the time and place at which he will appraise such property; and he shall appraise the same accordingly at its fair market value, and make a report thereof In writing to the Registrar, together with such other facts in relation thereto as the Registrar may by order require, and such report shall be nied in the office of the Registrar. The sheriff shall be entitled to receive the sum of five dollars per diem for services performed under this Act, and his actual and necessary travelling expenses, and the same shall he paid to him by the Minister of Finance. 1894, c. 47, s. 7. 8. Reeistrar, on receipt of report of Sheriff, to fix cash value of estate, etc.. and Ki\e notice. Regis- trar may appoint Ruardian for infants. Value of future interests, how computed.— The Registrar shall, upon receiving the report of the Sheriff, forthwith assess and fix the then cash value of all estates, interests, annuities and life estates, or terms of years growing out of such estac. and the duty to which the same Is liable, and shall immediately SUCCESSION DUTY IN CANADA. 163 pive notice thereof, by registered letter, to such parties as by the rules of the Supreme Court would be entitled to notice In respect of like Interests in an analogous proceedlnK, and the Registrar may appoint for the purposes of this Act a guardian for infants who have no guardians; and the value of every future or contingent or limited estate, income or interest shall, for the purpose of this A'-t, be determined by the Schedule hereto, save that the rate of interest to be assessed in com- putiiig the present value of u'.l futuro interests and contin- gencies shall be six per' centum per annum; and the Provincial Auditor shall, on the appl. cation of any Registrar, determine the value of such future or contingent or limited estate, in- come, or Interest upon the facts contained In such report, and certify the same to the Registrar, and his certificate shall be conclusive as to the matters dealt with therein. 1894, c. AT, s. 8. 9. AvTieal of veraon from such assessnient.— Any per- son dissatisfled with the appraisement or assessment may appeal therefrom to a Judge of the Supreme Court of British Columbia within thirty days after the making and filing of such assess- ment, and upon such appeal the Judge of said Court shall have jurisdiction to determine all questions of valuation and of the liabilities of the appraised estate, or any part thereof, for such duty, and the decision of the Judge shall be final, unless the property in respect of which such appeal is taken shall exceed in value the sum of ten thousand dollars, when a further appeal shall lie from the decision of the Judge to the Full Court. 1894, c. 47, s. D. 10. Beqrest to an executor in lieu of commission.— Where a bequest or devise of property, which 3therwlse would be liable to the payment of duty under this Act, is made to an executor or trustee in lieu of commissions or allowance, and said bequest or devise exceeds wliat would bo a reasonable compensation for the services of the executor or trustee, such excess shall be liable to said duty, and such compensation shall be fixed by a Judge of tlie Supreme Court. 1894, c. 47, s.lO. 11. Duty on rcTeriions or remainders net to take effect until after determination of particular estate.— In all cases where there has been a devise, descent, or bequest of property liable to succession duty, to take effect in posses- sion or come into actual enjoyment after the expiration of one or more life estates or a period of > '■ars, the duty on such future estate or interest shall not be payable nor interest begin to run thereon until the person or persons liable for the same shall come into actual possession of such estate or interest by the determination of the estates for life or years, and the duty shall be assessed upon the value of the estate or interest at the time the right of possession accrues as aforesaid. 1894, c. 47, s. 11. 12. Minister of Finance may commute duty on future interest.— The Minister of Finance, in his discretion, upon application made by any executor or administrator, or by any person entitled to a future estate or Interest, may commute 164 SUCCESiSION DUTY IN CANADA. f the duty which would, or mlgrht but for the commutation, become payable In respect of such future estate or Interest for a certain sum to be presently paid, and for determining that sum shall cause a present value to be set upon such duty, in the manner provided for computing the value of future inter- ests by section 8 of this Act. 1896, c. 44, s. 3. 13. Minister of Finance may aiseis dnty in respect of complicated interests in property by way of com- nosition.— (1-) Where by reason of the number of deaths on which property has passed, or of the complicated nature of the interests of different persons in property which has passed on death, or from any other cause, it is difficult to ascertain ex- actly the amount of succession duty payable in respect of any property or any interest therein, or so to ascertain the same without undue expense in proportion to the value of the pro- perty or Interest, the Minister of Finance, on the application of any person accountable for any duty thereon, and upon his giving to him all the information in his power respecting the amount of the property and the several interests therein, and other circumstances of the case, may, by way of composition for the duty payable in respect of the property or interest, and the various interests therein, or any of them, assess such sum on the value of the property or interest, as having regard to the circumstances appears picper, and may accept payment of the sum so assessed in full discharge of all claims for duties in respect of such property or interest, and shall give a certi- ficate of discharge accordingly; (2.) Provided that the certificate shall not discharge any person from any duty in case of fraud or failure to disclose material facts. 1896, c. 44, s. 4. 14. Interest on duty not paid xirithln two years.— The duties imposed by this Act, unless otherwise herein pro- vided for, shall be due and payable at the death of the de- ceased, or within two years thereafter, and if the same are paid within two years no interest shall be charged or collected thereon, but if not so paic Interest at the rate of six per centum per annum shall be charged and collected from the expiry of such period of two years, and such duties, together with the interest thereon, shall be and remain a Hen upon the property In respect to which they are payable until the same are paid. 1894, c. 47, s. 12. 15. Judee may make order as to time for payment of duty and interest.— A judge of the Supreme Court may make an order, upon the application of any person liable tor the payment of said duty, extending the time fixed by law for payment thereof, and also the date when interest shall be chargeable, where it appears to such Judge that payment within the time prescribed by this Act is impossible, owing to some cause over which the person liable has no control. 1894, c. 47, s. 13. 16. Administrators, etc., to deduct or collect duty.— Any administrator, executor, or trustee having in charge or trust any estate, legacy, or property subject to the said duty shall deduct the duty therefrom or collect the duty thereon SUCCESSION DVT. IN CANADA. 166 upon the appraised value thereof from the person entitled to such property, and he shall not deliver any property subject to duty to any person until he has collected the duty thereon. 1894, c. 47, s. 14. 17. Executors' oower of sale to realize duty.— i!^x- ecutors, administrators and trustees shall have power to sell so much rf the property of the deceased as will enable them to pay said duty in the same manner as they may be enabled by law so to do for the payment of debts of the testator or intes- tate. 1894, c. 47. s. 15. 18. Money coining into executors' hands for duty to be naid into Treasury.— livery sum of money retained by an executor, administrator, or trustee, or paid into his hands for the duty on any property, shaM be paid by him :orthwilh Into the Treasury of the Province, or as the Minister of Finance may appoint. 1894, c. 47, s. 16. 19. Duty oaid on property refunded by next of kin. etc.. to pay debts proved after distribution, to be repaid.— Where any debts shall be proven against the es- tate of a deceased person after the payment of legacies or dis- tribution of property from which the said duty has been de- ducted or upon which it has been paid, and a refund is made by the legatee, devisee, heir, or next of kin, a proportion of the duty so paid shall be repaid to him by the executor, ad- ministrator, or trustee, if the said duty has not been paid to the Minister of Finance, or by the Minister if it has so been paid. 1894, c. 47, s. 17, 20. Jndee may order persons to sbovr cause urby dn*v has not been paid. Practice.— If it appears to a JiiilKP that any duty accruing under this Act has not been paid according- to law, he shall make an order directing the persons interested in the property liable to the duty to appear before the Court on a day certain, to be therein named, and show cause why said duty should not be paid. The service of such order, and the time, manner, and proof thereof, and fees there- for, and the hearing and determining thereon, and tiie en- forcement of the judgment of the Court thereon, shall be ac- cording to the practice in or upon the enforcement of a judg- ment of the Supreme Court. 1894, c. 47, s. 18. 21. Costs of such proceedinR.— The costs of all such pro- ceedings shall 111' in the discretion of the Court or Judge, and shall be upon tlie Supreme Court scale, unless and until another tariff shall be provided. 1894, c. 47, s. 19. 22. Lieut.-Governor mfay make rules.— 'Ihc l^li utenant- Governor in Council may make regulations for carrying Into effect the provisions of this Act, which shall be published forthwith In the nritish Cohimbiib Gazette, nml such regulations shall be laid before the Legislative Assembly forthwltli, if the TiCglslature Is in session at the date of such regulations, and If the Legislature Is not In session, such regulntions shall be laid before the House within the first fourteen days of the session next after such regulations are made. 1894, c. 47, s. 20, 166 fiUCCESSIOX DUTY IN CANADA. SCHEDULE. Age. Expectation Years. Age. Kxpectation xears. Age. 50 Expectation Years. Age. Expectation Years. B7.64 25 38 44 20 51 75 6.66 1 5(5. 6J 20 37 65 51 19 84 76 6 17 2 55.04 27 36.93 52 19 17 77 5,85 3 53.09 28 3G.18 63 18.60 78 5.48 4 54 83 29 3r,A7 64 17.81 79 5.22 6 53.83 ;w 34.75 55 17.14 80 4 93 6 53 0« 31 34.04 56 16 53 81 4 (;i 7 52 07 32 3.3 30 57 15.90 82 4.36 8 nii 17 33 32.69 58 15 26 83 4 04 9 50.80 34 31.86 59 14.64 84 3.84 10 49.89 35 31.15 60 13 99 85 3.58 11 in 38 36 30.41 61 13 42 86 3.44 12 48 38 37 29.69 62 12.83 87 3.26 13 47. -iO 38 28 97 (!3 12 26 88 3 05 14 4(> GO 39 28 27 64 11.72 89 2.94 15 4.5.90 4(1 27.57 65 11 17 90 2.68 16 45 14 41 2-<.85 66 10 05 91 2 46 17 44,23 42 2C 14 67 10.12 92 2.25 18 43.39 43 25.42 68 9 61 93 2.34 19 42.64 44 24 69 (59 9 13 94 2 90 20 41 98 45 23 98 70 8 (!8 95 1,90 21 41 23 4U 23 27 71 8 16 96 1.06 22 40 ftl 47 22 57 72 7.65 97 1,00 23 39.84 48 21 89 73 7.24 98 0.80 24 39 15 49 21.20 74 6.83 !? f AN ACT TO AMEND THE "SUCCESSION DUTY ACT." (R. S. B. C, c. 175.) (G2 Vic. cap. 68.) [2r«/i February, 1899.'] Her Majesty, by and with tlie advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— 1. Short title.— This acl may be cited as the "Succession Duty Act Amendment Act, 1899." 2. Re-enacts s. 4.— Section 4 of chapter 175 of the Revised Statutes, 1897, is hereby repealed, and the following^ substituted therefor:— "4. Property liable to succession duty.— (1) save as afore- said, the following property shall be subject to succession duty as hereinafter provided, to be paid for the use of the Province over and above the prob&te dues prescribed in that behalf from time to time by law— " (o) Property situate in Province.— All property situate within this Province an'i any interest therein or income therefrom, whether the ileceased person own- ing or entitled thereto was domiciled in British Columbia at the time of his death, or was domiciled e'.sewhere, passing either by will or intestacy. The words 'all pro- perty situate within this Province* shall Include all poli- cies of insurance, wherever entered into, or wherever pay- able, and a;' mortgages upon property of any kind situate SUCCESSION DUTY IN CANADA. 167 or partly situate In thl3 Province, and all choses in action of whatever kind soever, wherever entereil into or wher- ever payable, all shares, stocks, bonds, debentures and other securities for money, no matter where the corpora- tion or other body issuing the same may be located, be- longing to the estate of any person dying in this Pro- vince, who was at the time of his death domiciled in this Province: "(b) Property voluntarily transferred in contempla- tion OF DEATH. — All property situate as aforesaid, or any interest therein, or income therefrom, which shall be voluntarily transferred by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, bargainor, vendor or donor, or made or intended to take effect in possession or enjoyment after such death, to any person in trust or otherwise, or by reason whereof any person shall become beneficially entitled in posses- sion or expectancy to any property or the income thereof: "(C.) DONATIONES MORTIS CAUSA OR VOLUNTARY DISPOSITIONS MADE WITHIN 12 MONTHS BEFORE DEATH, ETC.— Any pro- perty taken as donatio mortis causa, made by any person dying on or after the first day of May, A.D. 1899, or taken under a disposition made by any person so dying, purporting to operate as an immediate gift inter vivos, whether by way of transfer, delivery, declaration of trust, or otherwise, which shall not have been bona fide made twelve months before the death of the deceasetl, including property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift, and thenceforward retained to the entire exclu- sion of the donor, or of any benefit to him by contract or otherwise: "(d) Property transferred by owner to himself jointlt WITH some other PERSON.— Any property which a person dying on or after the first day of May, A.D. 1899, having been absolutely entitled thereto, has caused or may cause to be transferred to or vested in himself, and any other person jointly, whether by disposition or otherwise, so that the beneficial interest therein, or in some part thereof, passes or accrues by survivorship on his death to such other person. Including also any purcha ie or in- vestment effected by the person who was absolutely entitled to the property, either by himself alone, or in concert, or by arrangement with any other person: "(c.) Property passing under settlement.— Any property passing under any past or future setllement, including any trust, whether expressed in writing or otherwise, and If contained in a deed or other instrument effecting the settlement, whether such deed or other in- strument was made for valuable consideration or not as between the settlor and any other person, made by any person dying on or after the first day of May, A.D. 1899, by deed or other instrument not taking effect as a will, whereby an interest in such property or the pro- ceeds of sale thereof for life, or any other period, deter- 168 SUCCESSION DUTY IN CANADA. minable by reference to death, is reserved, either ex- pressly or by implication to the settlor, or whereby the settlor may have reserved to himself the right by the exercise of any power to restore to himself or to reclaim the absolute interest in such property or the proceeds of sale thereof, or to otherwise re-settle the same, or any part thereof: "Cf.) Annuities, etc.— Any annuity or other interest pur- chased or provided by any person dying on or after tl»e first day of May, A.D. 1899, either by himself alone, or in concert, or by arrangement with any other person, to the extent of the beneficial Interest accruing or arising by survivorship, or otherwise on the death of the de- ceased, "(2.) Particular description of property liable not to APFBCT GENERAL WORDS.— The descriptions of properties in clauses (c), (d), (e) aaid if) shall not be construed to restrict the generality of the descriptions contained in clauses (o) and {(*). (3.) Amount ok duty.— Where the aggregate value of the property of the deceased exceeds J25,000 and passes under a will, intestacy or otherwise, either in whole or In part, to or for the use of the father, mother, husband, wife, child, grand- child, daughter-in-law or son-ln-lan- of the deceased, the same, or so much thereof as so passes (as the case may be) shall be subject to duty as follows:— "For the first $75,000, or portion thereof In excess of 125,000, at the rate of $1.60 for every $100.00. "For the first $100,000, or portion thereof In excess of $100,000, at the rate of $2.50 for every «100. "For any sum in excess of $200,000, at the rate of $5 for every $100. "(1) V, here the aggregate value of the property of the de- ceased exceeds five thou.sand dollars and passes under a will. Intestacy, or otherwise, either in whole or In part, to or for the use of the grand-father, grand-mother, or any other lineal ancestor of tiie doop'-.sed, except to the father or mother, or to any brother or sister of the deceased, or to any descend- ants of such brother or sister, or to a brother or sister of the fatner or mother of the deceased, or to any descendant of such last-mentioned brother or sister, the same or so much thereof as so passes (as the case may be) shall be subject to a duty of five dollars for every one hundred dollars of tho value In excess of five thousand dollars. "(5.) Where the aggregate value of the property of the deceased exceeds five thousanr: dollars and passes under a will, Intestacy or otherwise, either in whole or In part, to or for the use of any person In any other degree of collateral con- HangnlnUy to the deceased, than l.s above deserllied, or to or for the use of any stranger In blood to the deceased, save as hereinbefore provided for the same, or so much thereof as so pa.sse9 ^as the case may be) shall bo subject to a duty of ten dollars for every one hundred dollars of the value In excess of five thousand dollars. "(G.) rRoviHo.— Provided that the dutle<« hereby Imposed shall bo deducted from the share of each pereon entitled to share 'n ■4 SUCCESSION DUTY IN CANADA. )6» the estate, according to the rate applicable as above to such person's share. "(7.) Pkoviso as to pkoperty BROuaHT INTO Province for ADMINISTRATION.— Provided also, that any portion of the estate of any deceased person, whether at the time of his death such person was domiciled in the Province of British Columbia, or was domiciled elsewhere, which is brought into the Province by the executors or administrators of the estate to be admin- istered or distributed in this Province, shall be liable to the duty hereinbefore imposed; but if any succession or legacy duty or tax has been paid upon such property elsewhere than In British Columbia, and such duty or tax is equal to or greater than the duty payable on property in this Province, no duty shall be payable thereon in this Province; and If the duty or tax so paid elsewhere is less than the duty payable on property in this Province, then the property on which such duty or tax has been paid elsewhere shall be subject to the payment of such portion only of the succession duty provided for in the preceding sub-sections of this section as will equal the difference between the duties payable under this Act with respect to property in the Province of Bi Itish Columbia and the duty or tax so paid elsewhere. "(8.) Penalty against executor or administrator who to escape payiuint of duty distributes estate without brinq- INQ SAME iNTC PROVINCE.— In case an executor or administrator shall, in order io escape payment of succession duty linpoaed by this Act, distribute any part of any such estate without bringing the .same into this Province, such executor or adminis- trator sliall be liable, personally, to pay to Her Maje"5ty the amount of the duty whicli would have been payable had the assets so distributed been brought within this province. "(9.) Bona fide transfers of property not subject to Act.— Nothing herein contained shall render liable for duty any property bona fide transferred for a consideration that Is of a value substantially equivalent to the property trans- ferred." 3. Conimenoemeiit.— This Act shall come into force on the first day of May. A.D. 1899. Reveuue.— 1894-5 .. I «19 33 1895-6 8,48160 189C-7 a,15« SI 1897-8 a.Slil HH 1899 (to 30th June) 1,909 08 Deoisioni-In rr Templet on, 6 B. C. L. K. 180. The jiroceedlnga horeln wore commenced by originating Bummons for an order that probate of the will in William Tem- pleton, deceased, be issued to his executrix, and for tlic detoi- mlnatlon of the question as to whether or not tht 8ucec8«ion Duty Act applies to Insurai'ce money.s where the Knme are specifically dlfiposed of under the policies, and also where policies wore made payable out of the Province, payment of the duty ha\lng been demanded by the registrar. Under R. S. B. ('., c. 173, It is provided (subject to certain .-^ 170 INSURANCE LAW OF CANADA. exceptions which need not here be referred to) that all pro- perty situate within this Province passlnff by will or intestacy shall be subject to a succession duty varying in amount to the scale laid down in the Act. The deceased, who, by his will had left everything to his widow, had, during hia lifetime, taken advantage of the provisions of s. 7 of the Families' In- surance Act, and by a writing identifying three of the policies by their respective numbers, had declared those three policies for the benefit of his wife; they tnerefore formed no part of his estate, and could not pass by his will, and accordingly were not liable to succession duty. There were two other policies payalde outside the Province, but the deceased at the time of his death had his domicile within the Province. Held.— That the proceeds of a life policy payable at death without the Province are not liable, in the hands of a bene- ficiary domiciled in the Province, to succession duty. The Act aims at projjerty having an actual situation within the Pro- vince, and not to property which can only be deemed to be situate within the Province by legal fiction. Insurance Law of Canada. BY CHARLES M. HOLT, Q.C., OF THE MONTREAL BAR. Author of Ilolt'a Insuraurc of Canada. 1. JuriHilictlon of Pailiamniit iii\(i Ii't;iHlatiir<'8i)f tliopro- VilU'CH. 2. Tlio ii|i|ili(iatloii. payinciit of pri'iiiium 1111(1 delivery of i)Olicy 3. Aciiiilunt insurance 4. Inlnrlni rci^oliilB 6. IiiNiirablo inlorest 6. IiiHuranci! by iiiortKadioM or liypcilluMiary creilitd"' .... 7. Iiiwiiniuce lor licneCt ot wlf" and cliildroii 8. Warrant li's and roprosont- atloiiH PAGE i) 111 170 11 I'J ITl l.'l 172 14 172 If) 173 in 174 17 175 IH 175 I'Aon Adilltional insuranoo 17.S Traiipfers hikI assi;»ninent(i. . 179 Agonts— tlioir powers aiul initios 180 Proofs of loss 180 Frimiinli'iit claims 1**2 Arhltratlon 182 Snii'ide anil death by hands of jnstlce 182 Limitation of rlKlit of action or preHoriptlon 183 Statutory ooinlitioiig 183 W iniling up of insurance com- panies 181 1. Jurisdiction of Parliament and Legialatnrea of the ProDinoe*.— The terms upon which li'surance business Is to be oarrleil on within iho pi»\ iiioiH Is la niatlcr i^nnliig ex- clusively within the powers of the local legislatures, and any such legislation by the Dominion would seem to be ultra vires. Tlius, although the Dominion Act hits properly regulated the qucslioii of the suporvlsiun of Insurance companies through the Superintendent of Insurance, tho deposits required under the Act, and the Hquldalion of Insolvent companies; the pro- visions It ontalns puri)ortlng to deal with tho foriri of condi- tions on policies and the effect of untrtie statements, mls-staie- INSURANCf: LAW OF CANADA. 171 ments of age, etc., seem of doubtful constitutionality, except In so far as they are also prescribed by provlncin' legislation. As we shall see later, under the proper heading, each of the provinces has its own legislation on these points, and these provincial statutory provisions should be looked to rather than the Dominion enactments. 2. The Application, Payment of Premium and De- livery of Policy.— 'i'he acceptance oi the application completes the contract; the policy is merely the expression and evidence of what has been agreed to. The ancient stringency of the common law required that corporations should contract under co/porate seal, and held that they could only thus contract. But this doctrine is now obsolete. The application tor Insurance upon which the In- sured's policy may be issued is treated as his part of tho contract. He must maljo such representations in answer to the fiuestlons put as are truthful and correct, to enable the company to judge of the quality of tho risk. Statements of an insurance agent prior to the execution of the policy are not admissible as against the Company to vary the terms of the written contract. Further, a policy obtained by fraud or by a breach of tho high degree of good faith required as between Insurer and assured belnit, only voidable, the pnrty defrauded, whether insurer or assured, must take steps to avoid the contract, or he %vlll be held by his quiescence to have assented to the con- triact and elected to treat it as valid. If the insurer discovers that he has been Induced by fraud to grant tho policy, and after such discovery accepts pre- miums and treats the policy as good. It would seem that he would thercnftpr be estojvpeil from denying its vallility, more esijeclally if ^o allows the policy to bo assigned to a bona fide holder for value. There are thiee courses open to the Insurer on discovering th.'V he has been induced to grant the policy through fraud of 1 he assived: To refuse tc receive further premiums and repudiate the contract after d covering the fraud; To seek cancellation of the policy, offering at the same time to return all premiums paid; if the i)ollcy has matured, by defending any action for re- CO i-y of the Insuruiice money. lire insurance the fact that property is insured for more thai! ts real value doi^^ not create a presumption of fraud. The I re8umi)tlon Is rather that tho o\er-valuation is In good faith. But if tho over-valuation bo grossly enormous it gives rise to a strong presumption of fraud. In tho old i>ollcles tho words "I am content with this assuran^'o" were Inserted as an iicknowledgmciit tliat the insurer was satlslli-d witli and would not lati-r dispute the sutllcli'Mcy of tin- pi'emluni. The adequacy of the premium, however, is now purely the Insurer's concern. Prepayment of the premium ts not in law a condition prccodonl to the makliiK of a complct*! contract of Insurance; I w i, 172 INSURANCE LAW OF CANADA. but It is the almost universal practice of Insurance companies (other than marine) to stipulate that the contract shall not begin to take effect until the premium has been paid. This stipulation is enforced by the courts, and they refuse to give effect to a contract where a loss has happened after an agree- ment to issue and accept a policy, but before the premium has been paid and the policy issued, or even when it has been delivered as an escrow. A person dealing with an Insurance agent may fairly assume that the agent is authorized to take a promissory note In pay- ment of a premium when the policy does not forbid it, and such person has no knowledge that the agent's authority Is limited. But when a policy contains provisions to the effect that it shall not be in force until the first premium Is paid, and that if a note be taken for the first or renewal premium, and not paid, the podlcy is to be void at and from default, the onus Is on the policy holder to prove cash payment of the premium. And when the company's agent accepts In payment of a pre- mium a promissory note which is not paid when due, there is no presumption that he should raise money thereon as agent for the assured, so that he may pay the premium out of the proceeds. When a company, having accepted a proposal for Insurance, signs and seals a policy which recites that the premium has been paid, the company cannot shew in contradiction of the terms of Its own deed that the premium has not in fact been paid Ir answer to a claim for payment of a loss. In Quebec there Is no doubt that where a month's grace Is given for payment of renewal premium, the death of the In- sured within the month and before payment of the premium will not prevent a valid tender of It being made by his repre- sentatives within the month. In Ontario, however, the judges of the Court of Appeal are divided upon this question, and It must remain doubtful until either the Supreme Court of Canada has pronounced upon It, or further legislation has made it clear. Of course, where the stipulation on the policy clearly gives the right to the representative, no difficulty can arise, and such a stipulation will bo enforced. It may be and frequently is stipulated that the non-payment at maturity of a note given for premium shall terminate the ■ risk, and the company still bo entitled to collect on the note; and the courts will enforce this clause, though the company have asked riaymont of the note without making a formal can- cellation of the risk. 3. Accident Insurance.— 1"he tickets Issued In some branches of accident Insurance, sold and delivered by an agent and paid for, give the owner a valid claim against the company, subject to the conditions on the ticket. 4. Interim Recelut«.— Interim receipts for fire Insurance, as the name Implies, are Intended to serve temporary purposes only; thoy are usually limited to a term siifllclont to enable the comi)any to decide as to the acceptance of the application or otherwise, and to jircpare the policy. They are issued In the Interest of the usured us a written evidence that he Is held INSURAXCE LAW OP CANADA. 173 covered pending the delivery of the policy, unless he is previ- ously notified by the company of their refusal to undertake the risk, or the receipt stipulates that such preliminary Insurance expires at the end of the period named therein without further notice. They are Interim contracts, legally binding on both parties, although not policies within the meaning- of that term In the Ontario Insurance Act, and when they are made subject to con- ditions of policy, according to the usual practice, such condi- tions ought to be read Into them, as far as they may lawfully be made a part of the palicy. 5. Insurable Interest.— Under the Civil Code of Lower Canada, a person has an insurable Interest in the object Insured whenever he may suffer direct and immediate loss by the de- struction or injury of it, and this is the common law. In England and the United States the earlier cases restrict the term "insurable Interest" to a clear, substantial, vested, pecuniary interest, and deny its applica/bility to a mere ex- pectancy, but the later decisions would seem to give a broader Interpretation, and allow an insurable interest to any one who either personally or as representing another has a reasonable expectation of deriving pecuniary ailvantage from the preserva- tion of the subject matter of insurance. The French law is, however, more restricted than the law in England and the United States. With regard to life Insurance, the Civil Code of Lower Canada, following the weight of foreign authority, declares that a man has an insurable interest in the life: (1) Of himself. (2) Of any person upon whom he depend.s wholly or in part for support or education. (3) Of any person under legal obllgatifm to him for the payment of money, or respecting property or services which death or illness might defeat or prevent the performance of. (4) Of any per.son upon whose life any estate or interest vested In the insured depends. And it decrees (in this also following the common law) that a policy of Insurance on life or health may pass by transfer, will or succession to any person whether he has an Insurable in- terest or not In the life of the i>erson insured. Mr. Cooke, In his American work on life insurance, points out that the doctrine of insurable interest In a life, tliough so perfectly established as to be fundamental, cannot find Justification in the rules applied to analogous cases. The supposition is that it Is contrary to public policy that one per- son should receive a benefit conditional upon the death of another, and that the temptation to destroy that other's Ufa must be balanced or counteracted by the existence of an in- surable interest in that other's life. But this expectation exists in the case of a legacy, a dower or a substitution or life tenancy, and the objection has never been applied to these coses. Further, if the doctrine had a sound logical basis, the cessa- tion of the insurable interest would cause the contract to become Invalid. The contrary Is the case. The reason given for applying a different rule to lire Insur- ance, viz., that it Is a contract of indemnity, i.^ not satisfactory, as it does not meet the objection. Under the common law it 174 INSURANCE LAW OF CANADA. would seem that no insurable interest in a life Is necessary, though the contrary annears to have been commonly supposed. The principle waa origirally based on the construction of the Qamblingr Act. The general rule is that the Insured must have an insurable Interest l^oth at the time of insurance and at the time of loss, but this is modified as to life policies. It has been held by the Supreme Court of Canada that if the assured ha statement In the application being untrue, unless such !IN ! ! 176 INSURANCE LAW OF CANADA. condition Is limited to cases in which such statement ds ma- terlial to the contract. And It has been held by the Supreme Court of Canada that, unless the application for Insurance la made part of the policy by insertion or reference, the state- ments in it are not warranties, but mere collateral representa- tions which would not avoid the policy unless the facts mis- stated were material to the risk. And even if the application be considered as forming part of the policy owing- to its being connected with it by verbal testimony, and if the statements In It are held to be warranties, still if the insured has only pledged himself to the truth of his answers so far as known to him and material to the risk, the result is the same whether they are warranties or collateral representations, and it is a question for the jury as to such knowledge and materiality. As a rule, when the application is referred to as forming a part of the contract, the statements therein contained are held to have the force of warranties. But courts are indis- posed to make a paper by rererence a warranty and part of the contract unless clearly obliged to. A mere reference to an application or survey in general terms does not make the contents warranties, but only repre- sentations. And in Canada, even though the application Is made a part of the policy, a misstatement or wrong answer will not in the absence of an express warranty avoid the policy unless it is material. Insurajice companies seem sometimes by indulging in over- caution, leading to the use of unnecessary stipulations regard- ing warranties, to defeat their own object. "Where the Insured declared that he answered to the best of his knowledge and belief, and omitted to state an accident from the results of which he was in bed five weeks, it is for the iury to say whether he wilfully withheld the facts or forgot them, or honestly thought them of too little consequence to be mentioned. In the absence of proof of bad faith the fact that the person insured did not disclose in the application that he had some years before suffered from a malady which was not shewn to have affected his constitution does not make the policy void. If there is the slightest room for doubt the courts will hold a stipulation a representation rather than a warranty. If the company accepts an Indelinlte or Insufflclent answer it will be construed liberally in favor of the insured, as when a question as to how the premises are occupied is answered "dwelling, etc.," this will be held as notice that a saloon is kept there. The construction is always conira profiirntcs, and the policy is prepared by the company. Where there is a discrepancy or conflict between printed and written matter in the contract the written portion prevails. The tendency of Judicial decisions in England, Canada and the United States Is to pay more regard to the policy and less to evidence of custom. The reason for this Is that policies, especially fire and life, are drawn with more care and skill than formerly, and have been corrected in accordance w.'tli decisions and made more distinct and precise with the growth of actufirlal experience. INSURANCE LAW OF CANADA. 171 Fire and life policies are drawn as lepal and not mercantllo documents, and there are not many cases In which they can be construed with reference to mercantile custom. In short, it may be said that it has been found diffleult to determine how far strict accuracy is to be exacted from the Insured in the statements made by him at the time the insur- ance Is effected. To meet this difficulty special legislation has been enacted by the Dominion Parliament (the constitutionality of which is doubtful) and by the legislatures of Ontario, Que- bec, Manitoba and Britisli' Columbia. We shall consider the effect of each of these enactments seriatim. Under the Insurance Act of Canada no condition or stipulation or proviso modifying' or impairing the effect of any policy or certificate of life in- surance issued after 1st January, 188C, by any company doing business within Canada under the authority of the Parliament of Canada shall be good or valid unless such condition, stipula- tion or proviso is set out in full on the face or back of the policy. And no policy or certificate shall be avoided by reason of any statement containeil in the application therefor being untrue unless such condition is limited to cases in which such statement is material to the contract. And where in any contract of life insurance entered into with any company licensed to carry on business in Canada under the i)rovisions of the Insurance Act of Canada the age of the person whose life is insured is given erroneously in any statement or warranty made for the purpose of the contract, such contract shall not be avoided l)y reason only of the age being other than so stated or warranted If It appears that such statement or warranty was made In good faith or without any Intention to deceive; but the person entitled to recover on such a contract shall not be entitled to recover more than an amount which bears the same ratio to the sum that such person would otherwise be entitled to recover as the premium proper to the stated age of such person bears to the premium proper to the actual age of such person, the stated age and actual age being both taken, as at the date of the contract, but in no case shall the amount receivable exceed the amount stated or indicated in the contract. As has been pointed out, the constitutionality of these pro- visions is doubtful. They seem ultni rinw of the powers con- ferre material to avoid the contract. As to error in at?*', the Ontario LeR'.slature has enacted a provision similar to that of the Dominion Act. Under the Civil Code of Lower Canada the insured is obliged to represent to the insurer fully and fairly every fact which shew.s the nature and extent of the risk, and wliiih may pre- vent the undertaking of it or affect the rate of premium. But representations not contained in the policy or made a part of it are not admitted to control its construction or eflect. The contract of life Insurance is iihu-itmu; fldvi, but the insured is not obliged to represent facts Itnown to the insurer or which from their public character or notoriety he is pre- sumed to know, nor is he obliged to declare fa«ts covered by warranty express or Implied except in answer to inquiries made by the insurer. Misrepresentation or concealment either by error or design of a fact of a nature to diminiKli the appreciation of the risk or change the object of It is a cause of nullity. The contract In such case may be annulled alihougli the loss ha.s not in any degree arisen from the fact misrepresented or concealed. Fraudulent misrepresentation or concealment on the jiart of the Insurer or insured is in n^\ cases a cause of nullity of the contract in favor of the ' ent party. The obligation of tlie in. od with respect to representation is satisfied when the fact is substantially as represented, and there is no material concalment. As to error In age, the Quebec enactment is thait tlie declara- tion in the policy constitutes a warranty upon the correctness of which the contract depends. In view of this Quebec enact- ment the question of the constitutionality of the r>ominion enactment is of importance. ]t would seem that the Dominion I/eglslation must be held ultra vires, and that in Quebec error in ago is a cause of nullity at present. Relief from this onerous position can be obtained only by the future intervention of the Quebec Degislatin-c. Manitoba and British Columljia have enacted legislation similar to that of the Ontario statutory conditions above referred to. As we have seen in cases regarding ii'liclcs governed by the Statutory conditions, the distinction between warranties and re- presentations so much discussed ceases to have much practical significance. Whether warranty or representation it does not forfeit the contract unless material. 9. Additional Insurance.— The general doctrine that a previous or subsequent innurance without notice under a policy requiring notice of such insurance upon pain of forfeiture dis- charges the insurer from any obligation to pay for a loss hap- pening under such circumstances is well settled and universally recognised. That this should be the effect of the concealment or failure lo give notice, as the case may be, Is not only a part of the contract and obligatory upon that ground, but the forfeiture is just and reasonable. The insurer can never know the extent of his risk imless he knows everything thai bears upon it. Additional insurance no doubt increases the risk. Owners of different interests In the same property, how- INSUKANCE LAW OF C.l.VlD.l. 179 ever, and joint owners may respectively Insure their interests without risk of violating the provisions against double or ax:l- ditional Insurance. The problem of two policies each containing a provision against other Insurance has g!\ n rise to a number of contra- dictory divisions in the United Stales. It Is settled in Canada, however, that the question is simi)ly whether ..ou'jle Insurance has (/'' fuc(o existet', and tlie fact that a policy U voidable at the discretion of the insurer will not prevent its being invoked as a violation by the other insurer as long as it hais not been actually voidetl. Where the policy requires the company's consent in writing to double Insurance the courts seem to have become m^re liberal in favor of the assured than formerly, and there is a tendency in the modern cases to liohl the notifp given to the company or its aj^ent to which no objection i^ made as estopping the company from afl' rwards insisting on a forfei- ture of the policy for want of their consent in writing,'. In the absence of any special inquiry or condition as to additional Insurance there is no obligation on the insured to refer to It. The condition is strictly construed, and if it read that other insurance on any hotixf or huihling insured must be notified without delay, insurance on goods need not be so notified. In a recent case, the Supreme Court of Canada laid it down that over insurance must be put a stop to as much as it is in the power of the courts to do it. The jinlges considered that therein lay one of the greatest sources of fraud in connection with the insurance liusiness. If the assured is not in part a co-assurer with the company, that is to say, if the parties to the contract have not common interest in the preservation of the property insured, one of the most efficient safeguards against fraud and crime is removed. Any such contract where the assured miurlit expect to make a profit liy tlie destruction of the property assured Is in law tainted with immorality. The insured is not relieved from giving notice of a prior insurance by the fact that the first insurance expires in ai few days, and that he does not intend to renew it. The Ontario Insurance Act, the Manitoba Fire Insurance Policy Act and the British Columbia Pire Insurance Policy Act contain statutory conditions declaring fire policies null if there is a prior or subsequent insurance without llie company's consent, unless the company has had notice and has not dissented within two weeks of such notice. In practice, while double insurance is usually stipulated against, the companies do not appear to Insist upon the in- validity of policies where double insurance is effected without notice, but without fraud. In these cases each company con- tributes rateably. lO. Transfers and AssiKniuents.— In Ontario, Manitoba and British Columbia, by statutory conditions, If the property insured is assigned without written permission of the company the policy becomes void, except in cases of change of title by succession, by operation of law, or by reason of death. In Quebec a transfer of the insured property renders the policy void unless done with consent of the company, but the i : i!i 180 INSURANCE LAW OF CANADA. policy may always be assigned with the thing Insured, subject to the conditions contained In It. Fire policies may be transferred to those only who have an Insurable Interest, but life policies may be transferred to parties having no Insurable Interest. In Ontario, however, the interest of the assured In a policy of Insurance upon chattels lay before loss be validly assigned by him to a person who has no interest In the chattels at the time of the assignment, the assured remaining owner of the chattels. 11. Aeents, their Powers and Duties.— The large powers given to insurance agents In the United States, where, In many cases they represent their companies for all the purposes of an Insurance business, and can therefore bind them to an almost unlimited extent within the scope of such business, have caused the American cases to be considered unsafe guides In England, where powers of a much more limited character are given to the local agents of insurance companies. In Ontario, Manitoba and British Columbia by statutory conditions any officer or agent of the company who assumes on behalf of the company to enter Into any written agreement relating to any matter connected with the insurance Is deemed prima facie to be the agent of the company for that purpose; but no condition of the policy in whole or in part shall be deemed to have been waived by the company unless the waiver la clearly expressed In writing signed by an agent of the com- pany. It may be said generally that the .local agent of an Insurance company must be treated as their officer to communicate with persons respecting Insurance, and what he says or does in that capacity within the proper iMunds of his authority must be held binding on the company. 12. Proofs of Loss.— The law In Quebec is that notice must be given within reasanable time or as stipulated 'n the policy, unless suc^ stipulation be waived, or unless It is im- possllde for the assu."ed to give notice or make the preliminary proofs within the deltiv specified. In which case he may take reasonable time. In Ontario, Manitoba and British Columbia, where, by reason of necessity, acoif.'ent or mistake, the condition as to proof has not been strictly complied with, or where after a statement of iiroof of loss has been given in good faith the compan.v objects to the loss on other grounds than for Imper- ."pct onmplianco witli the condition, or does not within a reason- able tlnie objects, giving particulars of the defect, they will not bo allowed to plead non-compliance as a discharge of their liability, and the court has the power to declare such forfeiture Inequitiiliie in any case, and may refuse to allow it. It would appear that this provision is intended to apply to both the time of delivery and the Insufficiency of the proofs of loss. It has been held in Quebec that the person to whom loss is payable can give as valid a notice of loss to the Insurer as the owner can. But the contrary rule prevails In Ontario, Manitoba and British Columbia; except that. In British Colum- INSrRA\Cf: LAW OF CANAI>\. 181 }>la, proofs of a loss may be made by a mortgagee to whom the polii'y is payable with company's consent; and In Ontario a morigaRi (' with whom the company has dealt as such may brinK an action against them, notwithstanding the statutory condition. It has been further held in Quebec that, when the loss under a policy of fire insurance on proods Is made payable to a party other than the person who effected the insurance, and such third party becomes owner of the goods, by a transfer to him of the warehouse receipts of such goods, such third (larty be- comes thereby the party Insured, and can, therefore, legally maKf all necessary i)reliminary i)roofs of loss. The much disputed (juestion of wai'c-i of proofs on the part of the company or those acting on n" behalf lias received much attention from the courts, both in Canada and the T'nited States. Its importance has been fully recognised, and the courts seem to have endeavored to enforce not so much the letter of the law as to ascertain the spirit which prompted tho enact- ment of the legislative safeguards thrown about the contract of insurance. A refusal to pay on other grounds is not a waiver of insufficient notice of death. This was formally de- cided by the Supreme Court of Canada, where the jtolii-y pro- vided, inter alia, that "in the evenc of any accident or Injury for which claim may be male under the policy, immediate notice must be given in writing, addressed to the manager of the company at Montreal, stating full name, occupation and address of the insured, with full particulars of the accident and injury; and failure to give such immediate written notice shall invalidate all claims under the policy." The refusal by the company to entertain the loss of the Insured has been held by the (^ourt of Appeals in Quebec to be a remuiciation on their part of their right to exact details of the loss before suit. And in another Quebec case it was held that a condition of the policy, requiring a particular statement thereof to be delivered by the insured, within fifteen days after a fire, was waived and dispensed with by a distinct denial of liability, and refusal to i)ay on the part of the company made before the period for furnishing proofs had expired. In another Quebec case it was ruled that a condition in a policy of insurance to the effect that all persons insured shall, u soon after a fire as possible, deliver in a particular account of their loss or damage, is waived by the fact of the agent of the company, and the person insured, each choosing valuators who make a valuation of the loss, and by the fact of the com- pany offering the assured a less amount than the valuation in settlement, showing that they disputed the amoimt to be paid only. The owner of a stock of goods destroyed by fire is entitled to receive from the insurers only the actual cash value of the goods, which value is represented by a sum equivalent to the cost of replacement. The liability of the insurers is not In- creased by reason of the fact that the assured had before the fire contracted to sell the goods destroyed, and that he could not replace them In time to carry out his contract. t-ii m 182 INiSURANCE LAW OF CANADA. u 13. Frandulent Claims.— In Ontario, Manitorja and Brit- ish Columbia, any fraud or false statement in a statutory de- claration settlngr out proofs of loss, vitiates the claim. There is ' o similar provision in Quebec, and unless stipu- lated it woulii not iiave that effect there; but when stipulated. It will be enforced. Where an insurance policy is to be forfeited if the claim is In any respect fraudulent, It is not essential that the fraud should be ''rectly proved, it is sufficient if a clear case is established by presumption or Inference or by circumstantial evidence. And the assignee of the policy cannot recover on It, if fraud is established ag-ainst his assi{rnor. 14. ArbitrRtion.— Under staitutory conditions .n Ontario, Manitoba and British Columbia, if any difference arises as to the value of the jiroperty insured, of the property saved, or of the amount of the loss, the'same is, whether the right to re- cover on the policy is dlMputed or not, and independently of all Other questions, to be submitted to arbitration. There Is no such staitutory enactment in Quebec. Under the common law the courts have not "hitherto favored an attempt to oust them from their jurisdiction, and to sub- stitute a tribunal erected by the parties for the tribunal which public policy and ilio general laws have established and clothed with the requisite powers to make them the efflclent ^nd, upon the whole, the l)est means of hearing and determining contro- versies between Individuals. While, however, it is perfectly well settled that under the common law any agreement thai contemplates the exclusion of an aggrieved (lariy from a unit of law is invaliil, there seems to be no doubt tliiit any agreement as to the mode of adjust- ment or (if settling the amount of loss, or the time for paymg it, or any particulars of that nature, which do not go to the root of. the action, but are preliminary thereto or In aid thereof, as, for Instance, an asreement that at the trial of an action it shall not be lawful for either party to eater into thejquesllon of the amount of the loss, but that it shall always he settled by, reference, and that the only ciuestlon to be tried at law shall be the right to recover, is perfectly valid and legally binding. 15. Suicide -xnd Death by the Hands of Justice.— Insuromce effected by a i)erson on his »own life Is void If he dk^ bv the hands of justice, by duelling or by suicide. Upon the question of voluntary suicide, intentionally commit- ted b> a sane man In the possession of his faculties, knowing how to adeipt means to t'uds, and conscious of, the Inmiirallty of the act, ihci-t' is not any difference of opinion, and all author- ities a*rree that such, a suicide is within tlie exetnpliou and that the act voids the policy. All the author'tles likewise agree thai an accidental death, as by taking poison by mistake, or shooting oneself with a pistol supposing It not to be loaded, or falling from a building, or death happening In any way by the unintended act of the party, dying. Is not within the exemption and does not void the policy. nut whether suicide by an Insane man Is also within the INSURANCE LAW OF CANADA. 183 exemption, has been a qu stion in dispute, and upon this two prominent and different doctrines have been maintained. On the one hand, it Is maintfLined that if the act l»- volun- tarily done in pursuance of an intelligent purpose, and Inten- tionally and intelligently carried out by the proper adaptation of means to ends, It is suicide on the part of the insured or death by his own hands, although insanity exists to such an extent that he may not be able to appreciate the moral qualities of the act. On the other hand, it Is maintained with etiual rigo'ii" that however intelligently the act miiy be done, if at the time the will be overpowered by an uncontrollable impulse, or the in- sured be unable, to appreciate the moral character of the act. It is not within the meaning of the provision. The question has ,,'jt formally been passed upon by the Canadian .Courts. It would pr ."ably be largely one for the Jury, who would be called upo find upon all the facts sub- mitted whethfT or not ilie !»• :i d had violated the terms oi the policy. , 16. Limitation or Prescription of Action.— In On- tario, Manitoba and British Columbia by statutory conditions, actions upon a Are Insurance contract are absolutely barred unless commenced within one year from the loss. In Quebec, there Is no such limitation unless It Is stipulated in the policy. It was formerly held that such a stipulation was inoperative, but this decision has been over-ruled. The Quebec Court of Appeals in 1S8I! appeared to have doubts as to its validity; but in the following year they hold It valid, and this last decision was conliimed by the Supreme Court of Canada. The object of the condition is not to foreclose it rig-ht and prevent a resort to the proper tribuhal, but to comjiel a speedy resort and a termination of the controversy while the facts aro fresh in the recollection of the parties and witnesses, and the proofs accessible. Claims made after they have become stale Involve copslderi.ble diKllciilty. Any acknowledgment of the clairi or promise to pay It will oper.ale as an iiitcfruption of thr- prescription. Where there is an alssolute refusal of the claim, th" usual Stipulation in the policy that It la payable only after 60 days ie waived, and suit may be taken before the expiry of the 60 days. 17. Statutory Conditions.— In Qnebec (as In the other provinces until statntnry conditions were f-nacted in some nf them) any condition, however hard or unreasonable, may he endorsed on a pclicy, i)rovlded always thai it be not contrary to public order or good morals. Under the Ontario insurance Act, the Manitoba Fire Iiisuratici' Policy Act and thr> liritlsh Columbia Fire Innurance Policy Act, 1893, statutory conditions are enncted which are di'emed as iLKalnst the insurers to be a part (if evi'iy lire insiu'anci' ediitract entered into subMequcnt to those statutes or renewed or otherwise In force In those pro- vinces. lill ;,! 184 INSURANCE LAW OF CANADA. There are as yet no statutory conditions in Quebec, thougli the Civil Code o1. Lower Canada contains some of the enact- ments found amui.g the statutory conditions of the other pro- vinces. An analysis of these statutory condiitlons shows clearly tho protection they afford to the insured, and their enajctment In Quebec would seem well worth the consideration of the leglflature of that province. These condiUon.s were carefully drawn in Ontario by Mr. Hunter, and their enactment there seems to liave served as a basis for their adoption in Manltolja and British Columbia. 1 ; 4 18. Winding Up of Insurance Companies.— The pro- visions of the Dominion Winding- Up Act apply to all foreign companies doing busines.s in Canada as well as to Canadian companies, and where a foreign company is in liquidation abroad it may still be wound 'ip here under the Dominion Act, the effect of '.iio winding up here beins to entitle tlie liquidator heve to realize the assets and after paying the creditor- (not merely creditors within thi.s jurisdieliuii, but all creditors) to remit the balance, if any, of the assets t ) the foreign liquidator to be applied and distributed as may be there directed by the proper forum. In other words, the winding up in Canada I.'* subsldiiary and ancillary to that Instituted in the forum of the domicile of the corporation. Under the Winding V\) Act, befor-^ mendment, the Supreme Court of Canada doubted the oonstkatlonality of Canadian legislation dealing with tlie winding up of foreign companies, but slnco the amendment, and as the Act stands to-day, there can be no doubt concernlnji its constitutionality and its applica- tion to foreign companlfs. The Dominion Winding l p Act provides for the compulsory liquidation of companies on the application of creditors. The Winding Up Amend'nent Act, 18S'J, provides for the voluntary winding up at the instance of shareholders. The expression "Insurance company" in tlie Winding 'Jp Act means a company carrying on either as a mutual or a stock company the business of insrrance, whether life, fire, marine, ocean or Inian.l .narlne, accident, guarantee or other- wise. The Dominion Wlnd'ng Up Act, howaver, does not supersede the Ontario provlnciui legislation regarding tht appointment of a receiver. There is no general rule that a receiver already appolr.ted must J)o displaced by a liquidator under the Wlndilng T'P Act, but the receiver Is usually named liquidator, and conversely, where a receiver la applied for after the liquidator has been appointed, the liquidator is usually named receiver. The Notarial Profession in the Province of Quebec. G. R. LIGHTHALL, Notary, NEW YOSK LIFE BUILDING, MONTREAL, NOTARIES. The posltlijii and functions of Nolailoa In the Province of Quebec are unique, and not generally understood, except by those who have residL-d lor ii, c.piisldeiabli; time in that I'ro- vlnce, and have had sutllcient legal work to come In contact with the profession. The Quebec Notary occupies a similar position to that of France, and one totally different from the ofllclal of similar name under I]ngllsh an( American laws, who merely protests notes. The notarial professlor here Is separate and distinct from that of Its brother In the law, the Advocate, and the two pro- fessions cannot be practised by the same person. While a profession. It partakes also of the character of a public ofllce. Before the aspirant may Inscribe the honorable atllx of N.P. to his name, he must possess a University B.A. Degree or Its recognized equivalent, or Is obliged to pass a preliminary examination before the incorporated Board of Notaries to show that his educational quallllcations are sufllelent to allow him to enter as a student In a notary's office for a period, and at tho end of thU time (which Is five years, or shortened to four or three years, provided tliat he has und: for any fees for drawing up and preparing writings under private seal affecting immoveables and requiring registration. Que. 46, c. 32, a. 14. NOTARIAL DEICDS. Notarial deeds and copies thereof certified by the Notary are considered authentic of themf3ilvt3, and make proof of their contents in law. Que. 46, e. 32, s. 33. A deed en bnvvt is one which is completed by the signatures of the parties and that of the notary, and delivered to the parties. Of these certified copies are not granted by the notary. Only certain simple deeds may be made en bnvft. Que. -.6, e. 32, S3. 74, 75. A deed en minutv is that which a Notary exeuute?; and retains In his office, and he may deliver copie" : hereof or extracts tii'^refrom. Notaries are bnund to kei ' originals of these deedH, which are numbered con3ecutivc..y. Que. 46, c. 32, ss. 56 to 59. They cannot change, suppress, destroy, nor allow the originals ot deeds exfouti'd cu niinutr out of their possession. Changes can only be made by a.>iother deed. Que. 46, c. 32, ss. 60, 01. On payment of their lawful foes, they are l;ound to give copies and communication of deeds to those entitled to them. Que. 46, c. 32, ss. 17 and 67 to 73. Only the notary and thi' prothonotaiy who Is the custodian of llie originals can grant valid copies of a notarial deed, and .suili (■f)pii.'S duly eerlitled by the notary make pi'oof of the original and of the signatures thereto. Que. 33 Vic, c. 23, ss. 1 and 2. Certain deeds are not valli' unless executed c>i m'.nutr before notaries, such as Marriage Contracts, Inventories of Estates and Sueee.Msions, liypotheos on Real Estate. D>nallons, De^ds of Sale tinder selgiilotial tllUfl (savo In the District of Gaspe). etc. The deeds and records of a Notar'y ceasing to practise his profcpsloii must ln' trunsferred to another practising Notary. or to tha Viothonotary of the Superior Court, and tt the end of 50 years must go into tlie ofTiee of thn Prothonotary. Que. 40, c. 32, ss. 78 to W;.. Notnrie.s nve flubjech to severe penalties for any Infraction of the rules regarding the profession, eBpeclally In oases of fraud. Qtjc 46, c. 82, i:»8. 231 to 234. Private Bill Procedure Dominion Parliament. CONDKNBKU RULiES IN Rtl NOTICKb FOK rUlVATi'; B1L,L,S. All applications for Private Bills, properly the subjects of legislation by the I'arliament of Canada, within the purview of The British North America Act, 1807, for granting to any indi- vidual or Individuals any exclusive or peculiar rights or privi- leges whatever, or for doing any matter or thins which, In Its operation, woui.i affect the rights or prop^^Tty of other parties, or relate to any particular class of the community, or tor making any amendment to any former Act, shall require a notice clearly and distinctly specifying tho nature and object of the application; such notice (except In the case of existing corporations) shall be signed by, or on behalf of the applicants, and be published as follows, viz.: In the Provinces of Quebec and Manitoba.— In the Canada (lozittr, in tho English and French languages, and In one newspaper In the Kngllsh, and In one in the P^reiich language in the District affected, or in lioth languages in one paper, if there be but one In the said District, or If there be no paper published therein, then, In both languages, in a paper in tho nearest District in which .a newspaper is published. In any other Province or Territory.— In tho (Utnada Qaeittr, ami in one newsjiap ■)• piiblislioil \\\ tlii' County or Dis- trict, or L'nion of Counties affected, f)r if there be no paper pub- lished therein, then in a newst)apor in the nearest County or District In which a newspaper Is published. Such notices shall be continued in each case for a period of at least two months during the Interviil of time between the clos > of the next pre- ceding Session and the consideration of the Petition. Marked (>opies of all the newsi)!i piTs containing' til'' llrst and last In- sertion of such notice shall be sent to the Clerk of tho House, endorsed ".\pplleatlon for a I'rlvat'' Bill." When a I'etlllon is for leave to bring in a Private Bill for tho erection of a Toll Bridge, til • p'tltloners shall a'so, at tho same time and In the same manner, give notice of the pro- posed rates of toll, the extent of the i)rivllege, tiie height of the arches, the Interval between the abutments or pters for the passage of rafts and vessels, and, If a drawbridge, tho dimensions of the snme. Any person seeking to obtain a Private Bill shall, at least eight days before the me -ting f)f Parll iment, dop islt with the Clerk of tho Mouse, In which the Bill Is to originate, a copy of such Bill In tho English or French language, with a sum sulllclent to pay for transi.itlng and printing th(> same. Tho applleaiil shall alsr), after the soeoml reading, and before the eonsiderailon of the Bill by any Conuniitee, pay the Clerk of the Senate, or tho Accountant of tho Iloune of Commons (as the case may be) a foe of 1200, and a sum suttlelent to pay tho cost of luintlng the Act In the Statutes, and lodge the receipt of tho same with the Clerk of the Committee to which such Bill !.i referred. ;'ll i. ■X i ; i ! ' . ! \A -p-» I 1 M I I i l88 PRIVATE BILL PROCLnVRL The fee of $200 payable on any Private Bill is paid only in the House In which such Hill originates; but the charges for reprinting and translation conse(iuont thereon are paid in the House in which .•uch charges are Incurred. No I'etltlon for, a l^rivate Bill is received by the Senate or by the House of Commons after the tlrst three weeks of the Session. No, Private Dill may be presented to the Senate or to the House of Commons after the first four weeks of the Session. EDOUAltD J. LANGEVIN, Clerk of the Senate. JOHN GEORGL: BOURINOT, , Clerk of the Commons. SPECIAL. RULE OF THE SENATE. 49. (c.) Vv'iien a Bill is to operate in more than one Province, Territory or District, the notices shall he ijublished in the Canada Oaxrtlc, ;ind in a leading newspaper published in each Province, Territory or District in which the Bill U to operate. EP .'HARD J. LANGEVIN. Clerk of the Senate. ADDITIONAL RL'LIOS OF TUP, HOUSE OF COMMONS RESPECTING PRIVATE BILLS. All Private Bills for Acts of Incorporation shall be so framed as to Incorporate by reference the eUiuscH of the General Acts relating to the details to bo provided for oy such Bill;— special grounds shall be established for any proposed departure from this principle, or for the introduction of other provisions as to such details, and a note shall be appended to the Bill indicating the provisions thereof, in which the (hniral A'-t is prvlsed by th- proper otilcer shall b> so printed, and Bills wi. 'ch are not In accordance with this Rul(> shall be re- turned to the i)roinniers to be roca'^l before beltig revised and printed; (h.) Any sections cif existing Acts which are proposed to Vie amended shall be printed in full with the amendments Inserted In their projier jilaces and between brackets; (c.) Any exceptional pr.) visions that It may be propoaed to insert In any Hill shall be clearly speclfleil in tho Notice ot Application for the same. Slf). No Bill for tho Incorporation of a Railway (Company, or for changing tho route of the railway of any company DOMINION PARLIAMENT. 189 aheady incorporated, shall be considered by tlie Railway Com- mittee until tiiere nas been liiod with the Committee, at least one week before the consideration of the Bill: — (a.) A Map or Plan drawn upon a scale of not less than half an inch to the mile, showing tiie location upon which It la intended to construct the propjsed work, and showing also the linos of existing or authorized works of a similar character within, or in any way affecting the district, or any part thereof, which tlie proposed work is iaitended to serve, and such map or plan shall be signed by the Engineer or other person making the same; (6.) An exhibit showing the total amount of capital proposed to be raised for the purposes of the undertaking, and the manner In which it is proposed to raise the same, whether by ordinary shares, bonds, debentures, or other securities, and the amount of each, respectively. JOHN GEOKGE BOURINOT, Clerk of the Commona. SPECIAL ORDER OP THE HOUSE OP COMMONS. Resolved, That the Clerk of the House do have a copy at the new rule 49 sent to those persons giving notice In the Canada Qazntte of their intention to apfviy to Parliament for the passing of a Private Bill, together with a notification that the said Rule will be strictly adhered to for- the future. — 49. Petitions for PH"^ ».te Bills >ihall only b<» received by the House within the first litrre wn'k/i-s i>i' the session, an«l Private Bills .-.ay only Iw presensed to the Houi^e within the first four tceeks of tht session, and it s*»all be the duty of any Com- mittee to whlck any Private BtU may be referred to consider and report the same to the HouT««e with rU convenient speed. 2. That it be ;in Injttructlon to all Committees on Pri\ate BtUs, in the event of promnt'Ts not being ready to proceed with their measures when the sumo have been twice called MM ttro Hviuiratr nrrnnie withdrawn. JOHN GKi»RUK BOURINOT, Clerk of the Commnmt. SUBSTANCE OF RITI.ES OF THE SENATE RELATlNO TO NOTICES AND APPl.KWTIoNS FOR BILLS OV DIVORCE. Every applicant for a Bill of Divorce shall give notice ot his or her intended application, and shall specify thnrein from whom add for what caiiso such divoree Is soumIiI. and shall cause such notice to bo published during six months before the presentation of his or her petition for the said Bill, In the I'diKKlii (Ifiiittr iuul in iwo newspapers published in the District In Quebeo, ManJtoha, British Columbia or the North-west Ter- ritories, or In tht> t'ounty or Union of Counties In other Pro- vinces, wherein such applicant usually resided at the time of the separation of th(^ parties; but if the n^'qiilslte number of liil ii . 1' , ... I ;'; ■i HI 190 PATENTS, TRADE MARKS AND COPYRIGHTS. papers cannot be found therein, then In an adjoining District or County or Union of Counties. Notices given in the Pro- vinces of Quebec and Manitoba are to be published in one Kngdlah and one French newspaper, If there be such news- papers published in the District, Ijut otherwise shall be pub- lished in each newspaper in hnth languages. A copy of the said notice shall, not lesa than one month before the date of the presentation of the petitioi,, at the in- stance of the applicant, be served personally on the person from whom the divorce is sought, when that can be done. No petition for divorce shall be received after the first thirty days of each session. The petition of an applicant for divorce must be fairly written and must be signed by the petitioner, and should briefly set forth the marriage, when, where and by whom the ceremony was performed, the ground.^ on which relief is asked and the nature of the relief prayed, luid should also negative condona- tion, collusion and connivance. The allegations of the petition ttiuat be verified by d«>la)ratlon of the petitioner, under the rdliiMla Evidence Act, J803. 'J'he applicant .shnil deposit w/fli the Clerk of the Senate, eight days bel'ore the opening of Parliament, a copy, in the Kngllsh or J^rench Innguage, of the proposed Bill of Divorce, and therewith a pum sufficient to pay ^pr translating and printing GOO copies thereof in English nnd *00 ropics )n Fri^nch. Epitome of Canariian Law of Patents, frade Marks, Designs and Copyrights. IM!i:rAI(KI) IIY HANBURY A. BUDDEN, B.A., P.CL, Advocate, Montreal "ar. Foreign Member of the Chartered Institute of patent Agents, hondon. Registered Attorney No. 1088, Patent ojflee, Washington. Assoeiatc of CanmlUin Society of Civil Engineers. NEW YORK LIFE BUILDiNO, MONTREAL. PATENT LAW AND PRACTICE. Hlstcrj-.— The earliest legislation on Patents In what Is now the Dominion of Canada is found In 4 Geo. IV, c. 25. (1823) Ij.C, which was enacted in Upper Caiuula by 7 Geo. IV, c. Ci, (1828) U.C. The first Act after the union of those Provinces was 12 Vic., c. 24, (1849) Canada. In New Brunswick, the earliest Act was 4 Wm. IV, c. 27, (1S34) N.B.. and in Nova Scotia. 3 Wm. TV, c. 45, (183.^) N.S. Under Confederation the I'ateni Otllce was established by 32-33 "Vic, c. 11. (1869) Can. PATENTS, TRADE MARKS AND VOPY RIGHTS. 191 The present Act was passed as Chapter 61 of the Revised Statutes of Canada, 1886, to which there have since been added at various times amendments. The Law and Practice, which are substantially similar to that of the United States, had their orig-in in the system adopted by that country, in 1790, by 1 Statute 109, c. 7, and sub- sequent Acts. The Patent Office Is a branch of the Department of Agriculture, and the Minister of Agriculturi' is the Commis- sioner of Patents. All moneys received are paid over to the Minister of Finance and Receiver General, and form part of the Consolidated Revenue Fund of Canada. The olllcers and clerits are appointed by the Governor in Council. What is a Patent.— it is a contract between the Govern- ment and the Patentee, granting to the latter the < ' I'lusive property in an invention tor a certain period, in consi itration that the applicant for a patent shall disclose a patentable in- vention, and fulfil all the requirements of the Act and Rules In his application for anJ maintenance of such Patent. Patentable Invention.— Any invented now and useful art, machlnt^, manufacture or composition of matter, or any Invented now and useful improvement in any art, machine, manufacture or composition of matter. £?xct'p«io;is.— Inventions with illicit objects, mere scientific prineiiJles, or abstract theorems. iNVENTio.v.— An addition to existing knowledge, which pro- (luci ■ 'Mi' r a new or useful thing or result, or a now and use- '"' J producing an old thing or result. Jjit fLtalt if or/Jinary skill or judgment alone would not be Invention. Simpllcliy la not an objection. Kuyy,—rp)i& Invention must not have been known or usiij 1.- ^t^( r person before being invented, and must not have br, dhp or on sale with the owner's consent ni'"' the Canadian anoHcatlon. i 'lave been public, if only secret It would no .' Queen vs. Laforce, 4 Kx. Ct. R., U. Eperlmental use la ir Publication or the Issui or j/n./; ny where more than one year before application, will Inlerffc w;ih the novelty of an Invention. Utility.— The utlMty need not bo very jrreat. Subject Matter. "Aicr." An i.ga or metliod may bo descrlbeO as an act or Merles of at id jfrrformed upon the subject matter to lie transfornifd nnd ro,-1tjrrd to ;i different state or thing. The form of tbf trifi"^ '>r •ipparntii ; ' mriv or niii\ ""f be of ImportarKc. "Machine."— A manhino Is jiaii /ilable whenever a new or an old effect Is produced by mechanism, n^'W In Its combinations, arrangrementfl or mode of opeifatlon. "Manufacturs."— Any new c6ml)inatIon of materials con- stituting a naw result or arllclo not being a machine. 41... Il m 1 192 PATEyiti. TRADE MARKtS AXD COPYUWUTS. It is not of great importance that an article be distinguislied as a machine or manutaclure. "Composition ok Matter. "—A compound of two or more substances possessing properties or Qualities not possessed in- dividually by the substances. The Patentee.— The Act uses the words "Any person." The inventor may be a British subject or alien. Minors and married women may be inventors, provided the documents are prepared and executed in legal form. Joint Inventors must make a joint application. Assignees by assignment of record before the Issue of the patent may become the pater tees. If the inventor dies before application, the personal repre- s.'utatiN es may apply in his stead. When the inventor dies betweei: application and issue, the patent is granted to his personal lepresentativi s or their assignees. Tlie Application.— T lie requirements of the Act and Rules of Practice include:— 1. Petition of applicant. 2. Power of attorney when application is made by attorney. 3. Oath of inventor or of legal representative of deceased Inventor. 4. Specification signed before two witnesses by inventor or legal representative of deceased inventor. 5. Drawings, if the case admits of them. 0. A copy of the claims of specilicatlon. 7. Tho payment of twenty dollars. (1) The Petition.— This is made and signed by the applicant on one of the forms supplied. It must contain the title of the invention and a statement of novelty in the words of section 7 of the Act. It must also contain an election of domicile by the applicant of some known and specified place in Canada. (2) Power of Attorney.— This may be Inserud in the Pi ti- tlon or may be separate. The employment of an attorney is not obligatory. The preparation of an application, drafting of specification and prosecution of case in the Patent Office is, however, of such importance that the whole viilue of the Patent when issued depends upon the care aii'l skill exercised in ob- taining it. (3) Oath.— The oath or affirmation (when allowed) is maxle and signed by the inventor. It states that he verily believes that he is the Inventor of the invention described and ildimext in the specification, that the Petition contains the truth, and the date and number of foreign patents already Issued to him for the same invention. The oath or affimnatlon is made before a proper official. See Section 10, sub-sec. 3 of tihe Act. (4) The Specification.— This includes the specification pro- per or description, and the claim or claims. It should contain:— (a) A preamble setting forth the inventor's full name, address and description, and the title of the invention. (6) A general statement of the nature and object of the invention. (c) A description of the drawings, If any. PATENTS, TRADE MAllKH AAD COl'lKlUUTH. 193. (li) A (ieiailbU detect ipiion of the Invention giving thv.- con- Btruciiun ana moile ul operation, application auu uses tiiereot. (i) A lie claim or ciainia by wnicn iiie scope ot the patent will be limited. (/) Date and place of signing. (y> Inventor's signature (name in tull). ' li) ijlgnaiures ot two witnesses. (i>) DRAWiNQs.-These are made on tracing cloth. The sheets measuring !> x la Inches. iJach sheet bears the words •'Ceriitled to be till drawings referred to in the spocirtcatlon hereunto annexed, " then place where and date when signed, and signa- ture of inventor or attorney and signatures of two witnesses thereto. A bristol board drawing of the same size, showing i m inven- tion, is supplied the Patent Office for photo-lithographing. (6) An k.xtka copy of the ci^aims is furnished the i'atent office for compiling Uie Oazcttc. (7) 'i'lit: Fii.iNO FKS of twenty dollars must be paid before the Patent Office will accept the application. Half of this fee is refunded if the case is withdrawn or a patent refused. Duplicate Forms.— As the Patent Office does not at pre- sent print the specilication and drawings in full as is done In Great Britain, the Tiiited States and several foreign countries, duplicates are required, one of which remains in the Patent Office, the other being annexed to the Patent when issued. Model.— Only needed when specially requi.ed by the Com- missioner. Size not to exceed 12 inches in any dirrt Mon. Samples of ingredients to be. in glass boivies. Examination.— 55-56 Vic, c. 24, s. 8, requires a thorough and reliable examination of each application to bo made by competent examiners. The fireseiit organization of the Patent Office Is totally un- oquii)i)f'il to carry out nn efflpicnt examination. When the application is found to be in the required form, the examination as to novcjlty and patentability is made. The applicant is notified of objections on these grounds, and • c~.n himself, or by his attorney, amend hia case or argue the points objpcted to. The objection may be npppaled from, within six months, before tlic Oovornor In Council. Amendments must be on separate sheets, written on one side only, and must Indicate specitlcally the word or words to be altered. The Commissioner may rcriulro the specilication to bi? re-wrltlen. Conflicting Applications. -The claims or the appMcanUs nro siibmitlod to arbitration as provided by this Act, or to the Exchequer Court. Term. —The full term ia eftrhteen ypars. The patnnt may he pranted for a partial term nf six yearn, nnd bp renpwed for like terms on payment of the renewal fee durlns? current term. 1,1 ^ ,.*r;.. IMAGE EVALUATION TEST TARGET (MT-S) // 1.0 l.i 1.25 lA^IM |2.5 ^50 ■^™ !■■■ 1^ 1^ 12.2 ^ li£ 12.0 1.4 III 1.6 % >% m '/ Photographic Sciences Corporation 33 WIST MAIN years, renewable. Applicant must declare whether lie intends to register the trade mark as general or specilic. Application for registration consists of:— A declaration that the marlt wa-s not in use to his knowledge by others at the date of his adoption. A description of the trade mark. Copies of trade mark, or a drawing of same. Registration fee. Refusal to register may arise:— (1) When the Minister considers apr>licaiit not to be en- titled to exclusive use. (2) When identical with or resembling a mark already regis- tered. (3> When the mark is likely to deceive or mislead the public. (4) When the mark is of an immoral or scandalous nature. (5) When the mark Is not a trade mark accirding to law. The Minister may refer the application io ilie Exchcqu.^r Court, which shall hear and determine whether and under what conditions registration may be granted. The ai)i)licant may also proceed in the Exchequer Court to obtain an order for making, expunging or varying any cniry in the Itcgistcr of Trade Marks. Cancellation— Koglstered owner may petition to cancel, and after cancellation the mark shall be considered as never having been registered by such person. Assignment.— An assignment may he registered by entry on margin of Register. InfrinKeuient.— Marking any article witli tho whole cr any part of a registered trade mark— roflUlng niarkfd package or article— knowingly selling or offering for sale article no marked with intent to deceive, and to Induce any person to believe that the article came from the owner of tho trade mark. Penalty. --Flno from $20 to $100, payable wllh costs to owner. Action for damages may also bo taken for Infringement, No proceedings to prevent Infringement shall bo taken unless mark Is registered. DESTQNH. A Register of Indnsirlnl Designs is kept by the Minister of AgrlcnUnre, In whloh the proprietor may ha\e a design re- Iflstered. Who may RfiKi»tep.— The author of the design, or pro- prietor. If the design was executed for good and valuable con- Blderntlnn. Only r.isldents of Canada may roglater. PATENTS, TRADE MARKS AND OOPYRIQETB. i>7 Application consists of a declaration of novelty, a draw- ing and description of the design In duplicate. Fee. Novelty.— Registration can only take place before publl- caMon. Marking.— Letters "Rd. " and year of registration ahall be marked on article, with name of owner. Term. -Five years, fee $5.00. Kxtension, five years at $2.00 per annum. Tjlcenses and assignments must be recorded. Infringement.— A penalty of $20 to $100, and costs, recover- able by proprietor. Falne Marking.— A penalty of $4 to $30 and costs, recover- able by person taking action. AVhat designs can be registered?— Only designs belong- ing to a person re.sldent in Canada, and which Is applied to a subjfcl matter manufactured in Canada. COPYUIGHT LAW Imperial Act, 38-39 Vic, c. 03. B. N. A. Act, 30 Vic. c. 3, sec. 91. All matters of copyright to be under federal control. Canadian Parliament passed 38 Vic, c 88. BUI reserved for asseni of Crown, and Imperial Act, 38-89 Vic, c 53, empow- ered Her Majesty in assent. Imperial Act, 5 and 6 Vic, c 45. General Copyright Act applies to Canada. Foreign Reprints Act, 10 and 11 Vic, c 95, prohibits impor- tation of reprints of British copyrighted books. Suspension by Order in Council by reason of local legisla- tion to protect British authors. Who may obtain a Copyright.— Any author domiciled m the Empire, or in any country having an intornatlontvl coiiyright treaty with the United Kingdom. 1 Term.— Twenty-eight year.s. Renewal, 14 years to author, willow or children. What can be copyrighted— Any book, map, chart, musical composition, or any original painting, drawing, statue, sculpture or photograph, or any print or engraving of an original design. Also translations of literary works. Conditioua.- The work shall be printed and publl.shed, re-printed and re-publlshed, or produced or re-produced In Canada. Canadian copyright lapses with the expiration of foreign copyright. nrltlsh CLpyrightod works may bo copyrlglited when printed and published or reprinted or republlched In Canada. • II. ' r^'-^ «; 196 ONTAHJO LAW OF MARRIED WOMEN. British copyrighted works may be imported, notwithstanding Canadian copyright. Foreign reprints of Briiisli copyrighted works may be Imported before the registration of Canadian copyright. Works published In separate articles of a periodical may be registered, but the complete work, when published, must also be registered. Anonymous works may be registered in publisher's name. Interim Copyright.— Pending publication, the author may register an interim copyright, but the publication ni'ist take place within one month of original publication elsewhere. Failure to publish after registration of an interim copyright Is punishable by fine. Unauthorized Publication o£ Manuscripts.— Damages can be reco'ered for the unauthorized publication of any manti- dcript not already printed in Canada or elsewhere. Iticense to Publish.— If the copyright edition is out of print, the Minister may, on complaint being made to owner, and neglect to provide a remedy, grant licen.ses lo i)ubliHh to others, and fix number of copies and royalty to be paid. Scenery, Etc.— No exclusive rights to Illustrate a piece of scenery or an object can be obtained by copyright. Magazines and Newspapers.— I''oreigr. magazines and newspapers containing I'.ritish copyrighted works may be Im- ported, If the publication is with author's consent, or under copyright law of country they come from. Application for Copyright.— Three copies of work, and a declaration that applicant is the proprietor, that the work has been published in Canada, and a description if a work of art. Epitome of the Law of the Province of Ontario Relating to Married Women. BY A. H. MARSH, Q.C . OF THE TORONTO BAR. Common Law touching Married XfTomen s Property. —In order to adequately understand the application of the doc- trines of Kqulty and the Statutory provLslons which at prc- Bcnt govern married women's property rights In this Province, It is necessary to have some understanding of the common law of England touching the subject, which common law wa» Introduced into the Province by the first Act of the Parlia- ment of Upper Canada In 1792. ONTARIO LAW OF MARRIED WOMEN. t» The mere fact of marriage operatecl at common law to vest In the husband certain rights In the pxoyerty which was owned by the wife at the time of her marriage, or which was sub- sequently acquired by her during coverture. The chief ot these rights were the following.— As to her freehold real estate of which she was seised, he was entitled so long as he lived and during her lifetime to receive the rents and profits thereof for his own benefit; and if he survived her he became entitled to the rents and profits thereof during the rema'nder of his lifetime, provided, however, that in the latter case issue of the marriage was born alivo during the wife's lifetime, which issue might by possibility have inherited the land in question. As to her personal estate the matter was somewhat more complicated. Her personal chattels in possession vested ab- solutely in her husband. As to her choses in action, including all her personal chattels not in possession, he became entitled to reduce them into possession during the coverture, and if the wife predeceased him he became entitled to administer her estate, and as such atlminisl rater to reduce th'-in into pcpsssion, in either of which cases the property became his absolutely. As to her chattels real, that is, any interest in real estate less than a freehold interest (confined in this Province to leasehold interests), he became entitled at any time during his lifetime to sell and dispose of the san.o foi his own benefit. Eonitnblo Doctrine of sejiarats ii32. Tlie unjust rigour of the common law induced the Courts of Equity in England to Invent the equitable doctrine of separatt; use, touching married women's property, and that doctrine became part of the law of this Province when a Court of Chancery was' first established here. The effect of this doctrine is that a woman may acquire ai; equitable estate in either real or per- sonal property, whether the same is acquired before or after coverture, and the same is linown as her equltalile separate estate. Over this separate estate her husband has no power or control; but she has all the powers of enjoyment and dis- position thereof which would be possessed liy an unniarrlcd v.omnn; altlioupli, in so far as her rights depend upon this equitalile doctrine, her said powers ol dispoj-ltion are confined. in the case of really, to the eiiuitahle estate, and she is there- fore unable, by virtue of the eqnlfahlo dnotrine, to sell or dispose of the legal estate In settled lands without the con- currence of the trustee in whom such legal estate Is vested. If no lrus(ee Is expressly named, then a constructive trust is fastened by the cotirt upon her husband, and he, in accordanee with the doctrines of equity, becomes a trustee of the letra! p.state for the benefit of his wife. No teehnioal word or set of words is necessary In order to raise a ease for the applica- tion of tlu< doctrines as to a married woman's equltal)Io separ- ate estate, provided always that It is made clear that her husband is not Intended to have any power of enjoyment or disposition of the property in quesllOM. nml tl-nt "h" W intended to have such power of enjoyment and dlaposltlmi. a f.mmon form of words used for this purpose Is " For (he solo and " sennrate use of the said A. B. free from the custody or con- " frol of her present or any future husband." pi i !• : 'iti ""in ssm 200 VM'AliW LAW OF MAItHIEO WOMLN. When the Courts of Equity allowed a married woman by virtue o£ the doctrine aforesaid to enjoy and dispose of liei- separate esiate for her own benefit, they also gave her the power to charge her separate estate and make it liable for the payment of debts incurred by her. Originally the court granted this power far more for the benefit of the married woman than for the protection of her creditors, and It was only her specially debts, incurred with respect to her separaU* estate, which became a charge th'sreon. This rule became from time to time relaxed until at the present time the doctrine of the court is that where a married woman who has separate estate contracts a debt she Is prima facie deemed in equity to have contracted it with reference to her separate estate, and, If «he had the power to > < i , that separate estate, equity will make it liable for the payment of the said debt. See Lannon vs. Laidlaw, 3 Apo. R. 77. The separate property may, however, be of such a charac- ter as to raise a counter presumption that her indebtedness was not contracted with reference to tl-at separate property, as, for example, her clothes {Leak vs. Drifjleld, L. R., 24 Q. B. D. 98), or an engagement ring, or a watch of small value {Abraham vs. Backing, 27 O. R. 431). Although a married woman has the power to alienate her separate estate and to make it liable for her debts as already mentioned, yet this power may be greatly curbed by utilising, in the settlement of the property, another equity doctrine known as Restraint upon Anticipation, which doctrine will be d*alt with further on in this article. liegislatio'n as to Married Women's Property.— l f the equitable doctrines, relating to the right of a married woman to enjoy and dispose of her separate estate, had been applicable to her property generally, and had not been con- fined to property which was settled to her separate use, there would have been little or no need for any legislative Interfer- erce with this branch of the law; but as a large proportion of the property owned by women at the time of their marriage, or subsequently acquired by them, was not settled to their separate use. It became necessary for the legislature to modify the semi-barbarous provisions of the common law, and to extend the benign doctrines of equity so as to make those doctrines, or something closely analogous thereto, apply to a more comprehensive classification of property than that falling within the definition of equitable separate estate. Accordingly tlio legislature intervened, and i)y a series of Acts, commonly spoken of as The Married Women's Property Acts, effected a legislative settlement of numerous classes of married women's property, which property so settled Is now spoken of as sta- tutory separate estate, as contra-dlstlngulshed from equitable separate estate. This legi»lation has left the equitable doctrine as to separate estate untouched (see R. S. O. 18S^, cap. 163, sec. 21), and the question therefore arises In each caae whether the property In question Is equitable separate estate, and It Is only when this question Is answered In the negative that an appeal Is made to thp legislation to discover whether It Is statutory separate estate. ONTARIO LAW OF MARRIED WOMEN. 201 There is probably no other class of legislation In which the evident intent of the legislature was so completely and so persistently defeated by the narrow technical astuteness of the judges as in the case of these Acts which, though from time to time amended and re-aniended and amcnued agiUn. were yet by judical methods of inte/pretation shorn of their strength and rendered more or less ineffective. See judgment of Armour J. in Claikc va. Crcighton, 45 U. C, R. 518. In this sort of a Klruggle the legislature is sure to win in ilie ctia, and it is hoped that this happy end has now been attained in this Province. Happily the legislation upon the subject in this Province is to a large extent, since the Provincial Act of 1S84, founded upon the existing Kngllsh Married Women's Property Acts, and this gives the advantage of having the decisions of the Kngllsh Courts as guides to the liiliri)rL'iaUon of the provincial legislation. But see Moore vs. Jackson, 'It S. C. R. at pages 226-232. The legislation upon the subject in this Province is now contained in the Revised Statutes of Ontario, 1897, chapter 163. One of the chief difficulties connected with the statute is one upon which the English authorities can afford us but little assistance, namely, the question of the varying rights and obligations of husband and wife touching her real and per- sonal pi'operty, such variations depending upon the date of the marriage, the date of the acquisition of the property, and the fluctuation of the statutory provisions relating thereto. •It is, however, necessary for us to have some knowledge of these fluctuations to enable us to determine what are the now existing rights and obligations of some specified married woman with reference to some specified property, when she has, by reason of the date of her marriage, or by reason of the date or maimer of acquiring the property, fallen under the operation of some one or more of the former statutes, which, together with the various amendments thereof, have now been consolidated Into chapter 103 of the R. S. O. 1897. The common law doctrine, modified by the doctrines of equity as aforesaid, continued In operation until the 4th day of May, 1859, when the first Married Women's Property Act cfime into operation. This statute gave a certain measure of lirotection to a woman who, without any marriage contract or settlement, was married on or before the said 4th day of May; if she was married after the said 4th day of May, with- out any marriage contract or settlement, the statute provided that as to licr property l)oth real and personal, and wht.'lher acquired iicfofi' or after niarriago, she sliould have, hold and I'lijoy me same free from the debts and obligations of her husband and free from his control or disposition without her consent, but the said provisions were not to extend to arty properly received by her from her husband during coverture. These provisions are now consolidated in the R. S. O. 1S97, cap. 163. sec. 5 (1), (2) and (4). This Statute of 1859 created a new sort of estate known aa statutory separate estate, but did not settle a wife's property upon her as separate estate, in the sense in which that term is used In a Court of Equity, nor did it in any way affect the J I I 302 ONTAKJO LAW OF MARRIED WOMKS. huebaiMl s rights in lit^r real estate as itnant by the curtesy; rt merely protected her in her enjoyment ot the property, but dlii not, as to her real estate, give her the power to convey the same unless her husbanU joinetl with her in the conveyance aa a granting party. i/uurc t-«. JadiHon, 22 S. C. R. at pages 213-214 and at pages 219-220 and at pages 238-23!). Umruk vs. HulUvan, 25 U. C. R. 1U5. Ab to her right to dispose of her personal property, see Vhambtrlaln vs. McDonald, 14 Ur. 447; Wrij/Zit vs. Uardm, 28 U. C. R. at page 624, and iMicitm vs. LuiUlaw, 'i App. R. at page W. This state of the law continued until the 2nd of March, 1X72, when the "Married Women's Property Act lis72, " took eflect, whereby it was enacted that after the passing of that Act the real estate of any married woman which was owned by her an the time of her marriage, or acquired by her In any manner during her coverture, sliould, without prejudice and subject to the trusts of any settlement affecting the same, be held and enjoyed by her for her separate use, free from any estate or claim of her husband during her lifetime or as tenant by the curtesy. This was the first Act which expressly effected a statutory settlement upon a married woman for her separate use. Chief Justice Strong is of opinion that the equitable doctrines as to separate use do not give us a sate guide for determining tlie )ij,l:iH and obligations of married women with respect to their statutory separate estate, but that they would rather tend to produce embarrassment, inasmuch as they present false and misleading analogies. Moore vs. Jackson, 22 S. C. R. at pase 217. This Act was held to apply to all cas':;s in which the wife acquired lamls after the passing of the Act, even though the- marriage toolt place before the passing of the Act. Adams vs. Loomit, 22 Gr. 99: affirmed on rehearing, 24 Gr. 242. This induced the T^egislature to intorvene when a revision of llx! Ontario Statute.s was contemplated in 1877. and accord- ingly by '10 Vic, Cap. 7. Schedule A (l.'"i(;) it was provided that when the propo.sed revision should come into effect the said clause in the Statute of 1872 should l)e mndifled so as to make It apply to those cases only in which the woman was married after the 2nd day of March. 1872; and should be further modified by addinpr the proviPion that nothing contained in the Act of 1S72 should prejudice the rifiht of the husband as tenant by the curtesy in any real estate of the wife, which she did not dispese of inter vivos or by will. The Tfevlspd Pt.TnitPs of Ontario. 1S77. came into force on the 81st day of December of that year, and contained in chapter KR. Bpetlon 4, the paid provision of the Art of 1R72, modified as aforesaid (now contained in R. S. C, 1897, eap. 163, sec. 5 [SI.) Tt was suhseqiiently decided that the said provision, saving the rierhts of the husband as tenant by the curtesy in all casp.< ^here his wife did not cut out those rights by disposing of h*r rcBl estate, either d\irlng her lifetime or by her will, was merely a Ptatiitcry deelarntion of what liad always been the meaning and effect of the Statute of 1872. Ill ONTARIO LAW OP MARRIED WOMEN. 203 Pumesa va. Mitehtll, 3 App. R. 510. The effect, therefore, of the Statute of 1872 was to permit a married woman, coming under ^he operation thereof, to deprive her husband of any interest in her lands as tenant by the curtesy, and she might do this by disposing of the '.ands either in her lifetime or by her will, but if she did not so deprive him of such rights, he then retained his interest as tenant by the curtesy. The other modification of the Stotute of 1872, whereby the operation of that Statute was confined to cases in which the marriage took place after the 2nd day of March, 1872, was one of considerable Importance, for, between the said 2nd day of March and the 31st day of December, 1877, when the said amendment took effect, vested rights were doubt'oss acquired in properties which, during that period, were settled to the separate use of married women, but which, after the latter date, would no longer have been subject to her disposal, owing to the marria.ge in question having taken place before the 2nd day of March, 1872; and such vested interests would not be dis- turbed by the amending Act of 1877. The Married Women's Property Act. 1884 (47 Vic, cap. 19), which came into force on the 1st day of July, 1884. provided (sec. 5 and 2 [1]), that every woman married before the com- mencement of that Act should be entitled to have and to hold, and to dispose of by will or otherwise as her separate property, in the same manner as if she were a ffmv sole, all real and personal property. h"r title to which, whether vested or contingent, and whether in possession, reversion, or remainder, should accrue after the commencement of the said Act (which provision is now substantially contained in R. S. O. 1897, cap. lf.:i, sec. 7). The same Act of 1884 provided (sec. 3 and 2 [1]) that every woman married after the commencement of that Act should be entitled to have and to hold, and to dispose of by will or otherwise as her separate property, in the same manner as if she were a frmc .tntr, all real and personal property which should belong to her at the time of her marriage, or should be acquired by or devolve upon her after marriage (which pro- vision is now s\ibstantially crntained in R. S. O. 1S9T. cap. IfiS, sec. 6 [21). Necessity iir HnsLand to join in Conveyance.— Many diflleult (nipstioi s have ari.'sen from time to time ar. to whether, under the circumstances of a given case, considering the date of the marriage and the date of the acquisition of the property 1« question, a married woman could make a valid conveyance of her property without her husband Joining with her in the conveyance. Tn all cases falling tinder the Statute of 18.19. it was per- fiwtly Hear that the husband must join In the conveyance as a jfrantlng party, in order to make a good title, and that for fwo- reasons;— firstly, becauce it was necessary in order to aimwsft of his rights as tenant by the curtesy, and, secondly, because without his concurrence the wife's conveyance was iri*(M>hitely void, and would not even pass her interest in the property. I ij '.*i 2U4 ONTAltW LAW OF MAHIUEU WOMEN. As soon, however, as the Statuie of 1S72 came into opera,tioa, quesLious arusfc, and from that time onward continued to arise, as to the tftect of a conveyance of real estate t)y a wife without the concurrence of her liusband, and these 'juestioaa gave rise to liopelessly conllicting: opinions, which have never yet been satisfactorily clarilied by coercive judicial determina- tion. ; ,j A few of these difficulties are dealt witii in an Article in 7 Canadian Law Times, 16G. Fortunately, the Provincial Leeislature has iJiissed cer- tain enactments (hereinafter mentioned), which serve in nearly all cases to quiet the titles which, but for thtse enactments, might have been disturbed by the questions referred to. It mr.y probably be talien as satisfactorily settled (apart from the enactments referred to) that any conveyance of real estate m.ade by a married woman since the 1st day of July, 1S84, is sufficient to pass her Interest In the property, even though her husband did not concur therein. That result comes about in this way:— R. S. O. 1S87, cap. 127, sec. 3, provided that every married woman, being of the full ago of twenty-one years, may, by deed, convey her real estat«^, or any interest therein, either personally or by attorney, as if she wen' a (ciiic sole, but that no such conveyance shall be valid unless the husband is a party to and executes the deed by which the same is effected. The Married Women's Property Ac, 1884 (sec. 22), repealed that portion of the lastly men- tioned section which required the husband to be a party to and execute ihe deed, and did so In such a way as to indi- cate that the repeal related back to the 1st day of July, 1884, without saving any rights which might have been ■" quired to attack conveyances which had been made in the • jan time. (The Statute as affected by such repeal is now ccntained in R. S. O. 1S07, cap. 165, sec. 3.) The result is that the concurrence of the husband is not necessary in order to make valid a con- veyance of real estate made by a married woman since the 1st day of July, 1884, and by such a conveyance she riay paas all or any pnrt of her Interest therein, but she cannot affect hor husband's rights therein, whether as tenant b> the curtesy of otherwise. This question was dealt with by Mr. Justice Gwynne in, & case in which the woman was married in 1869, and some of the property was acquired In 1879, and some of it in 1882. He says,—" I have already expressed my opinion that section 1 of "47 Vic, chap. 19, enabled every married woman to dispose " of her real property by will or otherwise; but apart alto- " gether from this clause, and resting solely upon the repeal " of the exception in section 3 of chap. 127 R. S. O., 1877, it is " clear that every married woman can dispose of absolutely " (by deed exeouted by herself alone) the whole estate which " Is vested In her. So long as she lives, therefore, It cannot " be doubted that she has an absolute /U8 dinponendi of all real " property which the law enables her to hold and njoy free " from the control and disposition, and from the debts and obll- " gation.i of her husband." Ifoorr VR. Jackfion. 22 S. C. R. at page 235, and see page 234> and see per Patterson J., nt pniro 2«0. .. • ONTARIO LAW OF MAURI ED WOJ/L'A, 206 Th« amendment to The Married Woman's Real Estate Act conittinfcd in 51 Vic, cap. 21, sec. Z inow contained in 1'.. S. O. liln'i, cup. lt>6, sec. \i), nngtit have been supposied to give a legislative sanction to a construciion ol the Married Women's Propertv Acts contrary to that aOove suggested, had it not been tor the provision of the 3rd section thereof (now contained iu K. ij. u. i&y;, cap. Vi\ sec. 9 UJ). that nothing contained in that Act stiall be taken to impiy mat a married woman may not, as of right, make any conveyance of her real estate as if she were a /twt- aoiv. Previous to the passing of the Married Woman's Real Estate Act, ISTa (Which came into effect on the 2Sth of March of tliat year), it was not only necessary that a husband should be a party to, and should execute a conveyance of real estate other than equitable separate estate made by his wife, but it was also nee ssary that she should bt examined apart from her husband, before a proper officer, as to her voluntary consent to the conveyance, and there had to be endorsed upon the conveyance a ceriiticate by such officer as to such examination and such consent. The first of the quieting title enactments abovo referred to was the said Married Woman's Real Estate Act, 1.S73, sec- tion n of which (now contained In R. S. O. 1S97. rap. 1G5, sec. 6) was aimed at curing defects In conveyances executed before the 29th day of March, 1873, by married wonion when there had been no certificate, or an irregular certificate, or an irregular execut n by the married woman. The result thereof was to make valid certain convcyancos which would otherwise have been void, subject, however, to tiie provision of section 13 of the Act now contained in R. S. O. 1897, cap. IGu, sec 6 [2]), that the Act sliall not lenOer valid (a), any conveyance not executed in good faith; (6), any void conveyance to .i.v,> prejudice of any title, acquired from the married woman by a deed duly executed and certified, sui)- scquently to ;ho execution of the void conveyance, and before the passing of the Act, unless the actual possession or enjoy- ment of the real estate in question was, subsequently to the making the void conveyance, and continuously for three years before the passinpr of the Act, in the grantee under the void conveyance, or those claiming by, from, or under hlra, and unless he or they were in ^uch possession at the time of the passing of the Act; (c), any conveyance of land of which the married woman or those claiming under her, were, at the time of tho jiassing of the Act, in the actual possession or enjoyment con- trary to the terms- of such conveyance. The phrase "Actual possession or enjoyment contrary to the terms of such conveyance" was much discussed in Elliott m. Ifroirn, 2 O. R. 3.'52: 11 App. R. 228. Section 14 of the said Married Woman's Real Estate Act, W3. repealed all the former statutory provisions requiring an examination apart and certificate as aforesaid. The next of the said quieting title enactments was 50 Vir. (1S87), cap. 7, sec. 23 of which (now contained In R. S. O. 1897, cap. 1C5. sec. 8) was aimed at curlrer defects In conveyance's executed on or after the 29th day of March, 1873. by a m.TTied woman affecting her real cjtate when the same are signed 20t; OUT Alt W LAW OF MARRIED WOMEN. or eAe(julb*i by !»(..' liutiLiuud, bul he lias '.■n^ been made a party, or hau noi been inutle a. granting party thereto. This Statute also contains a saving clause that it shall not rctnlef valid any convtyance to the prejudicei oi any title lav.'VuSly aotiuired from any married woman prior to the pasBing of the Act, nor render valid any conveyance from the married woman not executed in good faith, or any conveyance of any land, of which the marrieu woman or those claiming under her was or were at the time of the passing of the said Act In actual possession or enjoyment contrary to the terms of such invalid conveyance. The next of the said quieting title enactments was 59 Vic. (1896). cap. 41, sees. 1 of which (now contained In R. S. O. 1897, cap. Itiii, sec. 'i) was aimed at curing delects in conveyances made before llio 2'Jlh day of March, 187S, by a married woman iiffecting her real estate when her husband did not join therein. This Statute also contains a saving clause (like that in The Married Woman's Heal Kstate Act, 1873), that It shall not vhlk^ate conveyances made mala fide; or conveyances made to Ih-t prejudice of auiJSeQuent valid conveyances unless those claiming under the invalid conveyance have been in possession: or conveyances when the married woman, or those claiming under »iar, are in possession contrary to the terms of such conveyance. These quieting title enactments appear to set at rest most ct the diHlcult questions which have arisen with regard to the ii.^cessily for the husband to job '•' his wife's conveyance of real estate. In order, however, v. make this benelicent legid- lation conii)lf>te, there is need for a further enactment of a similar nature, making valid all conveyances executed by a married woman on or after the t9th of March, 187S, of or affect- ing her real estate, notwithstanding that her husband did not sign or execute the same. This state of aTalrs is not covered by the secondly above mentioned of the quieting title enactments; and such an enact- ment would cover the period between the 29th dny of March, 1873, and the 1st day of July, 1884 'from which latter time It appears to be clear that a married woman's conveyance does not require the concurrence of her husband), which period is left In a state of haze by the judicia] authorities. It thorfforo appv-ars that one of the chief questions to be considered by the conveyancer is, when <''111 it be necessary to see that the husband joined in a conveyance of land, made by a married v c nan, for the purpose of extinguishing his rights as tenant by the curtesy, whether Initiate or consum- mate? Married Womaa a« Trnstee.—One curious result oif the leffialaiion touching married women's property is that, althoug'h she may without the concun-ence of her husband convey her own property, yet, if nhe holds land as a trustee, she oannnl convey It nnleps her hnnhand Joins In the ■oonveyance. " Rr //nrAiifso rf Allsopt)n ronlrnct, 1890, 2 Oh. 858; tmd se.* 18 Oan. 1.1. T. 134; and Re Brooke d Fremlin''! Oontracl, 1898, 1 Ch. fi4". ONTARIO LAW OF MAKIUEU WOMEN. 207 Tenancy by the Carteay.— " Tenant by tho curtesy oC Kngland is where «. man marries a woman seized of aa eatato of inheritance, that is, of lands and teneinents la fee simple or fee tail; and has by her issue, born alive, which are capable of inheriting her estate. In this case he shoii, on the death of his wife, hold the lands for his life as tenant by the curtesy of Kngland." There are four requiaitea necesaary to make a tenant by the curtesy:— U) A legal marriage. (i) " Tlie seisin ot the wife must be aa actuai seii.ia or possession of the lands; uot a bare n4;liL lu i^us^est', wiiich is a seizin in law, but an aciua*. iiosschbioii, which is a seizin in deed. And, ihertluit', a :uan biiatl not be a tenant by the curteny of a remainder or re- versiun expectant uu an estate of frectiuiu, lUjUH'ii it would be otherwise if expectant on an estate for year^, us la llie lutlKi' case ihe s<:izln of the freeliuld is not in tlie tenant for years, but in the remainderman or reversioner." This actual possession, however. Is not necessary iii the case of an eyuitable estate. (3) The issue must be born alive, and the issue must be such as is capable of inheriting: the mother's estate. "Therefore, if a woman be tenant in tall male, and haih only a daughter born, the husband is not thereby eniltlcd to be tei'.ant l^y the curtesy; because such issue female can never inherit the estate in tall male." (4) DeaUi of the wife. Blackstone by Lelth & Smith. 136-138. It is sul>mlttod that the following .slalemoiit .sel.s forth all the cases in which the husband Is now entitled to curtesy in his wife'.s property (of which he cannot be deprived by hla wife's will or conveyance intn- ■■0 O. U. (iri2, and per Osier, J. A., 19 App. R., . t pape 390 et sig. (T> If In such a case as firstly mentioned, there be a msr- rlatj-e contract or settleinent. the husband retains all h!s rommon Inw rirh's In lb proprrtv which the wife hnd at the time of tlie marrlafe and net Irrclnded 'In the settlement f'inc'udlnir his richis as teiiainl by the cur- tesy), but any property acquired by her after nrarrla^w, and not ln,--luded In the .settlement, falls wlttiln Ihe operation of Ihe Statute, and therefore become<» statti- lory separate estate, and Is subject to rule number one. * NOTK,— IJprtB til" flMonMon Wliothnr any ., and FununK vn. Mitchell, 3 Apy. K. 510. It was provided by K. S. O. lSb7, cap. 127, sees. 4 and H, that In certain cases a judge might make an order that a married woman should be entitled to convey her real estate, or any inieicsL tin;rein, "in the same muniier and with il'.e samo effect as If she were a feme nolc." The Statute does not make any express provision as to iiie eft'eet, it" any, which the con- veyance, made pursuant to the order, shall hav(! uiioii the husband's rights a« tenant by the curtesy. In 1SS8 another Statute wa.s passed (,".1 Vic, cap. 21, sec, 2, now contained In R. S. O. 1897, cap, 1C5, sees. 9 and 10), dealing more specilioally with this matter, and providing that, where a husband Is entitled to tenan-iy by the curtesy, and in any case where a wife Is unable to give a valid deed of her real estate without her husliand joining therein, if die husband is of unsound mind, or Is unable from any other cause to execute a conveyance, or his residence is unknown, or ho !s In prison, or Il\lnfr apart from his wife by mutual consent, or under ciroiimstnnees which entitle her to alimony, or if he has de- serted her. or if in the opinion of a judge of the High Court there is any other cause for so doing, such judge may, upon such evidon'^o as to him seems meet, and upon such notice to the husband as ho deems requisite, exeept in rases where the residence of fti'^ husbnnd la not known, when the notice shall not be necessary, make a stunmary order that the wife may "In the snme mnTinor, .ind with the snnie effect, ns if she were a frmr fiolr, and free from any estate of her husband by the curtesv, hnrc-aln, sell and convey all or any part of her estate. title nnd Interest of. In, to, or out of." the lands In qne>?tlon. What is Statutory Separav.c Estate?--!. Leaving out of conslde:-atlon for the moment the case of women married on or before the 4th dty nf May, ISHO, all Interests in property, real or personal, held by a married woman, arc statutory separate estate, which can he reached by creditors, except:— (a) Where she was married between the Bth day of May, . ISnn, Snd the 2nd day of March. 1S72 'both Inclusive), and there was a marriage contract or settlement; in which case the property \#hlch she had at the. time ONTARIO LAW OF MARRIED WOMEN. 209 of the marriage, and not Included in the settlement, will be subject to the common Jaw rights of her hiu- b&nd, and will not be in any sense her separate estate; but any property acquired by her after marriage, and not included in the settlement, falls within the operation of the Statute, and therefore becomes statutory separ- ate estate. See Dawson vs. Moffatt, 13 CK R. 170. (6J When she was nmrned between the said dales, and the property in question was received by her from lier husband during coverture, and before the 1st day of July, 1884. 2. Where the woman was married before the 4th day of May, 1SJ9, willuiut any marriage contract or settlement, she has the same rights with regard to her real and personal property as a woman married between the 4th, day of May, 1859, and the I'nd day of March, 1872, save only that as to any of her said property which her husband reduced into possession on or before the 4th day of May, 1809, he thereby preserved his com- mon law rights therein, and such property is In no sense her separate estate. .''repositions 1 and 2 appear to be the effect of the various Statutes read In the light of Afoore vs. Jackson, 20 O. II., 652, and 22 S. C. R. 210. Restraint upon Anticipation— One of the inventions of the Court of Chancery, whereby a n\arrled woman Is pre- vented from assigning or charging her future Income, either expressly, or by Incurring debts, or by suffe. Ing judgment to be obtained against her, Is the doctrine known as Restraint upon Anticipation. If property b'i settled to tho separate use of a married woman, and the words "without power of anticipation," or works of like Impjrt, be added, the married woman Is unable to give an effective receipt for any Income ailslng from the settled property, which Is not already due and payable, nor oan she hy any device authorize any other person, whether he he her assignee, her creditor, or any other person, to give such a receipt. The consequence Is that the person who is responsible to her for the payment of the Income at'lslng from the J^ettled estate cannot .safely pay It to any person other than tho married woman herself, or -to some por.son clalmlnsr through, or under her, whose claim, whether by a.sslgnment, judgment, or otherwise, arises after the falling due of the Instalment of Income In question. A modern Kviirli.-ih writer says,— " The rostraMU on unflcl- " r.Hilon exists nstensli.ly t.i prevent a mprr!od wam.m l>"C in dissenting Judgment of Armour J., in Clarke vs. Crcighton, 45 U. C. R. 514. The married woman's contractual obligations were exten<1pfi by the Act of 1S84, but even under this Act it was necessary for ^he creditor to prove, in an action against a married woman upon her contract, that she had at the tim>j of entering into the contract (and perhaps .at the date of the Judgment) some separate property, free from any restraint upon anticipation, and with reference to whic^li she may reasonably be deem':id to have contracted. See per Osier J., in McMieliael vs. Wilkic, 18 App. K. at parf'i 469-470; but see per Chief Justice Strong in .Voorc. tt. .Jiiek.ion, 22 S. C. R. at pages 220-223. Sec also Article in 8 L. Q. Rev. 62, and Downe vn. FMe.her. 21 Q. B. D. 11. If the creditor succeeded in proving this he was tlien ontitloil to a Judgment under which lie oould levy, not only upon the separate property which she had at the time of entering into the contract, but also upon any separate proiierty tliorfafd r acquired by her. Stogdon is. Lee, 1891, 1 Q. B. 661 ; and see .\rtlclo in l.l I. O Rev. 40G. The form of Judgment against a married vonian, &a settled In England, and followed in this Province, is as follows,— " It is adjudged that the plaintiff do recovor C and " costs (to be taxed) against the defendant (the married woman* " such sum and costs to be payal)lo out of her separate jiro. " perty, as hereinafter mentioned, and not otherwise. And It " ia ordered that execution hereon be limited to th(> .'^epara•e " property of the defendant (the married woman) not subject " to any restriction against anticipation, unless l)y roa.son nf " sec. 19 of the Married Women's Properly Act, 1R82, the pro- " perty shall be liable to execution, notwithstanding .siidi *; restriction." (The corresponding section of the Provincial Art. E. q. o.. 1R!>7. cap. 163, is section 21.) i I BJ- * 3 l\ \ 212 ONTARIO LAW OF MAlUni:U WO.UllX. Scott V8. Uorhy, 20 Q. B. u. 120, and at page 132. If the action was against a married woman to recover a debt contracted by her before coverture, it was not necessary lor the plaintiff to prove the existence of separate estate In order to recover judgment, which, however, would be limitei in Its operation in accordance with the form settled In Scott vs. Morley. Doicnc vs. Fletcher, 21 Q. B. D. 11. It was also held that, if a judgment were recovered against a married woman, and her husband then died, the fact of liia death and her discoveriure would not render her personally liable to pay the judgment debt, and that the creditor's rights In such a case were still to be limited by the form adopted in Scott vs. Morlcii. Re Hewctt, 1895. 1 Q. B. 328. Hammond vs. Kcachic, 28 O. R. 455. On the other hand, if she enters Into a contract while un- married, and thereby becomes personally liable, h >r subsequent marriage bofore action thereon would not, in England, pre- vent the creditor from recovering a personal judgment against her, without any of the restrictions imposed by the form of judgment in Scott vs. Morley. Itobinson vs. Lynns, 1894, 2 Q. B. 577, but see Provincial Statute R. S. O., 1897. cap. 163, sec. 16. In 1897, an Act was passed (now contained in R. S. O. 1897, cap. 163, sec. 4) still further extending the contractual obliga- tions of a married woman. This Act provides that,— " (1) Evei> contract entered into by a married woman on or after the 13th day of April, 1897. otherwise than as an agent; (a) Shall be deemed to be a contract entered into with respect to. and to bind her separate property, whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract, and It shall not be necessary in any proceeding to prove that she had any separate property at the time when such contract was entered into, or subsequently; (b) Shall bind all separate property which she may at the time or thereafter possess, or be entitled to; and (r) Shall also be enforceable by process of law against all property which she may thereafter, while discovert, possess or be entitled to. (2> Nothing in this section contained shall render available to satlflfy any liability or obligation arising out of such con- tract, any separaLe property which she is restrained from anticipating." Rights and obligations urising out of Tort- Before the Married Women's Property Acts a woman could not, without Joining with her husband as a co-plaintiff, maintain an action for damages for a tort done to her. for, In the eye of the law. the husband and wife were one, and he was that one, and he was entitled to any such damages as might be recovered. So also It was futile to sue her for a tort done by her. because she had no property out of which damages could OTfTARW LAW OF MARRIED WOMEN. 213 oe recovered, and In this case the doctrine of identity of husband and wife operated to nls detriment, and he, as the all- absorbing member of the marital alliance, became personally responsible for his wife's torts. For a history of the law relating to the respective liabilities of the husband and wife, for the torts of the wife, In all ca33S where the marriage took place before the 1st day of July, ISS^l, see Lee vs. Hopkins, 20 O. R. CG6, and as to the modification of the husband's liability Introduced by the Act of 1S84, see R. S. O. UO?, cap. 163, sec. 17. Wife's Earnings and Husband's Proprietary In- terest.— R- S. O. 1S97, cap. 163, sec. 6 (1), enacts that,—" every " married woman, whether married before or after the passing " of this Act, shall be entitled to have and hold as her " separate property, and to dispose of as her separate property, " the wages, earnings, money and property, gained or ac- " quired by her in any employment, trade or occupation, in " which she is engaged, or which she carries on, and in which " her husband has uo proprietary interest, or gained or acfjulred by " the exercise of any literary, artistic, or scientific skill. " As to the slgnlflcancc of the words "In which her huslmnd has no proprietary Interest," see Cooney vs. Shrppnrd, 23 App. R. 4. Young vs. Ward, 24 App. R. 147. Rights of Husband and Wife inter se- Kvery wo- man, whether married before or after this Act, shall have In her own name against aU persons whomsoever, includinfi her husband, the same remedies for the protrction and sr- curity of her own separate property as if sucli prc^-erty be- longed to her, as a feme sole, but, except as aforesaid, no husband or wife afiall be entitled to sue the other for a tort." R. S. O., cflip. 163, sec. 15. A wife may maintain an action for trespass against a third person who entered her house against her will, although bs entered It with the authority of her husl>and; but the Court of Appeal in England treated it as an open question whether she could have maintained a similar action against her hus- band. Weldon vs. Dc Bathe, U Q. B. D. 339. Tho Court of Appeal in Kngland confirmed an ir.terim in- junction, granted in an action brought by a wife against her husband, restraining him from entering lier house, where he was claiming to enter. "Not for the jyurpose of assoolatin^ or living with his wife as a husband, but for the purpose of using tho house as a house for himself," and where he was claiming to be "allowed the proprietary use of the house. " Liord Justice Cotton, however, said, "It must not be supposed by my concurring in what is the view of the other members of the Court— that thfi injunction should not be disturbed— that I look with the slightest favour on the contention of the pladntlfC's Counsel that there is a right in the case of a married woman, being entitled to and living In a house settled to her separate use, to come to a Court of Equity to restrain her hus- band at her wlM and pleasure from entering there," ? si P >? ■] 214 ONTARIO LAW OF MARRIHU WOMKK. Bymonds vs. Eallett, 24 Chy. (1), 346. It has been held in a New Brunswick case that a wife Is entitled to an injunction restraining her husband from Itttpr- fering with her use and occupation of her iand where she is living apart from him, not wilfully or of her own accord. Johntton is. Johnston, 1 N. B. Eq. 1C7. It wa.« formerly said that "The husband liath by law power and dominion over his wife, and may keep her by force, within the bounds of duty, and may bent fur, but not in a violent or cruel manner. Bacon'.s Abr. tit. Baron & Feme (B), cited with apparonl approval by Coleridge, J., in Re Cochranr, 8 Dowl. 633. The Courts now, however, say that when the old law writers rt'ferred to the i-ight of a husband to administer "Vantigatio," tliey meant admonition and not personal chastisement. Queen vs. Jackson, 1891, 1 Q. B. C71; and see 25 Am. L. Rev. 551. Accordingly, it has been he'.d that the husband is not en- titled to confine his wife to his house (by lock and key or other unapproved methods) even though he has obtained a judgment against her for restitution of conjugsU rights. Queen vs. Jackson, 1891, 1 Q. B. 671. At the common law a man and hi.s wife were deemed to be one i)erson, and he was that person. One of the results of that doctrine was thai if an estate ill fee were granted to a man and lil.s wife, they were neither joint tenants nor tenants in common, but they were said to be Tenants by Kntireties, so that neither the husband nor the wife could disi>ose of any part of the estate or any interest therein without the concurrence of the other, Inii the whole estate must remain to the .survivor. This estate of Tenancy by Entireties has now been abolished by operation of the Married Women's Troperty Acts. Uc Wilson, 20 O. R. 397. Another resu,:t of the said common law doctrine was thit estate were granted to a husband and wife and to two other men, the husband and wife took but a one-third share be- tween them, and each of the other men took a one-third share. It is doubtful whether this does not stiM reinahi law, not- withstanding the Married Women's Property Act. See lie JupD, 39 Chy. D. 148, holding Jt stlM to be the law; See Contra lie Dixon, 42 Chy. D. 306. Another absurdity growing out of the common law doctt"-- of merger of identity stlM exists as living law, namely, tliat in an action for libel the fact that the defendant has disclosed the libel to his wife is not evidence of publication. Wennhuk vs. Movyun, 20 Q. B. D. 635. The husband was at common law liable for his wife's ante- nuptial debts and torts, and for her postnuptial torts by reason of the merging of her personality in his, but he was not liable for he- postnuptial debts, as, for the same reason, she could not eontract any, save only as his agent, in which case it was his debt and no' hers. The rlghf i and oKigationa of husband and wife with refer ence to her antenuptial contracts and torts and her p6fct- ONTARIO LAWS OF SUCCESSION. 215 nupiial torts are now regulated by R. S. O., cap. 163, sectioti3 16, 17 and 18. Will*.— The existing statutory provisions as to niarriLvl women's wills may be found In R. S. O. 1897, cap. 128, sees. i. 9 (5) and 26 (2). For the history of the law on the subject of married women's wills, see 8 Can. L.. T. 181, and 17 Can. L. T, 192 et 8iq. Dovrer.— A wife's right to dower in the lands of her hu* laiKi l« regulated by R. S. O. 1897, cap. 164. Maintenance of Deserted Wivei— In addiiiua to ilie right wliich a wife has to bring an action against her husband for alimony, a deserted wife is now provided with a summ-' ■ statutory remedy, which may be granted by any Stipendiary »t Police Magistrate, or any two of Her Majesty's Justices of the Peace, who are authorized to allow the wife such weekly sum, not exceeding $5.00, as the Magistrate or Justices may consider to be In accordance with the husband's means, and with any means tlie wife may have for her support and the support of her family. R. S. O. 1897, cap. 167. The Act provides that a woman shall be deemed to havo been deserted within the meaning of the Act, when she is living apart from her husband because of repealfd arsaults or other acts of cruelty, or because of his refusal or neglect, without sufficient cause, to supply her with food and other necessaries of life when ahle to do so. | An Epitome ot the Laws of Succession in the Province of Ontario. A. H. MARSH, Q.C., OP THE TORONTO BAR. The law governing intestate succession in the Province of Ontario, in so far as concerned the real estate of persons who died before the first day of July, 1834, was the common law of England. The law governing su^h succession in the case of persons who died on or after the first day of July, 18B4, and on or before the 31st day of December, 1851, was the statute commonly known as the Statute of William, now contained in R. S. O. 1897, cap. 127, sec. 24 et scq. The law governing such succession in the case of persojis who died on or after the first day of January, 1852, and before the first day of July. 1886, was the Statute commonly known aa the Statute of Victoria, now contained In R. S. O. 1897, cAp. 187, sec. 37 ct seQ. c' 'Li 216 ONTARIO LAWH OF SUCVEHiilON. During all ot ihe periods above meniionea the law govern- Ir-g sucn s>uuct;smoii:i iii ao lar as concerned personal esiai-v was the siaiuie commonly known as the Siaiuie ot Uisiriuu- tlons (22 and 23 Car. 11., cap. IV), explained by 2a Car. 11.. cap. 3, sec. 26, and supplemented by 1 Jac. 11., cap. 17. As to the reason lor passing 2a Car. 11., cap. 3, ssec. 25, »e» Lamb vs. Clwetund, 19 S. C. H., at page 83 vt atq, and at page 86 ct aeu. The cases under the Statute of Distributions will bo found in Williams on Kxecutors (9th Kd.), 1352 et siq. In the case of persons dying domiciled in Ontario on or after the 1st day of July, 1886, their estate, both real and per- gonal, devolves upon their personal representative, subject to the payment of the debts of the decedent, and so far as the said property is not disposed of by deed, will, contract or other effectual disposition, the same is to be distributed as personal property is to be distributed; that is, there is to be no difference in the devolution of real and personal property in the case of persons dying on and after the 1st day of July, 1886, and the descent of real property after that date is to be in the same groove as the descent of personal property. Real and personal property in this Province will therefore devolve pursuant to the provisions of the Statute of Distri- butions, explained and supplemented as aforesaid, and modified by the Devolution of Estates Act (R. S. O. 1897, cap. 127, sec- tions 4, 5 and 6). A table of descents, showing at a glance upon whom pro- perty will devolve according to the law of this Province, will b» foundi on p. 286. It is open to very much doubt wliethcr any such estate as tenancy by the curtesy (strictly so called) now exists in this Province, and whether the effect of section 4 (3) of the Devolu- tion of Estates Act is not to abolish tenancy by the curtesy, and leave in the husband in lieu thereof, an anomalous Interest, which he may elect to take, and which, if he does so elect, will be analogous to the interest which, under the old law, he would have had as tenant by the curtesy. In order to ascertain the operation and effect of section 4 (3), it is well to contrast it with the analogous section 4 (2), dealing with a widow's right to dower. The latter section pro- vides that nothing in the Act shall be construed to take away a widow's right to dower, but that she may, by instrument in writing, attested by at least one witness (no time for executing the same being limited) elect to take her Interest in lier hus- band's undisposed of real estate, derived by her under section 4 (1) of the Act, in lieu of all claims to dower In respect of real estate, of which her husband was at. any time seised, or to which at the time of his death he was beneficially entitled; and unless she so elects, she shall not be entitled to share under section 4 (1) of the Act in the said undisposed of real estate of her husband; that is. Mn?cs« tfu^ widow elects agniniit dower she will retain her rights as Aoweress. Section 4 (3), on the other hand, provides that any husband who, if sections .1 to !) of the Act had not passed, would he mtitled to an interest as tenant ft;/ the curtesy in anfi real estate of his wife, may, by instrument in writing, executed within six month? UMAIiW LAWii UF iiUt'VEl!iiSW^. 31 i afler his wire's death, and attested by at leasr one wuneaa, elect to taKe such interest la the real and personal esiait ol his deceased wite as he would have taken it the said sections ot the Act had not passed, in which case the husband's interest therein shall be ascertained in all respects as it the said sec- tions had not passed, and he shall be entitled to no further interest under the said sections from 3 to 9. It should be noted that the husband's tenancy by the cur- tesy is not. like the widow's riight to dower, expressly pre- served, but that, on the contrary, there appears to be a necessary Implication, arising from the words above Italicised, that the passing of sections 3 to 9 has taken away the hus- band's rights as tenant by the curtesy. The section then gives the husband the anomalous right above referred to, but It is to be observed that if the husbanil does not elect in favor of this anomalous right (including a right analogous to that formerly possessed by a tenant by the cur- tesy plus certain rights In his deceased wife's personal property) he is to he confined to the rights given to Mm by sections S to 9 of the Act (and apparently to the rights given to him by section 5 of the Act). This is an exactly opposite course to that pursued with reference to the widow's rights as doweress. It is a general rule, that when an option in the nature of a power is given along with a provision that it Is to be exer- cised, if at all, within a limited period, the time so mentioned is of the essence of the power. Tt is presumed that the hus- band's power to elect in favor of the said anomalous rights will fall within this general rule. The widow on the other hand may elect to taike her dis- tributive share in lieu of dower at any time before the estate has been actuaiUy distributed, even though there has been Judgment for administration and declaring her entitled to dower. Baker vs. Stuart, 29 O. R. 388; 25 App. R. 446. The Ontario Legislature has, by 62 Vic. cap. 9, s. 11 (/i), recognized the estate by the curtesy as being an existing inter- est In lands; but if the view be correct that the said estate •was abolished by previous logisilatlon, this recognition would have no effect, for "The misapprehension of the Legislature as to the state of the laws on any particular subject would not, as was stated by Cockbuin, C. J., in Earl of Shretcshtiry vs. Scott, 29 L.. J. C. P. 53, have the effect of making that the law which the Legislature had erroneously assumed it to be. So aJso in Ew parte Lloyd, Sim. N. S. 250, Lord Cranworth said :— 'The Legis- lature are not interpreters of the law, and Courts of law are not bound by a mistake of the Legislature as to what the ex- isting law is.' " Per Burton, J. A., in Re Grand Junction Ry. Oo, vs. Peterborough, 6 App. R. at pp. 343-4. Section 5 of the Act provides that the real and personal property, whether separate or otherwise, of a married woman, In respect of which she dies intestate, shall be distributed one-third to her husband, if she leaves issue, and one-half if she leaves no issue, and, subject thereto, shall go and devolve as If her husband had predeceased her. That is. If the wife 218 ONTARIO LAWS OF aUCCElSSIOX. leaves doscendaiit.s of hers, the huaband gels one-third of her leal and personal property, while if sh«; leaves no descendants, the husband gets one-half of her real and personal property, and the residue In each case Is to be distributed bstween her next of kin, to be ascertained by reference to the Statute of iJlstributions, and Amending Acts, including sections 4 and 6 of the Devolution of Estates Act. A considerable difference of opinion formerly existed with reference to the descent of a married woman's property, owing to a supposed conflict between tlie Devolution of Estates Act and one of the sections of the Married Women's Property Act. See 29 Can. L. J. 4C6, 566, 545. and 13 Can. L. T. 272. This difBculty has now been overcome by 60 Vic. cap. 14, sec. 33, which repealed sec. 23 of the Married Women's Property Act, cap. 132 of the R. S. O. 1887 (the supposedly conflicting section), and by soc. 32 of the same Act, which is now contained in sec. 5 of the Devolution of Estates Act, as aforesaid. It must be remembered that section 5 of the Devolution of Instates Act (providing for the descent of married women's pro- perly) is liable to be over-ridden by section 4 (3) of the same Act (empowering a husband to elect in favor of the anomalous interest above referred to). This anomalous interest (in all oases in which the husband would, apart from the effect of sections 3 to 9 of the Devolution of Estates Act, have been tenant by the curtesy) would include rights similar to those formerly possessed by a tenant by the curtesy. In addition to this it would, with reference to the personal estate of an Intestate wife, include the right of the surviving husband to take out letters of administration to that estate, and as such administrator to appropriate that estate for his own iionefit. As to thi.. o I c Ob D a 6 en ~ I a: o U •O '« V CD O •M o 1^ o a 03 CQ o Eh ^ 55 ^ S£ UU '-^ M O ? o i K] 00 U a Pi a 'C 3 C u A ■■ I CD B ; ■? i 8 o ^ c I. _ n on it •*: :: «^ — -XT- .o . o s — 0.1 OS OO £ *< — ."^ S; i-*" * |-^£^ 5IC8 T "^ ce c * »! i II Si ?J3 .w * CO 2J f— '*' i 2' ** s «_-* -3.S3 O O o r "Of ^ j= p. > o-c o (S C X XS 8< «!° 01 S a) 20-3 ® V. S IB S5,'0 02 ■ V ™ ■ ^ iij a) X Q ■2 3 "'P 5 ONTARIO LAWS OF SUCCESSION. to n D. Si <= j; «i ^ CO u." o ■22 2® (U CD Is «^ a %i 2f 4-1 .-^ "3 33 g •« ■o a ^ ^ la ■Of '5 S 6 -J- 9 O t,a ■-1 a; 05 a) = ■0 c4 m » o 11 — 2 ^ as 9 •a o ■o 4) t-»- --u J3 » — ^1 p So *^ ^ ,^5 •=*■«« o 3 S^ M •- ^-■SsiJ -•» e-o oS-2 . • ^ t. a «i a -J . „ ■O .^ «J SS ^ cc "^ a * S ^ - O -« .3 S 3 u oj u <»&>. a i*j a o — "*■ « b a d) Ih an ^ X> a» >ja 5s a 2 ■a "S* «• * •5 ° 3 3 l-S c4 O; O S c*^ >£ $1' ® ce ' 6 gli- p ; 1 m e ^ t-'a_ S (B « a ^ • ti_A ® « ^ au-d ©-^-a s ;« li) 4J 3) .M 4) ^ m C '«'*'* » •2 xj S « = ® ■U <» 00 .~'T't/l ^gaersi-S . »"*— S 5 :z; *j M a o) :f. r** :« o 2 « S t. b " a ^ 5 * -!• *■ '^ a « « 'Z « Bhur4 ■TJ 0. "»■ w 1/1 w S 10 ai^^ ^ * -.-;. X , ^ uu V a} ^ ■2 >» S S a i« ? a) S « £ K ■/) 0-2 a *^ ■ t* u 1- 3 ■" Hi j3 c n e a> t> . a e c k ■ •■^ 1 »« »-M So m'A c 0-^ -S .2 a <»a, ■oS a . eg toe ^J' ki a) a> •a*i o-*- as »•= .flr ■"a a * 1 «> • I'S f t» a) A-c •o2 •ot: » fee ^T fc ''■ ^-r 1 s-o ^4? c -<-• • 0) > .^i •i« «> « asy ./. , ' 5t C 2^ £ S *^ A-, V o; «. y 2 ♦* O .0,. *S 00 & .a tn-t « *"S , t- •^ «s « -3-a O'l: ^ S ""2 ^•Mja . 3 O Q,4> o " 2 fe III! •S w *^ . «$§■' O u %■ ^ o o r •» * £ ,^ pa *.'''»' 4, " s "^ « tc .w -M g 05 3 ^ , fa. o 2 « . »' - O ^ Si «- t- .2 J, B fi j: 1, *. T' »* V ^* C r* v.;„~ tc .-B •C o a u ii « »i 2 = "^ •£ 1-' o S ~ « == "' ,2 5 o 2 5 3 ". « --? ,> 3 o ^si 5 (u fe ° c '/j S « ■^.a 'M fe a Q> « i", &• o 01 ., « « t« a.Q.*' Si ii C w Oi « X' iajis 5; c 5 ■0 a 41 V Z*^Z. rt ii«i*oS^ -eg . 252- <• "O o - '^ *" I- ' •"5 2.* 3 = O tM U !> O U OitM «^r;D_aJ32 •S«a< g-£S» a o «J agu'W- = 2 S^'I-SS,, 553J ' J 5 = o =« t--c«MS^c« Sj25~;ai;« toa«^ *^ i: « o § o-"* a '"•a — •5-^3^2-*>-vi^a!^S .^-5-a £ O"?.*; K S .M cr .A -1 's ^ D o •= o « rt ^ _ .a>i)*-ii*ai Qa — V . , >, J) c .» - ^ ■ SS * . a?. $"> 2 a". £0 o 4)>*^ o c 0) » a 2 " c!J . © -, = ?j! . •■'^ •=ts 4)'!S 9 . ag I 222 ONTARIO LAWS OF SUCCESSION. « * s ■ -^ ' 5 . «^ ^» 11 £« ^2 i •3* o o <« 3 o" M a C g/; oS ei2 eg = l-H « ee s *j B eg * a t> §1 o 3 - V 3 O Pi «*H ■'a :1 a M cs ?5 -3 6J o -M o C O d ja.s •-■« . O (S B > u £ — « C «•-£ 07 ^ ^ -^ ■s ^ s .5 ^^^£ •" in P S t O C5 3 "si i« S 2 t S rt O fl) t, e — — - -ai J) ? a a ii: t» a> oj ^■^ '■" •'^ t* S a 2- S' 0.3 1:: i i-i o « TsiSB t-B V 3 ^ u fe ':=§=^ (y -^ U ♦-♦ u 3 S ^-2 :i.£ o H cs a B 00 u . 0.0. 25 3 - as •g CO I '=2 Z^ >- '~ ■2 !)•«: is " > •r, 00 s*-( .-3 -fc. *«^ V I" P *^ £ a "11 £ -J y. p5 M C 1; I/: ■5 e« 6 i B a £. S 01 tJ '3 rf i> 2 2 3 9 m 4> ^ (M 60 .a 5 '3 1 a e ^1 *ti S s u n * 2« .5; § u* 3e c 3t 'S -S- ^ fe^ II 3-3 3 .2 •d B B s C4 V n II It 6 t4 3 lU .B II ^1 s- eg i« cd rt« «- Ij-a « fa fa fa fa fa fa Si9 a :« V s a ft« fci en « o< 3 > « 5r u o 1 1 1 "3 B C 1)^ g ^ is • K «« s . u i: " >,o 1 i 00 1 a S t-^ 1 tfi •* S Si ' 4i' >• §• SJ 5 o 1 ^ to ^ (j3 ?! i 9 1 1 •-s 2 s 1 i wm *-< S2 1 1^4^ i CO 5 »-t i % p S >.S ■'• * u e« A o c c W s 1 o a o a o £ O S s Ml 1 O S Tf. B s (1> B r,m « S*. S o O s s 5 |0 5j ■•-• tf. "2 t 0; a £ 3i c^ 2 ^-1 > i ^ m ^ g 2fe C3«' o 4^ 3 1 c £ 3 S— V o £ o s 4^ 3 S O c H ^ c 3 -<1 M * ^ .c V ' ■o T3 2 1 = 1 3 §1 ^r »-1 i f 1} oi «! •n 1 "o* o Oc s 0. _5 a S If "7 1 1 o a 1- a o i2.? '.'1 c a u £ S s ^ 2 5 " "3 "SB 'J: .si tn 1 E S ea 1 1 11 < u -1 « 52 OA 1 2 S * £2 sl ^ f. 5^ s ca n tt n fj ^ ONTARIO LAWS OF SUCCEaaiON. oW e: ci u a o n s a .a *-• a « a' it % no T3 O I- .5 s s «) rt ° •-"S-S 4; S (u ^-» --* ■ — • S •'J i< *« ^•^ ^ 2 «•« o o &Saa *- 2 S « o Sd'" si ^5 :< ^ t' m O 1-5 JJ s »- « c S n S 3 5 » * a ki £ V •3 * s 3 . ogO" PS'"'* o e* ~ '5 »> s s n c6 o O •*>-•§. '^ ^ 3 ., •S D 3 " •S-i & .0 3 g S * *' 5 ^ ii c 2 2 % ■a S 3 », ■9 h a o H § J3 aC _ u •9 o II 41 « ^ Si O e o 01 n 0) 3 s O 3 "S 3 90 J3 3 2 o 5 o o 0) 4) S, "3 3 3 •O 3 :« ki 41 •« 3 CS 41 o Xi a o fi *^ o a 3 C4 ja M IS M § a* a •a -a 3 c 4) a I S a" e A 4) •o 3 o" 0} 4> o H ID 03 IS ^ « a 4) 4) o 3 m d«M 4> A) 3 35 ^ K ONTARIO LAWS OF SUCCEaSION. I o' 'A o ^» u « ■n 3 « b« ■3 O S5 o ^ iS if cb OS S e 0. C S » •S ii c n « 5^ o E e H ■Q I « > o (A c a > "5 .2 a. ^i| = S >-.a ■3 ® » "■■a "■ B > » o - « * '»j 2 ^ X K ^ 4, J3 X •-* »- V Sa«-aJ ^ * o S- 15 S 0) t>.a " rt o .- - IJ « = gS 5;,a 1) >-3 226 i o V V t/3 i o "S a 2 S 6i^ u Co .s "S a X « .a 2 A O s ■3 a a 1 s es n a "3 a a 3 "•a 1% c a a n 3 si 11 s 11 •a 1^ St A o S; 1 B ri ll II i i. V .a 4 a CD a o s 1 3 a ^ . si 11 1% V h Viu « Hi D S a> ,0 4) i| fi 1.2 .g A •s ° "5 « §& e^ a d a B!; sz; S2; S5 S'l s?; vi I « 9 15 196 CO 9 Xi B § o s Hi? fc.9s "3 O M o ■a » = q s !l .a 11 a •• a ^ Sl O^rjlB/O ilTTS OF SUCCESBION. 3 ^ o ►^ -^ g tali: 2 s ^ "I trt n 0) 'S ^ « £ « o a, 0) o ^ tM x; *M n o> o 'W o b £ O M 4J i2 4) c ■" d to -g 0) o •2 m S £ S O M *N g -O M N - ^- g H <-• 4) " ■" 5 4) O 41 C _ 3 o s 3 2! I" » d^ S« 3 1 4-) s Q ■ c ; o MM • 01 10 a . o o 3 CQ I C o < tn O m tn c4 Ph n o Q n It a 3 to Bo" ^2 ^ O « rt « rt o! 3 cn •- 0. , 4) C s 5 "2 5 « o o ■u tn O 4) O- S to J^ 4) a to .C c S o 41 4j a o -w o +J .c ►^ iS ,2 3 1, c 4) •" -O 'aJ 'to m f - A CO d J-' > 1 >: Pj d -= >. c -^ T? +-• •« 3 ^^ 2 -Cl a = ? d m (n - CoT S^S^ >, »- » -fj -Oo& o 2 '5 ^ I C 4) 4> 41 n 15 ~,l i fr*- l\ ;■ ■ ~»r , i ' ' 1* h 1 . I ' I '.'f ■i ■ :.i •i 9 i 228 ONTARIO LAWS OF aVCVESaiON. passes, is subject to a duty ot $2.50 for every $100.00 of the value. Where the aiseregpte value of the property exceeds 1200,000.00, the whole property, which passes as aforesaid, is subject to a duty of $5.00 for every $100.00 of the value. Where the value of the property of the deceased exceeds $10,000.00, so much thereof aa passes to or for the benefit of the grandfather or grandmother, or any other lineal ancestor of tho deceased, except the father and mother, or to any brother or sister of the deceased, or to any descendants of such brother or sister, or to a brother or sister of the father or mother of the deceased, or of any descendant of such last mentioned brother or sister, is subject to a duty of $6.00 for every $100.00 of the value. Where the value of the property of the deceased exceeds $10,000.00, and any part thereof pass « to or for the benefit of any person in any other degree of collateral consanguinity to the deceased than is above described, or to or for the benefit of any stranger in blood to the deceased save as aforesaid, ihe same is subject to a duty of $10.00 for every $100.00 of the value. It Is, however, provided that, where the whole value of any property passing to any one person under a will or Intestacy does not exceed $200.00, the same shall be exempt from Succession Duty. 62 Vic, cap. 9, sec. 11 (g) extends tho operation of the Act BO as to make it include any property over which the deceased had a general or limited power of disposition whether by in- strument inter vivos or by will, "Including the power exercisable by a tenant in tail whether in possession or not," but excfludlng any "Power exen laable In a fiduciary capacity under a dispo- sition not made by himself," and excluding any power exercis- able as a mortgagee. This section provides that it shall extend to a power over property which enables a man "to dispose of the same for the benefit of his children or some of fh?m." This provision will give rise to nice questions as to whether in a given case a limited power of appointment to or among children is or is noit a power coupled with a trust. On this poiint see Re Weekea Settlrmrnt, 1S97, 1 Ch. 289. In the absence of testamentary provision to the contrary, the succession duty shouild be deducted from the respective legacies, and the executors have no power to pay such duty out of the residue of the estate. Manning vs. Rohinson, 29 O. R. 483. A Synopsis of some of the Principal Provi- sions of Real Estate Law in Ontario. COMPILED BY JAMES EDMUND JONES, B.A., BarrlBter-at-Law, OSQOODE HALL, TORONTO. Real property law is within the exclusive jurisdiction of the Provincial Legislature, except in so far as It is affected by the exercise of the powers given to the Dominion Parliament incidental to departments of legislation within Its control, for example, by The Bank Act, Parliament, restrains banks from taking mortgages except under certain conditions and circumstances. By The Act respecting Interest, Parliament en- acts that whenever ii mortgage is payable on a sinking fund plan or on any plan under which payments of principal and interest are blended, no sum beyond the amount of principal is recoverable unless the mortgage contains a statement show- ing the amount of principal and the rate of Interest charge- able. The Act further provides that no fine or penalty shall be exacted c':i account of payments upon a mortgage falling Into arrear. This e^i ctment is, however, usually rendered abortive by a provision in the mortgage that Interest shall be charged at the higher rate, but if paid promptly a lower rate will be allowed. The Act further provides that when- ever a mortgage is payable more than five years after date, then if the mortgagor tenders or pays after the expiration of five years the amount due for principal and interest together with three months' interest as a bonus, no further interest shall be recoverable. This last provision is disregarded by many solicitors, who consider It ultra vires of the Dominion Parliament. But the bulk of real property law in Ontario is enacted by Provincial Statute or founded upon Ontario and Engllth precedents. The law has not been codified, but the statute law is conveniently collected in the Provincial Statutes, which are revised and oonsrvlidated every ten years, the last revision (R. S. O. 1897) having oomie Into force on Slsit December, 1897. tiA^r of England.— In 1792, the first Act of tihe first Session of the Parliament of Canada Introduced English law. Thi.s en«iotment Is now represented by R. S. O., cap. Ill, Which pro- vides that in all matterj of controversy relative to property and civil rights, resort shall continue to be had to the laws of England as they stood on the 15th October, 1792, as the rulo for the decision of the same, and all matters relative to testimony and legal proof in the investigation of fact and the forms thereof in the several Courts of Ontario, and shall 130 ONTARIO REAL ESTATE LAW. continue to be regulated by the rules of evidence establiahed In England, as they existed on the 15th October, 1795S— except so far as said laws and rules have been since repealed, altered or affected by any Act of the Imperial Parliament having the force of law In Ontario or by any Ontario Act. The English Statutes of Limitations passed previous to 1822 are in like manner in force in Ontario. The Courts having decided that the English Act known as "Thie Thelluaaon Act" was not in force in Ontario, the law was amended in 1889, so that accumulation of property by will is restrained foi any longer term than 21 years from the death of the testator, or than ditntng the minority of any peraon, who, under the brusta of the will, would tor the tlmie being, if of full age, be entitled to the rents and profits or the interest of the property directed to be accumulated. This, of course, in no way affects the estate in lands known as "Estate tail." But entailed lands may be disen- tailed. Estates Tall.— By R. S. O., oa«>. 122, pirovlaioni is maOe for the cheap and easy barring by the tenant In tall of the remaindermen. Although tho Act covers twel\. pages and oontains numerous provisions, it is rarely resorted to, and its contents are not generally understood. The reason for this l3 thiat po-operty owners in OntKurto have rarely desired to create this ancient estate, and wheirever the same has come Into existence the tenants in tail have usually made haste to inunediiately abolish it entirely, oonslgning "Proiteotoiv of the Settlement" to the obscurity of real property text books. The simple provision is that "Every actual tenant In tail, whether in posBession, remsilnder, contingency or other- wise, may dispose of, for an estate in fee simple absolute, or for any less estate, the lands enta*\ed, as against all persons claiming the lands entailed." II Ait } 1 [■ As to Systems of Iiand Transfar.— Two systems ob- tain—Transfer by deed, and what is commonly known a.a "The Torrens System." The latter applies only to the County of York and City of Toronto, the County of Elgin and City of St. Thomas, the County of Ontario, and to the Districts of Muskoka, Parry Sound, Nlplsslng, Algoma, Manltoulln. Thunder Bay and Rainy River, with power to other municipal- ities to Introduce the system by by-law. Even In the muni- cipalities above named, however, the system has not been exclusively adopted, and In fact most of the land therein remains under the old system. By the "Act to Simplify Titles and to Facilitate the Transfer of Land." commonly known as "The Land Titles Act" (which Introduces the Torrens System), each successive owner's or mortgagee's title is evidenced by a certificate of the Master of Titles, and not by a succession of title deeds from former owners. It Is In effect an adaptation of the copy- hold system of land tenure In use in manors In England. The owner of land derives ihls title direct from the Crown, and his ownership Is recorded In books kept by officers appointed by the Crown. There is therefore in purchasing land no necessity to It :! ONTARIO REAL ESTATE LAW. 33^ search the title behind the grantor. The forms in use are very simple. The practice of using seals in making transfers, mort- gages, etc., has been done away with, and entries of ownership In the register need not be under seal. The first registration of land under The Land Titlea Act is preceded by a caretui and minute seai-ch of title by the Master of Titles, amounUng In fact to the quieting of the title. The Master of Titles is a barrister of not less than ten years standing. If tne tliie is found satisfactory, a certificate may be registered in thd registry office of the municipality in which the land is situated, and thereafter The Registry Act ceases to apply. There is an Assurance Fund to Indemnify i>ersons who by fraud, error or misdescription may be deprived of some estate or interest. Such Assurance Fund is constituted by the payment Into court of one-fourth of one per cent, of the valu** of la^-d when it is first brought under the Act. If the person defrauded or injured la unable to recover from the person on whose appli- cation an erroneous registration is made, he is entitled to indemnification from the Assurance Fund if he applies within six years from the time of having been deprived of his estate or interest. This rembdy against the Assurance Fund might, however, be inadequate under some circumstances. For instance, a wife's right to compensation from it for loss of dower consequent upon a fraudulent conveyance by her husband would be barred in six years after such conveyance, whereas, she has ten years after her husband's death to enforce her dower against lands registered under The Registry Act. There are three kinds of title for which cerUflcates may be given' by tihe Master when land is brousht undier the Land Titles Act. vVhere an ' absolute title" Is required and can be proved, the title is quieted absolutely and is free from all Incum- brances, excei>t those set forth In the register, and unpaid taxes. Where, however, the applicant is able to verify his title only for a limited period and not from the grant by the Crown, or cannot auiuoe evidence to remove doubts under any particular instrument, a certificate may be granted him for a "qualified title," and In such case the Master, by an entry on the register, except from the effect of registration any estate right or Interest arising before a specified date or arising under a specified instrument, or otherwise particularly described in the register. Sometimes a paper title cannot be proved, and the applicant is content to take a certificate of "a possessory title," and thereafter the registration has the same effect as the regis- tration of a person with an absolute title, except that it shall not prejudice the enforcement of any rlglit adverse to the title of the first registered owner and subsisting at the time of registration. The register of leaE°-hold land is kept separate. Per- sons may be registered as owners by lease-hold with a de- claration that the lessor had an absolute or qualified title to grant the lease. The Land Titles Act provides, as to land registered under Us provisions, that a title to any land adverse to or In deroga- i i \ r,'i 1 u : Vi S32 ONTARIO REAL ESTATE LAW. tlon of the title ox .a registered owner shall not be acquired by any length of possession. In other words, the ordinary Statutes of Limitations do not apply, and no on6 can acquire what are popularly known as "squatters' rights." The Act applies with certain qualiflcations to owners who cannot prove an absolute title, but whose title is such that they may be registered as owners with a qualified or possessory title. When a new certificate is granted to a new owner, the old certificate must be delivered up for cancellation. Executions i'.i the shenlfC's hands do not afCeot land) brought under the Act unless a copy of the writ is upon demand transmitted by the Sheriff to the Master of Titles. The forms provided by the Land Titles Act are almost mere memoranda. This may be illustrated by the form of tranafer of land, and the Insertion thereof here may prove useful, especially to persons living outside Ontario who may have occasion to deal with lands in Ontario which have been brought under the Land Titles Act. LAND TITLES ACT. I, A. B., the registered owner of the land registered in the office of Land Titles at as parcel 6, Township of (as the case may be) in consideration of $ paid to me, transfer such land to C. D., of etc.. Dated the ■Witness: day of 19 (signature). AFFIDAVIT OF EXECUTION. Affidavits Attesting Execution op Instrument whlre bar of dower and identiftinq parties. Land Titles Act, I, G. H., of etc., a solicitor of the Supreme Court of Judica-. ture (or, as the case may be), make oath and say: I am well acquainted with A. B. and C. D<, named in the within document, and saw them sign the said document and the slgtiBitures purporting to be their respective signatures at the foot of the said document are in their handwriting. The said A.B. is, as I verily believe, the owner of the land within mentioned, and the said C. D. is reputed to be, and is, as I verily believe, his wife. The said A. B. and C. D. are each oif the age of 21 yfairs or over, are each of sounoalt of a copy, or by production of probate or exem- plification and deposit of a copy with affidavit verifying such copy. Upon payment of a mort^raigie it is not necessary to ob- tain a reconveyance, though the mortgagor is entitled to de- mam) It. The regtotiratlon of a reoetpt in statutory form, known ais a "discharge," opemates as a reconveyance. Sucii receipt may be only a "partial discharge," and may release only a specified part of the lands mortgaged. V.OTtKtiKem.~^origBiS^s are usually drawn in a compen- dious form provided by the "Act Respectii.g Short Forms of Mort^agies." Short clausiee of a f«w wo(rdB may be used, and are construed as if they contained the long forms. For ex- ample:— "Provid'ed that (tihe said mort^a^ee on> d€ifauilt of payment for months, may on notice, enter on and lease or sell the said ilandis," Is a shortened form of a piro- vlsioin that in ditsi amplified] form oonitaine over nine hundred words which, among other ♦hlngs, cover the following agree- ments between mortgagor andi mortga«. The production of the mortgage deed is conclusive evidence of default. Notloe of intention to sell may be served on tihe mortgagor or his assirns either personally or at his or their usual or last place of residence within the Province. On default, the mortgagor or his assigns may leai»e the whole or any part. On dfefauilit, the montgage<^ inmy isedl by public auction or private sale, or partly by both. The mortgagee on selMnfir bhall not be responsible for any loss which may arise by reason of such leasing or sale ualess the same shall happen by reason of his wilful neglect or default. The mortgagee shall stand posisessed of rents and of proceeds of sale in trust; to pay coats of sales and leases; to pay ixes, rent, insurances and repairs and all other costs In execution of trust; to pay principal and Interest; to pay surplus to mortg-asror or as he miay direct; at oo«t of mort- gagor to convey to him all parts of mortga-ged premises that remain un«oW, free from mort«ag«, but mortgairee «hall not be compelled to travel from his usual place of abode to ex- ecute convcyanoes. Notwiit'histandiln*' power of sale, (the mortfMi*ree nhaU have rlg^t of foroclosure. "^n>^ ihp said (A, B.) wlft of the satdi mont? .^ror hereby bars her dower In the said innds" is a shortened form of rel«a.«» of all clajlm to dower. But iby nm Adt paawed In 1896 It Is provided (R. B. O., cap. 184, 8. 22) that ONTARIO REAL ESTATE LAW. m (a) An action of dower shall not bo maintained where B. wife on or after IMh AprU', 1896, has Jodned or tii6r«after Joiins In a. deed purporting to convey the land, or liais signed or algoB, otherwiae than as a wltneas, a :de«id< by which hier husband conveys or purports to convey the land, notwith- standing that the deed in either case contains no words pur- porting to convey or release her dower. (b) An action of dower shall not be maintained where the wife did, prior to the 16th April, 18 , Join in or sign any such deed; but this is not to prejudice the rights of third persons claiming the land under a subsequent deed or mort- gage executed by the wife prior to 16th April, 1895, and con- taining a release of dower. "And that the mortgagor will execute such further assur- ances of the said lands as may be requlslite" is a EAiorbened tarm of a provision that after default in observing covenants con- tained In the mortgage, the mortga«y>r and those claiming under him will, at 'tihe expense of the mortgagcie, exiecute such further deeds for more perfectly conveying the lands to the mortgagee and those claimdng' imder him, as the latbeir, 'oy tholr counsel learned In the law, shall reasonably require; but no person shall be compelled to tiravel froon his pltuco of abode, to execute any deied. "And that tIhe said mortgagor will insure t!h« bulIdHngs on the said lands to the amount of not less than currency." This short clause inc'.udes the following provisions: The mortgagor will forthw.'tih insure and wdll keep Insured in sucn proportions upon t>ach building as may be re- ee shall pay any piremluma, the amount thereof .sihaiai be added to thie nw>Ptgia«e debt, to bear In- terest at same rat*. Piremilums paid by mortgacree shall be payable to him by mortgagor at next date for payment of mortgage interest. "And the said mortgagor covenants with the said mort- gagee" is the short form of, and equivalent to "And the said mortgagor doth hereby for himself, his hedaw, '?:vecutors, and administrators, covenant, promise and agree to and with the said mortg'agee, hte heirs, execu- tors, administrators, and assigns. In manrner following, that is to say:" The Short Forms Act ha.s many advantages. There Is less Ilab.ilty to error, as almost all mortgages are drawn according to Its ppovialons, which have thus beoom^^ very familiar. The cost of conveyancing Is lessened. The tendency to verbiage in legal documents is checked. The cost of copying mort- gages in the books of registry offices Is reiluced. This last consideration, however, is not now of so much Importance owing to the provisions of the Registry Act, R. S. O., cap. 136. sec. 61. This section provides that upor »he registration of original 238 ONTARIO REAL ESTATE LAW. mo/igiaerea or aeeAgj.im)eaaitB theneof ex«cu/tKd on and after 5tb May, 1894, the mortga«€ie, his solicitor ijr a«ent may endorse 'upon the mortera«« "Not to be reglstaredi In full." In sucOi case a uniform dharge of $1.00 is made for re»lstratiloini no mat- ter what leng'th, tihe document may be. Tihe reeristrar keeps the record cf a deed, mortgage, etc.. In three ways; 1. By retaining a duplicate original. 2. By copying it In his books. 3. By entering full notes of it in his abstract index under • the parcel of land that it affects. Obviously the exact provisions of the mortgages of which^ discharges have been registered need not be so carefully preserved, so there is no necessity to copy them in full in the books. But if sale or foreclosure ae had under them, they become more valuable in the chain of title. The Registriir may, at any time after registration, be required to copy the instrument in full in his books. It is Interesting to note Lhat the English Act upon which Or- .-lo Short Forms Acts were founded was "consigned to n^ ' '• '," whereas all the Ontario Short Forms Acts (viz., thotaC relating to conveyances, leases and mortgages) have been in constant and general use. It may be a convenience, especially to persons loi reaiulng in Ontario, to ajjpend copies of the forms provided. THIS INDENTURE made in duplicate, the day of one thousand nine huntired In pursuance of the Act respecting Short Forms of Mortgages,. BETWEEN, hereinafter called the Mortgagor, of the First Part his wife, of the Second Part and hereinafter called the Mortgagee, of the Third Part. WITNESSETH, that in consideration of of lawful money of Cni, In. now paid by the said Mortgagee to the said Mortgagor 'ti' u eipt whereof is hereby acknowledged) THE ~ai: i»' -t^ngor Do Grant and Mortgage unto the sritc' iV*o> ,agee heirs, executors, adminis- trators and asK; , ? for ever: AXAj and STNOViLAR th certain parcel or tract of land and premises situate lying and being (set out description). AND the said wife of the Bald Mortgagor, hereby Imre her Dower In the said Lrfiids. PROVIDED this mortgage to be void on payment of of lawful money of Canada with Interest at per cent, per annum, as follows: (set out terms) and Taxes and pprfnrmance .>f Statute lyihor. The said Mortgagor covenant with the said Mortgagee. THAT Mie Mortgagor will pnv the Mortgapo Money and Interest an'l observe the above proviso. That (he Mortga,f any person, or as to the existence or non-existence, happen- '! I I o- 240 ONTARIO REAL ESTATE LAW. Ing or non-happening of any fact, event or occurrence upon which the title to land may depend, and notices of sale, or other notices necessary to the exercise of any iwwer of sal* or appointment or other powers relating to land." The depoisiit is not, however, equivalent to registration. Some registrars, nevertheless, for the convenience of persons dealing with the lands, malEe a note of the deposit on the abstract ind«x relating to the liand, bo thait seairchers oif title may have notice of a deposit which might otherwise be over- looked or forgotten. Although the Act makes provision for indexing such deposits, it Is a matter of some difficulty to obtadn amy satlsfiaotory isystem -Tvhich does not involve a reference to the lands, the title to which the deposits affect. If, therefore, the owners of the land lose, or do aot keep i ay record of deposits of title deeds, the latter are often more safely hidden away in the registry office than they would ba in the hands of private persons. Such deposits may. however, be inspected by anyone on paying the registrar's fee. If documents have been depositftd for five years, there is no provision for removing them, but within five years, the person entitled may, on special Important grounds, obtain an order of ti.e Court withdrawing them, on giving notice to all persons interested. In England there Is a fixed limit of time at which a root of title may be started, and no vendor need prove title prior thereto. Bach year makes thie searching of titles in Ontario more Irksome. The Reglstrv Office has preserved a record of titles for over one hundred years In the earlier settled parts of Ontario. A vendor is liable to be called upon to prove hits title during all thiat period, and may find it extremely ex- pensive and even Impossible to adduce evidence that no dower attaches, or other facts of ancient history. If forty years or some such period were fixed by the LieBlsliatuire for the length of an abstract, and all questions of title before that period were presumed, in the absence of direct and convincing evidence to the contrary, to be answered, without the neces- sity of proof by the vendor, the general public would be saved much expense, and the profession would not be forced to waste their energies on titles that have been searched in some cases perhaps thousands of times before. Rights of Aliens.— 9inoe 1849, aliens hiave had the sanue capacity to possess real estate as natural born or naturalized subjects of Her Majesty. ReaJ Esitate in Ontario belonging to alliens deBcen"lB in the same manner as other lands. Escheats and Forfeitures.— Where lands have escheated to the Crown by rerr.-M of the person last entitled thereto having diled intestate aiw; without lawful heirs, or liave be- come forfeited for any causo except crime, the Attorney-General may cause possession to be taken In the name of the Crown, or may bring a simple action of ejectment. Mortmain and Charitable Uses.— In 1892 an Act was passed amending the law. It provides that land may be devised by will to or for the benefit of any charitable use, OATAKIO REAL ESTATE LAW. 241 but such land shall, notwithstanding anything In the will contained to the contrary, be sold within two years from the d«ath of the testator, or such extended period as the Court may allow. After two years, Kiie landa vest to the Accountant of the Supreme Court, excopt where the Court is satlstied they are required for a^tuail occupation for the purix^st-s of the charity and are not retained as an Investment. This Act, however, affects only devises or legacies which, before 14th April, 1892, would have been void, TrespasseB to Land.— Where the title to land is bona lide claimed, or an easement is asserted, an action of tres- pass or ejectment or some other suitable civil remedy Is sought. But in case of petty trespasses, the Provincial Statute pro- vides a summary remedy, and brings the matter practically within the domain of the Criminal Law. It enacts that any person who unlawfully enlers' upon aniy land, being the property of another per.son, shiafll be liable to a penalty of not less than $1.00, and not more than $10.00, Irrespective of any damage having or not having been occasioned there- by. And such penalty may ^ recovered with costs before any one Justice of the Peace. It must be shewn, however, that the land is wholly enclosed. But it is speclflcally provided that the Act shall not apply wihere the title to Hand is called In question, or wlie^r© the party trespassing acted under a fair and reasonable suppoaltlon that he had a right to do the act complained of, or to any case within the meaning of section 511 of the Criminal Code. Extensive powers of arrest without a warrant are conferred by the Act, but they can be only exercised where any person is found committing a trespass. The arrest may be made by a peace officer; or by the owner of the property, or his servant, or by any person authorized l>y him. Partition.— At one time it was thought that partition among devisees or heirs was done away with by the pro- vision of the Devolution of Estates Act, which was passed in 1886, and provided that notwithstanding any teatamrntari) dis- position, real property shall devolve upon the legal personal representative. But by amendments to the Act In 1891, and subsequently. It Is provided that a'ter the lapse of one year, whether probate or letters of administration have been taken out or not, reail iO« or Iwir-s. It certainly would have simplified titles If the Legislature had allowed the change to have been made completely and had not reverted to the old system. It would have thus well nigh abolished the distinctions between the devolution of real and personal estate. The Partition Act (R. S. O., cap. 123) Is therefore still In force for the benefit of all joint owners, whether they became such by devise, devolution or otherwise. Dower.— The law as to dower in Ontario dlffe'-s from the law in England, where the widow has a right to dower only In case the husband die legally entitled to landa without hav- ing absolutely disponed of the same by deed or will. In Ontario a woman hp-s an inchoate right of dower to all lands 16 ''^ "hi i \ ' .M' 1 4 tra IbhI M BaB H m^H >' 1 m i i B 1 if V, * ' "4 1 . / 1 * 1 !! ! J > i i. 'i ■ K . ■i: Wm i !:: t is i ■'' ] ^ 242 ONTARIO REAL ESTATE LAW. acquired or held by the husband during coverture, notwith- standing that he may have disposed of them in his lifetime or by will. If a wife bar dower In a mortgage, it Is not an absolute bar, but only to a sufficient extent to give full effect to the rights of the mortgagee. If land Is sold under a mort- gage containing a bar of dower, dower is payable out of the surplus, the amount being one-third of the gross value of the lands. Formerly a wife had to be examined before a judge apart from her husband before she could bar her dower. Now even a wife under the age of twenty-one may bar her dower without any such fcrmallty. If a wife join in a deed or sign without being named as a party, the effect Is to bar her dower even If the deed does not contain a clause barring her dower. By statute there is dower even out of equitable estates If the husband has not parted with the same In his lifetime and dies beneficially entitled. For instance, though a man who has purchased land subject to a mortgage may dispose of the same in his lifetime free from dower, his widow has a right to dower therein if he die beneficially entitled. Where an owner of land admits a claim of dower, the dowress must pay *-°r own costs of action and the costs of commissioners to measure the land and set apart the dower. Since 1886 words of limitation are not necessary. For example, in a conveyance of land in fee slmpU", it is not. necessary to express the conveyance as "to A. B. and his heirs" in order to pass an esla-te in fee simple, and where no words of limitation are U'-od, a conveyance passes all the estate of the conveying i-irty, unless a contrary Intention appear. Where lands are conveyed to two or more persons, other than executors or trustees. In fee simple, such persons take not as joint tenants but as tenants in common, unless a con- trary intention appear. A vendor does not give a warranty of title, but, usually covenants that he himsolf has done no act other than such as may be specified to encumber the land. As to Descent.— A great change was made in 1S8'5 by The Dcvohttion of TJstates Act, which enacted that, notwithstanding any testamentary disposition, property shall devolve upon and become vested In legal personal representatives, and In so far as it is not disposed of by will or otherwl.'ie shall be distributed in the same manner as personal property. In 1891 the Act was altered so as to vest the title after the laiise of nno year from the death of the testator or Intestate In the devisees or heirs, without any conveyance from the executor or adminis- trator, unless a caution Is recristpred ngainst the lands. Such caution is registered by executors or administrators to enable thorn to .seill the lainds for debts of the deceiasied, or oitherwlse deal with the same in the duo course of admlnl.stratlnn. As to Wills.— A will must be In writing, signed at the end thereof by the testator. The testator need not sign It himself. It is sufficient If It be signed by some other per- son In his presence and '^y his direct'on. The testator must write or acknowledge his signature In the presence of two ONTARIO REAL EtiTATE LAW. 243 or more witnesses present at the same time, and such wit- nesses shall attest and shall subscribe the will in the presence of the testator. No form of attestation is necessary. A soldier in actual military service or a mariner or seaman at sea may dispose of personal estate, but not real estate, by oral declaration. A creditor or an executor Is a competent witness. A devisee may be a witness, but the gift to him thereby becomes invalid. Since 1897, the, marriage of the testator does not revoke a will if .it is declared in the will that the same is made in contemplation of marriage, or if the wife or husband of the testator elects to take under the will. If a devise lapses by the death of a devisee before the testator's death, the land devised falls Into the residuary clause, If any, of the will. But a gift to a child of the tes- tator does not lapse if such child leaves Issue alive at the death of the testator. Lands subject to a mortgage must be taken by the heir or devisee subject to such mortgage. The heir or devisee cannot require the mortgage to be paid out of the personal estate, unless a contrary Intention appear by the will, deed or other document. As to Limitation of Actions.— No person can make an entry or distress or bring any action to recover any land or rent but within ten years after the right first accrued. A mortgagee may bring action within ten years after the last payment of any part of principal or interest, although more than ten years have elapsed since the right first accrued. Tl 's enables a mortgagee to recover possession from a tres- pa. >r where the mortgagor himself is barred, provided the mortgagor was not barred at the time of making the mort- gage. After ten years the right is extinguished, so that a subse- quent acknowledgment does not revest the title. Moneys charged upon lands and legacies are deemed satis- fled at the end of ten years if no Interest be paid or acknow- ledgment Riven in writing in the meantime. No action of dower can be brought but within ten years after the death of the husband of the dowresa, notwithstanding any disability. Right by prescription to access and use of light to any dwelling house or other building is practically abolished. Any right, acquired by twenty years' use before 1880 is preserved by Statute. If a person claiming a right is under any of the following disabllitiles,— infancy, idiocy, lunacy or unsoundness of mind,— he has five years after the disability has been removed, pro- vided the whole period does not exceed twenty years. Meclhipi'iiiGs' Liens.— Any agreement by a laborer or per- son eng.aged in manual labor below a certain grade to waive his right to a Hon upon land Is null and void. A Hen must be replsterod within thirty dayn after work is completed or materials furnished. It may be reglBtererl lioforo the work Is begun or materials furnished. It must bo enforced by action within ninety days after work done or \\. 1 J ■}.! i . ' ! 244 ONTARIO REAL ESTATE LAW. materials furnished. If a period of credit Is given, and It Is so stated in the Hen, action must be begun before expiry of the period of credit. A Hen need not be registered If action is begun within thirty days afte;- work done or materials furnished. Liiens for wages for thirty days have priority over other Hens derived through the same contractor or sub-contractor. With this exception ihere is no priority among llenholders of the same class. A llenholder's right may be assigned by any instrument in writing. A Uenholder may demand of the owner or his agent the terms of the contract with the contractor and the amount due and unpaid thereon. The taking of security, the acceptance of a promissory note or the giving of time for payment does not waive or prejudice a Hen. Married Women.— A married woman is capable of ac- quiring, holding and disposing of, by will or otherwise, pro- perty as her separate property In the same manner as if she were a feme sole. Since 13th April, 1897, It has not been neces- sary to prove that a married woman is possessetl of separate property in order to get judgment against her on a contract entered into since that date, and a judgment will bind after acquired property, though not property which she is restrained from anticipating. Overholding Tenants.— By the OverholdSng Tertants Act power has recently been given to County Court Judges to award possession to the lessor of land summarily without the necessity of an action of ejectment being brouglit, not only in cases where the tenancy has been determined by a notice to quit or otherwise, but also in case the tenant has made default in the payment of rent. Disputes between husliand and wife as to title to or possession of property may be tried summarily without the necessity of an action being brought. A married woman may be a trustee as if she were a feme sole. An Infant's interest in land may be sold, leased or other- wise disposed of with the approval of the High Court. "Settled Estates" may be leased, sold or otherwise disposed of under direction of the Court. For example, if circum- stances warrant it, land may be sold though the persons who may ultimately become entitled to it are not yet ascertainable. For instance, where land is left to A. for life, and after A.'s death, to such of A.'s children or grandchildren as may be living at A.'s death. H An Outline of the Law of Ontario relating: to •G Assignments for the Benefit of Creditors. PREPARED- BY R. S. CASSELS, Barrlster-at-Law, TORONTO. The law ami procedure in reference to assignments for the benefit of creditors in Ontario are primarily regulated by chapter 147 of the Uevised Statutes of that Province, which provides in theory a reasonably convenient and inexpensive method of winding up Insolvent estates. The chief defect of tae legislation from the creditors' point of view is that an assignnn-nt must be voluntarily made ; in other words, that a debtor cannot be compelled to make an assignment of his assets for their beiietit, and from the debtor's point of view that no discharge is provideil for, the creditors being entitled to take what the assets will realize and still look to the debtor for the bal ance of their claims. Who may AsKign. — Any person who is sul Juris may make an assign- ment for the benefit of creditors. There is no restriction of the right to traders or persons engaged in particular callings. A firm or an incorporateil company may also take this mode of distributing its .is: cts. Form of Assignment.— The statute provides that an .assignment shal be valid and sutticient if tho words used are " all my pcrfoiial property which may be seized and solil under exe(;utioii,anil all my real estate, credits and effects," or iiords to the like effect. The assignment is an a rule made by deed between the assignor of the first part, the assignee of the second part, .and the creditors (by that general term) as assenting iiarties of the third part, and, after a grant of assi'ts in the above mentioned words, the trusts imposed upon the assignee usually are to realize the assets, and, after deducting the costs and statutory reo-uneration, to distribute the proceeds ratably and proportionately among the creditor?. An assignment which is restricted in its terms to any particular iissets or property is good »s far as it goes, and any defect, mistake or imperfection may be amended by a judge. An assignment by parol, followed by possession, would pioliably be good, but it is of course always advisable to have a formal deed. How an Assignment Is to bo extHiuted.— Kach person named in the instrument as an assigning party must execute it in the prefonce of a sub- scribing witness, and an aflldavit provii.g tlie fact of execution by each person must be made by that witness. The assignee should also execute the in' strumentin the same way, though signature by liiin is not essential, and it is wise to have, for the purpose of ehowing their assent, the signature of as many as possible of the creditors. If an assignment is made by an incor- porated company the common seal, attested by the hand of the proper officer, must be athxed, and no witness is necessary, and if by a firm each partner should execute in his own name, and one partner should in additioni on behalf of all, execute in the flrn. name. Before the absent, or at least the i> 11 I I 246 ONTARIO INSOLVENCY LAW. knowledge, of a creditor, the assignment is revocable, and unlets the assign- ment ia made t.- f's sberitF of the county in which the ilol>ti.r carries on business, or to an assignee approved of by a majority of the creditors having claims of §100 or upwards, the debtor may make a second assignment which will supersede the first. What pusseti by tho AHslgtiment.— An assignment In the words authorized liy the Act vests in the assignee " all the real and personal estate, rights, properly, credits and effects, whether vested or contingent, belonging at the time of the assignment to the assignor, except such as are by law exempt from seizure or sale under execution." The exemptions allowpd by the law of Ontario are diortly (a) the beds, bedding and wearing apparel of the debtor and his family ; (6) furniture and other household articles to the value of $150 ; (c) fuel and food to the value of .$-10 ; (il) tools and Implements to the value of c^lOO; and (e) animals t<» the value of $75. After acquired property Is not affected by the assignment, nor is the inchoate tight of dower of the wife of an assignor cut out by it. Keut as the statute provides. Who may a«;t as A.Ra fide resident of the Province. Subject to this condition as to residence, any person may act as assignee, and no security is required. There are no ofllcial assignees, but sheriffs are allowed to act, and as already incidentally mention- ed an assignment to the sheriff does not require the creditors' assent to pre- vent its being superseded. CImngv «»r Asslfiinee.— A majority in number and value of the cre- ditors who have proved claims to the amount of .■?100 or upwards may at their ditcretion substitute for the sheriff, or otiier assignee chosen by the debtor, a person residing in the county In which the debtor resided or car- ried on business at the„tlme of the assignment. In case of death or refusal to act, or misconduct, a njw assignee may bo appointed on special applica- tion to ihe Court, the ordinary rules governing the appointment of new trustees in that event applying. If a new assignee is appointed, the assets vest in him without conveyance or transfer, but he must register, In the offices in which the original assignment luis been registered, an affidavit prov- ing his appointment. Registration of the As8lj{niiient.— A counterpart or copy of every assignment must within Uve days Irom the execution thereof be registered ju the office of ti:e clerk of the county court of the county where the assignor, if a resident In Ontario, resides at the timeof the execution there- of, or, if he is not a resident, th*n in the office of the clerk of the county court of the county where the personal property assigned, or the principal part thereof, is at the time of the execution o' the assignment. Special provision is made for registration in each of the eight partially organized districts of ih-s Province. If the assignor is the owner of land, or has any ONTARIO INSOLVENCY LAW. 247 Interest MHTein, the asslgrimcnt shouKl also be registered in the registry office of the divisioi in whicli the land is situiited. llegiatration in the registry ntlice is not compulsory, but iialess the preciution is observed the debtor ini;,'ht, notwith'-tandiiig the asAiguTnent, confer a good title on a pur- chaser for v;ilii>( without notice. The omission to register, or any irregular- ty in registratioti, does not invalidate the assignment. In tlie event of non- rogistr.'ition or delay In registration, tlie assisjtior ami assignee are liable to jienalties, to be recovered summarily, one lialf going to tlm person applying and tlic other half to the estate of the assignor. Notice of tlio Ajtslifnment.— Subject to the simo liability to penalties notice of the a.sxignment must, as soon as conveniently may be, be published at least oiii'e in tlie Orttirin (l(tz./t'-, and ]iot less than twice in one news- paper at the least having a general circulation in the county in whioli the property assigned is situate. AVith the nc i^c required by tho statute it is usual to join a notice in t!ie form commonly useo by executors and ininiinis- trators e.illing iipon cn'ditors to send in tlieir claim i by a certain named date. jf such a notice is jiublished for a reasonable time —usually once a week for four or five weeks -in a newspaper or newspaper* circulating in the place or places where creditors are probably to be found, the assignee is protected ^rom pers.inal liability to creditors whose claims are not sent in, and of which he has no knowledtse In addition to tliis public means of bringing to the notice of creditors the fact that an assignment has been made, the a«- aignee must at once ascertain as far as lie can from the debtor and his em- ployees ami books who the creditors are, and send to each within live days from tlie date of the assignment a registered letter giving notice of the assigiiiiient and catling the first meeting. Meetlng;s of Credltiirs.— Within ilve days from the date of the assign- ment the assignee must call a meeting of the creditors for the appointment of inspectors ard the giving of directions with reference to tlie disposal of the estate, to be held at some convenient place within twelve days from the date of mailing the notice. N< lice of the mpeting must also be given in the Ontario Gazettf. At this meeting all the (Creditors, or persons claiming to be creditors, are entitled to be present, and those who have claims of .$100 or upwards, or tlieir representatives authorized in writing, are entitled to vote but no creditor whose vote is disputed is entitled to vote until he has filed with the assignee an attldavit in proof of his claim, stating the amount and nature thereof. Ko proce otes ; $500 and not exceeding $1,000, three votes ; and for each additional i ! ^1 1 J w 248 OMAKIO INSOLVENCY LAW. : 1 n '4 r '•I ' $1,000 or fraction thereof, one vote. To change an acsignee, there must be not only a majority in (siatutory) vahie, but also a majority in number of tlitj creditOfB who have proved claims. The assignee in the event of a tie has a casting vote. j>'*referre(I Claims. —Kent, wages, taxes and certain costs are to a limited extent allowed priority. ]ji the absence of special agreement, ilie landlord, if at the time of tho assignment there are distrainal)le etfects upon tlie demised premises, is entitled to the arrears of rent fjilliiig due during tho year preceding the assignment— not necessarily a year's rent, ^n ac- celeration clause providing for rent in advance upon the making of an, assiguinent for the benefit of creditors is a usual feature in ieascs in Ontario ; such a provision is not wliolly invalid as a fraud upon crediior8,but it would sceii that the landlord cannot by this device get mure than three months' rent in advance ; it isalgo usual to insert in leases in Ontario a con- dit'on that, upon an assignment for creditors, or any assignment without leave, being made, the lessi.r may avoid the lease. An assignee for the benefit of creditors has by the Act, notwithstanding any condition of thi8 kind, the right to elect within one month from the execution of tl e a.''sign- mcnt to retain the premises occupied l)y the assignor at the time f)f the assignment, for the unexpired term or such portion thereof as he may see lit. Apart from election, tho assignee m;iy be recognized by the lessor as assignee of the lease, and made liable as such assignee for rent. This liabil- ity can, in the absence of [irovisiiin to tho contrary in the lease, lie put an end to by further assigning the lease, but as a rule, the purchaser of tlie assets makes a new arrangement with tl.e lessor. Tlie assignee must pay in priority to tho claims of ordinary crfditors ihe wages or salary o all persons in the emjiloy of the assignor at the time of tlie making of the assignment, or within one month before the making tliereof, not exceeding three months' wages or salary, and such persons rank as ordinary creditors for the balame of their claims. Tlie priority obtains " whether the employment be by the day, by the week, by-tlie jt)li or pi ;ee, or otlierwisc. and paynuMit is to ht; made, if the estate is suHicient, within one numth from the time the assignee gets possession of the Jissets." Uoods in the assigueo's possession are liable to distress t(M- taxi:s due by the assignor, niid taxes due in respect of premises in which the goods were at the time of the assignment, and thereafter while the assignee occupies the premises or the goou1 is bound to valui" the lianilit;'of ll e person primarily liable, and after maturity he is entitled to amend. If the creditor, however, holds security from ai^y tliiitl pcr.'-on, sueh lor instance as a letter of guaranty, he is not bound to value, but is entitled to rank fur the full amount of his . of the Town of i ,, in the Province of Z,, Claimant. I., E. F., of the Town of Y., In the Province of Z., hookkeeiier, niii.ke oath and say :— 1. Iain the bookkeeper and duly autlmr'zed agent of llu! above-niinied claimant, C. 1), !}. The above-named dotitor, A. H., is justly and truly indebted to the above-named claimant, C. I)., in the snm of two hundred atul seventy-nino T2-'M) dollars, and the particulars of tlie indebtedness are set out in the statement hereto annexed . ;j. The claimant holds no tenurily whatsoever for the said claim or any part thereof. [Ifieoirlty is held, the afiidavit rauKt state what it is, and give its value ] Sworn before mo at the Town of in the Province of Z., the 'Jrid day J E.V, of January, A. 1). 180!». layj /NotarlalN \ Seal. J 0. if. A Notary Public in and fbr the Province of Z. f ''{' 1 m )iiiii' f i J i I. ill !' ! i •; 250 ONTARIO INSOLVENCY LAW. If the itssigneo knows of a claim, be cannot ignore it because it has not been proved, but he can by summary application compel proof or have the claim barred. Dividing ClaiinH.— No person is endtled to vote upon a claim acquired after the iissi gnniout unless the entire claim is acquired, but this does not apply to persons acouiring notes, bills or other securities upon which they are liable. Claims cannot be divided before the assignment for the pur- pose of obtaining voting power, but division in good faith is perniisslble. Co iiteHtation of Cliiims.— At any time after the assignee receives from any per.son claiming to bo entitled to r ink on the estate proof of his claim, notice of contestation of the claim may beseryed by him \ipon the claim- ant, and nnlei-s the claimant brings an .tction to establish the claim within thirty days thereafter, or within such further time as may be allowed'by the Court upon special application made before the thirty days expire, the claim is, as against the estate, l)arre(l, though as far as the debtor is con- cerneent have pa^se(i into judgment may be disputed on the ground of frau', while to ordinary claims any defence that would lie open to a resisting defendant may be raised, and the assignee, as trustee, is not entitled to waive even technical dofeni^'s, though he may in good faith mak(! a compromise. A claimant cannot imi)rove his position as against the assignee by tak- ing, attiir the assignment, i)roceeilings against the iissignor ; the assignee is not bound unless he is a party, if the assignee is satislled as to a claim and the assignor is not satisfied, the latter niay, upon certain conditions, dispute the claim. .Setting aHldo Trnnsaetlons,~Not only may the assignee contest claims nuide against t lie estate, but lie may also sue for the rescission of transactions entered into before the assignment in frauel of creditors or in violation of the Act, and he has in the first place the exclusive right of action. If, iiowevor, uny creditor thinks any 'ransaction should bo attackeil and the assignee declines to take action, the creditor may, by leave of the Court, take proceed- ings in llu' assignee's name upon iiidenniifying him against costs, and any iH'iielit del ived from the proceedings shall in that case, to the extent of his claim and full costs, behuig exclusively to the creditor suing Any number of creditors may joiu in the attack, and the attacked defendant nuiy himself Join as cine of tlie attacking body, so that in the event of judgment going against him he may lessen the bitterness of fraiululent and voluntary conveyances, it is unnecessary to sjiaak, but some special provlsionr, of the Ontario Assignments' Act may bo alluded to. From time to time the I^'gislaturo has made unsuccessful eiTorts to seoiro ratable distriliutinn of an insolvent debtor's assets. 'I'lie commcn law doctrine of (irst come first served has liin-ii done away with, and there is no longer anything to be gtined by siMambling for judgments, but except in this respect very litlh' advance has been nuido. Kvery gift, conveyance, transfer, etc., of any property made by a person when ho is In nisolvent ciroumstanoee or on the eve of insolvciiey, with Intent to defeat, hinder, delay, or prejudice his cre(lItors or any of then\, iir with intent to give any creditor an unjuBt proferenci' over his other creditors, Is declareil to be void. ll>it the enact- ment has been emasculali'd by judicial decision, and t\uy In ma Jidr pressure- danger of criminal proceiullngs, or of special loss, d(unnud for paynuMit— hofl been held surilelent to rebut any Inference of Intent, so that only theplainost oases of unfair preference eould be suocossfully Imnoached. By an amending m ONTARIO INSOLVENCY LAW. 261 clause of the Act, however, preferential transactions entered into witliin sixty days of the time of the malting of an assignment for the benefit of creditors, or attacked witliin sixty days, are to be presumed i>rimn facie to have been made witli the prohibited Intent, whether made voluntarily or under pres- sure. What this means has not yet been satisfactorily settled, bn*^, as the decisions stand, it would seem that, given a case of preference by an insolvent and ail assignment or an attack within sixty days, the creditor desiring to uphiild the transaction has thrown upon liiiu the almost hopeless burden of showing his absolute! ignorance of the assignor's precarious position. To be valid, a chattel mortgage or agreeniont for a chattel mortgage must be icgis- tered wilhiu (ivi! days, and registration is at once followed by publication in tlie mercantile change eln'ets, with coiiseqnont attack if the transaction is at all suspicious. Preferential security of this kind is therefore of little use. Book debts, due or to accrue due, may bo assigned, anointeJ they have liy the Act certain powers, such as for Instance tlxing the as- signee's remuneration, directing the payment of dividends, ordering the ox- iiminiition ol the assignor, etc., l>ut as a rule the creditors by resolution, M they may. leave all matters in their hands. Oonorally three or four In- •pector'i are ap[iointed, and they are not entitled to remuneration unless It is Bpocially voted to them by the creditors, Asslif nee's ('oiiiiiilssion and C°Iiari;PH.— No scale of commission is fixed bylhi'Act. though it must not oxct'Cil live per cent, of thct cash reeolptfl. The creditors, or falling them tin' inspectors, liave the right to lix the amount, and If not fixed the H.sslgnee may retain the statutory nuixinium. In the event of dispute, a sumnniry appltcalton to the Court may be made to ■ettle the amount. ^: 2fi2 QUEBEC CIVIL LAW. ITnfortunatvly, thiB summary jurisdiction does notextend to disputes as *^o •xpenges or dlBbursemeiitB, and wbeu these arise tlio delay and costs of an administration action have to be faced. Tlie costs of a solicitor employed by the assignee may, however, be taxed by any creditor. Dlvlflends.— Having realized the assets and settled the disputes, the assignee tuk 38 the last and most important step of paying the dividend. As large a dividend as can with safety be paid must be paid within twelve months from the date of the assignment, or earlier if required by the in- spectors ; and lliereafter, a further dividend must be paid every six months, and mure frequently if required by the inspectors, until the estate is wound up and disposed of. A copy of the dividend sheet, with an abstract of receipts juid disburse- ments, must be posted to each creditor, and after the expiry of eight days, if no objection be mai'.c, the dividend must be paid. If objections be made, they may be summarily disposed of by the Court, and pending their disposition partial di8tril>utioii niay, if practicable, be authorized. If the divhlend is not paid to a creditor who has duly proved a claim not objected to, an action will lie for its recovery, and the assignee is personally liable for interest and costs. I'artnershlp liud Separate Crediloi-s.— If the assignor owes debts both individually and as a member of a co-partnership, the claims rank first upon the estate by which the debts were respectively contracted, and upon the other only after all the creditors of such other estate have been paid in full. But this iiiledoes not apply unless there are actually being administered partnership and 8ei>arato assets, and, tliTcfore, creditors liavin;^ claims against an aiisignor as a partner in a dissolved firm are entitled to rank pari passu witli his subsequent individual creditors. OoinpoHltioii hikI Ul-tcharge — While no provision is niadt; in the .\ct for the discliurgo of the assignor, thi- creditors very often give a discharge or accept a com|)osition. As to this, it is only necessary to say that no creditor can l>o compelled to do either, and that all creditors who ilo agree to join in eith^'r step must act with the utmost good faith, not receiving any secret advantage by way of payment or security. It; Synopsis of Quebec Civil Law. PUKl'AKKI) 1!Y ED. FABRE SURVEYER, LL.M , B C L, Of the Montreal Bar. CANADA LIFE BUILDING, MONTREAL. Abs«Mit«n.— One wlio, having had n domicile in Lower Can;idii, has dis- ftppenred, without anyone having received Intelligence of his existeiioe. Curator appointed if ('() necessary for administration of property, an years, or before, if strong presumption of death ; will cease it absentee reappears or hisexistence is proved. Possessors administer estate, and are sued for absentee's debts ; bound to account to absentee, his licirs or legal representatives, to make notarial inventory of moveables and title deeds, and to cause immoveables to be visited by skilled persons, who report to court or judge on their condition, and are paid out of estate. Moveables may be sold on order of court or judge ; price of sale, rents, issues and profits accrued to be invested. His immoveables are only hypothecated l)y judgment, or for the causes and subject to t'ormalitieB estab. liBhed by 'aw. Absolute po.ssess ion after .30 years »in<>e disappearance or latest intel- ligence, or 101) since birtli (death presumed from such dates, unless proof to the contrary) ; sureties discharged ; partition of property may be demand ed. If date of death known, heirs at that date claim property. If absentee' reappears or his existence is proved after time stated, he recovers his property Rs it is, with price of things sold or investments. Same right given to child- ren and direct descendants, within ao years from absolute possession. , Effects of absence : no right accruing to absentee recognized if no prooj of his ex!-tence made. ,Succe«sIons dovoive toco-heirs exclusively or sue. cessors of absentee, who take all profits received in good faith before his return or action on his behalf; actions belong to him, his heirs and lega representatives, until outlawed. Consort cannot marry again until positiv^ proof of death ; after 5 years community provisionally dissolved, from day of demanii oy presumptive heirs, or of action by consort ; Iii]uidation or partition of community proi>erty obtainable by them ; covenants and rights dependent on its dissolution become elt'ective and absolute. Absentee's wife may obtain all matrimonial advantages resulting from law or marriage contr.ict on giving security to account for or restore pro- perty oil his return ; needs judicial authorization to appear in judicial pro- ceeding's, contract, obligate herself or bind community property, even to establish the children ; has care of children, and exercises all rights of hus- band as to their person and property until tutor appointed. Such appoint- ment is made after disappearance, if wife dead or unable to administer. Abuse of enjoyment.— By usufructuary: consists in his committing waste (Ui property or allowing depreciation by want of care, may cause usufruct to cease. His creditors ma/ intervene in contestations, to preserve their rights, and may oifer to repair Injury and give security for future. (Sea Usufruct.) By dowager : may cause forfeiture of dower. By emphyteutic liissee. (See Emphyteusis.) Acceptance.— (See Community, Gifts, Successions, Legacies, Transfer.) Accession.— (See Ownership, Successions, Legaeies, fSifts.) AccesHorioa. — In legacle.'* include necessary dependencies ; are included in snie of thing ; sale of debt comprises securities, privileges and hypotheos. Accidents.— (Sec Ues{K>nsibiHty, Proscription.) Account.— (See Community, SucceBslons,.Tutors, and {..aws of Procedure. Accretion,— (See Ownership.) Acknowledgment.— By debtor, interrupts prc8(rriptiou oven as regartU surety ; no otfeot in commercial matters in which sum or value exceeds ISO, unless writing signed by debtor. n ,ril ^s ■ li ■ i S, i ''ffi^^BSi , 1 4 i -t •-i i' ii 264 QUEBEC CIVIL LAW. Of illegitimate ohild by lather or mother, gives child right of main tcnance. A cqulsltlon.— Of rights of property. (See Ownership.) Actions.— (See Maintenance, Prescription, Sale, Hypothec, Minors, Par- tition, Emphyteusis, (Jifts. Separation from bed and board, Separation of property, Wages, Partnership and Laws of Procedure.) Acts. — To be done by more than two, may validly be done by majority. Of ciril Hiatus .—Entries made in registers Itept according to law, to establish births, marriages and burials ; must only contain what parties bound to dt-,lare ; read by public officers to parties or special attorneys (if not iorbidden), and witnesses ; inscribed in two registers of same tenor kept for eacli church, mission, congregation, etc. (See Uegistcrs.) Of birth :— Set forth day of child's birth, baptism if performed, cliilil's Bex, and tlie names given to it ; names, surnames, occupation and domicile of father, mother, and sponsors, if any, or mention that father or mother or both unltnown ; signed in bol'.i r'-jfisters by otliccr, fatlier and motlier if present, sponsors if any, or declaration tliat cannot sign entered. If no baptisni or registration, fatlier or motlier cause birtli to be registered within 4 moutlis at office of secretary-treasurer or cleric of municipality or city at dondcile or with noarest justice of peace, latter to report to former witldn flret two weeks of .lanuary of each year ; statement of such births to be transmitted to Provincial Secretary during January by such secretary or clerk. Of viiirrinr/r : — IJefore it(!an bo solemnized, otiicer must be furnished witli certilicati! of publication otbaus signed by publishingoflicor, containing names, surnames, qualities or occupation and domicile of parties to be mar- ried, and wimtlicr they are of age or minors ; names, surnames and domicile of parents, or name of former consort or licen.se dispeising with cerliiioate for Protestants, licenses issued by Provincial Secretary under hand and seal of Lieutenant-Governor ; then no liability of officer for impediment, unless aware of it ; publications one year old must bo renewed. DisiiUowanco of opposition to marriage wliich U not founded on a promise to marry, iMust be obtained before solemnization. Maniage is SDlemuized at place of domicile of either party (acquired by 6 months' residence), othorwi.so parties must be identiti.'d. Act signed by solenmizing officer, parties, two witnesses present (decla- ition of incapacity to sign) ; sets forth day of marriage, essentials of ecrti- eiito ((f. Sup,), pulilication of bans, or license, consent of father, mother, tutor, curator, or advice of family council, nainesof witnesses and tlieir rela- tion to partitas, opposition or disallowance thereof. If officer unaulliorizeil to keep registers, sends copy of act with solemn declaration, within .(O days, to prothonotary of district. Of biirinl .—No l>urial within 24 hours after tiecease, under penalty of $'.50 for tlioso taking part therein, except if police regulation to the contrary. l{omiin tlatliolicecclosiastical aulliorities designate place of burial of Catholics, and can order civil iuirial in special ground. Act ni'ntions day of burial, of deutli if known, names, .«urnanies and quality or occupa.ion of deeoMsod ; signed by person performing service and two of nearest relations or frieinls present. Prc-vlous inspection and author- ijiation of coroner if death possibly caused by violence or happened in prison, asylum (save lunatic) or place of conllneMient. Disinterment allowed <'xcept If Provincial Hoard of Health defends; only after 5 years if death iluo to contagio\is disease. Of' nlijiuiHs prnfi'ssioit .—It solemn and perpetual vowB made ; set « » QUEBEC CIVIL LAW. 255 forth names, gurnanies and age of person making it and father and mother ; signed by party, bishop or performing ecclesiaatio, two nearest relatives or friends. Entirely omitted in registers; omission supplied by judgment rendered trfter interested parties notillcii, and registered. (See Registers.) Administration. — (See Community, Guardian, Tutor, Curati)r, Wills .) Volantnry : (Seciot'wnim ge^fio). (See Administrators.) Administrators.— Cannot buy pi )porty in their charge ; of estates of deceased persons, nominated by will only. (See Testamentary Kxecutor ; Trust.) Admissions.— Cannot be divided against party making them except, according to circumstances, and subject to discretion of Court, if in) contain facts foreign to issue, or in contradi<:tion with eacli otlier, or (6) piirt object- ed to improbable, invalidateil by indications of fraud or bad faith, or by contrary eviilenco. Kxtru judU'ial, must be proved by writing or oath of party against whom set up, except in cases wliore testimony admissible (see Proof) ; judicial, complete proof againxt party making it j cannot be revoked unless proveject tuthe lawsiif tlii^lr eomitryas to tlieir status and «'apacity; may acquire and triiiismit by griitiiilnus or onerous title, succcssiiiii or will ; may be witm^sses to wills ; oven non-rosidents miiy bo sued in li. C. for fiilliliiieiit of iil)ligHtiiiiis contracted even in foreign countries; may bo compelled, when suing hero, to give security and power ot attorney, if non resilient. (See Synopsis of I'roiiediinv) Cannot be advocates, notaries or jiinu's. Acquire by naturalization all rights and privileges of British liorn sulijects. (See British subject, Naturalization.) Allinontary A ll(>\rrlee of tiling sold, at time and place of delivery if no nnreenient ; interest, Ist, if agreement ; '.'d, if thing sold susceptible of producing revenues, (Vom time of entering into possession or from e.xplration of term, i£ any appointed ; 3d, from |)Uttlug in default, If tiling unproductive ; if dIsturlieJ in possesiion or have just cause t.-^ fear action liypothecary or In revondloatlon, may delay payment ■ til seller causes di8turl)ance to cease or gives security, unless rtipulation to the contrary ; if sale dissolved by non- payment, may retain thing until reimbursed for price paid, costs of necessary repairs and of improvements having increased value of tiling, to the amount of increased value; niiy be eorapijlied to remove such improvements if re- movoable ; oliliged to restore tiling with fruits and prollts received, or sucli por'Jon thereof Jis corresponds with part of i)rice remaining iv.'.pud ; answer- able for deteriorations caused l>y his fault ; of moveable, prettirred, if in possession, toother buyer from same seller, even if his title pr.iterior, pro- vided he be in good faltli ; obliged to talte things away at time and place at which deliverable; if price not paid, dissolution of sale takes place without suit at expiration of dehiyto take things away or after putting lu default, if no agreement as to such delay ; without prejudice to sellers claim for damages. Cadastral Flans.- Correct copy I'uriiislied to each registry office by com- missioner of (,'rown Lands ; must show di.stinctiy all lots of land within regis- tration division and be accompanied by copy of a liook of reference, setting forth general description of each lot of land on plan, iiaii'e of its owner and explanatory remarks . <;ome into force on day fixed by pro<:laniation of Lieiit- enant-C.overnor i- Council; cannot be corrected by registrar, who must report to Commissioner of Crawn Lands, whoso corrections must not change number of lots. Canaila (ilazette— Makes proof of otllclal announcements contained therein. Cancellation,— Of contracts for contracts for works at fixed price ; may be made by owner, although work begun, on Indemnifying workman for actual expenses and labor, and pacing damages according to circumstances. ■>'!,■ :f ';! I- I t :i 260 QUEBEC CIVIL LAW. Of registration of real rights : by consent of parties (authentic or under pri'ate signature, before two witnesse'ii and accompanied by aflldavit), acquit- ta:ice of a debt (notary and creditor bound to cause registration of acquit- tance; costs payable by party requiring it), or by final judgment, served upon defendant, obtained by debtor or subsequent hypothecary creditor with damages, when sequestration or renewal bond upon void or informal title, or right annulled. Capacity.— To contract (see Obligations) ; is the rule ; exceptions : 1® Minors ((/. iH/.),except If trader (see Synopsis of Commercial Law); 2*, interdicts (see Interdiction), incai)acity set up by them alone ; '2n persons under jiidi(!ial adviser-under certain conditions ; 3®, wives, except for acts of administration if separate as to property; 4 o, persons civilly dead (see Civil Deatli) : 50 , ponsons affected with serious mental troubles ; cs , per- sons forl>id(len by law by reason of their relation to each other or of the object of the contract. (See (iifts, Wills, Marriage.) Carriers.— (See Synopsis of Commercial Law.) Cattle.— (>I)ject of usufruct : if perish entirely by accident or disease without fault of usufructuary, latter only obliged to account to proprietor for skins; otherwise usufructuary obliged to replace dead animals, up to number of increase. Lease of, on shares : contract whereby party delivers to the other a stock of any kind of animals susceptible of increase, or profit in agriculture or commerce, upon certain conditions regulated by conven- tion or usage of place where animals kept. Cause— (Of Contracts). Immediate object of obligation ; necessary in contracts ; must be licit and valid ; is one with object in bilateral contracts ; contract not invalid because expressed incorrectly. Cliarges — (See Usufruct. Emphyteusis, Dower.) Chlld.—Born of unknown parent*, registered as such. (See Acts of Civil Status, Birth, and Kegisters.) Legitimate if born on or after 180th day after marriage solemnized, or within 300 days after its dissolution ; illegitimate if biuii after latter period. 3Iay be disowned by husband if born before 180tb (lay alter marriage solemnized, except (a) if he knew of the pregnancy before the marriage ; (h) if present at act of birth and signed it, or declared he cannot sign ; (r) if child declared not viable ; ((/) if allows 2 months to lapse after birth if present, after return if absent, or after discovery of fraud if birth concealed ; (same time allowed to heirs of husband dying within delays for so doing, running from child taking possession of husband's pro- perty or disturbing heirs in possession thereof) ; disavowal must be made by action against tutor or tutor ad Iwc if child minor, mother being made a party thereto ; disavowal impossible, even for adultery, if child born during marriage, unless birth concealed; for impotency, unless not existing at time of marriage ; except if husband prevented by distance, or physical impossibillly, from meeting wife. Children.— Minor, whose father has disappeared, are under care of 'iiother who has all his powers, and administers property until tutor appoint- ed ; if mother dead or incapable, provisional or permanent tutor appointed; maintained by father and mother, even after separation ; during action in separation from bed and board, are under fatlier's provisional care, unless judge orders otherwise; entrusted to party having obtained separation, un- less otherwise ordered ; not deprived l)y separation of any advantages given by law or marriage covenants, the opening of these rights, however, not being advanced thereby ; subject until majority or emancipation, to parent- al authority, exercised by father alone during marriage, and cannot leave QUEBEC CIVIL LAW. 261 father's bouse without his permission ; may bo corrected by father or mother and those delegated by them ; born out of marri»ge, are legitimated by the subsequent niarr'age of their fatlier and motlier (except tlie issue of incestuous or adulterous connection); irlem for their issun ; have then same r]ghti« as if Ipgitiiiiate i have riglit to demand maintenance from parents if aclcnowledged ; illegitimate can establish claim to patrrnity or maternity (but see y'rofjO ; incestuous or adulterine, can only receive maintenance by gifts ; issue of concuidnage can only receive gifts made in marriage contract of concubinaries ; not yet born, may reoeive gifts by marriage contract of future parents and by will, if in existence at time of testator's death, and subseijueutly lH)rn viable ; include grandchildren and descendants in pro- hibition to alienate, substitutions, gifts and legacie s. Chimneys —Near a eomnion wall or a wall belonging to neiglilmur, subject to municipal regulations iir court's decisions. Chimney backs and casings to be repaired by tenant. Church.— Subject to oidinary laws regarding prescription.— (See Assess- ments, Privileges.) Civil Weath.— Itesults from <'ondemnation to death or corporal punish- ment for life, and from solemn and [lerpetaal vows made in certain Catholic religious communities (women's only), recognized at the time of tlie cession of Canada to England, and sul)sequently approved; incurred from lime of sentence or vows ; carries loss of property which is confiscated tc) the Crown ; deprives of right to receive or dispose of property, to be a party in a law- suit, a iiiror, witness, tutor or curator, or to marry. Does not deprive of maintenance. Pardon, liberation, remission or commutation, restore civil ability, but witliout retroactive effect, except by an act of Parliament ; does not affect consort's property or sliare in community ; obliges consort to make inventory (see Inventory, ."Marriage Coveu'vnts); precipnt suspended, if no stipulation in marriage contract, in hands af representatives of party civilly dead. Clerjfymen.— (See Acts of Civil Status, Kegisteri<, Marriage, Ministers' Tithes, and Synopsis of Civil Procedure, I'n. Civil lni|>riHonnient) ; can re ceive by gifts or will ; undue intiuunce ;s no longer presumed, and must be proved. Can execute wills under certain conditions, in the district of (iaspe, instead of notaries. Elsewhere, cannot be more than ordinary witnesses thereto. Clerks. — Wages privileged for 3 months' arrears previous to seizure or death, on merchandise and etfects contained in store, shop or workshop in which services required (see Privileges); prescribed by one year ; of notaries cannot be witnesses to authentic wills ; of court cannot buy litigious rights falling under jurisdiction of court in which they exercise their functions. Codicils.— (See Wills.) Coliabltatlon.— (See Marriage.) Coinuienceinent of Proof In Mrrltlng. — Necessary, if no strong pre- sumptions, icr the admission of testimony in the proof of Hliation, in default of the act of 'birtli and of an uninterrupted possession, or if the child has been described ur.der false names, or as being the child of unknown parents; results then from l. tie deeds of family, registers and papers of father and mother, public or even private writings proceeding from party engaged in contestation, or who would have had an intirest therein If alive. Knablcs to make proof by testimony. (See Proof.) •^■^ II H i»i 1 Ian i tsn m tm: 1 ot 1 ^B * Ih k ^K 1 B 2(ta QUEBEC CIVIL LAW. i !i Comnton Property.— 1, Of walls, presumed 'f they separate, ^n) build- ings up to the required height, (6) yards and gardens, (c) enclosed fleliis, {d) if no title, inaric or legal proof t^j the contrary. Does not exist if wall on onp side only has a straight and plunib summit or a coping, or mouldings, or corbels of stone ; repair chargeable in proportion to right, unless right renounced to ; gives right to place joists and beams within i inches without |iermlssion (save right of joint owner to i it h« wishi^s to place beams or build chimney) and to raise wall by paying costs, repairs of raising, and 1-0 of value of super- structure as indemnity ; but not to make ^dces.^ or apply work, it no permis- sion or settlement by experts, nor to make opMning< witliout pertnicsion ; obliges t>rel)uild wall if superstructure too heavy, the excess of thickness to be taken on sidejof rebuililer ; may be ac(iuii-ed by payi.ig J cost and J value of ground ; of ditches between neighbouring prope ties, presumed unless eontrnry title or earth thrown on one side only. Itepairs at common expenses. Of hedges separating land pra^umed, unless only one land en- closed, or contrary title or possession. ('oiii in unity of Property :— I. f.cf/nl .■ Governs consorts in the absence of covenants; or if there is a declaration to thatelTect. Assi'ti^ :— 1. Moveables, present or future, unless the donor thereof decided otlicrwise . 2. I'"ruit8, revenues, interests and arrears fulling duo or receivi/d uurmg marrage and arising from property of consorts, product of mines and nuarries of one con- sort, if opened before marriage; .'{. Jmnioveablcs. acquired timing 'uarriago (right previous to marriiige or exclusive is to be i)roved) or between llie con- tra(^t and tlie <'eremony, unless such p ichase in execiaion of a clause of the contract; git'ls made to consorts jointly hy otln rs ihau K-le in which wifti lia 1 undivided share, she can, at dissolution, aliaiidon i'umoveable and claim price of share, or take it bai'k and refund connniinity piircha««i price, l-labilities :— 1. All moveable debts of consorts when marriiige solemnized, or of successions falling to them during its ts contracted by husl)ainl during cominunily, or wife with his consent, saving compensation if due ; ;t. Arrears and interests of debts personal to consorts; 4. Usufruct- wary repairs of immoveubles not taling in conunnnity ; B. MHinteminct^ of consorts, support and eilncation of children, and all charges ol marriage. No liability lor ilelits of « ife during marriage, \inless dale regularly proved ; no repayment to husband wlu) pays such ilebt. Debts of immoveable suc- cession falling to consorts not payable by community, --saving creditors right. Id be paid out of iInInovealll^^s of su.'cesslim ; fallitig to liusband, onforcealile by creditors on eitlier private orcomuiunity property, saving In latter case, compensation to wife or her heirs ; falling to wife, accepting with husl)and's eonsent, payable out of her property ; if wife judicially authori^.ed on liusband's refusal, creiiitors liave no recoiiive, if successicii Insiitllclent, \inlil dissolution. Mixed successions governed by same rules, proportional value of moveables and immoveables lieing indicated by inven- tory, to bo nuide by husliaml, resiionslblo for prejudice towards wife or her heirs, who can prove value of moveables uvon by general rumor. Creditors i QUEBEC CIVIL LAW. 2<8 of mixetl succession may enforce claims against community property, unless wire judicially authorized to accept, and inventory made; then succession only liable, and balance only payable after dissolution. Same rules for gifts. No recourse r-.gaini't wife's personal property for debts contracted by her with husband's authorization. Administration by husband alonp, who can dispose of conmiunity pro- perty by gifts, if not fraudulent. Heciiiestby consort of more than hisshare> null f ir balance (see Wills) ; of thing falling in his share, valid. Pecuniary ConiJi^niuations incurred forcriniinal offences or misiiemeanours by husband, recovcral'le out of ' ' ,. •"unity properly, by wife, out of her own, after digs-i- lution. Civil di'j' : .sort atl'eets only his private property and share of community. A< > r. ,* 'e, even judicially authorized, done without hus- band's consent, no' il! .ict comtnunity property btiyond amount of benefit derived by it theroli-'i' t unless she contracts as a public trade-, and for purposes of her trade. Wife cannot, without judicial authorization, obligate herself nor bind community property, even to release husband from prison, or establish the connnon children in his absence. Husband administers wKe'a property; can exeio oalone all nioveal>le and possessory actions belonging to her ; cannot disposeof her immoveables withouther consent; responsible for deleri irations of her prop.'rty through absence of conservatory acts ; crinnot lease alone her I roperty for more tlnin !) years. She is not bound to main- tain linger leases after dissolution, nor short leases renewed more than one year before expiration, unless coming into operation before dissolution. Wife cannot bind herself, either with or for lier husband, otherwise than as being I'omiuon as to property, llushand obliging himself for wife's atfalrs has recourse against her for such oldigiitious. If private immoveable sold and |iriee paid to couimunity and not reinvested, or if community receives private property of one consort, the latter may protske such price or value of thing. If comnniuity moneys used for exchnive bonelit of one consort, the other nmy pretaice an equal sum from connutiiiity properly. Keplace- ment perfect fo: husband if lie so declares, for wife if she formally aitcepts, it before (ilsoiiliition. C'onipensalioii for price of iiiim()vea)>lp belonging to husband <'an be claimed only out of iiiass of coniniiinlty ; to wife, out of pro- perty 01 husband, if couiiuuiii,., property iiisulHclent; consists in sale price, not In real or coiiveiitlonal value of inii'ioveable. Henetit conferred to common cliild l)y consorts deemed eiiual ; if talcen from private property of ouei cimsortj such consort can claim one half from the other ; by husband chargeable to community, unless contrary declared. Dissolution :—cause'( :— natural or civil deatli, separation from bed and board or of property (see tliose words), absence of consort (see .Vbsenteo), Ke-e-'tablichment. (see separation from bed and boaril, and separation of properly). Surviving consort has, if no will of ihK^easod to the contrary, enjoyment of community pr.perty coining to children, iiiilil each is I.S or emancipated, subject to obiig.'itions : 1, of usufructuary (see usufruct) ; 'J, of giving foods maintenance and education of children, according to fortune ; ;», of paying arrears or interest on capital, and, 4, funeral expenses and cost of last illness of predeceased ; 5, of maUing invtntury of ccnnmon property of elfects, within .'! inontlis after death of consort, in aiitlientic form, in presence of pei>on (pialitied to contest, judicially closed witliin ,'i months after completion, unless Jiulgo enlarges delay. Suhrogale tutor who hag not compelled 'he making of sncli inventory, liable witli survivor towards ndnors ; may demand enjoyment to cease for non-fiillilmunt of obligations, or, in his default, tutor nd hur may be appointed on demand of a cousin geriniin of uiinors or nearer relation. Aceeptaiieo or renunciation ; Inalienable riglit of the wife or her heirs or legal rupreseniatives. llenunciation interdicted to wife who has inter- -..;-!f! >\%<\ 264 qui: DEC CIVIL LAW. meddled with the property (acts of mere adininistration, or of a conservatory nature do not constitute intermeddling), abstracts or conceals part of it (i'fciH for her heirs^, or who being of full age has once assumed.the quality of common as to property (except if fraud by lieirs of husband) ; acceptance by wife \inder age must be made with asslstitnceof curator and auti Miization of a judge upon a<, to amount of claims, but for them only. Widow may, during delays, 'Sustain btrself and (lonif'stlcH, and contract reasonalde loans tliere- for, I'.nd owes lo rent for oceui)atii>n of husband's house, lease p^id by com- munity. Same rules apply if wife dies llrst, but lier heirs not obliged to nial them, the sums drawn from cnmnnuiity, value of [property taken lo endow child of an- other marriage, orconimon child personally, and pretake : I, private property not entered in community, or aeijiiired in replacement tliere I, husband taking residue ami being liable toward reh' luelng heirs for rights of wife to the ext(Mit oiily of hereditary share of eaeli. For rules of partition, see Partition :;nd .Siiecessions. Cousorl. who has munily property loses share therein, (,'lainis otbei', taken from itebtor's share or piivalo p regulated by husband's fortune, due*, even If decciisid husband. 'i - . l.iabllliies including costs divided equally between consorts. Wile having made Inventory and reudere I aeito int not liable b-iyond beiielU derived. I'.isbaiul llanle toward creditors for wliolc of comiuunlty debts contracltMi by hlnnelf, saving recourse against wife or heirs accepting or benelllli'.;;, but only for halt of wife'H debts chargeable to eonimuuity, unle-'s le"' sliare iiisulUeienl ; wife nniy be SMeil for such debts, s.ivlng recourse fo'' hilt, If she ae(!'pl, ami for the wli >le If she rem)unee. Wife who durlu;^ coininuidty binds herself for or together with husband, held to havo doMO bo only as e nnuxui as to property ; liable for half of debt siracted or coiu-ealoil com gifts due by consort to the leriy. .Mourning of wife, renounces, by hnirs of QUIJUh'C CIVIL LAW 266 if accept, not liable if renounce, VVife who paid more than half of com- munity debt can only recover Hurplus from huHband or his heirs, unless receipt shows that she paid for her half. Consurt sued for the whole of com- munity debt by reason of enforcing of hypothec upon immoveable fallen to hissunre has recourse for one half against consort or heirs, except if charged by partition with whole, or more than one half of debts. All above rules apply to heirs of consorts. Renunciation of wife gives hor only wearing apparel and linen in use for herself and her wedding presents ; she may take back : 1, immoveables belonginjr to her or replacement or price tliereof ; 2, inilemnitios due her by cominunity. Wife then freed from contribution to community dsbts, but not from debts attributable to herself, saving recourse ; rights enforceable against husband's or community's property, i)urely personal, not transmitted to heirs. II. Giiirciitiiiiial. — Governod by rules of legal when not implicitly or ex- plicitly departed from by contrai^t. l'rin'd (!on>ort to bo fri'o and >'lear ; if wife is the debtor husband niny exorcise sneh riglit during iMimnnmity suving WAf- rant-r's right to he reimbursed ity wile i.r her heirs after dissolntion. 4, Itight of wile to take back free and clear what she brought Into the !';,' 2«6 QUKUEV CIVIL LAW. i : community cannot extend beyond things specitled nor persons designated, viz.: to similar property owned during marriage, or to wife's children, as- cendants or collateral heirs ; community first reimbursed for her private debts which it (aid.^ 5. Coiivoiitioiial prpciput : clause by which surviving consort authorized to pretake before partition, a certain quantity of moveables in kind ; does not take eir>'ct in favorof wife renouncing to conimuuity, unless so reserved; nor taken from private property of predeceased consort, unless stipulated ;. is a marriai^B covenant not subject to formalities of gifts; optine.l (/>.'i"./ure by natural (iuath, not by civil deutli or separation, but rrtmaias in suspense ; may be sold liy creditors ol'coniiiiunily, saving recourue "f consort. C. Unequal sliares. — It maybe stipulared that surviving consort or his heirs shall have less than half of comiuunity, or only a tixi'd sum in lieu of all rights, or that survivor or ono of the consorts shall have tlie entire com- munity ; consort whose shai'e is reduced liable for his portion of community debts and that only; all agreemeuis to the. contrary are void; wlien fixed sum stipulated for one consort, otlier consort'.s heirs bound to pay same even if community insutlicient ; if agreement made only for one consort, the other entitled to partition by halves; hu-^banratlon, even Ineorreetly expressed not prohll)lto(l by linv ov good morals . nmnilled lor error, fraud violence and lesion (see those words) ; produce, discharge, or mod'fy obliga- tions, bind heirs and representatives, but not third piirMes, except if a party obliges himself to procure another's woi k, or stlpnlntes for tlio benefit c)£ QUEBEC CIVIL LAW. 267 aiiotlier wLo accepts ; may be impeached by creditors if injurious and madft witli fraudulent intent. Fraud presumed in gratuitous contracts if debtor then inBolvent, in onerous if other party aware of insolvency. Contract cannot be voided except within one year from knowledge of frauindiiig on members if properly passed. (See Disabilities, inf.). /')'tr(7iv/fs.— .Members' responsibility limited to intcrext pusscsscd in cor- poration ; no personal liability for payment of obligations contracted by cor- poration within the scope < f its powers and with the foi mallties required. Others are granted by title of creation or special laws. DUnhilitii'n. — Cannot be tutors (save superintendents of eertiilii hospitals receiving fouiidliii;;8), curators, nu^inbers of family councils, (guardians, judi- cial sequestrators, execnitors of wills, witnesses or jurors, nor accept any administration necessitating an oath, imposing nersonal responsibility or entailing imprisonment ; cannot hold renl estate for a larger amount than that lixed by charter ; cannot be summoned p«rsonally, appear in judicial proceedings otherwise tliaii by , attorney, bt^ med for assault or battery, or other violence to the person ; do banking business, unless spc^clally author- ized to do so. (Hut sec I'rivate Hills passed by rarliainent.) DinmiliiliiDi.—ny : I. -Ai'l of Ijt^glslaturo tleclaring it. :'. I'^xpiration of term of accoinplisliment of object for which formed, or happening of condi- tion attached to their creation. ;t. li'orfeiturc legally incurred. 4. Death or diminution of number of members or other cause interrupting corporate exIsteiKJO when right of succession not provided for. 5, .Mutual consent of all members, saving riglits ot their |)'U'ties, and accontpaiiied ly formal and legal surrender or iiulhorily of legislature for public corporations not formed lor mutual existence of members, l)anks, railway, canal, telegraph, toll-bridge and turnpike co i|taiiies, and private corporations Imving o\y- tained privileges which are exclusive or exceed those resulting liy law for incorimi'ation, (I. Voluntary lliiuidations similar to that of vacant success sions. (See Curators;, See Partnershi|i,.lolnt Stock Companies' Act, Costs (law), Secured by hypolhoe, I'rivllegud. (See Privilege anj Code of Procedure.) Covenants.— (Heo Marriage Coveinints.) Coverture. —(See Capacity.) '■: t: i::i P M ic; t!f if 1 i ! 263 QUElitJV CIVIL LAW. Creditors — May exercise impersonal rights and actions of their debtor -when to their prejudice he refuses or neglects to do so ; may in their own name imiieach acts of their debtor in fraud of th»lr riRhts, if there be (i) intent to defraud, and (ft) injury to them. (See Avoidance, <;ontracts, Frftuc, Insolvency.) Of usufructuary may intervene in contestations for the pre- servation of their rights ; may olfer to repair injury done by usufructuary committing waste or allowing depreciation on [Toperty, and give security jor tlie future ; may have his denunciation annulled if made to their preju- dice ; if joint.and several each oan exact performance of the whole obliga- tion and thereupon di.«charge debtor ; each may receive payment so long as another of them lias not talven suit ; can only release debtor for their part ; interrupt j)rescrii)tion tor one another ; claiming together property of debtor; share its price rateably, unless preferred on account of privileges and hypo- thecs. (See those words.) No preference for judgment creditors except as to costs. (See('o.sts, i'rivileges.) Cro%vn.— Means King or (Jueen of United Kingdom of Great Britain and Ireland ; acquires things having no owner or contiscated. (See Prescription, Privilege, Hypothec.) Curators. — Appointed, l.TopeKfonn: Ui) interdicted (see Interdiction); otlier than consort, may resign after 10 years ; (/>) emancipated minors (see Emancipation); (c) children conceived but not yet born, administer until birth. If interests opposed to those of wards, special curator appointed. OtHccrs of ( 'ourl subject to same obligations as tutors, (see Tutors.) 2. 'to iiro/ierty : (a) of .absentees (see Absentees) : (/)) of extinct corpora- tions (see Corporations); (c) of insolvents (see Quebec In^f>lvency Law) ; (rf) substituted (see .Substitutions) ; {.<■) vacant estates ; (f) accepted under benefit of inventory (see Successions) ; must be sworn before entoringr duties. Damages — Due for fault, imprudence, neglect or wnnt of skill, by per son capable (if discerning right from wrong, by father or mother of minor, by curator of insane, tutors, schoolmasters, artisans, if able to prevent act, ma8t»!rs and employers for sirvants and workmen in performance of work, owner or user of animal, owner of defective liuilding, for contravention of obligation not to do, for lnex"cution of otiligiit ions if debtor put in default, and if not caused by fortuitous n"jn; or irresistible force, unless clause to that effect ; ecjuivalent to loss sustai. led anil profits not made such as could be foreseen wlien obligation contracted, and resulting directly ami immediately fi'om inexccution ; covenant fixing amuunt to be paid for inexeculion must be followed if possible ; for delay : interest, legitl or agreed upon, on sums due (see (Jliligation.«) ; duo by mandatary for iiu'xecutl m of mandate ; by him who detains hypothecated immoveable, for deteriorations thereto; for torts, tort feasors jointly and severally responsible. (See Prescription of >e, l,if the donee {a) have attempted life of donor, (6) have heen guilty towards him of ill-ucage, crimes or grievous injuries, (r) refuse him reasonable maintenance and revocation demanded within one year from knowledge "f oflence ; revocation comprises giving back fruits since date of demand; dot's not prejudice alienations nor hypothecs previous to judgment; 2, If resohilory con - previous to bankruptcy. fj'f/ul, atfectin;j:.iinmoveable8 of debtors aa regi8terele and deter- mining sum for which granted. Itiinks from registration, saving special provisions; does not divest the debtor, who can enjoy or alienate property subject thereto, but may be sued before claim payable and also in damages if deteriorates immoveable ; extinguished like privileges. ((.'/. inr.) Hypothecary Action.— Given to creditors whos.- claims are liquidater ; 4», that his expenses on immoveable be ttrst refunded ; riO , that creditor give secur- ity where holder hns priviloije or prior claim ; his alienation is of no effect a;;ainst creditor, unless pureh.aser deposits amount equnl to debt, interest and costs ; may surrender immoveable before judgment within .lelay fixed ; may iie condemned personally to pay moneys received, and damages caused by him since service of proi'oss ; retains ownership eviMi after surrender ; surrender may be declared inoperative on demand of warrantors. Immoveables.— (See I'lis.iiiii.) Iiupfditnenta, Iinp«»t«'ncy.— (See Marriage.) Iin|>rov<'nient9.— ^fadeby possessor, must bei)aldby proprietor of land, if necpssaiv or made in fiood faith (price or valuei; if made in bad faith, and unnecessary, proprietor may keep lh(Mn liy p:iying cost or value, permit owner to take tliem away, keep them if cannot be removed without deteri- orating land, or abandon riglit of property in consideration of price, (hee Hypothec, Usufruct, Lease, etc.) Imprudence.— (See Damages.) Infants,— Not viable when born, do not inherit. Inferences.— (.See.Presumptlons,) 18 m QUEBEC CIVIL LA\7. Xnfluen(« (Undue)— Not presuiued in gifts <>r bequests to medical or spiritual udvisers. Ingratitude.— (See GiftH.) Inheritance.— Consists of all the propeity;of the d«c«ii»ed, independent- ly, of its nature and origin, Ii^iiries (bodily).— Prescribed by one year, from death if it follow, or according to fpecial laws, Inn-Keepers.— Itesponsibility (see Boardinj^-house keepers); verbal testiiDony of loss admitted ; have a right of i^'edge or retention over effects of guests (see Privileges) ; have no action for price of intoxicating liquors to be drunk on the spot by non-travellers. Insanity— Imbecility .,—(St<« Interdiction, Marriage.) Insolvency. — (See Bankruptcy and Quebec Insolvency Law.) Interdiction.— Of imbeciles, insane, madmen, prodigals or habitual drunkards ((/. Sup.), major or emancipated, may be deniaudi-d by relatives, by those allied or by consort ; application of court or prothonotary granted it sulBcient I'ause sliown, ui)on advice of family counsel ; annuls anterior iusts, except for prodigals, if cause of interdiction notorious when done ; curator ((//'. inf.) appointed who assists and represents interdict ; does not prevent from receiving by will ; ce.ises with its causes on judgment mc)v- ing ; may be changed into appointment of judicial adviser. Special provi- Blons as to drunkards (Cf. Sup.). Insurance. — Is generally a commercial contract (but see Mutual Insur- ance) ; for benefit of wife and children ; allowed husband during marriage. (See tiifts, Marriage Covenants and Commercial Law of Quebec.) Intei-est.— G per cent, per year if none other stipulated per year ; banks cannot recover more than 7 p.c, but not sulijeet to any penalties for usury ; other corporations cannot receive more than a certain rate ; on balance due by tutor to minor runs from closing of account ; by minor to tutor, from putting in default ; comprised in term "civil fruits"; is the only dan\age due for non-payment of money ; presumed to be paid when principal debt acquitted ; due by consorts from dissolution of community lor replacements or compensations due by community to them, or compensation and indem- nities due by them to community, and according to ordinary rules for their personal claims agai'St each other ; by buyer on price if (rest, if debt bears interest ; other, wise on capital ; live years, mid current one, .'f cured by registration of deed of sale; arrears, by registration of n)emorial, specifying amount due and accompanied by affidavit ; due to Crown, prescribed by oO jears, in all other cases, and on judgment, by ;> years ; prescribed wi-h cai)ital. Interpretation -Of contracts. Governed by rules taken from liouian law. Int«rrH|ition.— (See rrcscriptlon.) Investments.— (Sec Tutors, Trustees, Comnmnily of Property.) QUEBEC CIVIL LAW. 275 IslitnclA.—Belong to Crown if no contrary title ; In uanaTlgiible and iin- floatable rl Tcrg, belong to proprietors of banks* on both sides, divided by nnd- dle of river ; formed in river or stream cutting a riparian owner's land : Us property. Joint Stuck Companies.— (See Corporations, Partnership and Special Acts.) Judipnents.— (See Hypotliec, Foreign.) (See Synojisls of Procedure.) •Tudlclal Adviser.— Given to persons of weak Intellect, or inclined to prodigality. (See Curator, Intprdiction.) Persons under juiliclal ativlser cannot, unless powers defined by judgnmnt appointing judicial adviser, plead transact, borrow, receive capital and give discharge therefor, a1ienatse of third pariic;s consenting, but not if accidentally there or notice of ownership given to landlord ; privilege extends until eight days after lease expired; has action,!*, to rescind lease if lessee (a) does not furnish premises futlicieutly to secure rent ; \h) commits waste thereon ; (c) uses them for purposes contrary to Intent or illegal ; 2o recover possession if contract rescindible, or lessee remain after expiry or without paying rent as stipulated ; .'{o, in damages for violation of obliga- tions; may also demand rent and ;>ttach as necessary. Lessee responsible for injuries, even by family or subteii;»nts, presumed to be guilty in case of fire {Cf. Sup.) and to have reci-lved thing in good condition ; obliged to sutler repairs, unless necessary before lease made or lasting more than 40 days ; to make smaller repairs, as detlned by usage or law, unit ss rendered necessary by age or irresistible force ; may sublet or assign lease unless forbidden ; n\ay sue lessor, 1 = , to compel him to make necessary repairs ; 2°, to rescind lease for ;ion-fultUment of obligations by lessor; 30, in damages. Lease of houses is presumed made from May to May, it rent at so much a year, and then according to terms of payment ; of farms (see Far- mer). Terminates as all obligations, or by notice given according to law it unwritten leise, by total destruction of thing, by redemption, saving dam- ages ; not by death of lessor or lessee, nor by alienation, unless stipulated ; but If lease for more than a year, must be registered. 2. Of jxTnoiial xcrriccn can only be for limited term, or for determinate undertaking ; tacitly renewable; terminited by death or inability of party hired ; oath of miuster proves terms of engagement of servants and payment if no written proof. (See Carriers, Workmen.) 3. Of Oitlte on Shart's.—iSeD Va,tt\e.) ^ I.egacios.— Testamentary dispositions of property : that which is not legally disposed of by will passes to lawful abintestate heirs may be repu- :!.: i< - - 1: 276 QUIJJilJV CIVIL LAW. If diated so long as not accepted in same niiinner as successions [C/. iii/.). Lapsed accretion takes place in favor of legatees of thing indivisible with- out deterioration or mentioned in same disposition without a share being assigned Life k'ents or pensions bequeathed by way of maintenance accrue from testiitur's death ; fruits and interest from putting in default or judicial demand uuless otherwise ordere;!. llevocable as wills (Cf. inf.). 1. 6'';iir(r.>»(?.—roinprise whole of property left. Acceptance and liabil- ity of legatees governed by rules of successions, and usufruct in certain cases (tv. inf.) ; must be rogistereil : creditors of succession can demand separation of property against legatee, for portion of death of whltdi lisible. 2. Jlif (jeneriil rlng money puid; may become charge on immovenble against which registered ; QUEBEC CIVIL LAW. 277 iiiJil; cannot be discharged by leiinburspnieiit of capital and waiver of payments made; due only for number of y or Is parent of claimant by husband during marriage; by separiite.1 consorts; to illegiti- mate children and [lersons civilly dead ; can bo ;;iven loconoubiiiP ; ri-fnsed to tlonor ; may cause revcjcaiion of gift; parly owing it may deniR . 1 dis- cbarge or reduction thereof, if needs or means liave cliangiil. Mnjoritf.- Attained lit the full age of Ul. , Mandate. —(.Contract, gratnitous (unless othf',rwi"(> agreedi, by which mandator commits a lawful linsin<>ss to maudatai y, whosn uceeptance obilgeii him to perform it, and may be implied ; must be express for tlie purpose of alienation ami liypothocallon ; general iindndes only acts of n Irninistratlon ; recourse against married women and emancipated i li-iors maiid^itors, "ubject to provisions regarding tlioni. .Miindwtary liii' i'j In dainage» for non-execution ; must a<'t prudently ; responsible for acts of substitute if notoriously unlit or if substitution not allowed; obllgcil, alter extinction, m I i i J :'«j jlj: . I . ! : M' I 278 QUEBEC CIVIL LAW. to do all whatever flows necessarily from previous acts, to account for administration, to deliver whatever he received less his expenses, and to pay interest after being put In default, and on moneys employed for his own use ; liable to party with tvhom contracts if exc^eeds powers, or if acts in bis own name. Mandator bi)und : lo, to indemnify manIarriiigo. — \'oii' if no eonsent ; may be contrasted at 14 by men, 12 by women ; annulahle within 3 ye:irs on demand of consort, if other party nifiiufestly impotent when it took pla(!e ; consent of father or of widowed mother required for minors, of tutor ail hor for natural children, of tutor, with advice of fandly council, for orphans, of curator, if orphaus emancipated ; jirohibited between certain relatives ; must bo solemnized openly by otiicer authori/.ed to keep registers of acts of civil status who is not Cdiiipelled t<- act if hia religion forbid it ; publication o!' dispensation froni bans retjuired ; of one or two l»wer Cana- ilians, solemnized out of Province, valid if formalities of jilace conformed to and nil intention toavold Quebec law. Can be attacked by party led into error, or whose consent was not free, by those whose consent was reiiuired. unless ajjirobatlon given or six months elapstnl ; by any interested party ii parties related or allied to proliiliited degrees ; cannot be attacked for youth if proper age attained since si.>: months, or wife conceived before tliat period, o'' consent given. .May be contested if not solemnized before propc^r ollieer ; ollicer lial)le tW) for any contravention to rules; certilleate r(!quired ; when null produces civil etfects f)r party In good faith ; eimlers mutual obligations of fidelity, succor and assistance, of prottc'ion byhusbnnd, reverence and eo-residonco by wife ; only dissolved by natural death of parties. (See Acts of Civil Status, Married Women, (IppositidU'* til .Marriage, Absentee, (iifis. Separation of rroperiy, Separa- ticin frijin lieil ancl board, Maintenance, Civil Death, ('onnnunlty ol Pro- perty.) Marrlajje ContraciH.— Irrevocable after niarrlago : must bo in notarial form; ma\ cun'ain any provisions not ciuilrary to good morals or marital autliority ; minors must be assisteil thereto by tutors and have parents' consent ; tliey arc sub.ject to rules governing lliem. (See Minors ) Married M'dtiiiiii,— Cnni ot appear In judicial proceedings without Uus- band's auiliorlzation, except in matters of administration Vi'here )<«!parate as to pro. )crly, nor, under Slime rcscrvti, give, accept, alleinile, contract; or Idnd hersulf or become a trader : may be autliorl/.cd by Judge If bus. hand refuse or Is alisc.n or interdicted; want of autlioiiz >tion, where reipiired, is a raiiieal nullity : may make will without autbori/.Htlon. (Hgi- Community and Separation of Property, Kxeluslon of Ciunmutiity, Marriage etc.) MiitcrhiN. ;Soe Possession, I'rlvilego.) Minus nnd Uiinrrles.—lSue I'sufruct ) Fall Into coininnnlty if oper. aleUbeloru marriage. QitJHKt VIML LAW. 279 3Unlne Rltrhts Their sale, lease or transfer preserved and take date, if title iiutlientic, by its registnvtiuii wltliiu 60 days from date, even if no actual possession. Ministers.— (See Clergyineu.) Minors,— Attain majority at 21, subject to parents' autli<*dty until emancipation; cannot leave father's liou.se without hi.s permission ; more than 14, may l)ring alone actions for wa^'^s, anil for hiri! of services, when author- ized by judtre ; cannot be testamentary e.xecutors ; incapalilc of contracting, but that incapacity established In tiieir, favor only ; simple Iesi(ni annuls contracts made without tutor (guardian), except if minor trader, or if lesion causeil by unforeseen event ; not rclievablc from stipulations of marriage con- tract, when valid coiisont obtaini'd, nor from obligations rcsullinj; from hi.s offences or (iiiasi-offcnces, nor from obligations ratiticd after majority; con- tracts aircct'iig immoveables made without proper lormalities, may be avoid- ed witliiiut proof of lesion; lia\o legal iiypothec upon immoveables of tutors for balaiicu of account ; presci otions of 5 years or less run against tliem ; their action for restitution, lor lesion and against tutors, relating to acts of tutorship, prescribed by 10 years from majority. (Sec Kmancipation, Tutors, Itegistralion, .Marriage.) Mortgiise. -(See Hypothec.) jMortiiinlii.— (See <'orpoiration8, rrescriptlon.) Moveables.— Uy iiatu.o, all liodies which can be moved from place to place eitiier l>y themselves or l>y extrinsic force. IJy deterndnation of law. mobilized immoveables, shares in tliinncial companies rents, <'onvent!onal dower ; cannot lie mortgaged, but are subject to privileges (('/. inf.); cor- poreal, acquired I'y 3 years' possession in good faith ; cannot t)e revendioated if bought in good faith at a fair, mariiggage lost lu transportation or hotels ; of advocates, pbysicians and sur- geons, as to value and duration of services, and as to reiiuisition thereof ; put officially, see Synopsis of Civil Procedure. Obligations.— Mui«t have cause, object and persons between whom exist ; arise from contracts, quHBi-contract^, oifenc^s, quasi-oflenccs and law. Object must l)e something which a parly must give, do or not do ; in commerce determinable as to kind, must be legal and. moral. Inexecution, after putting in default, renders liable in damages. Maybe under suspen- sive or resolutive condition, alternative, joint and several, divisible and indivisible, with or withoit term or pen.il clause. Kxtinguislied by payment novation, release, componcation, confusion, impossibility of performance, judgment of nullity or rescission, effect of resolutive condition, prescription expiration of time, doatli of creditor or debtor in certain ca><<'s and particular causes. Olltsi.ces- And (luasi-oltonces produce obligations (see Damages) pre- scribed by two years genei ally and by one year in particular ca.ses. Oppositions to Marriage.- May be made by person already married to contracting party, by relatives or guardians of marrying minor , formalities in Code of Civil Procedure. Ownership.— 51 nsi not contravene law or regulations ; accjuired by occupation, acoiission, contract, descent, wills, etfect of law or of obliga. '.ions and prescription. Must be given up if expropriation for public pur- poses, but only on payment ot inslenmity. I'apers.- (See Family Papers.) Pactltlon. —May always be demanded by capable person ; must be judi- cial if some heiris be absent, unwilling, minors or interdicted ; Immoveables valued by expi'rt.s ; moveables may be sold ; preceded by returns of dei)ts anil gifts, but not of expenses of maintenance and education ; shares formed, oo-piirtitionors may be bound to warrant one another in some cases, and If privilege registered ; rescindable for ordinary causes, but not for (iniission of st)mc object. Partnership.— Universal or particular, civil unless contracted for trading or inanufacturlng or other commercial pui poses ; for construction of roasis of Commercial Law.) VawulnK.— Pledge of moveable property ; gives creditor right to be paid by privl(eg(! and iireferencM over others while thing pawned remains in bis huiide or of party appointed ; pawn brokers only may dispose of thing pawned ; debtor obliged to repay expenses of preservation ; cannot claim thing before having pait suH'erance, or of violeuco, or dan- destinity ; may be invoked by succepsors ; in good faith, \indi'r translatory title, gives ownorsliip after 10 years ; of corporeal moveables, creates pre- sumption of ownership, whicli taltes place after 3 years. (See Good faith and Bad faith) ; of .Moveables {(f. Sup.) Povrer of Attorney.— (See jMandate, Alien, Advocates.) Pre««'riptlon.— Means of acquiring (acquisitive) or of being discharged (extinctive), by lapso of time and subject to conditions established l)y law ; may bo renounced, even tacitly, by persons who can alienate, Init not liy anticipation ; as regards immoveaides, governed by law where situated ; as regards niovealjles and personal actions, debtor can involve one or more of tho following: 1. prescription entirely ac(iuired under foreign law, when cause of action did not arise, and debt not stipulated in Lower Canada; 2, entirely acquired in Lower Canada from maturity of obligation or acquisition of domicile by debtor ; 3. any prescription resulting from lapse of successive periods, wlien first elapsed under foreign law. Actinisitiiiii.~-'Hce Possession). Doi s not talte place against < rowii. except for arrears or property escheateil, but takes pliieo against the Church, save as to rights to titlies and rutf! tlereof. Interniple.l naturally, when possession deprived of enjoyment nf thing during more iluin one year ; civilly, by Judicial diMnand in proper fm-ni, before competent court ; suspended— except siiort i)rescrlptirni8— in lavor of incapable persona and consorts ; tixed to ,'!0 years, as a r\ilo ; !i ye.irs for fruits ami interest Oiot on judgnu>nta) ; ID years for subso(iuent purciiasor in good faith \iniler trans- latory title; action In restitution ol' minors lor lesion, reotillcation of tutors' accounts ami rescission ot contracts : ."> years for professional services and commercial acts generally; 'j years fur wai^'esof workmen, salaries ot ecliool masters, oltences and <|uaai-olTenees ; 1 year for slander and lil>el, bodily injuries, wages of workmen hired at hhort periods less tinin a year ; hotel and boarding-house charges. <'orporeal moveables ((,'/'. sup.). • rroNUMjptlons,- Kslablished hy law or arise from I'aets ; legal exempt from othir proof; and in some cases exchule i)roof to the eoi;trary, i.',, authority of a final Judgment if identity of cause parlies and things, Df survivorsliip are established by law when several persons perish by same accident; of payn\ent of intiireat on loan wbi-n principal acquitted; of nolnrics not established by their lurnishlng ileeds. Priests. —(See Olergyuien, Tillies.) Privilege,- Legal right of a creditor atfi — (See Wills.) ProiUgRllty.— (See Intenlietion.) 1>r(tlill)ltioii to Alienate.— (S***? Substitutions.) Proof.— Falls to party clolming performance, avoidance or extiit«tioa»«l a.; oblig.Htion, must be the best ot which case susceptible : secondary or inferior canr»>t Iw ri'ceived unli-ss .•ahown that primary impossible. Motias : 1 o , By writimgs ; {«) authontit'. i>llleial or notarial ( (.'/'. Sii/i.), and true coims the. of; niwde outside of I'rovmce, no additional proof rciiuired foi uihmi'- jdltlcations t.f wills or judgments, certificates of baptism, birth, in.irriags or burial, anil powers of attorney ; (A) private, iicluding ilefectlve authAUtic acts : date and signature to be proved if denit-d, cxcejit if registration, death of subscribing party or witness, or «<'tfinK forth in authentic deeds (see FNinily Papers) 20 , l!y testimony ; in) it principal sum of money or value in question does not exceeil SiW ; (h) in css'-s where real jn'operty held by per- mission of proprietor without leps« ; {<■) in cases of necessary deposits, or made by travellers in inns, etc. (O- *»'"7'.) ; '/) in cases of obligations aris- ing ft'om ofTenees or qunsi-«»fl'onc«-«. or If claimant cannot yet written proof ; (ei if written proof lost by anforeseen accident, or Is in (lossession of adver- Hury -ir of tiiird party not colluding ; (y') when commencement of proof in writiing exists ('7. siiji.) (s|M*oinl provisions eoneerniug commercial matters) ; cannot emitradlot or vary valid written instrument (see Witness) ; 30 , |iresumplions {y retiring of waters ; pre&UMied to liave built and at his own cost. (See Possession, Ownership.) Purchaser. — (See Huyer.) Quakers.— Not compellalile to take oaths ; make solemn affirmation; may lie eou.pelled to furnish proof of creed. Quasl-Contrai'ts.— Create obligations, i.e., management of affairs of another without latter'a knowledge when no prohibition to contract ; undue payment. (Juasl-Ofrences —(See Obligations, Damages, Responsibility.) Registers.— I'amlly (see Family I'lipers) ; of Civil Status ; kept by offi- cers (See Acts of Civil Status) who are liable to pen.'.lty of $H to $^0 ; subject to certain formalities. Kegistratlon.— Gives ell'ect to real rights, wliieli tlien take effect against subseciuont creditors, oxcept when delay allowed liy law to register, liequired for gifts, sales of imnioveables or mining rlylits, ivilia concerning immovi'ables claims lor fii||iVliii|'ii Itlliiate, and oihentitj* reiiUltlhg registration. Ke^uliited \>y ».|ir(tlal stattlteN, Kelt-asi'.- Hm>re»8 or tacit, BXlingnlshes obligations. BespuiiitlbUlt) . (See OVdlgations.) Keveiulleatlon.-Ily unpaid vendor. (See Sale, Privileges and Qviobec Insolv-'iK'y liiiw.; Kl vers. -Navigable and floatable, aio Crown dende«cle8 ; alluvion produced belongs to owner of adjacent land. Sale.— Is eommercial if, lo, object moveable : 'J-, made with intiMit to bonetit ; and '.i~ , by a person wlio is in the hubit of sejling sucb things. (Seo Buyer, and Synopsis of Commercial Law.) Hclioolinasters.— Hesponslble for damage cavised by their pupils whevo under tUelr care; claims for tuition, board anil lodging jirescvibed by years. Separation of Property.- Wife must contribute, In proportion to means, to expiinses nf bousohold and education of commun cbltdien ; has uncontrolled adiiiliil.itration of her property ; may ilispose of and alienate her moveables ; cannot alienate her iunuoveables without marital or judi- cial authiirl/.ation ; liusband responsible for omission to invest or replace price of wife's iniinov<>able sold, if sale made in his presence ami with Ills eonst>nt, and If s.ile authorized judicially, anr when substitute put in posMsMvu, m m^niuii; I'onimiiting irator bounil to be prudent, to produce mid dt-llver thing when jiJ ,; ' ' roiidi'i a s wlienevei court oidcrs. .Se- questrated ). , • leased i(. •/ pnriy ; se(|iiestrator dis- charged after ;i years, uiiiui<» /liniclloifis com Servants —Can only le.ase their I'cA/'.ei' f' determinate undertaking ; engagement ends by ti i sometimes by death of hiring party; wages privilegrd wii prescriptible liy one year, and by two years if not domcstirs one year or more. (See Domicile, Lease, Oath, etc.) ■liown. r a .lid ion, V ServltndeH (real).--Charge8 imposed on one real cslate for tlie benefit of another belonging to a ditferent proprietor; arise either fr<>m natural position of property, i.r., receiving (vaters flowing natur.'.lly or Iroiii law, /.V., right of view, of way, <'tc.. coiiinion property {(J ■■■'"//.), or established by act of man, i. <\, from title ; exlinguislied l»y iinnossibility of use, lonfu- elon, non-user for ;«) years by persona ot Hill aige anti riot privilegeil . Sct-off.—Kxtingulshes obligations by soli' effect of law if l>otli debts equally liquidated and dcniandabli.', and liavliig for object monoy oi iliinifs of same kind and quality, not jirevenied by term granted by iiulu does not lake place to the prejudice of rights ac(iuired by third j.^iiii-,- , takes place wliatever lie the cause of debt'* except (k) for demand in restitu- tion of detiosit, or thing of which the owner was unjustly deprived ; (/») /or debt having for its object an uiiseixable alimentary provision. QUEBEC CIVIL LAW. 285 Subrogate- Fiitor.— Appointed and removed same as the tutor; duties: to cauBe the act of tutorship to be registered, to be present at inventory, to watch over administration of tutor, to cause ills removal and replacing, to act for interest of niinorwhunevi'r opi)osed to thos e of tutor. Subrogation. —Conventional, when expressed by creditor receiving pay- ment from tiiird party, or when debtor borrows to pay his debt and accepts lender as creditor by act before notary or two witnesses. Legal : in favor, 1, of creditor who pays a preferred claim ; 2, of purchiiscj of im- moveable discharging hypothec ; 3, of party paying a joint del)t ; 4, of beueficiuiy lieir paying succession debt : 5, of consort paying community debt. Takes ett'ect as regards sureties ; creditor paid in part only preferred to party who has paid him. Substitution.— Vulgar : Disposition of wills or gifts whereby a person (substitute) is called to take the benefit of i disposition in tlie event of its failure in respect ti> the person (institute) in whose favor it is Hrst made ; fiduciary (whieli includes the other), that in which person receiving thing is charged to deliver it over to another oitlier at his death or at some other time, takes etfpct without delivery ; may exiKt altliough the term usufruct used, if such be tlie inti-ntion ; irrevocable if made by marriage contract ; by other gifts introadly interi>reted, must bo rcgistereil. Successions. — Transmissions by law (abintestate) or by will of man (testamentary), to one or more persons (heirs) of property and transmissible rights ot deceased person ; also universality of tilings thus transmitted. Devolve at domicile, by natural or civil death. Heir must be civilly In existence at tiuie of devolution, and not declared unworthy. Children divide enually estate ot ascendants ; if no issue left, father and mother, or survivor of them take one half, brothers and sisters, and their clilldren if deceased (dividing ei|uully share wliich would have accrued to parent. If living) the other; they take the whole if both lather and mother dead; If only ascendants other tlian father mid inotln^r, usciuid.mts of paternal line divide equally one half, and ascendants of maternal lino the otlier, the nearest in degree excluding all others ; i-ollateral inhd by petition to court oi jmlge to free heir from succession debts exceeding amount received and avolil confusion of estates ; inventory must be made ; sureties given If required, notice of iSl_Liil ' -i h 4 »^ f ;)|l I, 1 i I : 286 QUEBEC CIVIL LAW. quality, and account to cruditors uiul legatees. Vacant wlieii no \\e\ri known or coininj; forward after delay for inventory ; curator appointed. (See Partition.) Sarotyshlp.— Act l)y wliidi a person (surety) i>ngage8 to fulfil another's obligation in case of noii-fullilinent l)y the latter ; may tiiko place without debtor's liuowledfje, may lie for natural obligation or (i a minor's ;ict ; obligation of sureties passes to heirs, -xcept liability to iniprisonnK-iit, when it exists ; debtor bound to offer Huuiy must offer one having siitfieient real pro|)erty in Lower Canada, and domieiled there, and replaci.' Iiiui in ease of insolvency. Trior disuu.-'sion of debtor may be demanded by surety not joinily and severally bound, who points out >lear property of debtor in Lower Canada, and advances e<;.I" or alliance, if there are rehit'ves or allies who cotild accept;.!. Age, Ui'i ; 4. Serious and babitual inlirmities; 5. Two tutorships (do not dispense from that of children) ; 0. 5 legitimate children, living or dead, liaving left 1: sue ; 7. Certain public oflices ; must be stated at once. Cannot be : 1, minors, except if fatlier or mother ; 2, interdicts ; 3, women, except mclher and female ascendants; 4, parties having lawsuit QUEBEC CIVIL LAW. 287 a);iiii)st minor ; ,', those coniiomiicd to Infamous puiiishinfnt ; fi, those whoso misconduct or incapacity is notorious. Must taltc oi'li ami make inventory, sell movealtles by auction, Invest money?, represent aiiiltiil'll Incorporeal moveablfs, a<;i;e|it or renounce succession, nppi a i from a judi^ment, or transact, ('iiiiiiot accept succession for minor wi; lunit aslcinj^ for benefit of inventory, malce gifts for minor, buy or rent his property, accept assignment of a rii^jht or claims against minor, or demand detinilive partition <>f immoveables. Must render account when tutorsliip terminated, and from time to time wlien asked, (See Subro„'ate-Tutor.) Use.— liight to enjoy another's thin({ antl takes its fruits, only to meet requirements of user and family. (See Usufruct.) Usufruct.— Klght of enjoyin;^ thini;s of another as proprietor, but sub- ject to obligation of preserving liie snlistance thereof. IJegins by Inventory md ijiving of securii'' ; otherwise smjiiestrator ap|>ointed. Usufructuary responsible for lesser i-piiirs and all which are a consequence of bis enjoy- ment. Ends by : 1. Natural or civil death of usufructuary, expiration of time (ixiil ; '2. Usufrm-tuary becoming proiirietor ; 3. Non-user during 30 years, and prescription acipuied by third parties; 4. Total loss of tiling subjet't to it ; 5. Abuse of enjoymeni : (i. Kesolution of right of party cri'ut- ing it : 7. Itenunciation. Wages.— (See Servants, Prescriplion, Minors.) AVldow — lias full exercise of her rights ; may be tutiix to her children deprived of tutorship if remarries. ■Wills.— <'ondltion impossible or ii iral considered as not written, and does not void disi>osition ; may be made by any person of full age mid sound intellect, in favor of any one ; not by minors, or prodijals; made after inter- diction, may be contirmed or not ac'onling to circumstaiii es ; annuUeil l>y civil deatli. Corporations, minors and interdicts, infants conceived, may receive. Presiimptic is of umlue intluenoe abJiishod ; cannot bo made jointly by two or more persons. May be made : 1. in autlieiitic form, before two notaries or one notary and two witnesses of lull ago and of the male sex, not in employ of iiotiiries and receiving notliing by will, reawever, can make a roluutarii ahamhinmcnt of his estate for the jeneflt oi his creditors by dispossessing himself of his property to a trustee who realizes upon \„ for the benefit of the creditors and distributes the priK'oeds among them pro ruin. Creditors only who have agreed to an abandonment of this kind can bo bound by it, and this form of abaudon- inep^ cannot prejudice tfce right of a creditor who is not a party thereto to compel the debtor to inaKo a judicial abitadonmcnt in court if the sum due gives him that right. The persons who can mikc tijwiicial ahawlonmenf, of their property for the benefit of tlieir creditors are : (1) A debtor wlio has been arrested under a writ c)f nipinii ad res- ]toiifhndum. ('J) A trader who has erased his paymei'.ts and npon whom a demand of abandonment ha» been made by any creditor whosi claim is unse- cured for a sum of twi; hundred d(dlar.s against the defendant ; '.li\ is secreting or making away witii, has fccreted or made away with, or is iinnie mand of abandonment, he must, witliin twod.^ys after the service upon him, tile at the plaice wliere by law the abandonment must be made, i.e., the office of the Superior Court where he hiw his principal place of busineK8, and in defau't ot such p a^e, where he is domiciled, a declaration tliat he consents io ab ndon all his property to his crt-diiors. The debtor must also within four days from tlie date of his declaration deposit a sworn statement in court showing {n] all his property liable to seizure in KIs possession, {!>) the names and addresses of his creditors, the amount ot their respeciivo claims and tlie nature of these claims. Frovislonal Guardian. — A provisional guardian is appointed as soon as the debtor declares that ho conuents to assign. Preference is given. In making tills appointment, tc^ the most interested creditor. The provisional gitan'uan takes possession of all the debtor's property liable to seizure, and may take conservatory measures under the judge's direction. Meeting to appoint Curator.— A meeting of the creditors Is called to take place before the judge, by a registered noiiic to the address of each of them, and also inserted in a newspaper published in the district. Tliis meeting must be held between the fifth und the fifteenth day after the publication of the notice calling it. Tin, judge must appoint as curator the person chosen by the majority in number and value of the creditors present, or represented at the meeting, who have filnd sworn claims, Wluro the majority In number does not agree with the majority in value, the jiulge deciles between them as lie thinks proper. The inspectors are appointed IVom among the largest creditors, and their duMes consist In advising the curator on all matters concerning the ndmliiistratlon of the estate. Seizures and AttaohinentH are suiipended aftf r Abandonment. — AH proceedings in the nature of seizures, atlat^hiuents for rent or seizures in execution against the debtor's moveable property are suspended, and the guardian or curator takes posLes^ion of the goods seized. Mciilce of Curai«r«'B Apiwlntmcnt.— The curator makes his appoint- ment known by an atlvertlsemont In the Quebec UJIlcinl (lazvttr and by a registered notice posted to the address of each creditor. The creditors are called upon in this notice to file their sworn claims within a delay of thirty d«yi. Curator to give Security.— The curator may he recjulrpd by the Judge to give security, the amount of such secorlty being fixed by the judge. This security may be given to the creditors generally without mentioning their namei. 19 290 QVl'.BEC IS SOL VEKCY LA W. Powers of the Curator.— The curator may, with the leave ot the judge upon the advice of the creditors or inspf ctors, e zercise all the right of action of the debtor and all the actionK posxefiged by the mass of the cre- ditors. He must sell moveable property of the debtor under the judge's direction upon the advice of the parties interested or of the inspectorn; as to immoveables, the jifdge may authorize the curator to sell the same in such manner and ufter such notices as the court may direct, or the curator may require an order to irsuo w .at is known as a curator's warrant to the sheritT to dispose of the insolvent's immoveable property, and after the sale and the payment of hypothecary and other privilegeil claims upon the property, the surplus is remitted to the cunitor for distribution ar-jong the ordiuary creuitors. DlvldonilH.— The moneys realized from the property of the debtor must be fUstributed by the curator among the creditors by means of dividend sheets prepared after thirty days from the notice to tlie creditors calling upon them to Hie their claims. Notloe of the preparation of such dividend sheets must be given by advertisement in the Quebec OJtrinl Guzi'ttc, i\nd a copy of tlio dividend sheets must bo seut to all the creditors whose claims have been filed or have been nlentloned in the statement made by the debtor. Fifteen days after the observance of theae foriiialitiee the dividends are payable. Contestation of Dividend!* or Claims.— The dividteiids or claims may he contested by any par'y interested, or by the curator at the expense of the estate i I lie is so instructed by the insiiectors. Tlie judge may, however, allow the payments, in whole or in part, of any claims or divlileuds which are not contested, upon being satisfied that a sulTlcient sum is retained to meet tlie contestation. Prefpried Claims on moveable Property.— Privileged claims when they come togetlier talto proeedenco in the following order:— 1. Law costs and aU expenses iiu'iured in the Interest of the mass of the creditors. l,aw costs are those iiieurrcd lor the sale of the property and the costs of judicial proceedings for eiinbling creditors generally to obtain p.iy- nient of their claims. Tin; expenses incurred In the interest of the mass of tlie ceditors include such as have served for the prtservation of their com- mon pledge. 2. Tillies carry with them a privilege upon such crops as are subject to them. 3. The claims of the vendor. The latter has two privileged rights (n) a rik'htto reveiidieat or replevy; (^) a right of pieference upon its price. In the ease of iusidvent trailers, these rights must be eyercised within thirty days after r/<7ii'<'»vy. The right to revendleate or replevy the article sold is subject to the following eondltions: ((I) The sale must not have been mndo on credit. {!>) The thing must still be entire and in the same eonditlim. ((') The thing must not have I'rassed into tile liaiids of a 'bird party who has paid for it. ll'tiio thing bo still in the same condition, but the vendor be no longer within the delay or have given credit, he has a privilege upon the proceeds, and our courts have held that a conservatory seisfuro will lie to resillate the gale and recover pc ssession of goods which have been delivered witkiu thirty days of the debtor's insolvency. Thihanilenu & Mills, 2\\ U. 0. J. 140. Leri vs. Hi inurdiiiyvr, 1 (,». P. It. \)i. 4. Creditors who have a right of pledge or retention. These are the fol- QUEBEC INSOLVENCY LA W. 291 lowing: carriers, hotel-keepers, mandataries or constgnees, borrowers in loau for use, depositaries, pledges, worltinen upon things repaired by them, purchasers against whom the right of redemption is exercised for the reim- bursement of the price laid out upon the property. 5. Funeral expenses. 6. The expense of the last illness. 7. Municipal taxes. These are limited to taxes on persons and personal property imposed by municii>alities. and taxes to which a like privilege is attached by spi-cial »tatutes. 8. The claim of the lessor. In the case of the liquidation of property abandoned by an insolvent trader, wh? has made an abamlonment in favor of his creditors, the lessor's privilege extends to twelve months' rent due, and the rent to become due during the current year If there remain more than four months to complete tlie year ; if there remain less than four months to complete the year, to the twelve months' rent due and to the lont of the current year iind the whole of the following year. If the lease be not iu auchentio form, the privilege can only be claimed for three overdue instal- ments and the remainder of the current year, Sfi. The owner of a thing who has lent, leased or pledged it, and who has not prevented its sale, has a riglit to be paid the proceeds of its sale after the law cost.'* mentioned in paragraphs 1 and 2 and the lessor's claim havolM-en patislied. 9. Servants' wages. Domestit' servants and hired persons are next entitled to he collocated for whntevor wages may be due to tliom for a period not exceeding out' year. Clerks, apprentices and journeymen are entitled to the same preferei <•, but only iipon the nierchandi.se and elTects contained in the store, shop or worksliop in which their services were ro(iuired for three months' arrears. rarties who have supplied provisions have a privilege for such provl. slons con(nirrently with hired persons for the supplies furnished during the last twelve nionthx. Preferred Claims on Immoveable Property.— The privileged cl.iimg on immovealilo property ure . 1. Law costs and the expenses Incurred for the connuou interest of all the creilitors. 2. Funeral expenses when the proceeds of the moveable property liavo proved InsutHcient to iiay them. 3. Tlie expense of the last illness subject to the same restriction as funeral expenses. 4. The expenses of sowing and tilling : the privilege for this expense attaches upon tlie price of immoveiililes sold before llio liarvest Is gathered to the extent only of the additional value given by ..inch tilling ami sowing. 6. AsHcssmi'iits and rates. Tliese consist of the following : (a) Assesanicnt for building or reiiairiug churches, parionagns and church yards. (/<) School rates. ((•) Municipal rates: five years of arrears only, besides the current year, can be claimed. These claims are privileged only upon tlie immoveables specially assessed. (i. Seigniorial dues, tlvo years' arrears and current year. 7. The claim of the laborer, workman, architect and builder. Pro- visions reganling the privilege mentioned in tuis suutioii are to be found ill 61) Vic. ((Jue.), cap,42(l«ir.). 8. The claim of the vendor. ' 0. Servants' wages under the same restrlotiona as funeral ezpensea. J! u 292 h^OVA SCOTIA LAWS. Examination of InsolTeiit und ottierg.— After the flUng of the state- ment by the inaolvent, the latter may bo summoned by imy creditor or by the curator, properly authorized, to appear before tlie court to be examined on oath conoerning the statement made in court at the time of the abandon- ment and llie condition of his affairs, and provision is also made for the examination of the insolvent's consort or of any "ther person whom the court deems ct^pable of furnishing information in regard to the general affairs of the insolvent's estate Contestation of Statement— The curator properly authorized, or any creditor, may contest the Inbolvent'a statement by reason : — 1. Of the fraudulent omission to mention property of tlie value of one hundred dollars. 2. Of fraudulent misrepresentation in the statement with respect to the number of creditors or the nature or amount of their claims. 3. Of secretion by the debtor, within the year immediately preceding the filing of the statement, or since, of any portion of his property with intent to defraud his creditors. The contestation must be made within four months from the day on whicli tlie advertisement of the curator's appoint- ment appears in the Quebec 0£icial Gazttte. If the contesting party estab- lishes any one of the otfences mentioned, the judge may condemn the debtor to imprisonment for a term not exceeding one year. Register to be kept by Curator.— The curator must keep a register containing full particrlars concerning the estate as to proceeds of sale of assets, disbursements, dividends, etc. This register may be consulted by any creditor, and within two months from tho payment of the last dividend must be deposited in court. Synopsis of Nova Scotia Laws, AckuoivledKinenta. — (See Deeds and Conveyances.) Attachment of UebtH. — Any person having a judgment may, upon affidavit of himself or bis solicitor, obtain an order from tho Court for at tachment of debts due judgment debtor. If the garnisliee disputes his liability, the court may order an issue do- terndning his liability to be tried. In the same manner as an issue in any action. Attachment of Property.— The property of an absent or absconding debtor may be attached. A writ of summons in the usual form is issued, a copy of wliioh must l)e left at defendant's last place of abode. The plaintiff may sue out attrchment at or ofter the commpncement of the action on making an affidavit showing a i:.^,ise of action in tho Supreme Court for eighty dollars and upwards, and in tho County Court for twenty dollars to 94(H).()0, stating the ain'-nnt of debt or damage sustained, and that defend* ant Is al)8unt or absconding. The sum so sworn must be endorsed on the writ of attachment. Tlie sheriff to whom the writ of attachment Is directed shall levy for the amount endorsed on the writ, together with one li\i!idred and twenty dollars in causes over eighty dollirs, and twenty-eight dollars In causes under eighty dollars, for probable costs. Defendant's property id appraised by two sworn appraisers, and Is not bound by attachment till levy Is made. NOVA SCOTIA LAWS. m Perishable Koods may be sold by order of the court, nuless security for their value is given within three days after notice of appraisement. Any party having a title to the property attached may, by application to the Court, on afUdavit setting out his claim and the facts, move to set aside attachment. A trial of the facts may be directed, and the court may set aside the attachment in whole or in part. If no appearance is entered within six months from atiachment of property or service of an agent, un- less a later appearance be alloweil by the court or judge, the debt or damage may be assessed by a Judge, and judgment may thereupon 1>e entered up and execution issued thereon. Execution may be granted against an agent or trustee of defendant's who bar been summoned and proved to have goodsor credits of defendant's in his bands. I'he defendant is entitled to a re-hearing within three j ears. Actions.— (See Courts.) AlfldavltH.— Affidavits must be entitled in the cause in which they are used, and must contain facts known to deponent of his own knowledge, except on interlocutory motions, where mutters of relief may be sworn to. Tlie time and place of swearing and before tvliom sworn must be stated in the jurat. AfUdavit-s should be drawn in the first person and contain a description of deponent, and where there is more than one deponent, the names of such de- ponents should be separately inserted in the jurat. Interlineations acd alterations should be initialed by the person before whom affida- vits are sworn, and erasures should be written in tlip margin and initialed. Where tlio lieponont is illiterate or blind, the jurat should state that it wi>8 read over and explained and that he seemed perfectly to understand it. Exhibits slioiild be certitted as being such, and identitied with the affidavit. Actions may be tried on affidavits. Affidavits may be sworn within the Pro- vince before a commissioner or judge, without the Province in the domin- ion of Hor Majesty before a judge, court, notary public, or person lawfully authorised to administer oaths in said Dominion, or before any of Her Majesty's coiisulu or vice-i'onsuls in foreign countries or a comnilssioner for Nova Scotia for taking affidavits. Arrests.— When plaintiff believes defendant is leavingthe province, lie may upon atUdavit of himself or some other person having knowledge of the facts, obtain an order forliis arr jst. The affidavit must show: — 1st. Defendant's indebtedness. 2nil. Nature of claim. 3rd. That plaintitf has probable cause for believing and does believe that defendant is aixiut to leave the province unless he be arrested, and that lie believes the debt will be lost unless the defendant be forthwith arrested. The defendant on arrostmay give security. In the Supreme Court the lowest amount for which defendant can be arrested is eighty dollars, and in the County Court twenty dollars. nill<4 ami Notea.— The law of bills and notes was codified by a Domin- ion statut«ontitl('d"TheBillsof Kxohango Act, IHiX)." ItlschieHy acodilica* tion of tlie principles of common law on tho subject. When a note is not payable on demand, but is payable on sight or time, three days of grace is allowed. Whenever the last day of grace fulls on a legal holiday, then the day next following, not being itself a legal holiday, shall bo the last day of grnce. The following are tlie legal holidays: Sundays, New Yeai's Day, Good Friday, Kiuler Monday, Christmas Day, the birtiiday of the reigning Sovereign, the lirst day of July (Dominion Day), Labour Day, also any day appointed by the Uovernor-Ueneral or Lieutenant-liovenior, and the next Ill il 1' 294 NOVA SCOTIA LAWiS. day follo\Ting New Year's Day, and ChTistmas Day, Dominion Day and Sovereign's birthday wlien tliose daye fall on Sunday. Only foreign bills and notes require to be protented. Bills of Sale.— Every bill of 8ale of jierponal cLattelc, «nd every fched- rule annexed thereto or rererred to therein, or a true copy of such bill of sale and schedule, must be filed with the registrar of depds of tlie county- or dislrict where the mak er repidt's; and in case a copy be filed, it must be ac- companied by an a tlidavit of the execution of the original hill of siilc, other- wise it shall only take effect aid have priority from the date of filing the atlidavit. If the bill of sale be subject to any defeasance, the defeasance is considered part of the bill of salo.l and the defeasanoe or a copy ) That debtor has made any fraudulent disposition of his pro- perty ; or ((•) I n case of tort or breach of contract that the tort or breach was wilful and malicious,' then in any or all such cases the commissioner may commit debtor to jail under his warrant setting forth grounds of commit- ment for a period not exceeding 12 months. NOVA SCOTIA LAWS. 296 Commigsltner may at conclusion of examination order debtor to execute assignment of all bis real or personal estate (except such as is exempt from levy under execution). He may order him to pay debt by instalments. On failure of debtor to pay instalments ordered, Commissioner may order an execution to issue " to take the body " of debtor. If debtor about to leave province, creditor may apply on affidavit to coronii«8irner for order for arrest. In ciuse of judgments in stipendiary magistrate's court, the duties of commissioner may ha performed by commissioner or stipendiary magis- trate, where judgment obtained In justice's court, by a justice of the county where debtor re.-ddes or may be found. The act doas not apply : 1. Where judgment is for a penalty, not as an ordinary debt, or a sum in the nature of a fine imposed, or where in default of payment or penalty imprisonment is ordered. 2. Warrants for collection of rates and taxes for municipal, county, poor and scliotd purposes. Appeal from the order of commissioner may l)e taken, on notice stating date of hearing and ground of appeal, witliin 48 hours from date of order, to a j'".dge of Supreme Court or judge of County Court having jurisdiction in the county ii' which debtor resides or was examined. The judge on appeal may have wimesseg examined and make such order as way seem Just. Conveyances.— All deeds, judgments and attachments affecting lands must be registered in the registry office of the county in wliich the lands lie. All deeds, dockets of judgment, or any copy of a writ of attacliment, with the description and appraisement, are Hccounted registered from the date of their being duly lodged for registry. Tlio registry of a deed exe- cuted under power of attorney is void unless such power, or a deed subse- (juently conflrming the authority given therel)y. Is duly registered. Deeds or mortgages of land duly executed hut not registered are void agaiiist any subsequent purchaser or mortgagee for valualde consideration who has first registered his deed or mortgage of such land. In order that a lease may be eflfectual, it must be recorded as other deeds, l.eases of land for more than three years are void against subseiiuent purcliasers or mort- gagees for valuable consideration ant bo joinei: -s platntltf or defendant. Any damages or ■costs reiovered hhall he her »eparuto property, and any damages or costs agaiuot her sha \ be paid out of her separate estate. NOVA SCOTIA LAWl^. 801- i'v if. m ? Every contract entered Into by a married woman after Ist May, 1899,. otherwise '.*>Kn aa agent : 1. 31iali bH deemed to be contract with respect to her separate property whether or not at tlie time she is possessed of or entitled to an>. 2. Shall bind her separate property, whi(;li i^he may at the time of trans- fer be possessed of or entitled to. 3. Shall be eiiforclble against property which she may thereafter, while be possessed of or entitled to. Every woman wlio marries after Isl Januwry, ls"j!», shall lie entitled to hold and dispose of as her separate property, all real and personal property belonging to her at time of mnrriage or acquired or devolved upon her after inarriage, including; wages so acquired ny her in any eniployment, trade or occupation in which she is engaged separately froni Ker husband, or by the exercise of any literary, artistic or scientilic sUlll. Proviso. {>!) \n order lo carry on business separately from her husband, the consent of the husband must be filed in the K^glstry of Deeds for the district or county wliere the wife resides aiid does business, (6) In addition to this consent she thall record in the office of the clerk of the city or town in wliich she does or proposes to do business, or of the clerk of the municipality, if such business is not carried on in a city or incorporated town, a certiticate settiiij^ forth ; 1. Her name, 2. Name of husband . 3. Place of business, giving street and number, if practicable. If any change is made a new certillcatd is necessai j (<') If a married woman failri to file cerilHcates, the hnsband may, but if neither do, the property is liable to be taken on execution issued against h'^o'iHiul, and Iiusl)Bnd is liable on contract in respect of said busiuefis. Wioney lent by wife to husband treated as assets of iiutiband, and in case of assignment of husband for benefit of creditors, sha can only claim divid- end as creditor after all claims of other creditors for valuable consideration have been paid. The execution of a general power by will by a married woman make» the property appointed liable in tlie same nmiiner as her separate estate. Kvery married woman married before Ist January, tS98, shall be entitled to hold and dispose of property, title to which is acquired after said date, including wages, etc. Ml deposits in post ofllce, savings or other banks, annuities, shares, slocks, debentures, debenture stock or ctlier interest in any corporation company or public body, municipal or othe'witstavy.—{\) Wliere married woman dies Intestate leaving issue : (rr) Husband Uikes interest as tenant by curtesy and third personal property. (b) llalance equally among issue. 2. Without issue. (ft) Half real and pergonal v^state to husband. (/.) Half real and personal estate to father, 3. If no father surviving : ((() To her motlier, brotliersand sisters in equal shares. {b) Xlie issue of deceased brother or sister, taking father or mother's ■hare. 4. If no father, mother, brother or sister, the whole goes to husband. MortKagfcs.— Mortgages take effect as against third parties from date, of recording, otherwise they are void against subsequent purchasers, or NEW BKUynWICK LAWS. 30?, mortgagees for valuable consideration who ehall flrsc register his deed or mortgage of such land. Redemptioa.— Mortgaged lands may be redeemed at any time within twenty years, unless the equity of reden'ption is barred by foreclosure and sale under the mortgage. Replevin.— Personal property may be replevined under an order from the court. Such orier may be obtained upon an attldavit showing : First, That the person or corporation claiming the property is owner of it, or entitled to possession of it, and that it is unjustly detained from him and also describing property. Second.— The value of the property to the best of his belief. Service of Proceiis,— All writs are served by the sheriff, but all Bubse> ^ueiit process may be served by any person. The defendant may accept ser- vice of writ personally, but before judgment can bo entered an afiidavit of service, identifying signature of defendant, must be filed. Statute of frauds.— All leases for less than three years, of any interest etc, in land, have the force uf leases at will. All Interest in lands, etc., is assignable only by deed or note in writing. Declarations or creation of trusts in land, etc., must be in writing, except implied or constructive trusts, or those transferred or extinguished by operation of law, Assignments of trusts must be in writing. The following contracts must be in writing : ('() Promises of executor, etc., to answer damages out of his owu estate. (It) Any promise to answer for tue debt, default or miscarriage of another. (<•) Promise of marriage. ((I) Siilo of lands. (e) Any agreement not to be performed within a year. Contracts for the sale of goods of the value of forty dollars and upwards shall not be euforoed unless tlio buyer accept part of the goods, and actually re-;oive tbe same or give something in earnest to bind tlie bargain, or in part payment, or that I'ome note or memorandum in writing of the bargain b« made and signed by the parties to be charged by the contract, or their agents This aiiplies to goods to be delivered inj'uturo. Stay ot Kxeijutloii.— Kxecutlon may be stayed by order of the court or a Judge, Synopsis of the Laws of New Brunswick. COMIMI.LD UY HENRY F. PUDDINGTON, LL.B., Barrla terat-LaWt 8T. JOHN, N.B. Attachment.— Under Chapter 44 of the o(rtlon to their respective demands, in- cluding therein debts not due on rebate of interest. If the whole estate is not then settled, the trustees within one year shall make a second dividend and so on from year to year, until the estate Is closed, any surplus to be paid to the debtor. If the debtor return to the Province within three months of the publication of the notice of attachment, he may pay all cleilms which have been fited aeioinst him, and a judpe, on being satisfled that he has done so, may grant a supersedeas of the warrant of attachment. Any creditor residing out of the Province is entitled to all the benefits of the Act, and the attorney of such oredditor, on producing a power from him duly authenticated with legal proofs of the debt, may, in all respects, act for such creditor as if he were personally present. Aoknonrledgmenti.— The Registry Act, 57th Vict., c. 20, provides that, with the exception of leases for a term not ex- ceeding three years, every instrument whereby lands or real estate may be disposed of, transferred, charged, encumbered or affected, may be registered In the counties where the lands lie, and if not so registered shall be fraudulent and void against subsequent purchasers for valuable consideration whose conveyances are previously registered. Before the registry of any Instrument, its execution must be either acHnow- ledged by the person executing, or be proved by the oath of a subscribing witness. The pcknowledgment of Instruments requiring to be ac- knowledBred before beincr registered, If taken within the E^ro- vlnce, may be taken before a judge of the Supreme or County Courts, any member of the Executive Oounoll, any registnar or deputy registrar of deeds, any notary public, any justice of the peace in the county where the conveyance is to be registered. If the acknowledgment is taken out of the Province, it may be taken by any notary public, certifled under his hand and official seal, the mayor or chief magistrate of any city, nny judge of the High Court of Great Britain, any judge or ".ord of session in Scotland, any judge of n court of supreme jurisdiction In any British Colony, any British minister, nm- boaaador, coomuI, vioe-oomul, etc., exeroHainig funoitlons in any foreign place, and the go, amor of any Slate. If the execution of any Instrument Is proved Instead of being acknowledged, such proof. If taken within the Province, may be taken before a judge of the Supreme or County Court. NEW BRUNSWICK LAWS. m member of the Executive Council, any registrar or deputy registrar of deeds, any notary public appointed ai.d residing in the Provnce; If out of the I^t^ovlnce, it may be taken bf any commissioner for taking aflldavlts out of the Province, any notary public, mayor or chief magistrate of any city, any judge of the High Court of Great Britain, any judge or lord of session in Scotland, anj judge of a court of supremo JuHsdiotlon in any Brttjab Cok^ny, any British minister, am- bassador, consul, vice-consul, etc., exercising his functions in any foreign place, or the g )vernor of the State. Aotioni.— In the Supreme Court actions may be brought for any amount. The practice is based on the English Common Lew Proceduire Aot, which with Bubsiequ«snt omendimenita govemiu tiie procedure of this court. If the defendant is resid- ent within the jurisdiction, and the action is upon a bill of exchange, promissory note, cheque, bond, or contract under seal, for payment of a liquidated amount of money, the writ may be specially indorsed. When the writ of summons is so indorsed, and the defendant does not appear to the action, the plaintiff may sign ttnal judgment for the amount so indorsed at the expiration of twenty days after service of the summons (GOth Vic. cap. 24, sec. 71). If the defendant appears to the action, application may be made to a judge for leave to sign summary judgment on an aftldavit by the plalntUT, or any one who can swear positively to the del)t or cause of action, and sitating that the defendant has in his belief no defence to the action. If the writ of summons is not specially indorsed as above, and the defendant does not appear to the action, final judgment may be signed at ttie exi)lrallon of -lU days after the filing of the declaration, which may be done immediately after service of the summons. The defendant may appear at any time before interlocutory judgment is signed. When he so apiiears, the declaration may be served upon him im- mediately, and he then has 20 days in which to plead. The plaintiff has 10 days in which to reply to the defendant's pleading. After issue has been joined the cause may be brought down to trial at any of the Circuit Courts where venue is laid on giving fourteen days notice thereof. Circuit Courts are held in each one of the counties at stated periods. Tf on the trial the plaintiff does not recover an amount greater than he might have recovered In the County Court, ho shall only be entitled to County Court costs, unless he can obtain from tho judge who tried the cause a certificate that he had jeasonable cause for bringing the action in the Supreme Court. Tho County Courts have jurisdiction in all actions of debt, covenant and assumpsit when the debt or damages do not exceed tho sum of J400.00, in all actions of tort when the dama««e claimed do not exceed $200.00, but they have no jurisdiction In any case when the title of land is brought In question, or when tho validity of any devise, bequest or limitation Is disputed, and the Saint John County Court has jio jurisdiction In any cause in which tho City Court of Saint John has Jurisdiction. When the defendant appears to an action In these courts upon a bin of exchange, promissory note, cheque, or any bond, or contract under seal for payment of a liquidated amount of 2 306 Aii'VV BRUNSWICK LJ.TV&'. I) I ' money, the same proceedings may be taken for setting aside his appearance, and obtaining leave to sign summary judgment as may be had in the like case in the Supreme Court when the writ Is specially Indorsed. If the defendant does not appear to the action, interlocutory Judgment may be signed at the expiration of twenty days after the service of the summons, and final judgment in ten days after the signing of interlocu- tory Judgment, and execution may be issued immediately. If the appearance cannot be set aside the case goes down to tzlal on fouzteeoi days' notice prevdioua to tbie next slttins of tho County Court. Execution may be Issued, and when delivered to the sherill it binds the goods and lands of the party from the time when it was so delivered. A defendant cannot be arrested for debt after Judgment. Any person who has obtained a Judgment in the Supreme Court or in the County Court or City Court of Saint John or In any FarlBlh Court may apply to a Judige of any County Court for an order that the Judgment debtor shall be orally examined on oath before such judge an to what property he has, which by law is liable to be taken in execution. Actions may be brought in Parish Courts which are established in the different Provinces throughout the parish for actions of debt when the sum demanded does not exceed J80.00, and in actions of tort to real and personal property when the damages claimed do not exceed 132.00. These courts have no jurisdiction unless a plaintiff or defendant resides in the parish where the commissioner of the courts resides, or unless a plaintiff or defendant Is a non-resident of the County. Appeals— Supreme Court.— There Is an appeal from a Judgment at NM Priua in the form of a motion to the Court in banc; and an appeal lies from such judgment to the Supre.:ae Court of Canada governed by the rules of that Court. Chattels.— (See Conditional Sales). County Court Appeals.- An appeal lies to the Supreme Court from the decision of a County Court judge in case any party to the cause is dissatisfied with the decision upon any poinL of law, or with a charge to the jury, from his decision upon a motion for non-suit or a new trial, etc. The party wishing to appeal must enter into a bond by himself with two sureties to the satisfaction of the clerk of the court to the opposite party In the sum of $100.00, conditioned for the payment of the costs of the appeal awarded by the Supremo Court if the judgment or decision of the Judge be affirmed. At the request of either party wishing to appeal, the Judge «will stay the proceedings until the bond is given, and then grant a further stay until the appeal has been heard. Affidavits.— In New Brunswick affidavits within the Pro- vince are taken before a commissioner appointed for that purpose, or before any justice of any court in which, or before a Judere of wlilolh, the some la to be used, or by any person before whom the party is by law authorized or required to make any statement on oath; a justice of the peace may also administer an oath, or take an affirmation or declaration in NEW BRUMS WICK LAWS. 'lO? any matter over which he hcis jurisdiction; may swear ap- praisers, petitioners on petitions to any public Individual or body, or inventories or accounts rendered to the executors of an estate, loAuraaioe proofs, or the like. Any person holding an enquiry by authority of an Act of Assembly, or of the Government, may also ad.nlnister an oath, declaration, or affirmation, if directed. Judges of the Supreme and County Courts, and commissioners for taking affidavits to be read in the Supreme Court, may administer any oath, declaration, or affirmation, or take an affidavit to be used in any cause, matter or proceeding in any court in this Province, or author- ized to be administered or taken by any law in force in this Province. When affidavits are sworn out of the Province, they may be sworn before any commissioner who has been appointed to take affidavits to be read in the courts of the Provmce of New Brunswick or before any commissioner authorized by the Lord Chancellor to administer oaths in Chancery in England; or before any notary public certified under his hand and official seal; ir before the mayor or chief magistrate of any city, borough, municipality or town corporate, and certified under the common or corporate seal of such city, borougn, municipality or town corporate, or the seal of such mayor or chief magistrate; or before any judge of the Court of Queen's Bench, or Common Pleas, or baron of the Exchequer in Great Britain or Ireland, or master In chancery in England or Ireland, or any judge or lord of session in Scotland, the hand- writings of any such judge, baron, master or lord of session being authenticated under the seal of a notary public, or before a judge of any court of supreme jurisdiction in any Colony belonging to the Crown of Great Britain and Ireland, or any dependency thereof; or before any British minister, ambassa- dor, consul, vice-consul, acting-consul, pro-consul, or consular agent of Her Majesty, exercising his functions In any foreign place; or before the governor of a State, and' certified under the hand and seal of office of such minister, ambassador, consul, vice-consul, acting-consul, pro-consul, consular agent, or governor. m . Arrest.— On an affidavit of indebtedness made by plaintiff or his agent, a defendant can be arrested on a capias where thie sum Is certain, end in actions of 'tort an arrest oan be made on an order from a judge. After action is started the palntiff's affidavit to hold to ball must state that he has good reason to believe and does believe that the defendant is im- mediately about to leave the Province. There is no arrest for debt after judgment except in the petty courts having jurisdiction under $80.00. In these smaller courts a defendant can be held to ball, and after judgment obtained can be arrested on an execution. On arrest of any debtor he may deposit with the sheriff the amount for which he is held to bail, together with coBte, or he may gdve notioe of his Initentikm to apply for exaimina/tloin to the county court judge, or commissioner, and such notice shall be served not less than 48 hours before the time of making such disclosure. If the judge or commissioner be satisfied that 'W '■ 308 NEW BRUSaWIVK LAWS. tiiii the disclosure is a full one, and that the defendant has not transferred any property intendingr to defraud the plaintiff, or since his arrest given a preference to any other creditor, and that he has no property other than property liable to be taken in execution out of the Court in which he was arrested, he may by order discharge the debtor from arrest. Assignments.— In this Province assignments for the benefit of creditors are regulated by the provisions of Chapter 6 of the Acts of Assembly, 58th Victoria with amendments SSth and 60th Victoria. In its main provisions the Act is similar to the Assignments Act of Ontario. There is no way of com- pelling a debtor to assign, provision only being made for voluntary assignments. The assignment must be without pre- ferences and must be made to the sheriff of the county In which the debtor resides, or with the consent of a majority of the creditors who have proved claims to the amount of JIOO.OO or upwards to some other person. No discharge is provided for, the creditors being entitled to hold the debtnr for the bcUiamoe of their claims a£\/sr the realization and distribution of ;ill his assets. Witnln live days of its execution, the assign- ment must be registered in the office of the Registrar of Deeds of the County where the assignor reside® and notice of the assignment published in the "Royal Gazette" or some newspaper having a circulation in the county in which the property a signed is situate. A meeting of the creditors is to be called by the assignee within five days of the date of the assignment. By the Amending Act, Chapter 36 of the 59th Victoria, all questions discussed at meetings of the creditors are to be decided by a majority of the votes computed as follows:— For every claim of $100, one vote; for every additional 1100, one vote. The assignment takes precedence of all judgments and executions not compleitely executed by payment. The only preferred claims are those which, oome within the Act 57th Victoria, Chapter 25, entnuled "An Act for the Protection of Wage lOarners". This Act provides that when an assign- ment is made for the benefit of creditors, the wages or salary of all persons in the employment of the assignor or who have been In his employment within one month before the making of the assignment, shall be paid In priority to the claims of the ordinary or general creditors not exceeding three months' wages or salary, and such tiersons may rank as ordinary credltora " for the balance of their claims. Every person clalm'r.g to be entitled to rank on the estate assigned must furnish to the assignee particulars of his claim proved by affidavit, and such vouchers as the nature of the case admits of. Bill of Sale or Chattel Mortgage— By Act 56th Vic- toria, cap. 5, with several minor amendments, every mortgage or convt»} anoe intended to operate as a mort^ra^e of goods and chatteig, v.-hlch Is not accompanied by immediate delivery, and an actual and continued change of possession, must be filed In the office of the Registrar of Deeds within 30 days after execution, together with the affidavit of a witness of its execution, and the affidavit of the mortgagee, or one of several NEW BHU\'HWirK LAwH. 309 mortgagreee, or the a«llcy Is for the benefit of hia wife, or ot his wife and ohlldiren, or ainy of theen, or of his ohlldnen alone, or any of them, such policy shall enure and be deemed a trust for the benefit of his wife for her separate use, or of his wife and children, or of his children, or any of them, according to the Intent so expressed or declared, and so long as any object of the trust remains the money payable under the policy shall not be subject to the control of the husband or his creditors except as hereinafter provided, or form part of hla estate when the sum secured by th© policy becomes payable; but this shall not be held to Interfere with any pledge of the policy to any person prior to such declaration. The Insured may, by an instrument In writing, vary the policy, or a declaration of an apportionment previously made BO as to restrict or extend the benefits of the policy to the wife alone or the children, or to one or more of them, and when the Insurance money becomes due and payable, it shall be paid according to the terms of the policy or of any such de- claration or Instrument free from the claims of any creditors of the insured. Judgments.— A judgment is good for twenty years, and execution can be Issued on it during that time. Judgments rank with other claims where assignment is made for benent of creditors. Limitation of Personal Action.— Actions on contracts. notes and debts must be ooinmeosed name of the company. (h) The object for which Its Incorporation Is sought. (r) The name of the place where its office or chief place of business is to bo established. ((I) The amount of Its cripital stock, which shall not be less than $2,000. (e) The number of shares, the amount of each share. (f) The name, address and calling of each of the appli- cants, with special mention of three who are to be provisional directors. If the capital stock of the proposed company shall not NEW BKUNSWIUK LAWS. 815 exceed $5,000, the publication of this notice la not required. A petition Is then presented to the Lieutenant-Governor through the Provincial Secretary setting forth:— (1) The facts set forth In the notice, and the amount of stock taken by each applicant. (2) Whether the stock has been paid for in cash, or how otherwise. This petition may ask for the ombodyinp in the Letters Patent of any provisions which otherwise might under the Act be miade by the by-laws of the compaaiy, and such pro- vision sham then not be subject to repeal or alteration by a by-law. The proposed corporate name of the company shall not In any case be the name of any other known Incorporated or unincorporated company. Upon the granting of the Letters Patent, notice Is given In the "Royal Gazette" by the Provincial Secretary, and from ♦he date of such notice the persons therein named and their successors are constituted a body corporate and politic by the name mentioned therein. Sales.— (See Conditional Sales.) Secnrity for Costs.— Where the plalntlft resides out of the Province and has no property therein, the defendant can demand security foi his costs. In the Supreme Court he is entitled to security for $200, In the County Court for $80, and In the Magistrate's Court in an amount in the discretion of the magistrate; In the Supreme Court in Equity for $500. Suooesslon Duties. Oee Wills.) Replevin.— Whenever any personal property has been wrongly distrained or otherwise wrongly taken or detained. It •:nay jpe replevied under writ Issued, upon the plaintiff giving a bond to the sheriff In double the value of the property. Wage Earners.— Chapter 25 of tho Act 67th Victoria, In- tituled "An Act for the Pri>tectlon of Wage Earners," provides tha* when an assiffnment is made for the benefit of creditors or In tho distribution of assets under the provisions of the Act to facilitate the Winding-up of the Affairs of Incorporated Companies, or in the dlstribulion of the assets of deceased persons by an executor or administrator, the wages or salary of all persons in the employment of the assignor or the de- ceased, or who have been in his employment within one month before the making of the assignment or of the death, shall be paid in priority to the claims of ordinary or general creditors, not exceeding three months' wa^cs or salary, and such persons shall 1)« entitled to rank ns ordinary or general creditors for the residue of tlielr claims. A similar provision Is made for the payment of the wages of persons In the employment of an execiiti:in debtor, or in the employ of persons proceeded against tinder th© Absconding Debtors' Act, or In the emplor of a rallw^'y sr>ld under foreclosure proceedings. Wills.- Wills must 1)0 in writing, sl.-rnod at the foot or end thereof by the testator (or by some o^her person In his BB AiS N£W BRLNISWJVK LAWti. presence and by his direction), In the presence of two attest- ing witnesses, both present at the same timt-, who shall attest and subscribe the will in the presence of the testator and in the presence of each other. No form of attestation is necessary. An executor is a competent witness, but any devise or legacy to a witness or to the husband or wife of a witness is void, though the execution of the will itself is good. Persons under the age of twenty-one years cannot make a valid will. 1l is still an unsettled question whether a married woman can make a will without the consent of her husband, such consent being indorsed thereon. But she can revoke the will at any time without the consent of her husband. Every will is revoked by marriage except a will marl in the exercise of a power of appointment where the estate ap- pointed could not in default of appointment pass to the testator, heirs or next akin. Suooession duties payable to Uie Croiwri are reerulated by the provdsioins of Cliapter 24 of tihe Aot 69th Vioboriia as fol- lows:— No succession duty is payable on any estate, the value of which, after payment of all debts and expenses of admlnis- trat''on, does not exceed 95,000, nor on property given, devised or bequeaiteihd for religious, charibable or ecclesiastical pur- poses, nor on juoperty passing under a will or Intestacy for the use of a father, mother, ihusband, wife, child, daughter-in- law or son-in-law of the deceased when the va)ue of the property so passing does not exceed $50,000. With the above exceptions, the following successloi: duties* are payable:— (o) Where the aggregate value of the property of the de- ceased exceeds $50,000, amid passes in manner aforesaid to or for the benelit of the father, mother, husband, wife, child, brother, sister, daughter-in-law or son-in-law of the deceased, the same or so much thereof as so passes shall be subject to a Outy of $J.25 for every |100 of the vaJiue up to the $50,000, and ito <2.26 for every $100 of the value In excess of $50,000. (h) Where the aggregate value of the property exceeds $200,000, the whole property shall be subject to a duty of $5,U0 for every $100 of the value. (r) Where the aggregate value of the property of the de- ceased exceeds $10,000, so much thereof eis passes to or for the benefit of the grandfather, grandmother or any other lineal anocKtur of the deceased except the father or mother, or to any descendant of a brother or sister of a father or mother of the deceased, or iiny aescendant of such latt mentioned brotiher or sister, shall be subject to a duty of $b.00 for every $100 of the value. (ri) Where the value of ti e property of the deceased exceeds $5,000 and any part thereof passes to o" for the benefit of any person In any other degree of collateral consanguinity to the deceased than la above described, or to or for the benefit of any stranger In blood of the deceased, such part shall be subject to a duty of ten per cent, on the value, ((') Provided that where the whole value of the property devised, bequeathed or passing to any one person under a will PamVE EiiWAiRD ISLAND LAWS. m or intestacy does not exceed (200, the same shall be exempt from the payment of duty as above. if) Where the property of a deceased person liable to suc- cession duty under this Act, or any 1 "'^acy, charge or annuity 1/ayable out of the same goes to any person residing out of the Province, the duty payable on the amount or portion going to such person shall be double the amount specified. Synopsis of Prince Edward Island Laws. PREPARED BY GEO S. INMAN, OF THE F rtlNCE EDWARD ISLAND BAf '. Abkeut «r Absoonding Debtors.—ln all cases where the debt is $33.UU anii upwards, and the debtor is absent oi absconding from the i^rovlnce, his real and -peraonal property may be attached in the Hrst instance to answer the said claim. Lands and goods thus attac) jd are bound from the time the attachment is made. Arrest.— In che Supreme Court any non-resident may be ar- rested and lield to bail before Judgment at the suit of any person who shows to the satisfaction of a judge that he tias a cause of action. Any person mry be arrested and held to ball on a cause of action against him being shown to the satisfaction of a judge in any of the following cases:— Trespass, assault, criminal conversation, seduction, libel, slander and brt-acli of promise of marriage. Any person may be arrested and held to ball on a cause of action being shown, and facts and circumstances to satisfy the Judge that the defendant Is about to quit the Province with Intent to defraud his creditors generally, or the plaintir.' in particular. No person shall be liable to arrest for non-payment of cojts, and m married woman shall be Ui'.ble to arrest on either mesne or final process. After final judgm.ent, the debtor can be arrested If it ca.i be shown to the satisfaction of a Judge that there is good and probable cause for be.leving that the defendant is about to quit the Provinco to tlefraud his creditors; or that the defendant has pp.rted with his property, or made a fraudulent conveyance thereof to prevent I'.a being talien in execution. Barristers.— A barrister of any court in Great Hrllain or Ireland, or an attorney, solicitor or barrister of any British Province or Colony, who shall- have resided in this Province twelve months previous to making application for admission, shall be entitled to be admitted to practice at the bar of this Province. He must also produce a certificate from a judge of the court to which he belongs, of his being on the rolls of H 318 PRIJSIVE EDWARD ISLAND LAWS. ! the court from which such certificate Is granted, and that he is a person of good moral character, and in good standing at the Bar. Bills of Sale and Chattel Mortgages— It is necessary that the original shall be filed in the office of the Prothonotary of the Supreme Court In the county where the goods are, and shall be accompanied by an affidavit of the grantee or his agent, setting forth the bona fldvs of the transaction, and that the debt Is justly and truly owing, otherwise it shall be void as against assignee for creditors, purchasers, -ad execution creditors. Oommercial Travellers— (See "Contracts.") Conditional Sales.— In the conditional sale or bailment of chattels, where a lien note or hire receipt is taken, and the property or right of ownership in the chattel remains in the manufacturer, vendor or bailor, the manufactuier, vendor or bailor. In order to protect himself against subsequent pur- chasers or mortgagers, in good faith, without notice for valu- able consideration, must do one of two things: (1) Print, stamp, or otherwise attach their name and addroGs to the chattel; or (2) Pile a copy of the Hen note or hire receipt In the office of the Prothonotary, or Deputy Prothonotary. This does not apply to household furniture, but the term "household furniture" does not Include pianos, organs, or other musical Instruments. I ! 1 I Contracts.— No action can be brought against an infant on any promise made after full age to pay a debt contracted during infancy, unless the same be in writing and signed by the party to be charged. No action can be brought to charge a person on any re ■ presentation made regarding the character or credit of a third party, nor upon any special promise to answer for the debt, default, or miscarrir^e of another, unless the same be In writing, and signed by the party to be charged. The con- sideration for such last mentioned promise need not be in writing. Contracts for the sale of goods of 130.00 and upwards require part payment, delivery, or memo, thereof signed by the party to be larged in order that fhe contract may be enforced. This alHu applies to the sale of goods, though at the time of the contract being made they were Incomplete and unfit for de- livery. All firms resident without the Province who sell their goods In this Province by their agents, commercial travellers, cannot enforce any of their oontracts of sale made by such com- mercial traveller or agent unless at thff time irhm the sale irns fnadi' fheir rommerofn.l trnvellpr t r'^ert Vmd n commercial tranreller'a lloenM tor this Provlnoe. For suolh lloense a fw of I2S.0O Is paid to the Provlnolal Governimeint. Debts not attaohable.-'.Bee "Garnlahment.") PRINCE EDWARD ISLAND LAWS. Diitrilintioa of Estates.— BEAI.T7 3I» Wife and child or children. If the interstate die leaving :— Wife gets her dower or one-third interest for life ; reniaindpr equally divided among \ cliildrea or their legal representatives. I Subject to wife's dower land goes to next Wife onlv I of kindred in equal degree and their repre- ' r sentatives, but no representative after bro- J thers' and sisters' children. !Kext of lon I Wfaole to husbaud for life remainder to Husband and child or children } <.,,,idren or their representatives. iTnahan.) /ii.ii, \ Husbaud takcs no interest, whole goes uusD ana oniy | j^, intestate's legal representatives. I^rothers and sisters of whole blood or half blood, or partly | Divided equally. the one and partly the other. ) Tlie descent in all cases is to be'traced fro^n the person last entitled to the land. PERSONAL ESTATE The distribution of the personal estate follows that of the real estate except that the widow gets one-third and the husband gets the whole on the death of the wife (where it has been reduced into ponsessiou). Dower.— The widow has her common law right of dower. An action to recover dower or free-bench may be com- menced by writ of summons I sued out of the Supreme Court of the Province in the same manner and form as the writ of summons In an ordinary action, and upon such writ shall be endorsed a notice that the plaintiff Intends to declare In <3owpr or free-bench. Estates tail.— E^states tail may be barred by a deed of conveyance, made In due form of law by the tenant in tail, and acknowledged before a judge of thu Supreme Court of Judicature. Such deed shall be effectual and valid to convey and pass all the grantor's estate, in the land conveyed, to the grantee and his heirs, as well as to defeat and cut off all estates tail, reveraiona and remainders In the said lands. Evldenoe.— (See "Wtiiuieeses and Bvidence.") Execution.- Execution may issue on the entry of a judg- ment in the Supreme Court (except when entered on a warrant of attorney, and the defeasance thereof gives time for pay- ment). Execution Issued out of the Supreme Court binds the goods and chattels of the defendant from the time of delivery into the hands of the sheriff. The lands of a judgment debtor are bound by the filing of n minute with the judgment; such lands may be sold at any time, under a statute execution aft'"' six months from the Issue thereof. A minute of juugment must be filed every ten years in order to keep the land bound as ^n 320 PRINCE EDWAUD ISLAND LAWS. ag:alnst subsequent purchasers and encumbrancerB. Bxecutlon ie^ued out of the County Court only takes effect from tho time of the levy made thereunder. Bjutmiteatiom of Indgmemt Debtor.— a judgmtnt debtor in the Supreme Court may be summoned before such person as a Judge may appoint, to be specially examined touching his e3ta> * and effects; as to how much property he had vrhen he conl Acted the debt, and as to what property he has to satisfy the Judgment creditor. If the Judgment deocor refuses to attend, and be examined, he may be arrested and put in Jail. Garnisliment.— l^ebts due the debtor may be attached In the Supreme and County Courts, both before and after Judgment. The following debts are not attachable:— Wages Cue, or accruing due, to a debtor for his personal labor and service on a hiring to the extent of one-half part of such wages, shall be exempt from garnishment. No person shall be adjudged a garnishee in any of the following cases: — (1) Ky reason of having drawn, accepted, made or endorsed any negotiable bill, draft, note or other negotiable security, when either is payable on time, or is not overdue. (2) By reason of any debtor money due from or in the hands of such garnishee to or for the Judgment or primary debtor, unless it is due from or held absolutely, and without depending on any contingency. Intestacy.— The estate of a person dying intestate is adminLstered by the Surrogate Court. In the Court ad- ministration is granted first to the widow or next of kin, but if they do not take It may be granted to a creditor. The administrator is required to file a bond with sureties, and also an Inventory of both the real and personal estates of tho de- ceased. Creditors of the estate are required to file their accounts with the administrator duly attested to. An estate may also be administered in the Court of Chancery. Judgments.— In actions In the Supreme Court to which the defendant does not appear. Judgment may be entered after eight days after service of the writ, when tho cause of action is liquidated debt or money claim, and where the writ has been specially endorsed. In cases where the writ has not been specially endorsed (if for debt), and where no appoir- ance has been entered, Judgment may be entered at the ex- piration of sixteen days from the day of service of the writ. Where the action Is for damages, and the defendant does not appear, damages must be assessed. The Jurisdiction of the Supreme Court is J32.00, and up- wards, and the Jurisdiction of tho County Court is from one dollar up to $160.00. The only Judgments that bind land are Judgments of the Supreme Court. I i PRINCE EDWAKU ISLAND LAWS. 321 Jvriei.— AH civil caaes in the Supreme Court are tried by a Judge without a jury, provided, however, ihat either party ■ in the cause has the right to demand a Jury on paying the Prothonotary of the Supreme Court three dollars, and giving notice of the same to the other party to the suit at least seven days before the tirst day of the term for which the case stands for trial. Jurisdiotiom of Courts.— Supreme Court has jurisdic- tion In all actions for debt or damage for ^Z.w and upwards. The County Court has jurisdiction In all actions of debt or damage up to $150.00; but the County Court has no Juris- diction in the following actions:— Uetlnue, replevin or eject- ment; criminal conversation or seduction, breach of promise of marriage; an action in which the validity of any bequest or devise is disputed; an action agamst a J. P. for anything done by him in the execution of his oltlce; an action brought against an executor or admmistrator, and an action upon a judgnnent in the Supreme Court. The Court of Probate has jurisdiction throughout the Province over the estates of deceased persons, and has power to grant letters testamentary and letters of atimiaistratlon. City and Police Courts are established in Charlottetown and Summerslde, and are presided over by Stipendary Magis- trates exercising a civil and criminal jurisdiction. There is also a stipendary magistrate for each county in the Province, who has criminal jurisdiction outside the town. Iiimitation of Actions.— Actions of trespa.ss, detinue, trover, replevin and debt, within six years. Assault and bat- tery, within one year. Actions on the case for words, within Blx months next after the words are spoken. The statute of limitation does not run as against minors, married women, and persons non compos mcnlis until after the removal of such disability. Actions for the recovery of lands, moneys secured by mort- gage, judgiiient or lien, or otherwise chargeable upon any land, and actions upon any deed, covenant or Instrument under seal, shall be brought within twenty years. Married Women.— A married woman can acquire, hold, and dispose of real or personal property in the same way as though she were a fane sole. A married woman Is capable of rendering herself liable on any contract In respect of, and to the extent of her separate property. She may sue and be sued in her own name. No married woman is entitled to her own earnings during cover- ture without obtaining a protection order. She has the rij'ht of dower In her husbard'a lands. Promiaabry Notes.— All notos In writing, payable In Bpeclflc articles, whether for a sum certain or otherwise, shall be deemed and held prima facie, to Import that they were given for a valuable consideration. In like manner as promissory notes for payment of money. Regiatry.— Deeds executed in the Province must be execut- ed In the presence of one witness, who shall make oath of Its 21 mm 322 PRINCE EDWAllD ISLAND LAWS. Ill execution before the registrar of deeds or a commissioner for taking acknowledgments to deeds, or the party executing the deed may acknowledge the same before any of the said func- tionaries. Deeds executed outside the Province may be proved by the oath of a subscribing witness, to be administered by a commissioner for taking acknowledgments to deeds out of the Province, by a juc/ge of a Court of Record, by a mayor of any city, or by a notary public; or the grantor may acknow- ledge the execution thereof before any of the said officials. In order to bind lands, deeds must be registered; otherwise they will not bfi valid as against subsequent purchasers or encumbrancers without notice. Security for Costs.— Where a plaintiff residing without the Province and owning no property therein commences an action in the Supreme Court, the defendant can demand and is entitled to security for costs subject to the following con- ditions:— (1) That the defendant shall file an affidavit stating that ho has a good defence upon the merits; (2) That the defendant shall have made no admission of the claim, and made no payment on account thereof; Seduction.— When an unmarried woman has given birth to an Ulegitimaite cihlld, lanid dis deelrous of 'suinig the fa/Cher thereof I'or any damages she has sustained thereby, as well as for aid towards the support of such child, she may either by her fittorney or in person apply to a Judge of the Supreme Court for an order in writing, nominating any one, two or three of Her Majesty's Justices n' the Peace to hear and de- termine such suit, and such Justice or Justices may hear and determine such suit, and give judgment therein with or without costs to either party. If the Justices find against the defendant, they may ad- judge such sum against the defendant as may seem reasonable, not exceeding, however, the sum of two hundred dollars. From the decision of the Justice or Justices there is an appeal to the Suureme Court. ■Wills.— No person under the age of twenty-one can make a valid will. All wlllf . lUst be witnessed by two persons, who must see the testator sign, or have him acknowledge his signature; the witnesses must sign in the presence of the testator, and In the presence of each other. A will does not become Inval'd by reason of one of the witnesses afterwards becoming Incompetent to prove the will. A legacy to an at- testing witness is void. A creditor or an executor may be a witness to a will. An executor must present the will for registration within thirty days after the death of the testator, under a penalty. Witnesses »».nd Evidence.— No person offered as a wit- ness shall be excluded by reason of any incapacity from crime or interest from giving evidence according to the practice of the Court on the trial of any action. Parties to a suit and the husbands and wives of such parties are competent witnesses. PRINCE EDWARD ISLAND LAWS. 323 and may be compelled to give evidence on behalf of themselves or of either or any of the parties to the s£iid suit. No person is compelled to answer any question tending to criminate himself, or to subject him to prosecution for any penalty. Parties to an action for breach of promise of marriage shall be competent to give evidence in the cause. No verdict shall be given lor the plaintllt In such cause unless his or her evi- dence is corroborated by some material evidence in support of the promise. Husband and wife not compelled to disclose communications made during marriage. If any witness from conscientious motives refuses to be sworn, and the Court or Judge is satisfied as to the sincerity of such objection, it shall be lawful for the Court or Judge to take a solemn affirmation or declaration from such witness In the form following:— "I, A.B., do solemnly, sincerely and truly affirm and declare that the taking of any oath is according to my religious belief unlawful, and I do also solemnly, sin- cerely and truly affirm and declare, etc.," which declaration shall be of the same force and effect as if such person had .aken an oath in the usual form. The following shall be taken and received as prima facie evidence of the contents thereof:— (o) A vertiflcate of marriage or of baptism or burial under the hand of the officiating clergyman, priest or minister; (6) An extract from any register kept for the registration of marriages, baptisms or burials, certified by the clergy- man, priest, minister or public officer being the legal custodian thereof; (c) An exemplification of a will under the seal of any Court whether In this Provincf of elsewhere In Her Majesty's Dominions. (d) The Seal of any Foreign State and the certificate of any one of the Secretaries of State or of the Executive Government thereof; (e) A certificate of the registry of a British ship in pursuance of any of the Acts relating thereto, and purporting to be signed according to law; (0 The transcript or copy of the record of any vote, reso- lution or proceeding of the Executive Council of this Province relating to grants or titles to lands .ittfst-?'t as a true copy or extract from such record, and pn>'port- ing to be signed by the Clerk of the Council: (g) A copy of the Canada Gazette A copy of a proclamation, order, regulation or a.ppointment purporting to be printed by the Queen's Printer for Canada: (h) All protests of bills of exchange and promissory notes. (0 A copy of the registry of a deed or mortgage duly re- gi.stered, certified by the Registrar of Deeds: (;') Any deed or mortgage purporting to have been executed abroad by any or all of the parties, and having endorsed thereon or annexed thereto the certificate or certificates ' and affidavits of proof required for the regi.«tratlon there- of, and having endorsed thereon the Registrar's certifi- cate of Its due regulation. A Synopsis of the Laws of the Province of Manitoba. PRErAREl) BY GEORGE PATTERSON, M.A., Barrister, WINNIPEG. Editor Manitoba Law Reports. Origin and Source.— As to property and civil rigiits, and all matters over wliich, under the British North America Act and The Manitoba Act, the Provincial Legislature has juris- diction, at its lirst session it was provided that the iaws of England as they stooo oa the 15th day of July, lisTO, and -he practice and procedure in the Courts should be the laws, practice and procedure prevailing in this Province until modi- fied, altered, or repealed by the Legislature. The Courts.— There is only one Superior Court, the Court of Quetn's Bench, composed of the Chief Justice and three puisne Justices having original and appellate jurisdiction, civil and crim- inal, legal and equitable. The two systems of common law and equity were fused into one, and the practice and procedure in all actions and suits made uniform by "The Queens Bench Act, 1895." There is an appeal from any decision of a single judge, or of a jury at a trial, to the Full Court, which generally consists of the three other judges of the Court, although in certain cases the judge whose decision is appealed from may take part in the hearing of the appeal. The seat of the Court is at Winnipeg, but there are spring and fall sittings at Bran- don and Portage la Prairie for the trial oi cases, both civil and criminal, presided over by the judges of the court in turn. There are also the County Courts, of which there are about thirty-six, each for a separate territorial division, presided OA-er by the County Court Judges. There is one for the ^\>stprn Judicial District, who resides at Brandon, one for the Central District, who residen at Portage la Prairie, and four in the Eastern Judicial District, of whom Judpe Walker, the Senior Judge, resides at Winnipeg. The County Courts have juris- diction in all actions for legal or equitable claims and demands of debt, account, or breach of contract, or covenant, or money demand, whether payable in money or otherwise, where tha amount or balance payable does not exceed $400, and in actions of tort for damages to the extent of $250. and for replevin of goods not exceeding $250 in value, but they cannot entertain actions of ejectment, or in which the right or title to any corporeal or incorporeal hereditaments, or any toll, custom or franchise, or in which the validity of any devise, bequest, or limitation under any will, comes in question, nor have they any .iurisdiction in criminal cases. MANITOBA LAWti. 326 There is also a Surrogate Court for each Judicial district, presided over by the County Court Judge, and having jurisdic- tion over grants of probate, letters of administration, gruardian- ship of infants, and such like matters. Finally, justices of the peace and magistrates have civil jurisdiction in cases of claims for wages to the extent of $100, v^hen proceedings are taken within six months, and of course they liave the usual jurisdiction in criminal matters. The principal matters in respect to which our statute law differs from that of Ontario, or has been altered by our Legis- lature since 1870, are here dealt with In alphabetical order. Administration of Estates— See Trustees, Executors, and Administrators. Under the Surrogate Courts Amending Act of 1893, there Is an Oftlcial Admininstrator for each judicial district, appoint 3l by the Government, who may, on the application of any person interested in the estate of any deceased person, be appointed administrator of such estate without g'ving any security. On his appointment to office, however, he has to give a bond appMca.ble to all estates in his hands, and to such amount as may be fixed by Order in Council. Affidavits.-^ e Oaths. The Registry Act, R. S. M., c. 135; the Real Property Act. R. S. M., c. 133; The Bills of Sale Act, R. S. M., c. 10; The County Courts Act, R. S. M., c. 33; The Mechanics' Lien Act, 1898, c. 29, all make provisions as to the persons before whom affidavits may be sworn for the respective purposes tnentloned in them. Assignments for Creditors.— £^xcept under special cir- cumstances, all assignments for the benefit of creditors gen- erally, must be made to one or other of the two Official As- signees appointed by the Government, but the creditors may afterwards appoint any other person to wind up the estate. Creditors must value their securities, and can only rank for dividend upon" any excess of claim over the amount of the valuation, but the assignee is entitled to take over the security at the valuation spe.^lfled, with an addition of ten per cent, thereof. The wages or salaries of workmen, clerks or em- ployees, not exceeding three months, are privileged claims under any such assignment. Such an assignment takes precedence of all judgments and ht all executions not completely executed by payment, subject to the lien, if any, of execution creditors for their costs. Attachment of Property.- Any property or interest therein belonging to a debtor, may be placed under seizure before judgment by the Issue of an order for an attachment In an action commenced by statement of claim In the following' cases: (a) When a debtor absconds or keeps concealed to avoid service of process, or to defeat or defraud his creditors; (6) When the debtor Is a non-resident, and the creditor a resident, with certain restrictions as to the noture of the cause of action. (r) Where a debtor Is about to remove or transfer any of i m 326 MANITOBA LAW a. his property or effects from the Province, or lias as- signed, transferred, disposed of or secreted, or is auout to assign, transfer, dispose of, or secrete any of his property, with intent to delay, defeat or defraud his creditors. Attorneys and Barristers.— i^ee Law Society. Bills of Sale.— See Chattel Mortgages. Capias.— Arrest for debt was completely abolished by the Queen's Bench Act, 1895, whether the debtor is about to leave the Province or not; but an attactiment against the person may be issued in certain cases against trustees, attorneys, or officers of the courts for breach of trust or of some duty, or against any person for contempt of court. Chattel Morteages-- Take effect from and after the day and time of filing, and not before, as against execution cre- ditors of the mortgagor, and as against purchasers or mort- gagees in good faith for valuable consideration. They must be renewed, in the manner pointed out by the Act, every two years, or they cease to be valid as against creditors, pur- chasers, and mortgagees as above. It is immaterial that a creditor or mortgagee had notice of a prior unfiled or unrenewed chattel mortgage: Rolf vs. Kreckcr, 8 M. R. 230. Companies.— By "The Foreign Corporations Act," R. s. M., C. 24, and amendments, it is provided that any company, not Incorporated under Provincial legislation, but duly authorized to carry out or effect any of the purposes or objects to which the legislative authority of the Manitoba Legislature extends, may obtain a license from t lie Government of the Province authorizing it to carry on its business within Manitoba on compliance with the provisions of the Act, when such company shall have the same power and privileges in Manitoba as if it were incorporated under a Provincial Statute. Section 13 of the Act says that no company, corporation, or ether institution not incorporated under the provisions of the Statutes of the Province shall be capable of taking, holding, or acquiring any real estate In Manitoba, unless under license from the Provincial Secretary, or the Lieutenant-Governor in Council, under any Statute of the Province In that behalf. Creditorri' aelief.— By the Queen's Bench Act, 1895, pro- visions we e ir Ltde for the pro rata distribution amongst execu- tion creditor.;, by a sheriff of any money realized by him on an execution against goods, and by 61 Vict., c. 12, similar pro- visions were made in the case of several County Court executions in the hands of a bailiff, but the latter statute only applies when the defendant is a trader, commission merchant, or manufacturer. Descent, Devolution of Estates, and Dower.— A widow is not entitled to dower in her deceased husband's real estate, and a widower has no tewancy by the curt<>sy in his deceased wife's lands. " From and after the first day of July, 1S85, land In the Province, whatever the estate or Interest therein, went, nnd hereafter shall go, to the personal representative of de- MAMTOBA LAWS. ^2^ ceased owners thereof, in the same manner as personal estate goes; and the personal representative shall have power to ais- pose of, and otherwise deal with all land so \ ^sted in him, with all the like incidents, but subject to all the like rights, equities, and obligations, as if the same were personal property vested in him." R. S. M., c. 45, s. 21. In cases of intestacy, one-third of the estate, real and personal, goes to the widow, and two-thirds to the child cr children In equal shares ; but if there be no is- sue, the wi'low takes the whole, and if there be no widow or is- sue, the whole shall go to the father. If no widow, children or father, then to the mother, brothers and sisters in equal shares. The separate property of a married woman dying intestate shall be distributed In the same pro- portions and in the same manner as the property of a husband dying intestate. An administrator may sell or mortgage real estate vested in him, whether in trust for Infants or otherwise, subject to the regulations and restrictions contained in 58 and 59 Vict., c. 10, and 61 Vict., c. 15. Distress for Rent.- The right of mortgagees to distrain for interest due upon mortgages, shall be limited to the goods and chattels of the mortgagor only, and as to sucn goods and chattels to such only as are not exempt from seizure under execution. R. S. M., c 46, s. 2. Except as otherwiso provided by "The Ck>unty Courts Act," no person shall be at liberty to claim as against any writ of execution or attachment issued out of any Court of this Pro- vince, or to distrain as against the tenant or any other persoii for more than three months' arrears of rent, where the same is payable quarterly or more frequently, nor for more than one year's arrears, where the same is payable less frequently than quarterly. R. S. M., c. 46, s. 3. By an amendment passed in 1S96, ch. 6, the right of distress for rent is limited to goods belonging to the tenant himsr ir, with certain exceptions, and before this statute, a boarder or lodger whose goods were seized for rent might pay anything he owed for board or lodging to the superior landlord, and thereby entitle himself to have the seizure withdrawn. Drnnkards.— A person may be interdicted from obtaining liquor by an order of a police magistrate or two justices of the peace, if It shall be made to appear that, by excessive drinking, he mis-spends, wastes or lessens his estate, or grreatly injures his health, or endangcis or interrupts the peace and happiness of his family; and, after notice of the order, It is a punishable offence to supply liquor to any such person. R. S. M., c. 90, ss. 154-156. Certain persons nearly related or connected wiin any person who has contracted the habit of drinking to excess, or any two clergymen or two justices of the peace, may require the inspector for the district to give notice in writing to any person licensed to sell liquor, that he is not to sell or deliver any liquor to the person named, and If such notice be disregarfled the license holder may he fined SIOO. R. S. M.. c. TO. .'js. 157-S. Hahltual drunkards may also, by order of a judge of the Queen's Bench, be deprived of the right to manage their affairs li '! ; 328 MAMTOBA LAWS. or to dispose of any rea! or personal estate, and dec ired Incom- petent to transact any business whatever, and curators may • be appointed to manage their business and estate for them. While the Interaict lasts, any contract, bargain, sale or business transaction entered into with the person interdicted shall be null and void, and of no effect. R. S. M., c. 92, ss. 24-34. Employers' lilability.— See Workmen's Compensation for Injuries. Evidence.— In "The Manitoba Evidence Act," c. 11 of the Statutes of 1894, are collected in thirty-six sec dons all the previous enactments of the Legislature respecting witnesses and evidence, and the principal statutory provisions in force in England in respect thereof. No person is incompetent to give evidence by reason of Intarest or crime, s. 3. No person shall be excused from answering any question on the ground that the answer to such question may tend to criminate him; provided, however, that no evidence so given shall be used or receivable in evidence against such person In any proceeding thereafter instituted against him. s. 5. Quaere— If the witness did not make any objection on such ground, could he afterwards claim the benefit of this provision? The decisions of the Court on similar legislation of the Do- minion Parliament are very contradictory. See Queen V8. Ham- mond, 1 C. C. C. 373, and cap. 53 of Stat, of Can., 1898. When a party intends to put In evidence a copy of or ex- tract from any book or document as provided in the Act, he must give the opposite party reasonable notice of such inten- tion. The reasonableness of the notice shall be determined by the Court or Judge, but it must not be less than ten days. s. 20. A witness may afflrn. Instead of taking the usual oath in giving oral testimony. He inay also make a solemn afflrmatiin instead of an affidavit, as. 27 and 28. The evidence of a child may be taken without oath, if he does not appear to understand the nature of an oath, but such evidence requires corroboration, s. 29. Section 30 provides for statutory declaration in the same form as set out In " The Canada Evidence Act, 1893." 'ihe amendment of 1898, ch. 17, provides for compelling the attendance of witnesses or commissions dent here from abroad to take evidence. Ezeoutiona and Exemptions.— Executions against lands wert abolished In 1889, except as to writs then in force, and to bind land by a judgment it is necessary to register a certillcate thereof. Employees have priority in respect of three months' arrears of wages or salary, as against any writ of execution in the sheriff's hands. The principal exemptions in favor of a judgment debtor ape aa follows:— (a) The household furniture and effeots not exceeding |600 In value, also the necessary and ordinary clothing of the debtor and his family. (c) Twelve volumes of books and all the books of a profes- sional man. MAMTOUA LAWS. S29 (d) The necessary food and provisions for tne debtor and his family for eleven months, restricted to what may be in his possession at the lime of seizure. (O Three horses, mules or oxen, six cows, ten sheep, fifty fowls, and food for the same during eleven months; the exemption as to horses over four years old only applying in case they are used by the debtor In earning his living. (/) The tools, agrisultural Implements, and necessaries used by the judgment debtor In the practice of his trade, profession or occupation, to the vilue of $500. (/O The land upon which the judgment debtor or his family actually resides, or which he cultivates, either wholly or In part, or which he actually uses for grazing or other purposes; provided the samt be not more than 160 acres; In case it be more, the surplus may be sold, subject to any lien or Incumbrance thereon, (i) The house, stables, barns and fences on the judgment debtor's land, subject as aforesaid. (;■) All the necessary seeds of various varieties, or roots for the proper seeding and cultivation of 80 acres. (/.) The actual residence or house of any person, other than a farmer, to the extent of Jl,500 in value. (/) Any insurance money due to the debtor in case of losa by fire of any exempted properti. No exemptions can be claimed by or on behalf of a debtor who is in the act of removing with his family from the Pro- vince, or is about to do so, or who has absconded, taking his family with him. R. S. M., c. 53, s. 45. There is no exemption of anything the purchase price of which was tho subject of the judgment proceeded upon. R. S. M., c. 53. 8. 48. Exemptions cannot be w vlved beforehand by any agreement or contract. R. S. M., c. 63, s. 51. It is forbidden to a sheriff or bailiff to seize or take In execution any goods, oJiattels, or effects declared to be exempt. R. S. M., c. 53, s. 52. No sale of any gr wine: crops, whether grain or roots, shall take place until after the same have been harvested or taken and removed from tlio ground. R. S. M., c. 53, s. 40. Whenevei' any mechanic, artisan, machinist, builder, con- tractor or other person shall have furnished or procured any materials for us" In the construction, alteration, or repair of any building or erection, such materials shall not bo HUbject to execution or otLer process to enforce any debt, othi" than for the purchase thereof, due V)y the person furnishing o- p»'o- curing such materials, anil whether the same he or not. In whole or In part, worked Into or made part of such Inilldlsitf or erection. R. S. M., c. 53, s. 50. The exemption of real estate from the Hen of r. registered Judgment only extends to protect It from proceedings to realize the judgmen'^ until the debtor ceases to reside upon the land, R. S. M., c. Su, s. 12. rire Xnsnranoe Pollolei.— The Statute, R. S. M. c. R9, was passed to secure uniform conditions In policies of fire Insurance. This Act Is similar to corresponding legislation In Ontario. 330 M AMI OB A LAW a. Game Laxrs.— The foUowini; summary of the game la'.s is taken from Waghorn's "Guide": CLOSK SEASON FOR GAME— Manitoba. None of the animals or birds hereinafter mentioned shall bo shot at, hunted, trapped, taken or kuled on any Sunday, nor In any year within the periods hereinatter limited, ..or shall any of the said animals or birds be carried, in whole or in purt, by any common carrier during the said periods. (a) All kmds of deer including cabri and antelope, elk or wapiti, moose, reindeer or cariboo, or the fawns of such animals, between the loth December and the 15ih October next following, and the animals meniioned are not to be taken, hunted or killed at any time for sale or barter. Limiit, two deer each person any one season. This does not apply to deti" the private property of any person and are taken or killed by him or with his consent, on his own premises, (b) All varieties of grouse, including prairie chickens, pheasants and partridges, between 15th November and 1st day of October next follov'n^, and none of the birds mentioned shall be exposed vi o(. i ' for sale or sold, and no person shall kill more th ;, J • u. one season nor more than liO in one day. (c) Woodcock, plover (except the upland plover and the golden plover), snipe and sandpipers, between 1st of January and 1st August, (d) I'liland plover between 1st January and 15th July, (e) Any kind of wild duck, .sea duck, widgeon, teal, between 1st of May aiid 1st September, (f) Otter, fisher or pekan, and sable, Vietween 15th May and 1st October. Muskrat between 1st of Mn: and 1st December, (g) Marten between 15th April and ■• .t November. (h) Beaver shall not be shot at, hunted, trapped, taken or killed. None of the said animals or birds (except the anlniais in sections f an g) shall be trapped or taken by meaii.s of ti'aps, net.s, snares, gins, baited lines or other similar contrivances, nor shall such be set. Batteries, swivel guns, sunken punts, night lights, or spring guns, shall not bo used or be In the r>" 'session of any person, at >.ny time, to kill or destroy any animal mentioned. Animals may be kept for domestication, but inrmlt Is required I'nr same from Minister of Agriculture. Heads of deer, for mounting or BtufTlng may be held by taxidermists if not taken during clos,-) season, or If importad must be accompanied by a deciaratum of owner showing that Imported for said purpose and net taken during close season of place from whence Imported. No poison or poisonous substance shall be used or exposed to kill or take any animal or bird protected by this Act. No person sh.'ll have In his possession any of the said animals or birds, or parts thereof, no matter where procured, with the exception of the skin of animals that have not been killed during the close season, during the period In which the aamo Is protected. Animals may be kept for domestication if a permit Is secured from the Minister of Agriculture and Tm- migration for same. Birds killed during the open season may be ke.pt for food for fifteen days only after close of season. The eggs of any of the said birds shall not be taken, de- Btroyed. or had In possesplon at any time, nor the nests dis- turbed. MANITOBA LAWS. 331 No person, either on his own behalf or as a«ent for others, BhaJl purchase, barter or trade for any skin or pelt of any fur- bearing animal above mentioned which has been killed during close season. The export of the said birds and animals out of the Province is prohibited— except only by special permit two live animals or birds for purposes of domestication. A license fee of $50 is required by all persons not domiciled in Manitoba to hunt and shoot in the Province, to be had of the Minister of Agriculture, Winnipeg, good for the year. Per- mission from owner, agent or occupier of land or of enclosed ground is required. Trained or spoiUng dogs shall not be allowed to run at large unaccompanied. Offences against the Act shall be punished by summary conviction on informa- lion or complaint before a J. P. or Magistrate. GarnishmeHt-— The government of the Province of Mani- toba may be garnished under the provisions of any Act of the JjCgislature, the same as ordinary persons, with regard to moneys due or accruing due to all persons employed or paid by the Government of Mxnitoba; but this section shall not apply to members of the Le'^islative Assembly or Ministers of the Crown. R. S. M., c. roperty of his guest, boarder or lodger foi the value or price of any food or accommodation furnished, except wines or spirituous liquors, and that he may after three months sell the goods detained by public auction to realize his claim. In order to havo the benefit of the Act, ho must keep conspicuously posted in the office and public rooms, and In every bedroom, a copy of tho Act, printed in plain type. Infants.— Where a minor over the ago of sixteen years, who has no parent or legal guardian, or who does not reside with his parents or guardian, enters Into an agreement, written or verbal, to perform any service or work, he is liable upon the same and entitled to tho bunellt thereof the same as If he had been of legal ago. R. S. M., c. 72, s. 3. The rlfht of appointing guardians of Infants, not having a father 'iving or any legal guardian authorized by law to take I ! ; 332 MANITOBA LAWS. care of their persons, and the charge of their estate, belongs to the Surrogate Courts of the Province, and letters of ap- pointment may be obtained as In case of letters of admin- iBtratlon. R. S. M., c. 72, s. 6. Upon petition of the mother of an infant whose father is dead, she, or some other person may be appointed guardian of the person of the infant, notwithstanding any testamentary provision to the contrary, or any appointment of another person as guardian by the father, if it shall appear just and proper to the Court, and the Court may give effect to the testamentary appointment by the mother, of guardians of infants, either as respects the person or estate, or both, notwithstanding a previous appoint lent of gua-dlans by the father's will, if it shall seem advisable and in the Interest of the infants to do so; and the Court may also, upon the written application of any infant, or the friend or friends of any infant residing in the Province, and upon notice to the motl'er if living in Mani- toba, a proper case being made out, appoint some suitable and discreet person or persons to be guardian or guardians of such infant. R. S. M., c. 72, ss. 7. 8 and 11. Where an infant domiciled in Manitoba, whose father is still living, is entitled to or possessed of any estate in his own right, either within or outside of Manitoba, the father may be appointed the guardian of such infant, and the Sur- rogate Court may grant to him letters of guardianship of the person and estate of such infant. Stat, of 1895, c. 20. The official administrator for the Judicial District in which any infant resides may be appointed guardian of the Infant without giving any special security as such guar- dian, but the security given by him for the due perform- ance of his duties as official administrator shall enure and be held to have been given for the due performance of all duties as such guardian. Statutes of 1895, c. 19. Application may oe made at any time to the Court of Queen's Bench or a judge thereof to authorize a sale, mortgage, lease or other disposition of any real estate in which an Infant i> Interested. The application must be made In the name uf the infant by his next friend or his guardian, but the infant's consent is required, unless he is under the age of 14 years. Upon such application the Court or Judge may make any orders or provisions deemed to be in the interest of the infant. Joint Tenar»«. B. .rxt, 1895, s. 50. An order for trial of an action by a "special" Instead of a common jury may be obtained on application. In chambers. Law Society Act.— The following persons may be ad- mitted as attorneys:— (1) Articled clerks who have served five years, or, in case of graduates of any of the Universities of Great Britain or Ireland, or any Province of Canada, three years, under articles with a practising attorney, and passed the necessary exumlna- tlons, and paid the fees prescribed by the rules of the Society. (2) Retired judges of any ouperior Court In Canada, or of any County Court here. (3) Attorneys or solicitors of any of the Superior Courts In Ireat Britain or Ireland, or of any Provlnco or Terrltorle.s of Canada, who have passed a satisfactory examination in the Statute I^aws of the Province and the practice of t;ie Court, on payment of a feo of $100. The following persons may be called to the bar as barristers, and practice as such In any of the Courts. (1) Retired Judpos as above. (2) Students at law of five yars. or in the case of prraduatps as above, three years' standing on the books of the Sooloty as Piioh, upon pasHlnp the necessary examinations and payment of the renulrert fees. ... (3> Barristers of any of thV Provlnoes or Terrllorlos oi Cnnnda In whloh the same prlvllesre would he exfenrlprl to barristers from Manitoba, and barristers from Great Britain or 334 M AMI OB A LAWlii. Ireland, on production of sullioienl evidence of their standing txuii testiinoniais of goou cliaracter and conduct, and on pay- ment of a fet> of 1150. A barrister is entitled to sue for his fees. An attorney may sue for his fees at any time after services rendered, without :he formal rendering of a detailed bill of costs before the commencement of the action, tat his bills are liable to be taxea as formerly. Notwithstandingr any law or usage to the contrary, any attorney-at-law, solicitor in equity, or barrister in this Province may contract, either under seal or otherwise, with any person or persons or corporation whatsoever as to the remuneration to be paid him for services rendered or to be rendered, in ;ieu of or in addition to the costs which by any tariff in force are allowed to the said attorney or solicitor, and the contract entered into may provide that such attorney or solicitor Is to receive a portion of the proceeds of the subject matter of the action or suit In which any such attorney or solicitor is or is to be employed, or a portion of the moneys or property for which such solicitor or attorney may be retained, whether an action or suit has been brought for the same or a defence has been entered, and such remuneration may also be in the way of commission or percentage on the amount recovered or de- fended, or on the value of the property, about which any action, suit or transaction Is concerned. R. S. M., c. 83, s. 68. Libel.— All reports of proceedings in any Court of Justice piibllshed in any public newspaper or other periodical publica- tion, shall be privileged, provided that they contain only fair Biid authentic reports, without comments. R. S. M., c. 85, s. 3. Any report published In any public newspaper or other periodical publication of the proceedings of a public meeting '■hall be privileged, if such meeting was lawfully convened for a lawful purpo^, and open to the public, and if such report was fair and accurate, and published without malice, and If the publication of the matter complained of was for the public benefit: Provided, always, that the protection intended to be afforded by tl s section shall not be available as a defence In any proceeding, if the plaintiff can show that the defendant has rofused to Insert In the newspaper in which the matter com- plained of appeared, a reasonable letter or statement of explana- tion or contradiction by or on behalf of such plaintiff. R. S. M., e. 85. s. 4. No action shall lie for a libel contained In any public news- paper or other periodical publication, unless and until the plaintiff shall have given the defendant notice In writing dis- tinctly specifying the language complained of, for three clear days In case of a daily newspaper, and for ten clear days in rase of a weekly publication, in order to give the defendant nn opportunity to publish a full apology for the said libel, and If the Court or jury find that a full apology was published hpfore the commencement of the action, the plaintiff shall not recover therein without proving special damage or actual mallop. R. S. M.. c. 85, s. B.,^^ Evidence of a written or prlnteci apology having been made or tendered to the plaintiff may be given In mitigation of damages. MANITOBA LAW a. 336 A plea that there was no actual malice or gross negligenca in publishing the libel, and that a full apology was printed before the commencement of the action, or at the earliest op- portunity afterwards, may be put in accompanied by payment into court of a sum of money by way of amends for the injury sustained, and shall have the same effect as payment into court in other cases. R. S. M., c. So, ss. 8 and 9. Security for costs may be ordered -to be given by a plaintiflf, although a resident of the 7?rovince, if defendant swears that he has a good defence on the merits, and that in his belief the plaintiff \3 not responsible for costs in case of the action being dismissed. No costs can be awarded to the plaintiff when he reooveia merely nominal damages. Printers and publi-. lien or oharjpe on the debtor'a land created by a machine agreement, which, though earlier in date, could not be registered. Life AssnrBnoe.— The Province has legislation contalnefl In chapter 88 of the Revised Statutes, and In Hie ame^ndments of lS9n. p. 2fi. 1898. c. 2ri. and 1899. c. 17. respecting life assurance for the benefit of wives and children, similar to that of Ontario, pi ' H 4 ■i ''. ' i ■1 • w \ 'i m ii' imn 1 m f ' ' ^^^u 11 336 MANITOBA LAIVo. I and providingi that such insurance policies and the moneys secured thereby shall be free from the claims of creditors, either of the Insured or any of the persons to be benefited. Limitation of Actions.— Our law respecting the limitation of suits relating to real property Is similar to that of Ontario. A person may acquire a title to land by length of possession for ten years after the right of action to recover possession first accrued to the holder of the title or the person through whom he claims. Ten years is also the prescribed time within which, (1) a mortgagor may bring an action for redemption against a mortgagee in possession; (2) a mortgagee may bring an aoUon of foreclosure, etc., against a mortgagor In possession who has made no payme'iits or glvea any acknowledgment; (3) any person may bring an action, suit or other proceeding to recover any sum of money secured by any mortgage, judgment or lien, or otherwise charged upon or payable out of any land or rent, or any legacy, unless in the meantime some part of the principal money, or some Interest thereon has jeen paid, or some written acknowledgment has been given, and in such case the party entitled has ten years from the last of such payments or acknowledgments within which to bring his action. That money la securea by an express trust makes no differ- ence in the time within which an action to recover it must be brought. R. S. M., c. 89, s. 25. No person can acquire a right by prescription to the acce:53 and use of light to any dwelling house, workshop or othor building. R. S. M., c. 89, s. 34. ^ A person under the disability of lunacy or Infancy, or any person claiming through him, is allowed five years after tho removal of the disability or the death of the party under dis- ability, whichever of those two events first happened, to bring his action; provided that In no case can a longer period than twenty-flve years be allowed next after the time at which the right of action first accrued; and no extra time can be allowed because of a succession of disabilities in the persons entitled. R. S. M.. c. 89, ss. 35-37. liivery Stable Koepern.— And keepers of boarding and sale stables are given, by ch. 91 R. iSi M., a Hen on any animal, vehicle, harness, furnishings, or other gear appertaining thereto, or any personal effects of any person who is Indebted for stabling, boarding, or caring for such animal, and the right to sell the same by public auction after one month to realize the claim, If it be not sooner paid, but they must keep a copy of the Act conspicuously posted up in the office and at least two other places in the stables. By 62 and 0)3 Vic. c. 18, the lien of a stable keeper on any animal has priority over any other existing lien, and over any chattel mortgage, bill of sale or other charge or incumbrance affecting such animal. If any such animals, vehicles, etc., are seized for rent due hy the stable keeper, the owner may secure their release by paying the landlord anything he owes to the stable keeper for the care and keep of the property. MANITOBA LAWS. 337 Lnnatios.— Jurisdiction over the persons and estates of lunatics, Idiots and persons of unsound mind, belongs lu the Court of Queen's Bench, and the law and practice in respect to them are similar to that obtaining: in Ontario. Thd Inspector of Public Institutions appointed to hold that office under "The Manitoba Fubllc Worlis Act," R. S. M., c. 128, shall, by his name of office, be the committee of any lunatic who has no other committee, and who is detained in any public asylum in Manitoba, whenever directed by order in council to act as such, and whilst he continues to be such committee he shall have all the powers of a committee appointed by the Court; but the Court may supersede the Inspector by appoint- ing another person as sudli committee at any time. 56 Vict., c. 20. The Court or a Judge may appoint the official administrator for the Judicial District in which any lunatic resides, or in which any property of the lunatic, real or personal, is situated, to be the committee of the estate of the lunatic in case it ap- pears to the Court or Judge that it is in the interest of such lunatic that such appointment should be made, in such case the official administrator shall not be required to give any security for the proper performance of his duties as su-^h committee, but the security given by him for th*) due per- formance of his duties as official administrator shall enure and be held to be given for the due perforiaance of ail duties wiiioh may devolve upon him under this Act. Statutes of 1898, c. 23. Magiitratei.— The Provincial Government may appoint Ponce Magistrates, and define th«5 territorial limits of their respective jurisdictions. A Police Magistrate has all the powers of two or more justices of the peace sitting and acting to "ther. Justices of the Peace are appointed also by the G ern- ment, and generally have Jurisdiction anywhere in the Pro- vince. Married Women.— Every woman who married on or after the fourteenth day of May, 1875, or shall hereafter marry, without in either such case any marriage contract or settle- ment, shall and may, notwithstanding her coverture, have, hold, and enjoy all her real and personal property, whether belonging to her before marriage, or acquired by her by In- heritance, devise, bequest or gift, or as next of kin to an in- testate, or In any other way, after marriage, free from the debts and obligations of her husband, and from his control and disposition without her consent, m as full and ample a manner as If she continued sole and unmarried, any law, usage, or custom to the contrary notwithstanding; but this section shall not extend to any property received by a married woman from her husband during coverture. R. S. M., c. 95, s 2. Kvery woman who, before the fourteenth day of May, 1875, married without any marriage settlement or contract, shall and may from and after the said date and hereafter, notwIthstan>^ ing her coverture, have, hold and enjoy all her real estate not at the said date taken possession of by her husband himself or his tenants, and all her personal property not at said date rriluood Into rhc pr>s<5f>BPion of her htisband, whether boloncrlng 22 338 MAMTOUA LAWt^. to her before her marriage or In any way acquired by her after marriage, free irom his debts and obligations, and from his control ana disposition without her consent, in as full and ample a manner as If she were sole and unmarried, any law, usage, or custom to the contrary notw.ihsiandlng. R. S. M., C. H5. s. 3. Nothing herein contained shall be construed to protect the property of a marrltd woman from seizure and sale on any execution against her husband for her torts; and In such case execution shall first be levied on her separate property. R. S. M., c. 95, s. 4. The real estate and property mentioned In the second and third sections of this Act, and the rents. Issues and profits thereof shall, without any prejudice and subject to tlie trusts of any settlement affecting the same, be held and enjoyed by any married woman, for her separate use, free from any estate or claim therein or thereto of her husband as tenant by the curtesy or otherwise; and her receipts alone shall be a discharge for any rents. Issues, or profits of any such real estate or jjroperly; and any married woman may, liy herself alone, enter into any contracts whatsoever In respect of such real estate or property, or the management of the same, or the proceeds and Issues thereof, and the Investment or re-invest- ment of the same, the making ct pronlssory notes or bills of exchange, the drawing of cheques, and the doing of all other acts, matters and things requisite or expedient, In or about the management and handling of, and the dealing with, all and singular the premises, without any assent or concurrence on the part of her husband, as if she were a feme aole; and no possession, whether actual or constructive, of the liusband of any property, real or personal, of a married woman, shall give the husband any title thereto, as against his wife, during her lifetime, or render the same liable for his debts. R. S. M., C. 95, s. 5. All the wages and personal earnings of a married woman, and any acquisition therefrom, and all proceeds or profits of or from any occupation or trade which she carries on separately from hfr hn.'^liand. or derived from any literary, artistic or scientific skill, and all investments of such wages, earnings, moneys or property are free from the debts and dispositions of her husband: and shall be held and enjoyed by her and disposed of without her husband's consent as fully as if she w^ere a frinc sole; and no order for protection is necessary in respect of any such earnings or acquisitions; and the possession, whether actual or constructive, of the husband of any personal pro- perty of any married woman shall not render the same liable for his debt J. R. S. M., c. 95, s. 14. Every married woman, being of tl e full age of tv.-enty-one years, may as fully and effectually as she could so do If she were a fniie fioJe, and without anj' concurrence of her husband or father or other formality, and without any examination or acknowledgment, convey, demise or mortgage by a proper in- strument her real estate, or convey, demise, mortgage, release, surrender, disclaim or extingtilsh. by a proper instrument, any i.iterest therein, or release or extinguish, by a proper in- strument, any power which may be vested In or limited or MAMTOJiA LAWS. 83d reserved to her in regard to real estate, or appoint by deed an attorney or attorneys for the purposes aforesaid, and every of tiiem. R. S. M., c. 95, s. 17. A man may malce a valid conveyance or transfer of his land to his wife, and a woman may malte a valid conveyance or transfer of her land to her husband without in either case the intervention of a trustee. R. S. M., c. iJu, s. 21. From and after the fourteentli day of May, IS","), every married woman might, and hereafter she may, by devise or bequest executed in the presence of two or more witnesses, neither of whom is her husband, make any devise and bequest of her separate property, real or personal, or of any rights therein, whether such property was or be acquired before or after marriage, to or among her child or children, is.sue of any marriage, and, failing there being any issue, then to her husband, or as she might or may see tit, in the same manner as if she were sole and unmarried. K. S. M., c. 95, s. 27. Brown vs. Peace, 11 M. R. 409, decided in 1897 by the Full Court, is a very instructive case in which an aiito-nuplial settlement and a bill of sale of the husband's furniture, made in pursuance thereof, were both held void and set aside as against execution creditors. It was held in Wishart vs. Jtcilanns, 1 M. R. 213, decided by the Full Court, in 1884, that, under the above statutes, debts contracted by a married woman in carrylntr on a business or employment, occupation or trade, on her own behalf, or separ- ately from her husband, may be sued for as if she were an unmarried woman, that is, without regard to separate estate. 1 his was followed in Yelie vs. Rutherford, 8 M. R. 168, decided by the Full Court in 1892. MtirhuntH' Hank vs. Carlry, 8 M. R. 258, decided by the Full Court in 1892, shows that when a mercantile business is carried on In the name of a married woman, whose husband manages it for her on a weekly salary, and she takes no part in the nianagem-ent, althougli it was started with her capital, the business cannot be said to be carried on by the wife separately from her husband, and the profits of it belong to him, so that a creditor of the husband is entitled to Inquire as to the profits made in the business, and he is bound to make full discovery en his examination as a judgment debtor. /)(;// );.■*. (Unnhnii (IS93), 9 M. R. 1S5, is a case in which it was held, following Dominion Savings Co. rs. Gilroy, 15 A. R. 487, that when the wife of an execution debtor sets up a jewelry business in her own name, and buys a stock of goods on credit from wholesale dealers, and takes an active, though not the principal, part in the work of the shop, the goot's cannot be taken and sold by creditors of her husband. In Goggin vs. Kidd (1895), 10 M. R. 448, certain crops raised upon land which had been bona flde leased to the wife by the mortgagees after the husband's failure to meet the payments, were held by a majority of the Full Court to bo the property of the husband as between his execution creditors and the wife, although the trial judge had found as facts that the farming operations, by which the crops had been raised, con- stituted a separate occupation of the land by the wife, and %:, 'II ]r ■■!' It 340 MANITOBA La>V&'. were her separate business, that she had made a contract with her husband to act as her servant for wages, that she was actually the farmer, that it was Intended between herself and her husband and the mortgagees that she should have the possession and use of the premises, and that the horses and cattlC! by the work of which the farming operations had been carried on were bona fide the property of the wife. The majority of the Court based Its decision upon the following circum- stances:— The plaintiff, when she undertook to farm for herself, had no means of her own. The lands on which the crops claimed were grown had, in the preceding autumn, been ploughed and prepared for planting by the husband, and some of the seed sown in the spring belonged to him. After she leased the land, the plaintiff and her husband and the family continued to live on the homestead as before, and the actual farming work on the land was done for the most part by the husband and two men who had worked for him before the lease was made to the plaintiff. The majority also held (Dubuc, J., dissenting), that clear and unequivocal evidence should be required of the reality of the alleged separate occu- pation on the part of the wife, and of the hiring of tha husband as a farm servant by the plalntifl'; and, there being no other evidence as to these matters except that of the plaintiff and her husband, with which they did not feel satis- fied, that the evidence was insufficient to establish any separate occupation of the lands by the wife, or that the h"'ng of the husband as a farm servant was more than an emr irm, and colourable, or that the farming business carrie< vas her separate business. Ady vs. Harris (1893), 9 M. R. 127, and Strcimer vs. Merchants' Bank (1893), 9 M. R. 546, are cases in which there were similar holdings. S!inc'cr!ar.d vs. Massey Manufacturing Co. (1894), 10 M. R. 21, Is another decision of the Full Court in a case of crops of grain and hay claimed by a farmer's wife as grown on her land, as against execution creditors of the husband, where it was held that the grain must be considered to be the hus- band's property, but that the hay, being the natural product of the land, of which the wife was the tenant, came under the description of issues and profits of her separate estate referred to in section 5 of the Married Women's Act (vide supra), and that the wife was entitled to it as against the defendants. In yicol vs. Gocher, 12 M. R. 177, 34 C. L. J. 362, it became necessary to decide whether the husband had taken such a part in the farming business carried on by the wife as to prevent the finding of a separate business. The plaintiff's claim was against the wife for wages as a farm laborer In her employ. He had been employed as her servant, and it was understood between them and the defendant's husband that the farm was hers, and that the farming operations were being carried on as hers. The negotiations for the employment of the plaintiff were conducted by the husband, though partly in the de- fendant's presence; and it was the husband who was con- sulted by the plaintiff in all matters of Importance relating to the farm, though at times the defendant was present. MAMTOBA LlWis*. 341 The husband gave defendant the benefit of his advice and assistance, and also acted as bookkeeper for her in a banking business carried on in her name at the same time, but it did not appear that he had any fixed salary, or what was the arrange- ment, if any, between him and defendant. Held, that such participation by the husband would not. In the case of an outsider contracting with the wife, absolutely prevent the finding that the business was carried on by the wife separately from her husband, and that on the evidence such finding was the proper one in this case. If, however, the defendant, on the same state of facts, were claiming the profits or proceeds of the farming operations as against her husband's creditors, it would be impossible to hold it sufficiently proved that the business was bona flde intended to be that of the wife alone. It depends on the circumstances of each particular case what is the degree or nature of the participation by the hus- band which prevents the finding of a separate business. Mcrcha, ts' Bank vs. Carley, 8 M. R. 258, and Goggin va. Kidd, 10 M. R. 448, distinguished. Master and Servant.— An employee, in addition to all other remedies for the recovery of his wages, may take sum- mary proceedings before a Justice of the peace or police magis- trate within six months after his cause of complaint has arisen, provided the amoui claimed does not exceed $100. If the master Is found to bf» udebted in such a case, the magis- trate may Issue a warrant of distress to levy the amount with costs, and household furniture and effects are not exempt from seizure and sale under such warrant. Such warrant shall take priority over landlord's warrants and mortgages, bills of sale, chattel mortgages executed after the labor in respect of which proceedings were taken was commenced, and all process issued by any Court in this Pro- vince, as to the crop grown on the premises where the labor of the servant was performed; provided, however, that the pro- visions of this sub-section shall not apply to a claim for wages by any person related to, or connected by marriage with the master, and that the amount recoverable hereunder shall not exceed $75. ©tat. of 1897, c. 16. By ch. 20 of 62 and 63 Vict., It is provided that the justice or magistrate may take into account any damages or los.s alleged to 'have been occasioned to the master by re-ason of any wilful or malicious act or neglect of the servant or workman luring the period of the employment in respect of which the cause of complaint arose, or of any breach committed by the servant o workman of the contract of service between them. Mechanics' Liens.-"The Mechanics' and Wage Earners' Lien Act, 1898," consolidates and amends the former statutes on this suliject, and provides very full and complete remedies for mechanics, material men and wage earners of all kinds. Following recent legislation in Ontario, registration is not necessary to the creation and continuance of the Hen for a period of thirty days, so that owners, purchasers, or lenders a-c now bound to inquire as to the existence of liens, and cannot safely pay over their money on finding that no liens are registered. ISr ii-'. 3-i2 MANITOBA LAWS. The mode of realizing a lien is by an action In tlie Court of Queen's Bench. When the total amount Ol the claims of the plaintiff and other persons claiming liens is $100 or leas, there is no appeal from the decision of the trial judge, but if over JlOO, an appeal may ba made to the Full Court in term. Costs are limited to twenty-five per cent, of the amount of the judgment, besides actual disbursements, or if costs are awarded against the plaintiff or other persons claiming the lien, twenty-five per cent, of the total claims, besides actual disbursement'3. In addition to all other remedies, tlie Act respecting builders and workmen, R. S. M., c. 13, makes a proprietor personally liable for the wages of all workmen employed by any con- tractor or sub-contractor on any building or erection being put up for him, to the extent of the original contract price. The liability may be enforced by a personal action against the proprietor. Several unpaid workmen may join in the same action, and where there is not enough money to satisfy all such claims, the ^''jrkmen share pro rata, according to the amounts of their respective claims. Mortgages.— The purchaser In good faith of a mortgage may, to the extent of the mortgage, and except as against the mortgagor, his '..eirs, executors or administrators, set up the defence of purchase for value without notice, in the same manner as a purchaser of the property mortgaged might do. It shall in no case be necessary, in order to maintain the de- fence of purchase for value withoui notice, to prove payment of the purchase money or any part thereof. R. S. M., c. 99, ss. 1 and 2. The rule or law under which a mortgagee is entitled to rlemand and receive .six monthsi' notice or a bonus of six months' Interest, in case the principal of his mortgage be not paid on the day it falld due, is repealed and declared not to be In force In the Province of Manitoba: Provided that this section shall not be construed to affect any contract. R. S. M., c. 99> s. 4. No covenant In any mortgage whereby any party agrees to waive any exemption that otherwise such party would ba entitled to under any Statute of Manitoba, shall be valid or of any ofl'ect, unless the witness shall have made an affldavit that such covenant was read over and its effect fully explained to such party. R. S. M., c. 99, s. 5. By ch. 31 ot the Statutes of 1895 (q. v.), mortgagees not advancing the whole of the mortgage money at the time of registration ere protected against sul)scquent claimants under instruments registered before the actual advance. Municipalities.— For munlclipal purposes, the Province is divided into Cities, Towns, Incorporated Villages, and Rural Munlclpullties, but there are no Township or County Corpora- tions as in Ontario. There are, therefore no "counties" properly so called !t Man.ltoba. although the Province is arrangwl by Divisions for County Court purtmses, and the few districts or divisions not Included in any Land Titles District for registration purposes nre sometimes called counties. MANITOBA LAWS. 343 Travelling- on highways Is regulated by sections 628 to G3S of The Municipal Act, as re-enacted by section 32, chapter 31, of the Statutes of 1898. It Is worth noting that this statute requires that any person In charge of a vehicle or riding a bicycle or tricycle, who is overtaken by another veMcle or bicycle, should quietly turn out to the left, and the person who overtakes the other should pass by the riyht. The rule in Ontario In case of bicycles or tricycles seems to be the reverse of this. NeivspaperB.— I'ubllshers of newsimpers are required by "The Newspaper Act," R. S. M., c. 107, under a penalty of $20, to make and Hie an afftdavit setting forth the various residences and descriptions of all the printers, publishers, and proprietors of the newspaper, the true description of the place of printing, and the title of the paper. Such affidavit must be filed in the Court of Queen's Bench. An aflldavlt of the like Import shall be made, signed, and given In like manner, as otten as any of the printers, publishers or proprietors named in such affidavit are changed, or change their respective places of abode, or their printing house or place of business, and as often as the title of the newspaper, pamphlet, or other paper Is changed. R. S. M., c. 107, p. 8. In some part of every newspaper, pamphlet, or other such liapt'r aforesaid, there shall be printed the real name, addUion and place of abode of every printer and publisher thereof, and also a true description of the place where the same Is printed. The penalty for a violation of tills section is a fine of eighty dollars. R. S. M., c. 107, b. 10. No person or persons or corporation, who has not or have not complied with the provisions of this Act shall be entitled to the benefit of any of the nrovlsions of "The Ijibel Act." R. S. M., c. 107, s. IC. A cerlltk'd copy of the affidavit required may be put in as prima facie evidence of Its contents, and the matters contained therein will bo conclusive evidence against the deponents and all persons named therein as printers and publishers of the newspaper In all cases or proceedings to\ichIng or concerning any newspaper or anything contained therein. Proof of publication In actions for libel, etc.. Is much sim- plified In cases where the Act has been complied with. R. S. M.. c. 107, s. 12. Oaths. -Commissioners for taking affidavits In the Province for use In any of the Courts may be appointed, either by the Lieutenant-Governor In Council, or by the Juilges of the Court of Queen's Bench, or any three of them, and such commissioners may act everywhere In the Province-. Commissioners resident abroad for taking affidavits for use in Manitoba are appointed by the TJeuti>nant-(5overnor In Council. Affidavits for usi' in any of the Courts or required by the Registry Act or the Real r»roperty Act. or any other Pioxinclal Statute, may bo sworn to otit of the Province before a notary public, under his luuid and official seal. Oaths, afnda^'Ua affirmations or declarations may bo sworn, afllrmed or made out of the Province of Manitoba before any 344 MANITOBA LAWS. commissioner for oaths appolnieii by the Liord Chancellor in England, or before any notary public, certitied under his hand and seal, or before the mayor or chief magistrate of anv city, borough, or town corporate, in Great Britain or Ireland, or in any of Her Majesty's dominions without Manitoba, or in any foreign country, and certified under the common seal of such city, borough, or town corporate, or before a Judge of any Court of superior .lurisdiction in any ot Her Majesty's dominions without Manitoba, or any dependency thereof, or before a con- sular agent of Her Majesty, exercising his functions In any foreign place. R. S. M.. c 110. s. 11. Partnerahips.— Persons associated in partnership for trad- ing, manufacturing, or mining purposes, must file In the Queen's Bench office for the proper Judicial District, a declara- tion signed by each, showing their full names and residences, the firm name, the time during which the partnership has existed or is to exist, and that there are no other members of 6uch co-partnership. Such declaration must be filed within six n^onths after the formation of the partnership, and a similar declaration must be filed in like manner whenever any dis- solution or any change In the membership, or in the name of the firm, or in the place of residence of any member, takes place. Every person engaged in any trading, manufacturing or mining business, who has no partner, but uses, as his business ctyle, some name or designation other than his own name, or who in such business uses his own name with the addition of "and Company," or some other word or phrase indicating a plurality of members in the concern, shall, within the same time, cause to be filed in the proper office, a declaration signed by him, showing his name, addition, and residence, the firrr. or business name used, and that no other person Is associated with him in partnership. "The Partnerships Act," R. S. M,, c. J14. A penalty ot $100 Is incurred in case of failure to comply with the Act. The statements in any such declaration are not controvertible by any person who has signed it, nor, as against any outside party, by any person who was really a member of fhe partnership at the time such declaration was made. R. S. M., c. 114, 3. 13. T^imlted p.trtnershlps may bo formed for carrying on anjr business except banking or insurance. Such partnerships may consist of "general partners," who shall be fully responsible for all the obligations of the partnership, and "special partners," 001 trlbutlnff in actual casli payments specific sums as capital to the common stock, who shall not be liable beyond fhe amounts respectively contrlbutod by them. Only general partners are authorized to transact business, and sign for the partnership, and to bind the same. For the mode of formation and formalities to be observed, see the slatute, ss. 20-23. In case of the Insolvency or bankruptcy of the partnership, no special partner shall, under any circumstances, he ."Allowed to claim as a creditor until the claims of all the other creditors of the partnership have been satisfied. R. S. M., c. 114, s. 38. Tho Fcneral law of partnership hns been codified by "Tho MANITOBA LAWa. 346 Partnership Act, 1897," which repeals section 4 of "The Men cantUe Law Amendment Act. 1856," and the whole of 28 and 29 Vict., c. 86, substituting similar provisions. Pnblio Sohooli.— Are entirely non-sectarian, and no re- ligious exercises or teaching Js allowed, except in accordance with the regulations prescribed by the Advisory Board. Government and municipal eld are given only to such schools as are conducted strictly according to the law. Real Property Act, R. S. M., c. 133.— This la the Act which, with its schedules, contains the law as to the Torrens system of land transfer and registration of title. There are four Land Titles Districts, viz., those of Winnipeg, Portage la Prairie, Brindon and Morden, comprising the greater part of the area of the Province, but there are still six Old System registry offices and districts or "counties." Applications for Torrens titles fo:- lands in any of these counties may be made to the Winnipeg office. A distinguishing feature of the Act is that it there is any mortgage or Incumbrance on the property, tne certificate of title is retained in the Land Titles Office for the security and convenience of all parties. A mortgagee, however, may obtain a certificate of charge in respect of his iiortgage, and the owner can procure a certified copy of his ctrilflcate of tltl<: The Land Titles offices carry on both the old '?ystem and the new for Iheir respective districts, and the bringing of land under the new system is entirely optional. ReKlstration of Deeds.— The Registry Ac\, R. S. M.. c. 135, regulates the practice and prescribes the law of the old system of registration of deeds and other instrumi nts affecting lands. It is modelled on the Ontario Statute. The District Registrars under the Torrens system are also Keglstras under the Registry Act for thou- resnectlve districts. Rule of the Road. - See MuniclpalitieB. Sale of Goods.— The law relating to the sale of goods has been codified by chapter 25 of the Statutes of 189G. and the following Knglish enactments are repealed so far as tliey apply In Manitoba:— 1 "he Act against Brokers. 1 Jas. I, c. 2\: sections 15 and 16 (commonly cited as ss. 16 and 17) of the Statute of Frauds, 29 Chas. II, c. 3; Section 7 oi Lord Tentorden's Act, 9 Goo. IV. o. 14; Sections 1 and 2 of "The MercantlleLaw Amond- mcMit Act. 1856." but similar provisions are embodied in the code. 6ee eJao the amend inp Aot of 1899, c. 36. Securities.— Chapter 26 of the Statutes of 1896 makes spe- cial provisions for taking the bonds or Intormi receipts ot gupfantee companies as security for the duo porforjnance of the duties of persons lioldliiK any ofilfo or position of tiust, also for applications by suretlos or their represeiitatlvos to the Court calling on trustees, commlttee.s, g\iardlans, asHlKnc^s, liquidators, executors or administrators, for whom tliey are sureties, to account, and for relief from further liability. Seed Grain Mortnaices.-Mort gages taken by the Do- minion Government for advances to farmers for provisions and 346 MAMTOBA nAWIS. seed grain were filed in the Dominion Land Office at Winnipeg, and tiie Act, cliapter 13S R. S. M., jjrovides that sucli filing Bha'l have the same effect and confer the sarci'i testator himself, is suhject to no particular form, nor does it require any attesting witni-?s Since 1st July, 1885, no devise Is valid or effectual as against the i)ersonal representative of the testator until the land alT> oted thereby is conveyed to the devisee by the personal representative. In other respects the law reErarding wills Is similar to that of Ontario. Witnesses.— See Evidence. ^Voodnian's Lien.— Any person performing any labor ".r service in connection with any logs or timber wUhln this Pro- vince, shall have a lien thereon for the amount due, not ex- ceeding the sum of ?250, for such labor or service, and the same shiill 1)0 deemed a first Hen or charge on such logs or timber, and .sliall havi- precedence of all other claims or Hens thereon, cxi-cpt any claim which the Crown may hav'> upon such logs or timber for or In respect of any dues or cliarges. Statutes of 1893, c. 38. 8. 3. The Statute provides that a statement of the Hen must be filed In the proper County Court office, and prescribes the necessary contents of the statement, the time fot filing, thf mode of enforcing the Hen, and the procedure In case a writ of attachment Is tiocessary 348 NOKTU-WEST TERRITORIES LAWS. iVorkmen's Compensation for Injuries.—" The Work- mens Compensation for Injuries Act," ch. 39 of the Statutes of 1S93, as amended by ch. 48 of the Statutes of 1895, and cli. r>l of 1898, provides for the recovery of damages for a>> injury suffered by a workman, notwithstanding it was caused by the negligence of a fellow workman or employee, and for Injuries caused by certain defects In railways, or In the condition of the ways, works, machinery, plant, buildings or premises con- nected with or us'.ed In the business of the employer. The Act contains provisions for limiting the amount of compensa- tion, preventing the effect of any contract or agreement barring the right to compensation, preventing the recovery of any penalty under any statute In addition to the compensation prescribing the procedure In actions, and limiting the time for commencing an action. North-West Territories Law Digest. PREPARED BY HAMILTON & JONES, Barristers, REQINA, NORTH WEST TEr^lTORIES- General.— The laws of TCnp-land, as the same existed on July 15, 1870, are In force so far as applicable, and so far as they have not been, or are not hereafter, repealed, alteied or affected by any Act of Parliament of the United Kingdom applicable to cne Territories, or of the Parliament of Canada, or by any Ordinance of the North-West Territories. Affidavits.— Must be made In first person, and divided Into paragraphs, must state place of above, and description of depo- nent. Jurat must show time when anr" place where sworn Interlineations, alterations or erasures In either affidavit or jurat must be initialled by the officer before whom sworn. Documents referred to In the affidavit must be referr i to as exhibits, and not as annexed, (aee "Real Property"— Lttesta- tlon"). Appeal.— (See "Courts," "Real Property.") Arrest.— There are no provisions for arrest under clvH process. Attaohnient.— Property not exempt from seizure under execution may be attached at or after the commencement of an action wherein the claim Is for the recovery of a debt from the defendant to the plaintiff, upon the affidavit of the plain- tiff or his agent, verifying the claim, and stating that the debtor has absconded from the Territories, leaving personal property liable to seizure, or has attempted to remove same with Intent to defrauvl hla creditors generally, or the plalniiff In particular, or keeps concealed to avoid service of process, and also that, in the belief of the deponent, without the benefit of NOliTU-WEST TEBRITORIEi} LAWS. 349 the attachment, the plaintiff will lose his debt or sustain damage; and upon the affldavU of one other credible person that he Is well acquainted with the defendant, and has good reason to believe (giving such retisons) ^hat the defendant has absconded or attempted to remove his personal property out of the Territories, or to sell or dispose of the same, or keeps concealed to avoid service as aforesaid. The two affidavits being filed with the clerk of the Court, the clerk issues a writ of attachment, directed to the sheriff, t.) attach and keep all the personal property of the defendant liable to seizure for debt. But where the debtor has actually absconded from the Territories, leaving no wife or family behind, no property of defendant is exempt from seizure. The amount of the debt is stated in the writ of attachment, and the sheriff levies for the amount thereof and the costs ••fe of the proceedings. A writ of attachment may be set aside by a judge upon sufficient proof by affidavit that the same was Issued without reasonable cause. Attestation.— (See "Real Property," "Affidavits.") Bills of Sale and Chattel Mortgages-Every mortgage of goods and chattels which is not accompanied by an Imme- diate delivery, and an actual change of possession of the things mortgaged, must, within thirty days from execution, be regis- tered, with the affidavit of a witness thereto, of the due execution thereof, and with an affidavit of the mortgagee, or his agent, stating that the mortgagor Is justly and truly in- debted to the mortgagee in the sum mentioned In tlie mortgage, that It was executed In good faith, and for the express pur- pose of securing the payment of money justly due or accruing due, and not for the purpose of protecting the goods and chattels therein named agalns^ the creditors of the mortgagor, or of preventlR? the creditors of such mortgagor from obtaining payment of any claim against him. A mortgage to secure future advances or to indemnify endorsers, etc., is valid If duly registered. Every sale of goods not accompanied by an immediate delivery, and followed by an actual change of possession of the goods, shall bo in writing, accompanied by an affidavit of a witness thereto of the due execution thereof, and an affidavit of the purchaser, or his agent, that the sale Is bona fide, and for good consideration as set fortli, and not for the purpose of holding or enabling the purchaser to hold the goods mentioned against any creditors of the vcnilor, and inust he registered within thirty days from the exocutloii thereof, otherwise the sale Is void as against the creditors of the vendor or subsequent purchasers of mortgagees In good faith. If a niortcrage or bill of salo nml affidavits are not registered as !ibovp, or If the oonsiderallon is not clearly expressed, the n.ortgage or conveyance Is null and void as against creditors of I he mortgagor and subsequent purohasors In good faith for value. I'.very chattel mortgage and bill of sale must contain such sufficient and full description of the goods and chattels that I lie same may be readily and easily known and distinguished. Clial'ol mortgages and bills of sale must bo registered In the I' I ilH 360 l>lORTH-WEiiT TERRITORIES LAWS. Registration District In which the property is at the time of execution of the instrument. Every chattel mortgage expires at the expiration of two years from the Gate of registration thereof, unless within thirty days next preceding the expiration of such two years, a statement is filed exhibiting the Interest of the mortgagee in the property, and a full statement of the amount still due for principal and interest, and of all payments made on account, w'th an affidavit of the mortgagee, c his agent, stating that such statements are true, and that the mortgage has not been kept on foot for any fraudulent pur- pose. A further renewal statement requires to be filed every year after the first renewal, -within the thirty days next pre- ceding the expiration of the year. Where mortgaged goods are removed from one Registration District to another, a certified copy of the mortgage and affi- davits must be filed in the District to which the goods are ren.oved, within three weeks from such removal, otherwise the goods are liable to seizure and sale under execution, and the mortgage is null and void as against subsequent purchasers and' mortgagees in good faith for \alue. Registration fee, fifty cents. A mortgage or bill of sale on a growing crop is void unless given as security for the purchase price of seed grain, in which case the affidavit of bona fldcs must contain a statement that the mortgage Is taken to secure the payment of the purchase price of seed grain. The crop must be sown within one year from the date of the morijrage. The Registra- tion Districts are:— REGISTRATION DISTRICTS. For Registration of T^ien Notes and of Chattel Mortgages and other transfers of personal property in the Territories. Fen registr. hi o receipt notes and orders for chattels, 25c. MaosoMiN— Comprising townships 1 to 20 (Inclusive), range 1 to 10 (inclusive), and townships 21 and 22, ranges 8, 9, 10 w2. Clerk, Oliver Neff, Clerk of Court, Moosomln. YORKTON— That part of Asslniboia lying north of the Moosomin district. C. J. McFarlane, Reg. Clerk, W. D. Dunlop. Dep. Clerk. W. Simpson, Dep. Sheriff, Yorkton. Rkcina— That part of Asslniboia from range 11 to range 23, both Inclusive, west of 2nd meridian. Registration Clerk, Dixie Watson, Clerk of Court, Regina. MoosK Jaw— That ])art of Asslniboia from range 24 inclusive, west of 2iid meridian, to range 23 inclusive, west of 3rd meridian. Registration Clerk, Seymour Green, Deputy Clerk of Court, Moose Jaw. MriuiciNB Hat— That part of Asslniboia from range 24 Inelu- plve, west of 3rd meridian to range 10 Inclusive, west of 4th meridian. Registration Clerk, W. Cousins, Clerk, Medicine ITat. MACLEOD— That part of Alberta lying south of township 17. Registration Clerk, C. N. Campbell, Clerk of C urt. Fort Macleod. NORTh-WEiST TERRITORIEU LAWH. 351 !■ 'jl'J Calgart— That part of Alberta lying between townships 16 and 43. Registration Clerk, E. R. Rogers, Clerk of Court, Calgary. Edmonton— That part of Alberta lying north of township 42. Registration Clerk, Alex. Taylor, Dep. Clerk of Court, Edmonton. liATTLEFORD— That part of Saokatchewan lying west of the 5ih range of townships west of 3r(l meridian. Registration Clerk, L. P. O. Noel, Deputy Clerk of Court, Battleford. Prince Albert— That part of Saskatchewan lying east of the Battleford Registration District. Registration Clerk, C. D3 La Gorgendlere, Clerk of Court, Prince Albert. Civil Justice.— The practice of the Supreme Court is. re- gulated by "The Judicature Ordinance" and rules promulgated by the Court, and is founded chiefly upon the Rules of the Supreme Court of Judicature in England. Courts.— See page 42. Jury.— ill actions on tons, where claim exceeds luOO.OO, or on contract, where claim exceeds $1,000.00, or for the recovery of real property, either party may demand a jury of six. Vacation extends from August 1st to September 30th. (See ••Courts"— "Judicial Districts.") Claims against Estates of Deceased Persons. -If pro- bate or administration has not been granted, the creditor can ca'l upon ine Public Administrator to take out letters of ad- ministration, and administer the estate. Criminal Law.— No grand jury is summoned iu the Territories. When accused is charged with:- ((/) Tlieft, embezzlement, obtaining by false pretences, or receiving stolen property, when the value of the whole property does not exceed J200.00, or (/() Aggravated assault, or ((') Assault upon a female under age of 14 years, not being an assault with intent to commit rape, or ((/) Having escaped from custody, or molested an oflicr-r in the performance of his duty, the charge Is tried in a summary way without a jury; in other oases, with a jury of six, but accused may, with his own con- sent, be tried summarily. (See '•Justices of the Peace.") Deeds.— (See "Real Property.") Depositions.— (See "Aflldavlts"— "Evidence.") Descent.— The laws relating to both real and personal pro- perty are tlie same. Tf the Intestate leaves a widow and any child or children, or descendant of any child, the widow shall take a third part. If ho leaves no child, nor descendant of any child, slie shall take one-half. The husband of a married woman 362 NOKTU-WEST TERRITORIES LAWS. is entitled to the whole of her effects. If the Intestate leaves children, two-thlrda of his whole estate, if he leaves a widow, shall be equally divided amongst them, or, if but one, to such one child. If the intestate leaves no children or representative of them, his father, if living, talces the whole, or if the intes- tate should have left a widow, one-half. If the father be dead, the mother, brothers and sisters of the intestate shall take in equal shares, subject to the widow's right to one-half, as afore- said. Dominion Lands.— The following diagrams show a towa- shlp divided into thirty-six sections of one square mile, or 640 acres each, and each section divided into four quarter-sections of 160 acres each:— N. W. 31 30 32 29 33 28 21 16 9 4 31 27 22 10 3 3j 26 23 14 11 2 36 25 24 13 12 1 19 18 7 G 20 17 8 5 E. N.W.J S.W.j i S.E. .} s. Homesteads.— The only way of obtaining a free homestead is by the "Three Year System." Entry for the proposed quar- ter-section must be made in the land office of the district, the fee for which is $10.00. Actual residence on the land for not less than six months in each of three consecutive years, and cultivation of at least fifteen acres, are required. Six months' grace is allowed af te • fnaking entry, before going to reside on land. If entry is made after August 31st, residence need not begin till June 1st of the following year. The residence need not be for six continuous months in any year. Second Homesteads.— Settlers who completed their home- stead duties before June, 18S9, are entitled to enter for a second homestead. Pre-emptions.— After receiving his recommendation for a Patent, a homesteader has the right to purchase from the Government one of the quarter-sections adjoining his home- stead, provided it is vacant, ai $2.50 per acre. He Is required to pay one-quartor of tlie money down, and the balance in three equal Instalnionts, with Interest at 6 per cent. A right of pre-emption may be sold. Assignment.— A homestead right cannot be assigned. After a settler his received his certificate of recommendation for a patent he can assign hi.s land. The assignment must be sent to the Department of the Interior at Ottawa for regis- tration, for which a fee of $2.00 Is charged. NOKTH-WEST TERRITORIES LAWS. 353 Hay Permit*.— Permits to cut \ay on Dominion land may b« obtained from the agent of the district in which the land Is situated. Forty acres of hay land may also be leased for a term of five years at a rental of 25 cents per acre per annum. Grazing land may be secured under lease at a rental of two cents per acre per annum. Timber and Fuel.— A homesteader having no timber on ills homestead may obtain a permit to cut what he requires for building, fencing and fuel for use on his homestead, not ex- ceeding 3,000 lineal feet building timber, not exceeding 12 inches at butt, 400 roof poles, 2,000 poplar fence rails, not exceeding 5 inches at butt, and 30 cords of dry wood. Land Districts and Agents.— District. Battleford Calgary Coteau Edmonton Kamloops Dauphin Letlibridge Little Saskatchewan. New Westminster Prince Albert Qu'Appelle lied Deer Souris iSwift Current Touchwood Winnipeg Name of Agent. R. F. Chlsholm W.Sutherland D. A. McEwen R. A. Ruttan K. A, Xdsh F. K. Uerchraer W. H. Cottingham... John Flesher John McKenzie John McTaggart A. J. Fruser J. G. Jessup W. H. Hiam Business transacted at R. Gunne Post Office Address. E. F. Stephenson Battleford,8askatcbcwan Calgary, Alberta. Alameda, Assiniboia. Edmonton, Alberta. Kamloops, B.C. Dauphin, Man. Lethbridge, Alberta. .Minnedosa, Man. New Westminster, B.C. Prince Albert, Saskat. Regina, Assiniboia. Red Deer, Alberta. Brandon, Man. Regina, Assiniboia. Yorkton, Assiniboia. Winnipeg, Man. DoTver.- There is no dower. Evidence.— Witnesses are examined viva voce in open court, but the judge may order that any particular fact may bo proved by affidavit, or that the affidavit of any person may be read on the trial, or may order that any witness, whose attendance I*; i^ 354 NOUTU-WtliST TERRITORIEH LAWS. \ 1 in court, through some sufflcient reason, ought to be dispensea with, may be examined by interrogatories, or before a comn 13- sioner or examiner. A Judge may also order the examination of any witness or person before the court or judge, or any offlr er of the court, or before any other person, and at any place, and that such examination may be given in evidence at trial. Any evidence taken in one cause may, by leave of the judge, be read in any other cause or matter. Ezecntion.— Writs of execution may be issued immediattly after judgment, and expire in two years, unless renewel. There is no priority among execution creditors. Issue of exe- cution may be stayed on special grounds on motion to a judge, subject to such terms as to security, etc., as may be imposed. (See "Real Property.") Exemption*.— The following are exempt from seizure under writs of execution: — (1) The necessary and ordinary clothing of the defendant and his family; (2) The furniture, household furnishings, dairy utensils, swine and poultry belonging to the defendant and his family to the extent of $500.00; (3) The necessary food for the defendant's family during six months, which may include grain and flour, or vegetables and meat, either prepared for use or on foot; (4) Three oxen, horses or mules, or any three of them, six cows, six sheep, three pigs, and fifty domestic fowls, besides the animals the defendant may have chosen to keep for food purposes, and food for the same for the months of November, December, January, February, March and April, or for such of these months or portions thereof as may follow the date of seizure, provided such seizure be made between the first day ot August and the thirtieth day of April next ensuing; (5) The harness necessary for three animals, one waggon or two carts, one mo.-.-r or cradle and scythe, one breaking plough, one cross p ' gh, one set harrows, one horse rake, on* sewing machine, one reaper or binder, one set sleighs and one seed drill: (G) The hooks of a professional man; (7) The tools and necessary instruments to the extent of $200.00 used by the defonilant in the practice of his trade or profession. (S) Seed grain sufflcient to seed all his land under cultivation, not exceeding eighty acres, at tlie rate of two liushels per acre, defendant to have choice of seed, and fourteen bushels of potatoes: (9) The homestead of the defendant, provided the same be not more than one hundred and sixty acres; in case it br^ more, the surplus may be oold s- bject to any lien or in -um- branoe tberoon: (10) The house and buildings occupied by the defendant, and also the lot or lots on which the same are situate, according to the registered plan of the same, to the extent of fifteen hun- dred dollars. Any article except for the food, clothing and bedding of NOUTU-WEtST TERRITORIES LAWS. 356 the defendant and his family, the price of which forms the subject matter of the Judgment upon which execution issuetl, is not exempt. In case of death, the exemptions may be claimed by the widow, cliildren, executor, administrator, or other persoiuil representative of the deceased. Fisli.— Close seasons are as follows:— For pickerel, pike, gold eyes, mullet, maskinonge and dore, from April 15th to May 15th. For sturgeon, from May 15th to July loth. For speckled trout, from September 15th to May 1st. For salmon trout, lake trout and whitetish, from October Blh to December 15th. Game.— Close seasons are as follows;— For elk, moose, cariboo, antelope, deer, mountain sheep and goat, from February 1st to October 1st. (No person may kill more than six head in any one season, except for food purposes.) For grouse, partridge, pheasant and prairie chicken, from December 15tli to September 15th. (No person may kill more than twenty birds in any one day.> For wild duck, from May 8th to August 23rd. For plover, snipe and sand piper, from January 1st lo August 1st. For mink, martin and fisher, from April 15th to November 1st. For otter and beaver, from May 15th to October 1st. (In East Riding of Assiniboia, beaver may not be taken till November 1st. 1901.) For musk-rat, from May 15th to November 1st. No eggs of game birds may be disturbed, injured or takt-n at any time. No swivel guns, batteries, sunken punts or night lights may be used for taking wild fowl, nor grain or food steeped in opium, alcohol or other narcotic. No game birds (except geese) may be snared or trapped. Grouse, partridge, pheasant, prairie chicken, elk, moose, cariboo or antelope may not be exported. No person may offer for sale, barter or exctiango any prairie chicken caught or killed by any person other than himself. No person may sell, barter, buy or obtain any mountain sheep or goat, or part thereof. Non-residents must obtain from the Commissioner of Apri- eulture a license to hunt or shoot, the fee for which is Jl.^i.Ofl. A license may be granted free to a guest of a resident for a term of not more than five days. Garnishment.— Any plaintiff in an action for debt or Uriuldated demand before judgment, and any person who has obtained a judgment, may garnishee any debt due or accruing due from the garnishee to the defendant or judgment debtor. The garnishee issues upon the plaintiff or judgment creditor, his advocate or agent, filing an affidavit showing the nature and amount of the claim or judgment, and swearing positively 366 NOltTU-WEiif TERRITORIES LAWS. of the indebtedness of the defendant or judgrment debtor, and lurther stating that to the best of deponent's information and belief, the proposed garnishee (naming him) is Indebted to th« defendant or judgment debtor. A copy of the garnishee sum- mons must be served on the defendant or Judgment debtor, or his advocate, within ten days after service on the garnishee. A garnishee paying money into court is entitled to deduct therefrom his necessary disbursements and costs (not exceeding Jj.OO), except when the debt due from him to the defendant or judgment debtor Is larger than the amount of plaintiff's claim and costs, in which case the garnishee may deduct such costs and disbursements out of the balance in his hands. If the gar- •ilshee does .iot pay the money into court, and does not dispute the debt due from him to the defendant, or If he does not appear to the summons, a. judge may, after judgment has been entered against the primary debtor, order that judgment be entered against the garnishee, and that execution Issue. No debt due or accruing due to a mechanic, worlcman, laborer, servant, clerk or employee for or in respect to his wages or salary, is liable to be garnlsheed, unless the same exceeds $25.00, and then only to the extsnt of the excess, but this provision does not apply to a case where the debt lias been contracted for board or lodging. The Government of the North-West Territories may be garnlsheed with regard to moneys due or accruing due to all persons permanently employed by the Government of the Ter- ritories, provided that the cause of action arose after September 1st, 1894. The garnishee summons must be served upon the Cleric of the Legislative Assembly in his ofllce. Homeiteada.— (See "Dominion Lands.") Insolvency and Bankruptcy I»aw«.— There are no bank- ruptcy or insolvency laws. Debtors may make a vohmtary as- signment to a trustee for thj benefit of their creditors, but are not ilicroby discharged from any balance of debts remaining due a^'ier distribution of the assigned estate. Interest.— Six per cent. Is the legal rate of Interest. Over- due notes and bills and judgment debts bear Interest at this rate. Justices of the Peace.— Justices of the Peace exercise the ordinary power of such officials throughout the Territories. Land.-(See "Real Property.") Laud Registration Districts.— Inspector of Land Titles Offices In N. W. Ter.— H. W. New- lands- Asai.NinoiA— Includes all the provisional districts of East and West Asslnlbola, from the International boundary line on the Fouth to and Inolualvo of township 34 north; on the west by tho line boiwopn ranges 10 and 11 west of the 4th principal n.orldlan; on the oast by the western boundary of Manitoba. NORTU-WEST TERRITORIES LAWS. 357 Registrar— H. W. Newlanda, Reglna. F. F. Forbes, Dep. Re- gistrar. NoKTH Alberta— Includes all that part of the provisional district of Alberta bounded on the south by the 9th correction line between townships 34 and 35; on the west by the eastern boundary of British Columbia; on the east by the line between ranges 10 and 11 west of the 4th principal meridian. Registrar —George Roy, Edmonton. South Alberta— Includes all that part of the provisional iiiBtrlct of Alberta bounded on the south by the International boundary line; on the west by the eastern boundary of British Columbia; on the north by the 9th correction line between townships 34 and 35, and on the east by the line between ranges 10 and 11 west of the 4th principal meridian. Regiotrar— Horace Harvey, LL.B., Calgary. East Saskatchewan— Includes all that part of the provi- sional district of Saskatchewan bounded on the east by the Western boundary of Manitoba; on the west by the line between ranges 10 and 11 west of the 3rd principal meridian; on the south by the line between townships 34 and 35; on the north by the 18th correction line, D. G. Surveys. Registrar- S. Brewster, Prince Albert. West Saskatchewan— Includes all that part of the pro- visional district of Saskatchewan bounded on the east by the line between ra.iges 10 and 11 west of the 3rd principal meridian; on the west by the line between ranges 10 and 11 west of the 4th principal meridian; on ♦lie south by the line between townships 84 and 35; on the north by townsl\ips surveyed. Registrar- R. F. Chlsholm, Battleford. Lea«e«.— (See "Real Property.") Lien*.— (See "Mechanics' Liens," "Lien Notes.") Lien Notes.— When on a sale of goods of the value of $15.00 or over, it Is agreed or provided that the right of property or right of possession shall remain in the vendor pending paym^^nt of the purchase price, or a part thereof, or the performance of some condition, by the purchaser, notwithstanding that the actual possession of the goods passes to the purchaser, such sale, with such agreement or condition, must bo in writing, signed by the purchaser or his agent, and such writing, or a t'"ue copy thereof, must be registered In the office of the regis- tration clerk for chattel mortnages in the registration district within which the purchaser resides within thirty days from the sale, ana also In the registration district in which the goods are delivered, or to which they may be romcved, within fifteen days from sucli delivery or removal, verified by affidavit of the vendor, or his agent, stating that the writing (or copy) truly setii forth the agreement, and that the same is bona fld<\ and not to protect fhf, goods In question against the creditors Of the purchaser; otherwise Ihe vendor's lien Is void as against any purchaser or mortgagee In good faith .'or value, or as against judgments, executions, or att.achment& agalrnt the purchaser. Such Hen expires at the expiration of two years from date of registration unless renewed. In case the »" :■■■; EM': 358 NOKTU-WKST TERRITORIES^ LAWS. vendor retakes possession of the goods, he must retain the same for twenty days for redemption by the purchaser, and must give the purcimser live days' notice before selling. The fee for registration is 25 cents. liimitatious of Actions.— Actions on accounts, bills, notes and actions on ueui giourded upon any contract without spe- cialty must be commencti" within six years after the cause of action arises; actions on coni-ra^ts under seal within twenty years: actions for the recovery of land TJ'ithln twelve years. Judgments are outlawed after the expiration of twenty years from recovery. Married Women.— a married woman, Is respect of per- sonal property, Is under no disabilities, but has. In respect of the same, all the rights, and is subject to all the liabilities, of a fane sole. All wages and personal earnings of a married woman, and acquisitions therefrom, and all profits of any occupation or trade carried on by her, separate from her husband, or derived from any literary or artistic skill, and all Investments of the same, are free from the debts or dispositions of her husband, and are neld and iiisposed of by such married woman without her husband's consent, as fully as li* she were a fane nolr. No ordy tlie liuahand of the personal property of a married woman does not render the same liable for his debts. A husband is not, by reason of marriage, liable for the debts of his wife contracted before marriage, but the wife and her separate property arc liable therefor as though she had continued un- married. Nor is a husband liible for debts of his wife In respect of her separate emp:oyn>ent or business, or of her own contracts. A married woman may sue in respect to her separate property as though unmarried, and may be sued separately In respect of her separ.-xte debts, contracts or torta as thoug'n unmarried. (See "Real Property.") Meohanioi' Liens.—Every mechanic, builder, laborer and contractor, or otlu'r person doing work upon or furnishing material for the construction, alteration or repair of any build- ing, or erecting or furnishing machinery upon or in connection with any buildln,^ or miiu?, has a lien for the price of such work, material or machlnei.,' upon the estate of the owner In the tniildhiK anil land occupied therewith. Every mechanic, laborer or other person performing labor for wages upon the construc- tion, nltciatinii or repair of any building, or in placing machin- ery tipon or In coiuiectlon with any building or mine, has ai.=io a lien for such wages, not exceeding thirty days' wages, upon the estate of the owner In the building and land. Sneh lien muBt be registered In the Land Titles Office for the Registra- tion r'lHlrict In which the land Is situated, within thirty days from tlie completion of the work or supplying or placing of the mnchinfry. and cxiilres In ninety days from such completlor of work or supplying of machinery, imless proceedings are tnatit, 'ellc under his seal. REMEniAi,.— Any person sustnlning loss or damage through omission or mistake of any registrar, or any of his clerks, may sue the registrar for damages, which. If awarded, are paid out NORTH-WEST TERRITORIES LAWS. 363 of the assurance fund. Any person dissatisfied with any act, omission, refusal or decision of a registrar, may appeal by petition to a Judge, who may make such order as he thinks fit. A registrar may refer any question regarding his duty, the construction or validity of any Instrument, the persons entitled, or the nature of any estate, right or Interer claimed, to a judge, who may hear all parties, and decide sucli question. In any proceeding respecting land or respecting any instrument, a Judge may direct the registrar to cancel, correct or issue any duplicate certificate of title, make any entry, or do any neces- sary act. Where a duplicate certificate of title is accidentally lost or destroyed, the registrar is empowered to Issue a fresh one in lieu thereof. Where land is subdivided into town lots, the owner must register a plan, which Is not binding, but may be altered or amended by a Judge. Appeal.— An appeal lies from any order or decision of j>. Judge to the Superior Court in Banc. Assurance Fund.— Upon the registration of every grant of encumbered land, and upon every transfer of land after the issue of the first certificate of title therefor, a fee is charged of one-fifth of one per cent, of the value up to $5,000.00, and one-tenth of one per cent, of the additional value; and upon every subsequent transfer, a like fee upon the increase of value since the date of the last certificate of title. Fees are, approximately, as follows:— Registration of transfer of unencumbered land— $4.35, plus assurance fee. Registration of mortgage $1.50 Registration of discharge of mortgage 1.50 Registration of writ of execution 1.00 Registration of caveat 2.00 Forms — FORM F. Application to bring land under the operation of "The Land Titles Act, 1894." To the registrar of registration district: 1 (insert name and addition) hereby apply to have the land hereinafter described, brought under the operation of "The Land Titles Act, 1894.' And I declare:— 1. That I am the owner (or agent for , the owner) of an estate in fee-simple in possession (or of an estate of freehold in possession for my life, or othrncisr, aa the case may require) in all that piece of land, being (here describe the land). 2. That such land, including all buildings and other Im- provements thereon, is of the value of dollars, and no more. 3. That there are no documents or evidences of title affect- ing such land In my possession, or under my control, other than those Included in the schedule hereto. 4. That I am not aware of any mortgage or encumbrance affecting the said land, or that any other person has any e.^tate or Interest therein at law or in equity, in possession, I!' ill iii!; 364 NOKTU-WEUT TERRITORIES LAWS. remainder, reversions or expectancy {if there he any, add: other than as follows, and act the 8ame forth). 5. That the said land is now occupied {if unoccupied, prefix ua to occupied; if vccupied, add by whom, and state the name and addition of the occupant, and the nature of his occupancy). 6. That the names and addresses, so tar as known to me, ot the occupants of all lands contiguous to the said land, are as follows:— 7. That the names and addresses, so far as known to me, of the owners of all lands contiguous to the said land, are as follows:— (// the certificate of title is not to be granted to the applicant, add: And I direct the certificate of title to be granted in the name of [insert name and additionTi.) Dated this day of , 19 . Made and subscribed at In the presence of (Signature.) FORM G. Schedule of Documents referred to. Affidavit. North-West Territories of Canada. District of TO WIT: I of make oath and say:— 1. That I am the applicant named In the application hereto annexed. 2. That the several statements contained in the said appli- cation are true, to tiie best of my knowledge and belief. Sworn before me at the of In the of , this day of , A. D. 19 . (Signature). FORM J. Transfer. T, A. B., being registered owner of an estate (state the nature of estate), subject, however, to such encumbrances, liens and interests as are notified by memorandum under- written (or endorsed hereon). In all that certain tract of land containing acres, more or less, and being (part of) section, township , range , in the (or (IS the. case inny be), (here state rights of way, pri- vileges, cascmrnts, if any, intended to be conveyed along with the Inml, and if the Itiinl dealt tcith contains all included in the original grant, refer thereto for descriptions of parcels and diagrams; other- teise set forth the boundaries, and accompany the description by a diagram), do hereby, in consideration of the sum of dollars, paid to me by E. F., the receipt of which sum I hereby acknowledge, transfer to the said E. F. all my estate and in- terest in the said piece of land. (When a lesser estate, describe sxteh lesser estate.) Tn witness whereof. I have hereunto subscribed my name this day of . 19 . Signed by the said A. B., In the presence of (Signature.) N0UTU-WE8T TERRITORIES LAWS. 366 FORM K. Lease. I, A. B., being registered as owner, subject, however, to such mortgages and encumbrances as are notified by memoran- dum underwritten (or endorsed hereon), oc that piece ot lana {describe it), part of , section , township . range , (or as the case may be), containing acres, more or less (here state rights of way, privileges, casements, if any, intended to be conveyed along icith the land, and if the land dealt Kith contains all included in the original grant or certificate of title or lease, refer thereto for description ' and diagram, otherwise set forth the boundaries by metes and bounds) do hereby lease to E.F., of (here insert description), all the said land, to be held by him, the said K. F., as tenant, for the space of years, from (here state the date and term), at the yearly rental of dollars, payable (here insert terms of payment of rent), subject to the covenants and powers implied (also set forth any special covenants or modifications of implied covenants). I, K. F., of (here insert description), do hereby accept this lease of the above described land, to be held by me as tenant, and subject to the conditions, restrictions and covenants above set forth. Dated this day of Signed by above A. B., as lessor, and E. F., as lessee, in presence of (Signature of lessor.) (Signature of lessee.) (Here insert memorandum of mortgages and encumbrances.) FORM N. Mortgage. I, A. B., being registered as owner of an estate (here state nnture of interest), subject, however, to such encumbrances, liens and interests as are notified by memorandum underwritten (or endorsed hereon), of that piece of land (description) part of section , township , range , (or as the ease may be) containing acres, be the same more or less (here state rights of icay, privileges, easements, if any, intended to be conveyed along with the land, and if the land dealt tiiifi contains all included in the original grants, refer thereto for description of parcels and diagrams, otherwise set forth the bounda- ries, and accompany the description by a diagram), in consideration of the sum of dollars lent to me by E. F., (here insert description), the receipt of which sum I do hereby acknowledge, covenant with the said E. F.;— Firstly. That I will pay to him, the said E. F., the above sum of dollars, on the day of Secondly. That I will pay Interest on the said sum at the rate of on the dollar. In the year, by equal payments on the day of , and on the day of in every year. if ii t : V: 3«< SORTU-WEUT TERHlTUltlEU LAWH. Thiriily. (litre ml forth special covenants. If any.) And for ihe betlLT securing of the said K. F. the repayment, In manner aloresaid, of the ijrincipal sum and interest, 1 hereby mortgage to the said E. F. my estate and interest in tiie land above described. In witness whereof, i have hereunto signed my name this day of , 19 Signed by the above-named A. B., as mortgagor, in presence of (Signature of mortgagor.) (Insert memorandum of mortgages and encumbrances.) FORM O. Encumbrance. I, A. B., being registered as owner of an estate {state nature of (State), subject, however, to such mortgages and encum- brances as are notilied by memorandum undLrwriiieu (or endorsed hereon), of that piece of land (dtseription) part ol section , township , range , (or as the case may be), containing acres, more or less (htre stale riyhts of «<»//, priiileyea, casements, if any, inlinded to he conveyed along icith the land, and if the land dealt uilh euiilaiiis all ineluded in the oriyinal grant or certificate of title, refer thereto for descr m of parcels and diagrams, otherwise set forth the boundaries, and ompany the description by a diagram), and desiring to render Hie said land available for the purpose of securing to and for the benefit of C. D., of (discription) the (sum of money, annuity ur rent charge) hereinafter mentioned; do hereby encumber the said land for the benefit of the said C. v., with the (sum, annuity or rent charge) of to be paid at the times and in the manner following, that is to say: (here state the times appointed for the payment of the sum, annuity or rent charge intended to be secured, the interest, if any, and the cvnits in which such sum, annuity or rent charge shall become and cease to be payable, also any special eoccnants or poircrs, and any iiiodijieation of the powers or renudii^ giren to an encian- bnince by this Act); And, subject as aforesaid, the said C. D. shall be entitled to all powers and remedies given to ah encumbrance by Tho Land Titles Act, 1894. Signed by tlie above-named in the presence of (Signature of encumbrancer.) (Insert memorandum of mortgages and encumbrances.) FORM P. Transfer of Mortgage, Encumbrance, or Lease. T, C. D., the mortgagee (encumbrancee or lessee as tlic caite may be), In consideration of dollars, this day paid to me by X. Y., of , the receipt of which sum I do hereby acknowledK« . hereby transfer to him the mortgasro (encumbrance or lease, rts ike case may be, describe the hi.-'lrnm- encumbrancec, or ax the raaa may he) In con.sideratlon of dollars, this day paid to me by X. Y., of , the receipt of which sum I do hereby acknowledge, hereby transfer to him doUat-.i of the mortgage (or ancumbrance, ur a.i tin; case may be, describe tht instrumrnt fully), together with all my rights, powers, title, and Interest therein, and the sum so transferred shall be pre- ferred {or deferred or rank eciually, as //»< case may b<;) to the remaining sum secured by the mortgage {or encumbrance). In witness whereof, I have hereunto suhscrlbed my name this day of , 19 Signed by the said in the presence of C. D., Transferror. Accepted, X. Y., Transferee. 'rm FORM S. Power of Attorney. 1, A. B., being registered owner of an estate (./tire stale natiin: of the estate or interest) subject, however, to such encumbrances. Hens and interests as are notified by memorandum underwritten (or endorsed hereon), (Here refer to schedule for description and contents of the sen ml parcels of land intended to be affected, tchieh schedule must contain reference to the e.iistin taking and maintaining possession of the said lands, and for protecting the same froni waste, dama^re or trespass. In witness whereof, I have hereunto subscribed my n.'ime this day of , 19 Signed by the above-named A. B,, In the presence of (Signature). I- Mj 368 NORTH-WEST TERRITORIES LAWS. FORM T. Revocation of Power of Attorney. I, A. B., of .hereby revoko the power of attorney, given by me to , dated the Jay of In witness whereof, I have hereunto subscribed my name this day of , 19 Signed by the above-named A. B., in the presence of (Signature). FORM V. Form of Caveat forbidding Registration or Dealing with Lands. To the Registrar of District: Take notice that I, A. B., of (insert description), claiming (here state the nature of the estate or intircst claimed, and the grounds upon vhich such claim is founded) in (here describe land, and refer to certificate of title), forbid the reglstraitlon of any transfer effecting such land, or the granting of a certificate of title thereto, except subject to the claim herein set forth. My address ia:— 19 Diated this day of Signed by the above-named In the presence of (Signature of caveator or his agent.) I, the above-named A. B. (or C. D., agent for the abova A. B.,) of (residence and description) make oath (or affirm, at the case may he), and say, that all allegations In the abo- caveat are true in substance and in fact (and if no personal knowledge, add, as T have been Informed and verUy "believe.) Sworn, etc. (See "Land Registrat.'ou Districts.") (Signature). Recording Deeds; Registration.— (See "Real Property.") Replevin.— A plaintiff claiming that any of his personal property has been unlawfully taken, or is unlawfully detained, may obtain a writ of replevin for the delivery of the property to him upon filing an affidavit of himself or his agent stating where the property is, giving a description and the value thereof, and asserting that the plaintiff Is the owner or Is entitled to the possession thereof. If possession of the pro- perty was obtained under color of distress for rent, or damage feasant, the affidavit must so state; If by fraud, the affl- NOUTU-WEST TERRITORIES LAWS. 369 davit must give full particulars of the fraud. Plaintiff must also enter Into a bond with two sureties In double the valua of the property. The defendant may apply to a judge for an order allowing him to retain possession of the property upon his giving security. Service of Proce»«.— Writs must generally be served per. sonally by any party other than the plaintiff. Orders for sub. stitutlonal service by advertisement or otherwise may be ob. lained In certain cases. Where the defendant resides without lli'j Territories, a judge may order a writ to Issue for service vx juris. Small Debt Procedure.— All claims and demands for debt where claim does not exceed $100.00 are sued under special practice, which Is speedy and simple; if an account, three copies Itemized, should be furnished; if a bill, note, order or other written Instrument, three copies thereof should bo furnished. Statute of Frauds.— The Imperial Statute is in force. Stay of Execution.— (See "Execution.") Supplementary Froceedings.— A judgment debtor may be examined as to what debts are owing him, and what pro- perty or means he has of satisfying the judgment. In the case of a corporation, any official thereof may be examined. Taxes.— Land is subject to taxation only if within a mur' cipality, school district or statute labor district. Land may be sold for arrears of taxes, and must be redeemed within a specified time, otherwise, upon confirmation of the tax sale, tlie title vests in the purchaser. (See "Real Property.") ill Testimony.— (See "Evidence.") Wills.— Every person over the age of 21 years may dis- pose by will of all real and personal property to which he is entitled at the time of his death. A will must be in writing, signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature must be made or acknowledged by the testator in the presence of (at least) two witnesses present at the same time, who shall attest and subscribe the will in the presence otf the testator. A devise to a witness, or to the wife or husband of a witness, is void, but the witness may prove the will not- withstanding such devise. A will or codicil, or part thereof, may be revoked by writing executed as above, or by intentional destruction thereof by the testator, or by some person in his presence and by his direction. A will Is construed as thougli it had been executed Immediately before the death of the tes- tator. A devise of real property without words of limitation Is construed to pass the fee simple or other whole estate or Interest of the testator In the same. 24 British Columbia Abstract of Laws. PREPARED AND REVISED BY McPHILLIPS &. WILLIAMS, Barristers, bolicitorg, etc., VANCOUVER, B.C. Absconding Debtor.— If a person residing in British Co- li'inlila and 'u debt to any creditor to an amount greater tiian one liundred dollars ($100), departs from the Province witli Intent to defraud Ills creditors, liis goods may be seized under a writ of attacliment. Any judge of the Supreme or County Court (according to jurisdiction), upon being satislled tliat the plaintiff has such claim, iiiul that the debtor has loft the I'rovince to escape arrest or service of process or to defraud the plaintiff, may direc*^ such writ of attachment to issue ana appoint in the order the time wiUiin which tiie defendant sliall put in special ball. Actions.— Actions in the Supremo Court begin with a writ of summons. Defendant, if personally served In the Province, niust appear within eight days after servioo. If defendant is out of (he Province and a British subject, a judge's order must be obtained to issue the writ, the time for appearance thereto bc'ng fixed by the Judge. If the defendant out of the I'rovince is not a British suljject, notice of the writ must be served upon him. In actions for debt or liciuldatod demand the writ may be specially Indorsed, and in default of appearance to such a writ, judgment may be entered up. If the defendant appears to a specially endorsed writ, the plaintiff may move for judg- ment on fou" days' notice. When the writ is not specially ondorsiMl, and the defendant appears, If he wishes a statement of claim, he must give notice to the plaintiff within eight days, and the plaintiff must deliver, within three weeks from the date of receiving such notice, his statement of claim. Ten days are allowed for putting in defense, set-off, or counter claim. The plaintiff having replied to the defence, Issue 1.=? joined, and the acilon goes to trial. A plaintiff resident out of the Province Is generally required to deposit In Court security for defendant's costs, Actions In County Court are begun by the plaintiff's filing with tbo Itrglstrar the particulars of his claim, whereupon the stimiiions Is Issued. In the Small Debts Court the plalntllT llkiwise Hlos the i)artl(;u!ars of his claim, vlici'i'iipnn the summonH Is issued. BKlTliiU VOLLMBIA LAWS. 371 Acknowledgments and Affidavits— Within the Pro- vince airidavits are taken before a commissioner appointed lo administer affidavits, a stipendiary magistrate, a notary public, or a justice of the peace. (Affirmations may, in certain cases, be made Instead of affidavits; while statutory declarations are provided for under the Canada Evidence Act, 1S93). Affidavits madt; out of the Province for use in Provincial courts may be made before a commissioner authorized to administer oaths in the Supreme Court of Judicature of England; a judge of the Supreme Court in England, Scotland, or Ireland; a County Court Jutlge in England or Ireland (wiihin his county); Scottish sheriff or his substitute (within his county); a notary public of any British Dominion; tlie mayor of any city, bo- rougii, or town (certified under the corporate seal); a judge of any Court of record in British dominions or elotw lu-re; a . British consul, jr (if m Canada) a judge, prothono'ary, notary public, or commisslone r taking affidavits or administering oaths in, or the clerk ■ a Court of Record in the Dominion ot Canada or any P" ;• e thereof. Adniiuistration of Estates-— The County Court has jurisdiction (concurrently with the Supreme Court) in matters of testacy or intestacy within its own district where the per- sonal estate does not exceed $2,500.00, and has power to grant probate of wills, or deeds to administer under the Olliclul Administrator's Act, and letters of admini.Ttration of the per- sonal estate and effects of persons dying within the territorial limits of Its county, and to take order for the due passing of the accounts of the executors and administrators of sucli de- ceased persons, and for the proper custody of the personal estate and effects of such deceased pei-sons, and for the de- livery of tlio same to the pcf'Bons entitled t.. .reio. Where no one is willing or (lualifled to act as adminiraMles a memoraiKluin of association signed by not fewer than five members. T'ae liability of the shareholders may be limited to the amount of shares, or llmlled by guarantee, or unlimited. A comnany may actiulro and hold real estate by gift, purcliasp, morigagt> or otherwise, and may alienate the same as fully and fieely as ma.\' prhiite Indlvliluals. I'rovlslon l9 made by the Companies' Act for the licensing and registration nf eMra-provliiclal companies: and for the volu'itaiy wlmlliig- up of companies upon petition to a juilgo setJng forth that It Is the desire of two-thirds of the shareholders to iIIsmtIvo niid that all liabilities have been discharged. Conditional Sales— Receipt notes, hire receipts, or orders for chattels given by a bailor of chattels where the condition ■'si 1 :i.-i I ' :M -r; '[IN, ¥ i ill 374 BUlTlSll VOLIMBI.V L.WYii. oi till' I'ailinoiii is sui'li ilmt possession passus wiUiout owiier- sliip until the paymcmi of the whole or some stateil part of the purchase money, are void as against subseiiueni purchasers or mortgagees for value without notice, unless a true copy of sucli recolpt note, hire receipt, or order for chattels be tiled, within tweniy-one days of its execution, wiih the oltlcer witli whom a bill of sale of goods situate wliere the bailee resides would require to be registered. Upon request tUo manufacturer, bailor, or vendor is required under penalty to furnish a pro- posed purchaser cr other interested person full particulars as to time of payment and amount due. A bailee or his successor in interest has twenty days, after seizure of itie chattel for bleach of condition, in whlcli to redeem; and when the goods were balled or conditionally sold for more than JiiO.tK), live days' notice of the sale inuat be given. Courts and their Jarisdictiou.-Tlie Supreme Court consists of live judges, who i)rcside over the various district courts, and who, (h iuim:, form tiie Court of Appeal. There are seven judicial districts jri tno I'rovince. Tlie Supreme Court has jiui.sdielion in all matli-rs, civil and criminal, and possesses all iiowers both of Common Liaw and of Chancery. The County iToiiri has jurisdii'tiou in personal actions where the del.)t or daumge claimed does not exceed $1,0U'.'.00; in eject- ment wnere the annual rental does not exceed $300.00; In re- plevin where tlie value of the goods dc-, not exceed $1,000.00; liiid In the execution of trusts, spec . .'formance, foreclo- sure, tnisis, infancy, and other equity n.-tiier"} in wliiolv the valine of the propirty lnvoi\<;d does not exceed $2,500. It has also juris- diction, concurrently with the Supreme Conri, in various mining mutters. In most cases however, the Supreme Is pre- ferred to the County Court. The County Juilge's Criminal Court may try, at any time, without a jury, persons committed to gaoi upon charge of any ol'it-nce (with certain statutory except ion.s) for whlcli they may be tried at a Court of Oyer and Terminer or general gaol dflivery, and for whicli such pet. -< jus consent to be so H'ied before tlie County Juin^;. ii.ivl^ralloii. trade and commerce of which cognizance is (nUen In any Colonial Court of Admiralty under "The Colo- titat rmfi of Admiralty .^c^ ISyO." Dct»d«.~ Cof.veyanoes of real estjito must be under seal, and ."liDUld be uitestcd by a witness. There is a ■'•• .t I s'atii- .■■ m^ liUlTimi COLUMBIA IjAWH. 3T5 tory fgrm for such conveyances, taking the place of a previous long I'oriii. AckiiowK'tlgnii iilH iiiut i>r()ols ot (.■xcciiiion are rocjulreU for registration. These are made by the party ex- ecuting, the secretary of a corporation when the secretary ex- ecutes, a subscribing witness, or the attorney In fact when the liisirunient Is executed by an attorney in fact. A married WDiiian may dispose of her separate properly as if she were unmarried; but, for purposes of registration, there must be an itcknowledgnient from her, examined apart from her hus- band, that she understands the contents of the instrument, that slie has executed voluntarily, etc. Depositions.— Under special circumstances {illness, ap- prnai^hlng death, etc.) depositions are allowed to be put in at the trial of the cause. These are obtained, i.pon the application of either party to the action, by means of a commission Issued In pursuance of the order of the Court. Full instructions, however, must accompany the commi»slon, sund an opportunity must be given for cross-examination. The form of oath to be taken by the Commissioner, witness, clcri-, and interpreter, is Indorsed on the commission along with otner directions. Descent and Distribution of Property.— The personal esliite is llrst liable for the payment of debts and funeral expenses, before resort can be had to the real estate, which latter can be Interfered with only by special order of a court. The surplusage of the personal estate of an Intestate is divided according to the Administration Act, that is to say: One-third to tin- willow, and the nniuiiuler amon^- the descendants per stirpes equally, unless portions have been advanced in tlic Ilietime of the deceased. If no descendants, then half to the Widow and half to next of kin in equal degree. If no widow, then whoh^ ecpially among ilescii laiits per stirjios. If neither widow nor descendants, then equally among next of kin of same degree. Real estate of an Intestate descends, after pay- ment of dower (see "Dower") as follows: (1) To lineal des- cenihmts per stirijcn; (2) failing children, to father, niiles'? estate came on the part of mother; (3) falling father, to mother; (1) falling father and mother, to collateral relatives, subject to certain rules and regulations of the "Inheritance Act." Descendants, however remote, share per stirpes; and relatives of the half blood share equally with those of the whole blood. Divorce.— Jurisdiction Is assumed and exercised by the Supreme Court In divorce proceedings to the extent of the power and st'ope of tile lOngllsh Divorce Act, 20 and 21 Vic. This 1\:rlsdlction Is claimed by the Supreme Court by virtue of the Ordinance of the Provincial Ijeglslaturc passed In 1867 intnxluc- Ii;^; lOiigllsh Law (see "Kngllsh Law"). Doubt has been ex- prc,-J!"d, however, whether the Supremo Court has divorce JLTladlctlon under the Engltrh Act. Doivor.— A widow Is not entitled to dower in any Inml which her husband disposed of absolutely In his life or by his will. iShe is entitled to dower only In lands to wlilch \m\ dying Intestate, was benettclally entitled at his death. A be- quest of land to htr by her husband may, however, deprive W i. 37G liltrnSH COLUMBIA LAh her of dower In all other lands. The right to tenancy by the curtesy still exists. Evidence— See Statutes of B.C., 57 Vict., cap. 13, and Statutes of Canada, 5C Vict., cap. 31. The accused is a com- petent witness In his own behalf on a criminal charge. Wives and husbands are also, under certain restrictions, competent witnesses. The plaintiff in an action for breacli of promise of marriage must be corroborated in his evidence by material testimony. Children of tender years and Indians (being un- civilized) may be heard as witnesses and their testimony re- ceived, in the discretion of the judge. Execution.— In the Supreme Court execution against goods may issue forthwith after judgment. Execution against lands now aijolished. (See "Judgment.") In the County Court an execution against goods may issue forthwith after judgmfnt. A writ of execution requires renewal every year. Delivery of property otlier than money or land may be en- forced by writs of attachment, delivery or sequestration. Exemptions.— Ooods nnd chattels, to be selected by the debtor, to i.h. i'alue of vjOO.OO ar^ exempt under execution. This does noi ap.jiy, however, to stock in trade, or to goods or chattels seised in satisfaction of a debt contracted for such Identical goods or chattels. Land to the value of $2,500.00 may be registered as a home- stead, and Is then exempt to that extent from .seizure under any legal process. Under distress for rent lodgers' goods are exempt; and lliero ia an exemption in the case of goods sold eoiidltionally to the tenant. Garnishee.— See "Attachment." Infants.— Infants sue or are sued by a guardian or next frivnd. An infant may, however, sue in the County Court in his own name for wages up to $500.00. Interest.— By the Dominion Act six per cent. Is the legal rate, althoigh by agreement any rate may be charged. Judcments.- A certllicate of judgment may be registered in any and all of tin' Land Registry Ofllcos in the Pro\ince. and from the time of registering the s-ime the juUgmt'iil so recorded shall form a lien and charge on all the lands of the judgment debtor In llie several districts in tlie I,and Iteglstry Ofllces. Where a judRment creditor bus registered a certiticat<> of sue!) Judgment he may make application to the Supreme Court, or a Judge thereof, calling upon the debtor, or other person having legal estate in the land in question, to show cause why any land In the Land Registry District In whioft such certificate of judgment Is registered, or Interest therel-n of the debtor, or a competent part of the land, shall not be sold to realize amount payable under judgment, and the Judge may order a sale of the said lands by tlie Regl.slrar of the Court or District Registrar thereof, accoming to the usual practice. BlUTISU COLUMBIA LAWH. 377 I-> mtnced. Otherwise the lien erases. A woodtnun has a M«U tor wages on logs and timber. A mechanic I.as a lien for tl\u work, skill, anu mactrial« bestowed upon any chattel; ailil if unpaid for tlM^i* months, he may, after advertising for three weeks, sell the chattel. Lii&itations of A**io»«— Th* British Columljla Law tniliodits the Kngltsh law on this subject. All actions for the recovery of rent upon an Indenture of demise, and all actions of covenant or debt upon any bond or other specialty, and all actions of debt upon any recognizance shall be com- menced within twenty years after the cause of action arose, unless in the meannime there has been a payment on account or some aeknowledigment in writing. All actions for detinue, trover, and repleviin, for taking away goods or chattels; and all actions for account or actions for debt without specialty miist, unless as above, bo begun within six years after the cause of action arose. The claim of a irMui tjur trust agaln.st his trustee in an express trust Is not barred. In cases of dis- ability, time runs from the removal of such disability. A foreign statute of limitation is I'ccognlzcd as a good defence In a suit In tlils Province upon a cause of action that aros6 In the foreign country. Married Women.- -V niurried wonuiii may now contract, hok., enjoy, and dispose of her separate property, real or per- sonal, and m!\y sue and be sued with reference thereto, as ftcely as If unmarried. All contracts made by her arc presumed to be made with reference to her separate properly ; and she is liable on her ante-nuptlal debts to the extent of her separate property. She Is entitled to dower out of real property to t ii 378 nniTifin Columbia laws. which lier husband, dying Intestate, was beneficially entitled (see "Dower"). Minine and Mineral Lands.— Any person or eighteen years of a^e or moro may take out a free miner's license, which is in force for one year, and tl)ereupon he becomes en- titled to prospect, locate and mine (other than placer mining) upon Crown lands for all minerals other than coal. For placer mininK every jicrsdn wlio is not less than eighteen yoara oi: aige, and is a ilritisli subjict, shall be eiilitled to all the rights and privileges of a free miner upon taking out a free miner's oertiflcate, which certificate shall not be transferable. No Joint Stock Comijuny or Cori>oration shall l)e entitled to tak? out a free miner's certificate for placer mining unless the same has been incorpoi'ated under the laws of this Province, and is authnrizt'd to lake out a free miner's c<"rtilicate by thj Liieut( naiit-lio\ern(ir in Council, which autliorization may at any time be cancelled, and in case of such cancellation such Compainy or Corporation shall not be entitled to take out a fl'ee niliiiT's certilicate under the I'lacer Mining Act, but any fj'ee tnlnet's ceftlfioajte already tajsen out shaill remajln In force until its explk-. No free miner simll hold any clf^ltt under the Placer Mining Act or any inlerent tlierein, as trustee or otiierwise for any person wlio is not a llrltisli subject, or for nny (Torporation not authorized to take out a free xnlner's (■i/fili.ate. The above provision as to aliens does not a;)p:y to persons to whom the IJeutenant-Oovefnpr in ^oiincil mty, under the orovisions ojt the Placer Ajflnlni^ j^et, (^Taj}j. a. leatee lot dredging Blitl ("or \vimt Is ){rtowii ;i,8 hydif'aullC /'niiilng ^s (Jlslinguisheil h-bli) or/liiiafy placer sluicing. All f/ee ininers' (;e((i/|((j(es shall expire on the; May 111 each year. A free miner may at any tiini' prior (o but not later than Ihe ,'ilst day of May (or if that In.' ii holiday, then on the next day whlcli Is not a holiday) obtain from tlie proper oflfleer, on payment of the proper fee, a free miner's certificate running Iroin inlili'.iuht i w the 31st day of May in any year to midnight on the 31st day of May next thereafter, or any sabscquent 31st day of May. In cas? any jierson should allow his free miner's certificate to expire, he may obtain from the proper officer, upon pay- ment of £1 fee of $l.'i.OiJ, a si)eelal free miner's certificate; such special certificate shall have the effect of reviving the title of the person to whom It is Issuer! to all mineral claims wnich such persoi) owned at the time of the lapse of his former certi- ficate, exceiit such as under the i)rovlsions of the Placer vnung Act had become the propi>i'ty of some other person at the time of the issue of such special certificate. In the case of a Coinpiniy tlie fee for .'iueh special crrtlHcatG shall be $.300.00. The .size of placer claims varies according to loca- tion; liiit In general thry are one hundred feet square or of one hundred feet frontage. Other claims are 1,5()0 feet long by 1,500 feet wide, and must be, os nearly as possible, rectangular In form. They must be carefully marked out, the 4 BRITISH COLUMBIA LAWS. 379 governing line for mcasuremenls being "tlie location line," which runs through the spot where mineral has been found "in place," and which is marked by a "discovery post." At each end of the "location line," which has a length of 1,500 feet, is a post, such i)osts being marked number One and number Two respectively. Upon these posts are marked the name of the claim, the name of the locator, and the date of the location; and upon post number One are given. In addition, the compass bearing of post numljer Two and the number of feet lying lo right and left of "the location line." Particulars of the claim must be filed with the Mining Recorder of the Dis- trict. Work upon the claim to the' amount of $100.00 must be performed each year; and when work to the extent of J500.00 has been performed, the miner, upon complying with certain regulations as to the publication of notice, the discovery of a vein or lode, and so on, is entitled to a certificate of improve- ments, upon which he may obtain the Crown n-ant. No more than one claim may be held by the same mirn r upon the same lode or vein. The locator of a placer claim must, unless he obtain leave of absence from the Gold Commissioner, work his claim cont'nuously during worVing hours, and he Is entitlerl to record his claim for one or more years upon payment of fees and compliance with Governmental regulations. T^eases of land for bydraubV minintr are Issued upon certain conditions, as are also coal-prospecting licenses. Mortgages.— Mortgages mtist be under seal, their form bring prescribed by statute, which shortens the wording, while preserving the force and effect of the old long form. Upon f>reach foreclosure may be enforced, or the mortgagor may ){■ srifd ujion the covenant.^ Mortgages are registered in the /^i.s(fi<'l f .i\j)(\ Registry Office, and the charge is cancelled by (he profluetloii to (he registrar of a release duly executed by the mortgagee. pfnct.icP! of the Courts-— Tlie practice Is (lie same as the T 'fto, moditicfl to a certain exter.i, however, by .'- |/|V.>-« ,'nid rules of cotirt. ReKJstratioii. ' yances of, and charges upon land are regis-' iiic Land Reg\;!try Office in which the land Is situated, I I- , • presentation of an application to register g'vintr brief piirtir 'i)nr.-< of the land and conveyance or charge. A purchaser for value is r..;t nffected by notice of an unregis- tered title other than a lea:-, for a term not exceeding three j'cars. Certificates o;* title, cert ideates of charges, and ab- stracis! (tie furnished by the Tiand Registrars upon payment of specified fee«. AcTiJpvIn.-VVhf never nry personal property has been wrongfully distrained ftf Dthctwlse wrongfully detained. It rriny br re|, levied by the c\-i^'(,i r iinder a writ of replevin upon his giving (o the she;-|fr a bond In double the vann' of the pro- perty. jtitodn (telzetf tH eifeeuttbn, however, cannot be replevied. SfiTvlce f'^rvice of a writ of summons should he personal whenever practicable: but the court may, upon cause shewn, Older sulistltutional service by advertisement or otherwise. t!rl 1 1 ! H ' lit i i ' < ■>';■ i ■ J *' f «t.' . . . I i: iiijj 380 V> f o^. Hiotographic Sciences Corporatioii 23 WEST MAIN STRUT WnSTIR.N Y. MS80 (716, S7a-4S03 ^\ %- <> \. ^ 'V.'^Q^ ^^ 382 COMMERCIAL LAW OF TUE DOMINIOX. except in British Columbia (R. S. B.C., cap. 95, ss. 2 and 3, btlng taken entire from the English Act). The law in Manitoba is the same as it was in England, immediately prior to 37 and 38 Vict., c. o2, and is practically the same as in Ontario. The provision in the Ontario Statutes is contained in R. 3. O. cap 146, sec. G, which provides that no action shall be main- tained on any promise made after full ago to pay any debt contracted during infancy, or of any ratification after full age of any promise cr simple contract lAade during Infancy, un- less the pro.nlse be in writing, signed by the party to be charged or his duly authorized jgent. Con. Stat., N. li., cap. 76, sec. 6, contains same provision as the Oniarlo Statute, but agent not mentioned. The Statutes of Nova Scotia do not appear to contain any corresponding provision. (B) Married Women.— "At the Common Law a married woman is incapable of making a valid contract so as to render herself liable thereon, and any attempted contract made with her, unlike those mad^ with lunatics and drunkards, is absc- h'tely void, and ther -fore incapable of being ratified by her, after her coverture has ceased." Courts of Equity, however, have evolved the doctrine of separate estate, and in Equity It was held that a rnarri?d woman might contract in respect of the sopara'e e>;tate pos- sessed by her at the time when the contract was entered into. If she had no separate estale at the time the contract was made, she was not deemed to have Intended to contract with reference to her separate estate, and any which was afterwards acquired w^s, therefore, not hound. In England, and in most countries where the principles of English Law Eire in force. Statutes have been parsed, giving the married woman wider rowers of contracting, and also con- ferring- on her greater powers of holding, acquiring, and diss- poslns of property in general. In Ontario, Nova Scotia and British Columbia, a recent amendment, as to her power of contract, has been ay a woman after the death of her liusband liable to satisfy a judgment on a contract entered Into while under coverture. I'luler the former Acts only separate property would bo bound, and this is still the rule in Manitoba. Tills i)rovlslon applies In Ontario to every contract entered into by a married woman after April 13th, 1S97, R. S. O. cap. 103, s. 4. COMMEJICIAL LAW OF THE DOMIMOX. 383 In Nova Scotia. It wus introduced by CO Vict., cap. 37 (Ist March, 1S9T).* In Urit'sli Columbia, by R. S. B.C., cap. 130. The New Brunswick Stat., 58 Vict., cap. 24, lat Jan., 1890, l.s the same, except that it relates only to separate property. The above provision has not been adopted in Manitoba. The law in that ITovince as to the property of married women i-) ccnl&n.eil in II. S. M., cap. 95. It has been held under that Statute that one of two things must be proved in order to bind a married woman's property. 1. iOither that she is carrying on a business separate from her husband, and that the liability arose out of, or through, a contract in connection ^ith that separate business, or 2. That she Is possessed of a separate property upon which it may be presumed she intended the liability incurred should attach. (C) l^UNATics.— The contract of a lunatic will not bind him, if it can be shewn that when he made it ho did not unde stand ■^hp t he was doing, but if it be unknown to the part • with wiiom he was contracting that ho was of unsound mind, and tl'o contract is in other respocts a fair one, the lunatic will be bound, as in the casa of an infant. The contract of a lunatic Is not void, but voidable. (D) Drunkards.— The same rule as appHes to lunatics ap- plies to drunkards. Their contracts ai"e voidable, not void. II. Mutual .Lv-vf »/.— itdih iiai'iie.s must assent in i.h<' same terms, or as It Is sometimes expressed, there must be a "con- scnsi ) (Id idem." This assent must be communicated. In tile case of tlie terms of a contract being assent' d to by iettr,", !liL' assent will take lITcci. and the contract l)e dcome:l complete wlien tlie letter containing the assent has been posted. If an offer is made by one party, there is no contract till It Is accepted by the other party, and consequently it can be re- voked ut any time before acceptance. An acceptance, in order to turn an offer into a contract, must "bo absolute and Iden- tical witii lliu tt rnis of the offer." 111. (;ousiii< nili(iii.—i'nuiildvvii[\')\\ as Wo liavo s^en above is necessary to tln> validity of any contract not made under Seal. It has been dellned as fo'lows ;— "A valual)!o considei'ation in the sense of tho law may consist, either In some right, interest, or profit or b'^nedt ac- crulnu to one party, or some forbearance, detriment, loss or responsibility nivoii, suffered, or utulertalieii by tlie oilier," The Courts will not Inquire Into tlio adequacy of tlie con- sideration. It is sulllclenl if it be valuable. It must be kcal. A aheque glvei. In payment of a bet is an iii.stance of an lilt'gal consideration. A last consldfratlon, i. e., one wliloU confers no present or future lienellt. Is not jjood. The consideration necessary to the validity of a contract must bo present or future. IV. // must in- (III net In tin- /die. ''.'See Sjnoiisls of Nova S>.Mlia l.iUM-. 384 COMMERCIAL LAW OF THE DOMINION. V. Its obkct must not be illegal.— The object may be illegal, because, 1. it is forbidden by Statute, or 2. It constitutes under *lie Common Law an indictable of- fence or civil wrong, or is contrary to public policy, (Anson, '"^tli cilitiuu, p. 'J.Ti.) Anotlier point Ui. connection with the Law of Contracts generally, which must be notice 1, is the effect on Contracts of Mistake, Misrepresentation, and Fraud. 1. Mistake— Aa a general rule, mistai^e has no effect what- ever in law. As mentioned above, however, a "conscnsua ad id' III'' is a necr-ssary requisite to a valid contract. If, there- fore, such "consensus" be prevented by mlstaKe, there can be no contract, or as it is generally expressed, the contract is void. Such a mistake as will prevent " conscnsua ad idem " may be :— 1. Mistake as to the person with whom the contract is made. In this case, nowever, it must be shewn that the per- soimlty of the party contracted with was an element in the contract. 2. Mistake as to the subject matter. Such a mistake may arise when there are two things answering the same descrip- tion, and each i>arty is conti-acting witli reference to a dif- icrent thing. 3. Mistake as to the nature of the contract. As when a man iinlorsed a l>ill of exchanKO, thinking It was a guarantee. When parties have come to a real agreement, but by mis- take have wrongly expressed the agreement come to, the do- cument may be rectified so as to conform to the real agrec- nu-nt. Money paid under a mistake of fact may be recovered. Except in some such cases as those above mentioned, the general rule will prevail that if a man express himself In such a manner as to induce another party to think he meant one thing, ho cannot afterwards be heard to say that ho meant another, though he shew that his having so expressed himself was the result of a bona fldc mlstalte. The misiake must lio ono of fac*, not of la.v, but tli::^ means the general law, and mistake as to a private right may bo given effect to. II. .l//.sr(/)r('S(')i((i/io)i.— Mlsroprtstntation as distinguished from I'i'iiud, Is an innocent mis-siatemont of facts not known to be false, or a non-disclosura of facts not Intended to deceive. Anson. As (iiatii.guislu'd from wiirranty conditicn, etc.. It is a statement wiiich is. an Inducement to enter Into a contract, r.ot a term in the contract itself. 'I'ho Courts of Common Law held that a misrepresentation cotild have no legal effect unless it were part of the contract. Tluy, however, when a misrepresentation went to tlie root of tlio contract, KentTiiKy tried to import it into the terms of the contract. CourlM Hi" Iviuliv, on llio oilier liaiid, treated a material misrepresentation aa a ground for the recession of a contract. coMMUitviAL 7>:nr of the dominwx. 386 In those provinces, therefore, In which the rules of Equity prevail, misrepresentation may be a ground for rescinding a contract. III. Fraud —Fraud is deflneu !by Anson to be a falso re- presentation of fact, made with knowledge of Its fal.sehood, or recklestjly, without belief In its truth with the intention that it should be acted upon by the complaining party, and actu- ally inducing him to act on it. A person who has been induced to enter Into a contract by fraud may either affirm the contract, and sue for any dam- ages he may have sustained by non-fulfllment of its terms, or he may have the contract rescinded, or may set up tho fraud as a defence to an action on the contract. He may also have an action in tort for damages apart from the contract. For the law of contract generally, see the following works, 'Pollock, Anson, Leake and Addison. Sale of Good«.— The class of contract with which the Mercantile Law is principally concerned is that class which relates to personal property, generally known as Contracts of Bale of Goods. In England the law as to sales of goods, has been codi- fied, and the English code has been substantially adopted by the Legislatun s of Manitoba and British Columbia, and the Northwest 'l"i i ritorlea. Speaking generally, these acts are simply declaratory, and • most of their provisions will be found to be a correct statement of the law In the other provinces. Contracts of Sale of Goods may be divided into:— 1. Executory Contracts or agreements for sale. 2. Contracts of Bargain and Sale. The former being those in which property does not pass till some future time, and the latter those in which the pro- perty passes Immediately— which operate as conveyances, in addition to l>eing contracts. Possession and property are terms which should be care- fully distinguished. The possession may pass without the pro- perty passing, and the property may pass without the posses- sion passing. 1. Change of property without the possession passing. In Ontario, by virtue of R. S. O., cap. 148, Bills of Sales Act, every sale not accompanied by Immediate di^llvery, and fol- lowed by actual and continued change of possession, shall be, by 1)111 of sale, to bo rfglstorod In aoconlanro with the pro- vL«lons of the Act. I'rovlsloiis substantially the same arc to bo found in the New Bi'unswick Statutes, GO Vict., cap. B, In the Manitoba Sta- tutes, R. S. M. (1891), cap. 10, In C. Ordlnanices, 1898, cap. 43, N. \V. T. and In U. .'j. B. C. o«p. 32. The provision in Nova Scotia Is contained In R. S. N. S. cap. 92. 2. Change of iiosaesglon without property passing. If there is change of possession without the prnprrtii passing, then in Ontario tho provisions contained In R. S. O. 118, fgc. 41. nnd R. S. O. HO, must bo complied with In order that the 1(1 I . V T 386 COMMEh'VIAL LAW OF THE DOMINION. vendor may preserve his lien against creditors, and subse- quent purchasers or mortgagees lor valuf. Sec. 1 or K. a. O., c. 149, provides that In such case, receipt notes, lien receipts, and orders for chattels given by the bailees of chattels, shall only be valid against subsequent pur- chasers or mortgages In good faith without notlc- for valu- able consideration, In the case of manufactured goods or chat- tels, when the name and address of the manufacturer, bailor or vendor is at the time possession Is given, painted, printed, stamped, engraved, or otherwise plainly attached to the chat- tel, and the bailment must also be evidenced in writing. This provision does not apply to household furniture other than musical Instruments, nor does it apply when the receipt, note, or other instrument is filed as required by the Act with- in ten days from execution. K. S. O. cap. 148, sec. 41, provides that in the case of an agreement for the sale or transfer of merchandise of any kmd, to a trader or other person for the purpose of re-sale by him in the course of business, when the agreement provides that the possession shall pass without the ownership, such sale shall, as against creditors, purchasers, or mortgagees be deemed absolute unless the agreement be in writing, signed by the parties or their agents, and such writing be filed as required by the Act. And even then such agreement shaP. not affect purchasers from the trader or other person in the usual course of his business. The Sales of Goods Act, B. C, sect. 25, contolns a provi- sion that receipt notes, etc., In such case must be filed, and no such conditional sale shall he valid unless evidenced In writing, signed by the bailee or conditional purchaser or his agent. in Nova Scotia, R. S. N. S., 93, s. 3, provides that every agreement for sale of goods and a hiring and lease where there Is change of possession without property passing, must be In writing, etc., with affidavit setting forth contract, and be re- gistered as a bill of saJe or chattel mortgage. In N. B., by cap. 12, 62 Vic. (1899), provisions similar to those in force Im Ontario are enaoted. It is often tlllHcuIt to determine the time when the pro- perty in the goods passes. The general rule Is, that It is de- termined by the Inteiftlon of the parties, but when such inten- tion cnnnot be ascertained, the following rules will govern. 1. In the case of specific goods to which nothing Is re- quired to be done before delivery, the property passes at the time of the contract, whether the possession Is changed or not, or whether the time for payment has arrived or not. 2. In the case of specific goods, when the seller Is bound to do something to the goods, In order to make them properly deliverable, the property w"l not pass till such things are done. 3. When there is a contract for the sale of specific goods In a deliverable state, but the seller Is bound to weigh, measure, test, or do some other act or thing, In ordf^r to ascertnin the price, the property does not pass till such act Is done, and thi: jnirnhnser has notice of It. (If, however, the goods have to be weighed or measured by VOMM/J/iVIAL LAW OF THtJ DOMIMOV. 387 the buyer, solely for his own satisfaction, or If the seller have left the matter to be determined by the buyer, the property passes.) 4. When goods are unascertained or not yet made, the pro- perty passes when some act has been done by one party in pursuance of the terms of the contract, showing' an intention to appropriate certain specific goods to the contract, and such act lias been adopted by the other party. ii. When goods have been delivered to the buyer on approval, or sale and return, the property passes to the buyer when he siBnifies his approval or retain:; the goods without giving no- tice of rejection, either beyond the time fixed for return, or If there is no time fl7,:ed, beyond a reasonable time. n. Delivery will, as a rule, pass the property, unless there is a stipulation to the contrary, and as against creditors, etc., (in some of the provinces, as we have seen a1x>ve), unless cer- tain statutory provisions have been complied with. As soon as the property passes, the goods are at the risk of the puT'chaser, and It would seem that even when the pro- perty had not passed, but the purchaser had been put In pos- , session, the goods would be at the risk of the purchaser. Wlif-n the vendor by his own act stipulates that the pro- perty shall remain in him until payment, as In the case of his instructing his agent not to hand over the bill of lading until payment of draft, the property remains at his risk, and if the goods are destroyed between acceptance and maturity of the draft, he must bear the loss. The vendee, in the absence of any stipulation to the contrary, has no right to possession until Payment, unless the sale be on credit, when he is en- titled to immediate delivery. The contract of sale may be either by parol or in writing, but by 17th sec. of Statutes of Frauds or re-enactmenta If the goods are of the value of $10.00, or (in some of tlie provinces- J.'jO.OO) or upwards, the contract will not be enforclble by action, unless the buyer accepts part, and actually re- ceives the same, or gives something In earnest to bind the bargain, or in part payment, or unless there be some me- morandum of the contract In writing, signed by the party to be charged or his agent. 'I'hi.s provision applies, notwltstandlng that the goods are to be delivered at some future date, or are not at the time of the contract actually made. The note or memorandum In writing must show the names or descriptions of the parties, the terms of the contract, and price, if any price has been agreed upon. Tf not, it will be presumed that a reasonable price was agreed upon. It may be contained In several separate documents, pro- vided there is something to connect the one with the other. It Tias been recently held, for instance, that It Is sufficient If the name of one of the parties be only contained on the on- veloiie. Evidence of latent ambiguity may bo given to con- nect such separate documents. The memorandum must be signed by the party to be charged, or his agent duly authorized; the agent need not be author- ized by writing. The signature need not necessarily be at the end of the document, it may be In the beginning:, or In the body if It ap- 388 VOMMKRVIAL LAW OF THE DOMISION. pears to have been Intended as a recognition of the contract. It may be by printing or stamping; the name or by ihe mark or initials if they be Intended as a signature. A letter repudiating the contract may be a suftlclent note or memoran- dum undtr tiie Statute. An auctioneer is an agent for both parties for the purpose of the Statute. A brolier, too, is generally coiitidert'U the agent of both parties. In most of the Frovinces the above Statute has been re- enacted or extended, lieprescntation, condlt inii , warraiily.—A. representation is a state- ment made prior to the contract by one of the i)arties to an- other. It does not affect the contract, and the fact of its being untrue gives no cause for action unless it were made fraudulently. If, however, it be made recl^lessly, without the party making it taking the trouble to ascertain whether It were true or false, it will be held to have been made fraudu- lently. Hut see the different rules in Common Law and ISauity, at p. 4l!S klllllil. A condition subsequent is a condition upon the happening of which the parties will be relieved from some or all of the duties under the contract. C. O. N.W.T.. 1898, ca,p. 44 provides that whenever on sale or bailment of goods of the value of $15, or over, it is agreed that property shall remain in bailor or vendor; such sale or bailment to be dn writing and regisitered. A condition concurrent is a condition which must be per formed concurrenlb' witii some other condition or term of the contract. A condition precedent is one which it is imperative should be performed before the contract can be enforced by the party who is to perform the condition, or, as tt is sometimes ex- pressed, it is a condition upon which the contract is dependent. Non-performance of it will give a right to rescind. It Is often difficult to distinguish between such a condi- tion and a condition which is independent or merely collateral. This latter Is generally called a warranty. It must form part of the contract or it will V»e a mere representation on which no action will lie. But see Common Law and Equity rule, Hiipra p. 4]S. The breach of a warranty gives a right to an action for damages but not to rescission of tlie contract. A warranty giv- en subsequent to the contract will be void unless there be some new consideration. A warranty may be expressed or implied. The following warranties will bo Implied in the sale of ffoods:— (A) Title.— In an executory contract of saJo there is an im- plied warranty that the vendor has title to the goods which he promises to sell. In the sale of an ascertained specific chattel, It is doubtful whether the mere act of sale simply transfers such title as the vendor has, or whether thf re Is an implied warranty that an absolute title will be transferred, but if the vendor asserts, either by his word.s or by his conduct, that he is the owner, there is an Implied warranty. The trend \ COMMKltClAL LAW OF THE DOMINION. 389 [ of the recent authorities is to imply a warranty unless the circuinstanc'.s are such as to show that the vendor merely in- tended to sell only such property as he may have. American authorities distinguish between the cases when a party is in possession and when not. The rule that a mere sale carries a warranty of title Is adopted in the English, British Columbia, Manitoba and N. W. T. Acts. (B) Quality.— As a rule, no warranty as to quality will be implied. \\l)en tlie sale Is of an existing chattel which may be in- spected by the buyer, there is no warranty of quality implied. When there is a sale by sample there is an implied war- ranty that the bulk will correspond to the sample, and that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, and if the sale be by a manufac- turer, there is an implied warranty that the sample is free from any latent defect. When a known, described and dt-flned thing is ordered of a manufacturer, though the purchaser slates that he requires it for a oarticular purpose, there Is no Implied warranty that it will be fit for that purpose, unless the circumstances are such that the purchaser necessarily trusts to the judgment or skill of the manufacturer or dealer, in wliich case there will bo an implied warranty that the article produced by the manufac- turer, or dealt in by the dealer, will be rea.sonably fit for the purpcs • to which tlie buyer states it is to be applied. And wlien a manufacturer or other jierson whose business it is to supply goods of a particular description undertakes to BuDply such goods, and the vendor has had no opportunity of inspecting them, there is an implied warranty that he shall supply a merchantable article. A warranty may be Implied by the usage of trade In the case of the sale of goods by description, it is a con- dition precedent and not a warranty that the goods shall cor- respond with the description, and if they do not do so, the contract may be rescinded, and the buyer, if he have paid his money, may recover it back as on a consideration which hfliS wholly failed. When there is a warranty as to quality, and the properiy has not passed, if the warranty is broken the purchaser may reject the goods and rescind the contract, unless ho has ac- cepted them. When the property has passed or the purchaser has ac- cepted, he cannot reject tl'.e goods, but in an action by tiie vendor for the price, he may offset the breach of warranty agrainst the price, or he may bring an action for damages for the i'reach of warranty. If he have offset the broach In an action for the orico, this would not prevent him from maintaining an action for special damage. Dflivrry.—Aa pointed out Viy Benjamin, 4th Ed., pp. 677 rt arq., the term delivery is used in several different senses, but it will be sufficient here to confine our attention to deliv- ery in performance of the contract. Delivery and payment are as a rule concurrent conditions. H^^n 390 COMMKltClAL LAW OF THE DOMINWX. but If the sale be on credit the buyer is entitled to possession before payment. In such case the property ia vested in him and he has the right to possession. This right to possession may, however, be defeated on his becoming insolvent before the actual delivery to him, the vendor being entitled to stop the goods in transition, if they have been despatched, or to re- fuse to give them up till payment, if he have not parted with them. In the absence of contrary agreement express or implied, the vendor is not bound to send or carry the goods to the buyer. It will be a sufflc'ent delivery if they be left for the buyer at the seller's place of business, so that the buyer may remove them without obstruction. If, however, tiie goods are specific goods, and are known to the parties to be at some other place at the time the contract is mado, .sncli ijlacc? wii; lie tiio pla^-e of delivery. "If the seller have no place of business, then his residence will be the place of delivery. See Imp. B. C. and Man. Acts, which it is sub- mitted contain a correct statement of the Canadian Law, though Benjamin says that, in the absence of stipulation, the place at which goods are at the time of sale Is the place of delivery. "Delivery F. O. B. 'Free en board,' means that the .seller is to ptit the goods on board at his own expense, on account of the person for whom they are shipped, and the goods are at the risk of the buj'er. from the time when they are so put on board." When the goods are in the possession of a third person, there Is no delivery till that third person attorns or becomes the bailee of the purchaser, but see below as to effect of en- dorsement of bill of lading, or dr ,.ument having similar effect. When under the contract the seller is bound to send the goods, and nothing is said as to time of delivery, he must send tliem within a reasonable time. When the time and place of delivery have been fixed, the purchaser is not bound to stay at such place to receive the tender after reasonable business L'ours, but If the vendor find him thfre, a tender of delivery at any time before nii(inight on the last day will he a good tender, provided there be a suttlclent time for conveniently weighing the goods or doing other such act necessary to complete the delivery. Delivery must be of the exact amount contracted for. It a less quantity is delivered, the purchaser may return it, and so he can if more is sent, or If the goods purcliased are mixed with goods of a different description, because he is not bound to separate thoAe he has bought from the others, thouph he may do so if he wish, returning the excess. If, however, In any of the above cases he wants to keep the goods, he must pay for them at the current price. The expression, " more or less," or some similar expression Is often used, and this entitles the vendor to a reasonable variation from the amount specified in the contract. When the vendor Is bound to send the goods to the purchaser it is a good delivery if he deliver them to a common carrier, or to one designated by the purchaser, unless, of course, the vendor have agreed to deliver them at a distant ., K ' COMMERCIAL LAW OF '^hE DOMISIoy. 391 placo, when he would be responsible for them till they had been delivered by the carrier. But, even in this latter case, he Is not liable for deterioration necessarily incident to the tran- sit. The vendor must make a reasonable contract with the carrier, and take the usi'al precautions to ensure a safe deliv- ery, having regard to the circumstances of the case. The purchaser must be afforded an opportunity to inspect the goods before he is bound to accept them on delivery being tendered. A purchaser will be deemed to have accepted goods when he has done any act which he would have no right to do if he were not owner, such as pawning them, or If he do not, Within a reasonable time after receiving them, notify the vendor that he rejects them. He need not return them to the vendor. Dcliviru by Iiiatalmcnta.—'Purcha.ser need not accept de- livery by instalments unless the contract provide for such delivery. When the contract is for delivery by instalments, a question often arises whether, when there is a failure to de- liver or par for any instalment or any part of an instalment, the party aggrieved has a right to rescind the contract, or has only an action for damages. Whetlier he has or not must depend on whether the delivery of the instalments regularly, or the payment on such delivery Is a condition precedent or not. Vendob's Lien, Ktc— When the property has not passed the vendor cannot be said to have a lien or the right of stoppage In transitu, because he has the property itself in the goods, and may on default re-sell or deal with them in any Other way he may choose, and If he have parted with the possession he may on default resume It. When there was a provision that the property should not pass till payment in full, and that the vendor would be entitled to resume posses.sion on default, it wa.s held by the Court of Appeal for Ontario that a re-sale by the vendor re- scinded the contract, and the vendor could not sue for the price crediting the amount oJ the re-sale, and It was further held that this Is so even if there be an express reservation of the right to re-.sell unless there Is a provision that the pur- chase money is to be applied "pro tanto" on what Is due on the contract, and the purchaser Is to remain liable for the differ- ence. When, however, the property in the goods has passed, a re-sale will not rescind the contract, tliough it may Rive the purchaser a right to sue for conversion. But, if there be an express reservation of the right to re-sell, it would seem that, even where the property has passed, a re-sale will rescind tno contract though the exercise of the right of lien or stoppage will not. Wbether the property has passed or not, vendor may. If he has delivered part, refuse to deliver the remainder. If the property has passed and the vendor ha.'^ parted with possession he loses his lien. If he has not parted with possession he still has his Hen though the property has passed. If the goods are in transit he can exercise his right of stop- page in transitu, though the property has passed. 1 1 392 COMMERCIAL LAW OF THE DOMINION. Transit Is at an end when the purchaser has obtained poa> session of the goods. If the vendor sells on credit he has waived his lien thoujjh the goods are left in his possession, but If the purchaser be- come bankrupt before the vendor has parted with the actual possession, his lien revives even though the period of credit has not expired, or if he has not parted with the actual posses- sion and the period of credit has expired, his lien revives. It makes no difference that the purchaser has sold to a third party, unless a bill of lading, or in Pome Provinces a do- cument having a like effect, has been transferred to the third party, or the vendor has been estopped from disputing his title. In England it haa be n enacted (52 and 53 Vict., cap. 45, sec. 10) that when any "document of title has been lawfully en- dorsed, or otherwise transferred to such third person, such en- dorsement or transfer has the .---ame effect of defeating the vendor's lien or "right of stoppage in transitu" as the transfer of a bill of lading has for defeating the right of stoppage In transitu. The Statutes of British Columbia have the same provision. R. S. B. C. cap. 4, sect. 11. The provision contained In 59 Vict., csp. 25, sect. 44, Man., R. S. B. C. 1G9, sect. 57, and In the Eng. Aot, 56 and 67, cap. 71, sect. 47, although worded differently, has the same effect. Document of title is defined to be any bill of lading, dock warrant, warehouse keeper's certificate and warrant, or order for the delivery of goods, and any other document used in the ordinary course of business, as proof cf the possession or con- trol of goods or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented. This deiinition is very much the same as in the Ontario Factors' Act, R. S. O. 150, but there is no provision in the Ont. Statutes corresponding with the above, except those con- tainetl in R. S. O., chap. 145. By sect. 7 of that Act it is provided that certain documents, (cove receipts, bills of lading, specifications of timber, etc.. See Act), may by endorsement be transferred to any private person as collateral security for any debt due to him, and be- ing so t ndorsed shall vest in him from the date of the endorse- ment all the right and title of the endorser to or in the goods represented by such document, subject to the endorsers right to have the same re-transferred if the debt is paid. The expression "private party" is explained by the fact that the section originally applied to banks, and the words "private parties" were used in contradistinction to "bank." The pro- visions of this section are contained in a modified form in the present Bank Act Section 8 of the same Act extends the same powers of en- dorsement to cases when persons specified in the preceding section are owners of the goods, or entitled to receive them otherwise than in the capacity of cove keeper, etc. This section was passed because it had been held that any of the persons specified in section 7 must, in order to come within its provisions, have been a bailee of the goods, and not himself the owner. The Bank Act does not contain a cor- responding section. ('0\l\li:i{(l.\L LAW OF THE DOMIXIOX. 393 Section 11 provides thai:— "All advances made on tiie aecur- Ity of any such cove receipt, bill of lading, specification receipt, acicn wledgment or certificate as aforesaid, shall give and be lield to give to the person making the advances a claim for the re-payment of such advances on the cereal grains, goods, wares or merchandise tlierein mentioned prior to, and by prefertnce over, the claim of any unpaid vendor or other creditor save and except claims for wages of labour performed in making and transporting' such timber, boards, deals, staves, or other lumber." Kxcept as above modified, the old Common Law rule which enables the buyer, if the seller 'have wrong'fully resold the goods, to foMow them into ihe hands of an innocent purchaser, is still in force. Principal and Agent-— -\n asent may a.s a rule l)e ap- pointed without any special formality. The mere fact that a man by his conduct recognizes another as his agent is sufflcient to constitute him such. In the following cases, however, some formality is generally required. 1. An agent appointed for any of the purposes specified in the First, Second or Third Sections of the Statute of Fraudo, must be aouolnted in writing. 2. An agent appointed to execute a deed must be appointed by deed. 3. A person aj)pointed an agent to a corporation other than a trading corporation must in general be appointed by deed. The v.-'-iting required by the 4th and 17th SecMons of the Statute of Frauds may be signed by an agent duly author- ized, but he need not be authorized or appointed by writing. An intent, though unable to make a contract which will bind liimself, may yet act for a principal, ar'l bind his principal. An agent may n^t . nploy sub-agents unless it is custo.-nary In the ordinary course of trade, or un'.cas the circumstances render it reasonable that he should do so. Partners are agents for each otlier, and the act of one will bind the others if he be acting within the scope of the partner's business. ' Agents may be special agents, general agents, or universal agents. Tlie last is not necessary to notice here. iSprcial mill yrncrul ngnitx. ((() A special agent is an agent who is given authority to do some specified act or set of acts, and the principal will not he bound if he exceed his authority. ('() A general agent Is .an agent authorized to do all acts necessary for the carrying on of some particular trade, busi- ness, or employment; or who, from the conduct of the prin- cipal, must be taken to be so authorized. The principal will be bound even if the agent exceed his authority, provided the agent is acting within the ordinary scope of his employment, and provided the parties dealing with him were dealing with him as general agent, and had no notice that he was exceed- ing his authority. It may, therefore, je stated generally that a purchaser buying goods from an agent, or a person advancing money on the security of goods, must, in order to bind the principal and 834 COMMERCIAL LAW OF THE DOMIMOX. thus acquire a good title to the gotxl'^, deal with a specia; agent actlr. strictly v.'Ithin the scope of his authority, or a genf-ral apent acting in the ordinary cour»e of his business. As a great deal of business is done through agents., such as factors or commission merehanis, much inconvenler.fe was caused to the mercantile world by this rule of the Common Law, and the Imperial Legislature has at different times passed Acts ])rotectl>is innocent third parties in dealing Willi agents to whom goods were entrusted. The latest of these is 52 and 53 Vict., c. 45. The effect of the Statutory provisions will be found set out in Smitli's M(Ti\ii'tilo Law, 10th ed., pp. 145 ft arq. An Act practlcal'.y identical with the English Act has hoen passed lii Hritlsli Columbia. R. S. li.C, cai). 4. Tlie provisions of the Ontario Act seem to be substantially the .same as ouf cvf the ear'.i'r Imperial Acts, 5 and (' Vict., cap. 39, the 'ater English legislation not having been adopted. The present law in Ontario is the same as that which waa in force in England when the cases of Johnson v. Credit Lyon- als, 3 C. P D., and Fuentes v. Montis, L. R., 3 t.'. r. 'S,S, were decided, and a third party dealing with an agent whose au- thority had been revoked would probably not l)o protected by the Ontario Act. It has been held thai the Ontario A'Tt applii'S only to persons Whose employment corresponds to some known class of com- r'erclal agent, such as the class of factors or oommlssion mer- chants, and does not api>ly to nen servants or caretakers, or to one who has possession of goods for carriage, safe custodj , or other such purpce, or to a person not being a regult'.r agent to wl^om an article is sent for some specific rurpose, even t'lough that purpose be to effect a particular sale. Manitoba Sales of CJoods Act, .^ec. 24, contr,ina the same pro- vision as 'h(> English Eaotors" Ac>t, .")2 and Ui Vi<'.. cap. 45, sees. S and 0. Subject to any statutory cnaornT'nt of this I'rovinoe.the Fac'^ors' Acts passed up to and including the 5 and G Vic, c. 39, and in particular therein. See Vendors' IJimi, infra. I'liiifitiiil (lifiili)Ki il or iiiiiliii losctl. ((/) If an agent is known lo be an agent, and his prlni'lpal Is disclosed, the eontraet lu made with the principal. It oftenj happens that an agent, when making - contract, does not disclose the name of his prlncHal, or does not even disclose that Iv.-, Is acting as agent. In either case the party with whom be Is dealing may cle.'t as lo whether he will hold the principal or agent, unless the state of accounts be- tween principal or agent would make It unjust that the prin- cipal should be bound— If, for Instance, the principal ha? paid the agent, and the agent is bankrupt— provliled (it wotild seem) that such payment or settling accounts between principal and agent may be felrly attributable to the laches or other con- duct of the party dealing with the agent. When .a person represents himself to be an agent, but Is not In fact an agent, ami has nc prlni'lpal, he will be liable either on the contract as principal or on an action for dam- ages for his misrepresentation, unless ho had had at o:it lime COMMERCIAL LAW OF THE D0M1NI0^\ :m authority, and' it had been determined without its being possible for him to know of such determination. When in ag-ent contracts for a foreign principal, the agent will be pihna facie liable. It should be remembered that the above rules are all -sub- ject to the broader rule that it is the Intention of the parties which determines who is to be liable, but in the absence of OAidence of intention or usages of trade the above rules will govern. Notice to the agent, or Isnowledge of the agent, ia in gen- eral notice to or knowledge by the principal. The principal will also be liable for torts or wrongs com- n..cted by his agent in the course of his employment. The authority of an agent may, as a rjlc, bo revoked at any time, and death generally revokes it. If, liowevcr, the authority has been partly executed, and cannot be withdrawn without Injuring the agent, or if the authority be coupled with an interest or given for valuable consideration, U cannot be revoked at will, though It would seem that evon in these cases It will be revoked by death. By K. S. O. (IVJT), o. lit!, s.s. 1-2, and K. S. Man., c. IK!, ss. 44 aiid -15, it is enacted tli.at: When It is provided by power of attorney that it shall not be revolted by death of person executing, such power shall be valid and effectual. Independently of «Mch power, every pay- ment made, and any act done under .- power of attornc-y or agency, express or inipliei!, after death or revocation, rfliali, a.s respects every person who did not know of the fact of su eatli or revocation, be ^•alid. The British Columbia Sta- tute& have not this provision, but they provide that power of attorney shall be valid till a declaration of the death, banlt- ruptcy, Insolvency or (if a female) marriage of the principal of any such power shall be filed. The amount of an agent's commission is regulated either by express coi.a'act, implied contract, or usage of trade. In the case of implied contract if there be no U!on any lending or contract \'ithouc specialty, and all actions of debt for ar- rearages of rent shall be sued within 6 years next after the cause of such action or suit, and not after." In Ontario, H. S. O., cap. Ill, section 2, provides how far this 9t«rtU'te shall be applicable to that province R. 3. O. cap. 72, .section 2, provides that all actions ol* «"- count or for not accounting, or for such accounts as concern tho trade of merchandise between merchant and merchant, their factors and servants, shall be brought within 6 years, and the time will not be Interrupted by reason only of some matter or claim comprised in tho same account having arisen within the 6 years. This same provision is contained In the Statute.^ of 396 COMMERCIAL LAW OF THE DOMINION. British Columbia, R.S.B.C. cap. 123, sect. 4, and also In the Sta- tutes of Nova Scotia, R. S. N. S. cap. 112, sect. 6. The New Brunswick Statute has no corresponding provision, but Consolidated Statutes N. B., cap. 85, after certain provi- sions as to actions on judgments, recognizances, bonds or other specialties, and for actions for penalties under a Statute, and for assault, battery, wounding, Imprisonments or words, enacts that no other action shall be commenced, but within 6 years. In Manitoba, there Is nc Statute relating to limitation of personal actions, but as the law in force In England on the 15th of July, 1S70, so far as apiilicablc, Is In force in Manitoba, ihe 21 Jao. I., cap. 1(1, above reiferred to, would be in force there. It is further provided by R. S. O. cap. 72, that if a person Is under disability by reason of being a minor or uon compos Dicntix, the time begins to run from the time the disability is removed. The residence of the plaintiff out of the province will noL constitute a disability; if, however, the defendant is out of the province at the time the right of action accrues, the Statute will run from the time of his return. In the case of joint dobtors, the absence of one from the province will not stop the Statute running against the other or others, hut the recover.v of judgment against those within the jurisdiction will not be a bar to an action against the other on his return. Acknowledgment or part payment will take the case out of the tJtfitute, and the time will commence to run afresh from the date of such part payment or acknowledgment. By }{. S. O., cap. Hn, soct. 1, in the chhp of an action for account, and upon the case other than such as concern the trade of nierchandlse between merchant and merchant, their factors and servants on simple contract, or of debt grounded upon any lending or contract without specialty, and of debt for arrears of rent, the acknowledgrment must be In writing, and may be signed either by the party chargeable, or his agent duly authorized. In the rase of two joint ooiitraclors, acknowledgments by one will not remove the bar as to the other. No endorsement made on a l)iil or note by or on behalf of tlie party to whom the payment has been made ahall be deemed su tlcient to take the debt out of tho Statute. Similar provisions as to disability, residence of the defendant out of the province, joint contractors, i nd acknowledgment or part payment. Including the provision as to endorsement on a bill or note, are contained In the Statutes of British Columbia, R. S. 1!. (\, cap. 12;i. Tlioso (iilTeronccs may, however, be noted. The acknowledgment In writing which n.ay be signed by the party or his agent, extends to all eases cf dedit, or upon the case, founded on any simple contract, and is not limited as in R. *S. O. cap. 14(>, sect. 1, above set out. Tne same remarks apply to New Brunswick Con. Statutes, N. H., cap. Sf), except that there is no provision that the ao- knowledgtment In writing may be signed by an agent, and no provision as ti action against one Joint contractor when th« other Is out the province. The Ontai Statute Is the only one which has the pro. COMMEPVIAL LAW OF Till-: DOM 1\ ION. 397 vision that residence of tlie plaintiff out of the province will not constitute a disability, but it is presumed the same rule applies in the otlier provinces. (The practical result is that in all the above mentioned pro- vinces, an ordinary debt is barred within G >f.'ars, unless It is taken out of the Statute, by part payment, or an acknowledg- ment In writing.) Interest.— By sec. 91 of the U. N. A. Act, interest is one of the things to which the exclusive legislative authority of the Dominion extends. liy U. S. C, c. 127. section 1;— Any person may stipulate for any rate of interest which is agreed upon. Section 2:— When no rate is agreed upon or llxed by law, the rate shall be 6 p.c, per annum. The other sections of the Act still in force relate to in- terest upon mortgages. The act orig'nally contained sections making special provisions for the provinces of Ontario, Quebec, Nevr Brunswick, Nova Scotia and Prince Edward Island; these, however, have been repealed by 5o Vict., cap. 34, section a (Uoni.). One of the effects of this amendment !s to abolish the provi- sions as to usury which were formerly in force in some of the provinces. The Act has been furtl: :rr amonde-i. by CO ami 01 Vict., cap. S (Dom.). The effect of this amendment Is to make it compulsory to show the rate of interest per annum on the face of the In- Instrument; if this is not dene, but the rate fixed at so much per day, week, month, etc., only 6 p.c. per annum can be recovered. Any excess of Interest over 6 p.c. per annum paid on any agreement which does not comply with the above provision mny he recovered back. ThlH Act doe.^ not apply to inortgaKca on real estate. Another amendment Is contained in 57 and 5? Vict., cap. 22, whlcl; applies, however, to Uritish Columbia only, and deals with Interest on judgment debts. It has 1)0011 laid down by some of the auttu)rllte.s thai, apart from statute. Interest cannot be allowed by way of damages, unless it bo stipulated for in the contract. It Is submitted, however, that Interest may be aHowed In the way of damages whenever payment of a just debt has been withheld. 'In Ontario, by II. S. O. cap. 51, sections. 113 and 114, It is enacted that interest shall be payable In all cases, In which it Is now payable by law, or In which It has been usual for a jury to allow It. Also, that it may bo allowed upon any debt, or sum covtain, pay.-'lile by virtue of a written Instrument at a certain lime, from th time when the debt or sum became payable, l^ imy- able otherwise than by a written Instrument, from the time that a demand of payment Is made In writing. Informing the debtor that Interest will be claimed from that date. These provisions were taken from tho Statute of Upper t anaila, 7 William IV, cup. 3, sec. 20, which In turn wa.H co- pied from tho Imperial Act, 3 and 4 William IV, cap. 42, sec- lions 2S and 29. 3^8 VOMMEIiCIAL LAW OF THE DOMINION. These provisions do not appear to be contained In the Btatutos of the other Provinces, but will presumably be In force in the Provinces in which the English law was adopted sul>seauent to 7 William IV., cap. 3. Partnership-— I'arinership is tli'flnecl in the Manitoba Code ari;— Tlie relation which suljsists between uarlies carrying on a Liusinesa in common, Willi a view to profit. But the relationship between any incorporated company or association is not a partnership. This definition will be found applicable to all the provinces, except that tlie British Columbia Act limits the exception to cctaln register ;>d companies and companies formed or incor- porated by or in pursuance of any Statutes, Leii-irs Patent or Koyal Chai'ter. It used to be thought that the fact of sharing in profits would in itself constitute a partnership, but the rule is now settled that, though it is o\idence of a partnership, it i.s not conclusive evidence. This rule was settled liy decisions of the Courts in Kngland, before the passing of the Partnership Act, and it has lieen adopted in that Act, and also in the Mani- toba a,nd British Columl>ia Acts, R. S. B. C, c. 150, and CO Vict. (Man.), rap. 21. Apart, however, from Statutory provisions the rule is us above stated, and is in force not only in Manitoba and British Columbia, but in all the other provinces. It is to lie found in sec. 2 of the English Act, sec. 3 of the British Columbia Act, and sec. 2 of the Manitoba Act. These sections provide, inUr uUa, that the .^sharing of gross returns will not of itself constitute a partnership, and that re- ceipt by a psrson of a share of the profits of a busine.ss is prim" fdcir evidence that he Is a partner in the business, but the receipt of such a share or of a payment contingent on or varying with the profits does not of itself mako him a partner in the business. The section tlien goes on to give the follow- ing particular Instances in which a person sharing in the profits is not necessarily a partner; the receipt liy a person of a debt or other liquidated amount liy instalments out of the accruing profits of a business; a contract for the remuneration of a servant by a share in the profits; the case of a widow or child of a deceased pai'tner receiving by way of annuity a share of proiits; the advance of money interest on which is to va.ry with the i>rollts (pro iiltd such contract in In writing :jignod by or on behfilf of the parties'); a person receiving profits i)y way of annuity In consideration of Palo of good will. In none of these cases Is the person receiving a share of the profits neces- sarily a partner. By sec. 3 of the Knglh^h Act, sec. 4 of the British Columbia Act, and sec. 3 of the Manitoba Act, it is provided that in the event of any per.son to whom money Iia.s lioen lent in the way above si)eciile(i or any irofits, becoming bankrupt, etc., the per.-on advancing tlio money or entitled to the annuity sliall not l>e entitled to recover anything till the claims of the other cre- ditors have been satisfied. The above provisions were originally contained In the Act known as Bovllls' Act, and as pointed out l)y Pollock, (ith Rd . p. 17, that act was an attempt to Introduce In a modified de- {JOMMERVIAL LAW OF THE DOMINION. 399 gree thj principles of iimited partnerships sucii as are recog- nized in this country. In this country, limited partnershias are fully recognized. In Ontario the provisions relating to I^imited Partnerships are contained in R. S. O. 151. By sec. 1 of that Act it is pro- vided thaf limited partnerships for the transa/ctlon of any mercantile, mechanical, manufaciuripg or other business within Ontario may be formed by two or mere persons, but partner- ships for banking, construction and Vvirlartnerships, the rule as to ordinary partnerships ap- plies also to this class. , It is suggested that this above-mentioned pro\ision in the Ontario, New Brunswick and Manitoba Acts was passed un- der a misconception of the law as to ordinary partnerships, and that the provision has through inadvertence, not been al- tered in the revisions. Pollock points out, in his 6th Ed., and it was also pointed out in the Judgments in Kendall «s. Hamilton, that it used to be thought before the decision of that case ihal by the Knglisli rule of equity, partnership debts were joint and sev- eral, and that mi-sconception may have become ciystallzed in these Acts. In all the provinces acts are in force providing- for the registration of co-partnerships. These acts make it compul.sory to register a declaration or certllicate showing the persons from time to time comprising any partnership for tralin'allty in number, to lllo a declaration showing the real circumstances of the case C021MEliVIAL LAW OF THE .loUlSWX. 40l The Nova Scotia Act contains the words "or other purpose*" after "trading; manufacturing or mining.'' The foUowingf general rules, taken principally from the aoove acts, will be found applicable in the otlur provinces. As stated at p. 422, if a general agein is acUiig within the apparent scope of his 'business, his principal will be bound by his fijcta. Every partnf^r s a general agent of the other partners for the purpose of the business of the partnership, and the general rules as to principaJ and agent api)ly, so that, if a partner Is acting within the apparent scope of the p:irtuer-^ ship business, the other partners will be Injund by his aots^ unless he has In fact no authcwity, and the person with wlionv he is dealing either has notire that he has no authority, or does not believe him to he a partner. , The acts by which a partner can bind the firm will depeadJ upon the nature of the business. Every partner will be deem- ed to have any power which is necessarily or usually incident to the exigencies of the business, and the exercise of any such power by one partner will bind the rest. Thus the acceptance ajid making of bills, notes, and other negotiable instruments, or borrowing money, are usual and necessary inciaents to a trading partnership, so that in tuch a partnership the acceptance by one partner of a bill or note will bind the others. If, however, the partnership were one to which these power* were not necessarily or usually incident, the other partners would not be bound by an Act of one unle.ss iie had express authority. Pollock, Gth Ed., i)age 20, gives a numli. r of exiiniples of Acts by wliicli one partner may bind the others, and see Lind- ley, tith Ed., page 140, ct ii(q. One partner has no implied authority to bind the other.s by deed. In order to do so he must liave express authority which must Itself be under seal. Just as a general anent cannot bind his principal if acting outside the scope of his usual business, so a partner cannot bind his co-i)artners by acts which are a.ppar''nlly not within the scope of the partnership Ijusiness, inless he is speeially authorized to do so. Thus a firm clieque niven by one partner hi satisfaction of a private debt will not hind the firm, unless he has express authority, or the other par* lers by their acta are estopped from denying his authority. Every partner is .iointly and sevei-ally liable where one partner acting wiihln the apparent scope of his authority, re- ceives money of a third party and misapplies It, or where the firm receives money of a third person in the ordinary course of its business, and it Is mis-applied by one of the l)artners. If a man holds himself out, or i)ermits himself to be held out as a partner, he will be estopped from denying the liabil- ity of a partner, but in the case of a partner dying, his estato will not bo held liable by reason only of the firm continuing to use his name. Pollock, in his fith Ed., says:— "It makes no difference even If the creditor knows of the existence of an agreement between tho apparotit partners that 2U I 402 COMMERCIAL LAW OF THE DOMINION. the party lending his name to the firm shall not have the rights. or Incur the liabilities of a partner." The Court of Appeal for Ontario has held, (in a case where a certificate had been tilled showing that there was only one partner) that where the creditor knows that the person lend- ing his name is not in fact a partner, there will be no es- toppel. A new partner does not necessarily become liable for debts contracted before he was a partner, nor doe.s a retiring part- ner necessarily cease to be liable for such debts. Novation is a contract of substituted liability. It arises in connection with iiartnei-shlps when the new firm has assumed the liability of the old firm, and the creditor has agreed lo accept tlie new as its debtors, and discharge the old one. Vf. Pollock, 6th Ed. It has been held by the Supreme Court that an agreement between an incoming and continuing partner, that the Incom- ing partner shall assume the liabilities of the business does not make the latter trustee of the former's property for the payment of his liabilities. A continuing guaranty given either to a firm or to a third person in respect of the transactions of a firm .Js revoked as to future transactions by any change in the constitution of a firm. IMo majority of partners can expel any partner unless a power to do so has been expressly conferred by the articles of partnership, or otherwise. A partx -rship is dissolved by the death or bankruptcy of any of the partners. If it has been entered into for a fixed term, it Is dissolved by the expli-ation of that term. If entered into for a single adventure or undertaking. It is ended by thp termination of that adventure or undertaking. If it is entered into for an undefined time, it is terminated by any partner giving to the others notice of his intention to dissolve. Common Carriers. 11 V J. S. DENISON, Barrlster-at-Law, TORONTO. Comiuon carriers.— This term is applied in law to certain persons or companies who undertake the duties of transporta- tion for hire, and by holding themselves out to the public as willing to undertake this duty, assume certain obligations as to the manner in which their duties are to be performed. The term is applied to carriers of goods, not passengers, and im- plies an fi.ptiial Muving of the property from one place to an- other. If, owlnfT to some fault of the sender or receiver, the carrier is imablo to begin this transportation or to complete It, or the goods remain undelivered at the end of their jour- COMMERCIAL LAW OF THE DOMINION. 403 ney, the liability becomes that of warehouseman, and is not so great. If these conditions are not present then the full liability as carrier attaches, and In the absence of statute or agreement to the contrary, Is as follows:— He must convey all goods offered which he expressly or Impliedly professes to carry, and which are not contraband or unusually dangerous, to the full extent of his carrying capacity, provided the fare oard, and must use due care and diligence to provide for safe keep- ing and punctual delivery, and will be liable for all damages or loss to goods so delivered to them, but are not liable for losses by lire, dangers of navigation, robbery, or irresistible force which happened without their actual fault or privity or that of their employees or agents, nor are they to be liable for robl)ery, theft, embezzlement, or the secreting of goods of great value (such as precious stones or securities), unless the value has been declared when delivered to them, and entered in the bill of lading or otherwise by writing. They are also liable for loss cir damage to personal baggage of passengers, the ex- tent of \\liich shall, until contradicted, be proved by a fctatu- tory declaration of the passenger, but the liability shall not exceed jr.uO.OO unless the value of any articles, such as precious stones or exceedingly valuable goods had been notified to the shipper before loss as before jirovided. (c) CavrUrs of calllr.— The Public Health Act of Manitob.i (R. S. M., cap. 5, sees. 45 to 47) provides that vessel., cars or other conveyances used in transporting cattle shall be dis- infected, swept, scrubbed and lime-washed, after any consign- ment of cattle has been unloaded. ((/) Cruelty to nn[malit.—T\\e Dominion Act (R. S. C, cap. 172, sec. S-13) provides as regards railways running from the COMMERCIAL LAW OF THE DOMINION. 405 States to Canada, or from one province to another, that cattle must be unloaded at least every 28 hours for a space of o hours to rest, water and feed them, unless prevented by unavoidable delays or other obstacles, and the cattle must be fed, watered and the cars cleaned out. Any railway disobeying this will be liable to a line of $100.00. ISills of Lading and shipping >tc('i/4s.— These are the terms generally applied to the acknowledgments given by a carrier "When receiving goods, and they contain the terms upon which the carrier agrees to receive and carry them. These terms are blnditig on all parties, subject. to the statutory restrictions al- ready mentioned. To some extent these bills or receipts be- come a symbol of property, and pass the ownership of goods from one to another, but with this carriers have nothing to do, pro\iiled they are careful to deliver tlie goods to the person designated in the bill. If deliverable only to the consignor, he alono can receive them unless he makes some other valid dis- position of the bill. If deliverable to consignee, he is the one to receive; if to be delivered to the order of any one, an en- dorsoment of the name of the person to whom tliey are con- signed will entitle the holders of the bill to receive the goods. If consigned to bearer, the holder of the bill is entitled to the goods on presentation and delivering up of the bill, and pay- ment of all proper charges. It Is Important that in all cases the bill or receipt be pro- duced and delivered up by the person claiming the goods, and Jf goods are delivered without rerjuiring this, and any one else shows himself, and proves the rightful holder, the carrier will be liable to him for the value of the goods. In Ontario, by R. S. O., cap. 145, sec. 5, sec. 3, no one giv- ing a bill of lading can deny afterwards that he has received the goods unless the owner was expressly notllled that they were not on hand. Hloppagc in Ininsitti. — Where goods are consigned by a ven- dor to a purchaser who has not paid for them, and before de- livery to the latter or before he has legally assigned the bill In good faith and for value, the purchaser fails, the vendor may require the carrier to hold the goods, and deliver to hln? on payment of all charges. WarrJiousf men. —This subject is closely allied to that of car- r'ers, hut the difference in liability is important, for a ware- houseman, is bound to use only ordinary care, and if by rea- son of fire, tempest, theft, or any other accidents, the goods of another are damaged without any negligence or wrong-do- ing on his own or his servants' part, he is not liable. The dis- tinction then between this liability and that of the carrier is that the carrier is liable though not negligent, while the ware- houseman who merely stores goods is not liable if he is not negligent, and has not done wrong. When goods have been properly conveyed to their destination, and through some fault of the sender or consignee are not taken away or accept- ed, the carrier then becomes a warehouseman, and is subject to the lesser liability only. Warehousemen often issue ware- house receipts, and these pass from hand to hand, either by. delivery or endorsement, according to whether the goods 'are il I" lit ii i- 400 COMMERCIAL LAW OF THE DOMINION. held for the order of the owner or on receipt transferable to bearer. The goods can only be s^ifely delivered upon presen- tation of the receipt properly endorsed. If payable to order, the Bank Act has certain special provisions gpovernlnR- these documents. (See Banks and Banking for a statement of them.) In Ontario by R. S. O., cap. 145, sec. 6, 7, and 8), It is provided that a warehouse receipt may be transferred by endorsement by the owner by way of security to any private person, and the right to them vests In the ti-ansferee, who may deal with, and sell the goods if the debt Is not paid, subject, however, to the claim of the transferor to have the receipt for the goods re-delivered to him, on paying the debt^.. but (except in the case of lumber, which may be heid by the warehousemen for 12 months), no sucli goods may be held in pledge for more than 6 months. The debt must also be contracted when the receipt is transferred, and if any sale is made, 10 days' notice by atlvertisen.ent must lirst be given, and the sale must be by public auction. Carriers of Passengers —The liability towards passengers is not as great as thfit due tlie owners of goods. Tn such case, the owner must use all proper precautions; his appliances must be in proper order, and while the very latest precautions for safety need noc be adopted, such measures must be taken as are employed by other prudent carriers of the same kind in their business. More than ordinary care must be exercised, but. If an accident happens from any latent defect which no ordinary vigilance could detect, the carrier will not be liable. If the carrier has been negligent, but the passenger has, by his contributory negligence, suffered an injury which he might otherwise avoid, the carrier will not be lial>le, and if the In- Jury has been brought about by the passenger disobeying pro- per rules of the company which he knew or might have known, he must suffer the consequences of his own neglect. Where the person injured travels on a pass, the carrier may make such restrictions upon his liability as he pleases, and a person ac- cepting a pass upon these conditions will be bound by them, lind cannot recover, even for negligence on the carrier's part, if the latter has expressly stipulated that he will not be liable, but, in the absence of any agreement so limiting hia liability, a carrier will be liable to any one InJureAl. while being rightfully carried by him, even though no fare has been paid, and no contract with the injured man, to carry him, exists. Epitome of the Laws of Contracts, Sale, Agency, Partnership, Suretyship, Pres- cription; Carriers and Affreight- ment of the Province of Quebec, PRKPAREI) HY DAVIDSON & CLAY. Advccate3) BOARD OF TRADE BUILDING, MONTRtAL. CONT11ACT3. R<>qiilHiti-s tf his obtaining a knowledge of the contractor payment or, if by an assignee, from the time of his aiipointuient. Derimlts,— lu all contracts of a eommeriual nature in wliii-h the time of perfornii.nce is fixed, the debtor is i)ut in delault by the meie lapse of such lime. Wlien there is no lime lixed, he is likewise jiut in default wlien the thing which lie has olOiged hiuiself to give or to do could only have bcPU given or done within a ciMtaiii tiiuo, which he bus allowed to expire. Other- wise he must b(> put in default by a demaml at his dtnuicilu before suit. SALE. Sale rn bl«»c.— In the sale of things in their entirety the contract Is perfected by the consent :ilone of the paities. Hut It may he agreed that the property shall not pas< until certain conditions art^ fultilled,('..f/., until the last instalment of the price be paid. (M. h. If., 4 S. C, p. ai.'t.) The vendor can revendlcafe the t! lug soil even In tli(> liaiids of a third piirty, if the conditions be not fulfilled. (19 11. K. p. 578.) Siile by Welitttt , «*tc.— When things moveable are sold by welglit, number or measure and i.r.t in the lump, the sale'is not perfect until they liiive been weighed, eoinited or measured ; bu* the buyer may demand the delivery of them or damages, aceording to eiri'unisianees. However, the property in a Uilngsold by weight remains witlithe vendor, and the thing is at his risk and peril so long as it Kas not been weighed, (lit Can. ,S. C. It , p. 2'J7.) When the vernier be<^ouieB insolviuit before the llnal measurpinont has boon completed, the recourse ot the purchaser, wl'o has pai'l the price, against the Insolvent estate is not by way of reMUidicalioii, but is merely for the recovery of damages (K. >l. Q., 1 II. It., p, 130.) THE PROVINCE OF QUEBEC. 409 Although the salo may not be perfei't until the gomls arewelgheil, niim' bered or measured, the buyer must pay the price ju-cordiiig to agreement. (12 H. L.,p. 3();3.) Siileon Tiiiil.— The sale of a thing upo". trial is preaiimeil to be made umler a suapensivo comlition when the intention of the parties tot hi' contrary is not apparent. The Hale renmins suspended, and Is eitli»>r perfected, or lapseaafter trial. If the purchaser declares afl^^r trial tiiat he is notsatistted, and refuses to accept, the sale is not perfe acquiesce. Tilings wlilcU may bo sold.— Kverything may ho sold which is not ex- cluded from commerce by nature, by destination or by sprclal provision of law. Generally, the sale of a tiling not Ih^Ionging to the seller is null ; but it is valid, and no recourse lies against t!ie purchaser, if tliesale l)e commercial, if the vendor afterwaids becume owner of t'e thing or if tlic ttdng ho sold under authority of 'aw. H(»wever, if a tiling 'est or stall ii lie bought in good faith in a fair or market or at a public sale, tiie owner can reclaim, but ho must roimbjrse the Imyor the [trice paid. (4 It. Ij,, p. 5G'i.) 4)blii!»ti(>iis i»r the Seller.— Id) Delivery. He must transfer the thing fold into th'j power and possession of tiie buyer. 'J'lie olilij^ation ecHses if tlie purclias .'. bei'oiiies insolvent beiore the price is I'.iiil. Oelivery ■nnst be made within a reusonahie delay. What is a reasonable deliiy depends on circumstances. (,1 L. N., p. I.'t'.i.) (//) Warranty. It is le;;".! or eonventional. ('onventional warranty ex- cludes legal. (4 U. I4. p. l>4.").) Its objects are : (/) eviction or disposse^sIon of the buyer from tlu- whole or part of the thing sold. In ease of evidion, tlie pureliasevelMiiiis from the sglier il) restitution of the price, ('.!i restitution of the fruits in e se he is obliged to pay them to the party who evicts him, (,'!» the expeiiS' s incurred as well in his action of wcrranty a;,'aiiist the seller as in the 01 iglnal action (4) damages, interest ami all expenses of the contiaet. (ii^ Latent defects. These are sueh as remler tlie thing sold unfit for its inleii(^?d use or so diniinlsli its usefulness that tlie purchaser would not have boiiglil it, or would not h.avo given so large a priee if he had l within tlir delay or after lie is put in default, the vendor may resell thegootls and sue the buyc' for any damages sustained. ll«>iiiem8o of insolvent traders within 30 days. If the thing be sold by the purchaser before reveiidicatiou by the \v->'lor, the latter has a privilege over other creditors for the price if the conditions requisite for revendication exist. A bank to which warehouse receipts have been transferred for ad- vances, has a claim to the goods covered thereby prior to and in preference over the claini of the ur,i)iiid vencbt8 Hud Klghts of Action iijjnliiHt Third Piirtlos is por- fecteil between seller and buyer by the completion iti the title, if it l)e notur- ial, or till! delivery of it, if under priv4to signature. Hut the buyer has no available possession against third parties until signillcation of the act of sale Las been given to ilie debtor ; that is to say, the transffrce has no riuht of action against the debtor so long as the transfer has not been signified to him, or lie has not accepted. C-'-l 'si'- ^. *'• •*•. P- l^'iS-) Hut in the dissolution of partneiships, if one p.artner has transferred his rights to the other partners, the transfer r.eed not be signilled to the debtors. (II.. N. p. .T-'.) Slgiiilleation to tile debtor holds good for bis sureties. (H. J. ianco obliges himself to perform it. The acceptance may be iniplietl from the acts of the agent, and in some cases from his silence. Agency is gratuitous unless there is an agreement or au ostabll.shed usage to thu contrary. The agent can do nothing beyond the authority given or implied. He may Jo all acts which are incidental to such authority and ueces.sary for the execution of the agency. Who may bo Aeent<. — Sonin persons may be aj;cnt.'< who cannot alwayd act in their own cai)acity, for instance a minor or a married woman. Ageat, Appolntmoiit of. — An agent may in general bo appointed by bare words, or such appointment maybe i.iferred from the conduct of his supposed principal respecting hlin. In some cases, however, the nomina- tion must be express, for instance, that of an agent t» hypothecate or alienate real estate. F.-ictjjrs and Brokers.— The principal kinds of connnerclal agents are brokers and factors. A broker is one who exercises the trade and calling of negotiating between parties ilie business of buying and selling or any otlicr lawful tran'iaroperty. A foreign factor, or one wliose priiiuipal re- sides in another country, is personiiUy liublo to iliiid pi'rsons witli wbi-nt lie contracts, wl\etlier the name of the principal be known or not. The prin- cipal is not liable on such contracts to third parties, unless it is jtrovod Ibali the credit whm given to both principal and factor or to the princiiiai alone. Klgtits of I'i'liivlpal against Ajji-nt «r Siib-«gent.— Tlie agent is obliged to execute the nianditHHco if it were not due ; subject nevertlioless to his right to deduct therefrom t'le amount of liiH disbursen'ontB and ebargcs in the execution of the iiian- dikto. If helms received a diiterminnte thing, he is entitled to retain it until such disburseiiieiits and charges are paid. ItlglitH of AKt*nt agilnst IM-iiiclpiil. Iii«l<>iiinlty Hiid ('oiiip«nHii> tlon,— The principal is obliged to iiideiuniry the agept who is not i" fault for losses caused to him by the execulionof tlio niniulate ; also, for all obliga- tions eiuitracted by him towards third parlies, within tho limit of bis powers ; and for acts exceeding such powers, whenever thoy liavo been ex|>t('ssly or tacitly ratilied. Ho is bound to reimbtirso the expensch and charges which tho agent has incurred, and to pay him the commission or remuneration to which he limy be entitled, Hi must jiuy Interest on money advanced by the agent computed from the day of advance. »i If 412 COMMERCIAL LAW OF Rights of Tlilrd Persons agalnot Prliicliul.— The principal if* bour.d in favor of tliird persons for all the acts of his agent done in execution and wiiliin the powers of tlie mandate, except in cases wherein by agreement or the usage of trade tlie latter alore Is hound ; for instance, a foreign factor. The general rule is that tlie authority given must be strictly pursued in order to hind the principal. But the principal is answerable for acts which exceed sucli power if he lias ratified them expressly or tacitly. Tlie prin- . cipal or his legal representative is bound toward third persons for all acts of the agent done in execution and within the powers of the mandate after it has been extinguished, if its execution be not liuown to sucli third per- sons. The principal is aloo bound for acts of the agent done in execution and within tlie powei-s of the mandate after its extinction, when such acts are a neoessary consequence of a business alrendy begun. Ho Is also hound for acts of the agent done after the extinction of the niaildate by death or cessa- tion of authority in principal, for tlie completion of a business, where loss or injury miglit have lieen caused by delay. Tlie principal is liable to tl>ird parties who in good faith coiitract with a person not liis agent under the belief that lie is so, wlien tlie principal has given roason.'tble cause for such belief. He is liable Tor dainjiges caused by fault of the agent, acconling to tlie ordinary rules. Agents and Document* «f Title. — Tlie posse.'isloii of documtnts of title, for instance bills of lading, warehouse receipts, orders for delivery of goods and the like, gives possession of tlie goods tlieniselves, provided there be no fraud on the part of tlie transferee. An agent in possession of the documents of title, notwithstanding the fact that tlie pcr.soii with whom he deals has notice that lie Is contracting only with an agent, may bind tin- principal in a coiitiact f )r the sale of goods. The consignee of gooils con"igned by sucli agent lias a lien thereon for any money or negotiable security advanced or given by him to or for the use of such agent, or rec Ived for hint liy such agent for the use of the consigneei In like manner as if sucli agent were the sole owner of I lie g'lods. The agent may also validly pledge or grant a lien upo;: the goods, and such con- tract biiuls tlie owner of tlie goods and all other persons inlerested therein, notwitiistanding the person ciainiiiig such pledge or lien had notice that he was coi'tractlng only with an agent. Klglit of Own«r ti> redeem. — Tlie owner may, Iiowever, redeem any goods or docimients of title so pledged, at any lime l)efo:e the same have been solil, niion repayment of the amount of tiie lien thereon, or restoration of tlio securities in respect of which the lien exists, and upon payment or eat isfaction to the agent of any sum for or in respect of whieli such agent is entitled to retire llio goods or documents by way of lien again such owner; or he may rei'ovi . i loni the person witii whom any uoods or documents have been pled;;ed, or wiio has any Hen thereon, any balance or sum of money remaining in his hainls as the produce of the sale of the goods, after deduct ing the amount of tlie lien under the contract. KIkIiIn of the rrlnel|inl iigHlnst Third rartlps.— As the principal Is Ijound by the acts and contnu'ts of his autliorlzed agent, so lie may take advantage of them ; and If one person contract even witliout authority, in tlie name of anotlier, t'at other, though lie may repudiate the contract, may, if lie thinks lit. ailopt and enforce it. An undisclosed principal Is entitled to sue in Ids own iinnie on contraotB made by his agents (5 I.. N., p. '«!)) ; lintlio must prove elenrly tliathe is the principal. Hut in ease of an undlsclo.'^ed principal, llie person contractinn THE PROVINCE OF QUEBEC. 413 with the agent will have the right of netting oft any claims he may have against the agent, even if the agent in selling in hisownnanie is contraven. ing his iDstructions. But if at any time during the tran^actiua he kn<>\vg or have means of knowing that the person with whom he deals Is not a priiicipal, this rule of set-off does not apply. Uiglits of Agents against Third Persons.— The general rule is that an agent cannot sue and be sued upon a contract avowedly made 1>y liim solely on behalf of a principal. IJut a factor or other aj;ent, who h;is made a contract, in the subject matter of which he has a special property, may maintain an action thereon in hi.s own name, and that whether he profesiied to contract In his own name or not. For instance, an auctioneer niav .siu- in his own name for the price of goods sold by him on the owner's premises, or elsewhere, and known to be his property. An agent may also sao upon any contract made in his own nami^ f or an undisclosed principal. Rights of Third Parties against llie Agent.— The general rule is that an agent acting in the name of tlic principal, and within the limits of the authority given, is not personally liable to thinl persons with whom he contracts. This suffers exception in tin; ease if factors and the case of con- tracts nnule by the master of a ship for her use. An agent who acts in his own name is liiible to the third party with .vVoni lie contracts without pji • judice to tl>.e rights of the iHtti'r against the principal also. He Is liable iu like manner when he exceeds his. authority, unless be has given the party with whom he contrails surticient communicnlinn of its extent. He is al- ways liable for offences and quasi-otl'encos coniiuitted while acting lor the Iirincipal, PAKTNEKSIIIP. Meanlnjj.— It is » .sential to this contract that it should be for tli- ccjui- mon protit 'if the partners, each of wlion' must contribute to it property, credit, skill or industry. Community of profit is essential, though the shares may bo unequal. It may, however, bo iigreed that the one partniM- sball b', exempt from liability for the losses of the partnership, and this stipulati. n holds good as between the partners, but as t<> third parties it is null. Wifterent Kinds of rartnerslilps. (ienpral Partnerships.— fienoral partnerships .'iro these contracted for the purposi> of carrying on business under n colb'ctive name or firm consisting ordinarily oltlii) nauies of the partners, or of oae or mor(( of Iheni. al! of whom are ji iiitly and severally liable fur the oldigations of the i)artnersliip. Anoii.vmous Prtrtnerslilp-i,— In partnerships having no name or lirni, whether they are general or contined to a single objict or adventure, the partners are subject to tlie same iiiibiliti>s in favor of third persons as In ordinary partnerships under a eolleellve name. liiinited I'artneislilps or I'ttrtnerslilpsen ('(iinnianditu consist of one or more person'* called geuoial partners, and of one or more persons who contribute in cash pavment aspecillc sum or capital to the common stock and who are caiied sp.'eial |>artners. The general partners are jolntlv and severally responsible in the same manner as ordinary partners under a col- lective name ; but special partners aro not liable for the debts of the part- nership beyond the amounts contrib\ited by them to the capital. The general partner alone transact the business. Formation ot Partnership.— The partners may carry or usiness un- der what name they please, but the designation must not be such as will 1 1 i ;: 414 COMMERCIAL LAW OF deceive the public. Tlie constitution of the partnersliip is not necessarily in writing, but may be verbal or inferred from the acts of the parties. The contract i» made by the intervention of all the parties to be bound. The ex- ecutors of a deceased partner do not occupy his place, unless it be expressly 8tii>ulated to that effect in the contract of partnership. Cettlflcate of Furmation.— In all coinmerclal partnerships a declara- tion must be signed by the sever " members of the partnership and filed with the prothonotaryof the district , .id the registrar of the county, within sixty days after the forniation of the psirtnership. .Such declaration must contain the names, surname antl re;'ldfcnce of every partner, and the name, style or firm under which th^y carry on or liiteiKl to carry on such business, .ind must state the time during wliicli the partnersldphasexi^ited.and declare that the pprsons therein named are the only members of such partnersliip. Failure to comply with this provision is punishable by a penalty of $200, recovered by a qui tarn action. Articles «f Parlnvirslilp.— Tf the contract be made in writing, it is known as the Articles of Tartnership. Tliey generally contain the objects of the partnership, the time at which itis toconniience and end ; the amount of capital, and the proportions in which it is to be advanced by each i)artner ; the proportions of the i)rotits accruing to each partner, provisions lor the management of the business, and tlie lilie. Dissolution.— The partnership ends by the la|.ae of time, when tlie contract provides that it ?lmll last for a lixed period, but its dissolution may l>e demanded by one of the partners b( fore tlie expiration of tlie stipulated term, ujion just cause shown, or when another partner fails to fulfil bis en- gagement, or is guilty of gross misconduct, or from habitual infirmity or physical impossibility is unable to attend to tlie business of tlic partnership, or when liis condition and status are essentially cliaiigcd, and in other cases of a lilie nature. 'J'lic dissolution is declared by the court in these cases. If no limit is lixed. it is a partnersliip at will, and may be dissolved at the will of anyone of the piirtners by the notice to all the others of his renunciation. .Such renunciation must be in good faith, and not made at a time unfiivorable for the partnershii). Commercial partnerships are also terminated by judgment maintaining at the instance of a creditor of one of the partners the seizure of sucli partner's sbare in tlie sfoclv of the partner- ship, or at the iiistaniinlorty of the principal debtor to the payment of the debt. IJut In order to liavo this benettt, the surety, when he is tirst sued, must demaniil debtor who has paid a second time witlioiit being notified of the first payment, suving his right to recover bock from the creditor, Wlien the surety has paid before being sued and lias not notified the prlnriiml debtor, he loses liis remedy Hgalnct such debtor, if, at tlie time of the payment, the latter had the means of having tlie debt declared es- tlnct, saving his right to recover back from the creditor. Ckk«8 In which the surety who ha4 honnd himself with the tli'btor'a oonitent may, even before pitying, proceed Mgaliist the latter to be Indemnified : 1 . When lie is sued for the payment. 2. Wlien the debtor becomes bankrupt or insolvent. 3. When thedebtm- has oliligud himself to olfoct liis di.soharge within a certain time. 4. When the debt becomes pay.-ible by the expiration of the stipulated term, without regard to the delay given by the creditor to the debtor witU- out the consent of tho surety. 6. After ten years, wlien the term of the principal obligation is not fixed, unless the principal obligation, »uch as that of a tutor, is of a na- ture not to be discharged before a det(>rnilnate period Kxtlnctlon.— Suretyship being an acce.ssory obligation is extinguished with the princiital oldlgation. The surety may M't ii|. against the orP(lit'>r all the exceptions which belong to the principiil debtor, and are inherent to the debt, but he can- not set lip exceptions that are purely personal to the debtor, minority for instance. Tho suretyship is iit an end when bv the ai't of the creditor the surety can no longer be siil>rogated in tlie rights, hypothees and privileges of such creditor. ^M. L. It., ;{S. C, p. 4.")!).) When the creditor voluntarily aeoepts an iiiimoveable or any object whatever in payment of the priiieipal liebt, the surety i.s discharged, though such creditor should afterwards be evicted of it. The surety who has become bound with the eoiisent of the debtor is not dicehargeil by the ilelay given to mieh debtor by the creditor. He m.-iy in the case of such delay sue iheilebtor in order to compel him to pay. If the surety becomes heir of tlie ertditor, or rirc cirsu, there is ex tinclion by confusion. So also if tlie principal debtor becomes lieir of his surety, ami I'fVr rl)tor has renounced to their prejudice. l.aw governing Prescription.— As regards moveable property and personal actir-us, even in matters of bills of exchange and promissory notes an*l commercial matters generally, one or more of the following prescrip* tions may be Invoked : — 1. Prescription entirely acquired under a foreign law, when the cause of action did not arise or the debt was not stipulated to be paid in the Pro- vince of Quebec, and such prescription has been so acquired before the pos sessor or the debtor had his domicile therein ; 2. Prescription entirely acquired in the Provincp of Quebec, reckoning from the date of the maturity of the obllgiiJon, when tlio cause of action nroso or tlie debt was stipulated to be paid therein, or tlie debtor had his domicile therein nt the time of such maturity ; and in other cases from the time when the debtor or possessor becomes domiciled therein (14 R. Ij. 4C(i) ; 3. If prescription be begun under a foreign law, then in order to com- plete it in the Province of Quebec, the time acquired under the foreign law is added to the time acquired in P. Q. (18 L. C. J. 69.) Possession.— For purposes of acquisitive prescription, the possession of a person must be continuous, peaceable, public, unequivocal and as proprie- tor. Precarious possessors, or those who possess for another or under acknow- ledgment of a superior domain, depositaries for ii, stance, never prescriiie. But prescription runs if tliere be interversion, or a new title of acquisition, for Instance the change from precarious possession to possession as proprietor. Interruption of Prescription— Takes place during the course of proscription, the ell'ect of which is to render useless and as though non- existent the time which has elapsed, but without jireventing the debtor or Viossessor from prescribing again, and without changing, at least in general, the conditions of prescription. In acquisitive proo8si!ssor ; in llberative prescription, frJm the exercise of the right subject to extinction for non-usage, from a demand legally made by the owner or from an acknow- ledgment ol tlie creditor's right by the debtor. As a rule interruption profits or prejudices those only who have made or obtained it, not third jmrties ; but in joint and several debts, and in indivisible debts interruption against one debtor holds good against all. Also, ill debts with a surety, interruption against the principal is valid as against the surety. The same acts against or by a surety interrupt prescrip- tion as regards the princii)al debtor. Suspension of Prescription— Is a temporary hindrance preventing the prescription from beginning or continuing, but witliout rendering useless THE PROVINCE OF QUEBEC. 419 the time of preserlption already elaiwed. Suspension takes place in furor of those who are not born, of niinorH, idiots, madmen or insane |>enons with or without tutors or curators ; but not In favor of those to whom a judicial adviser is given, or of tliosc who are interdicted for prodigality. But this suspension talies place only in case of the long prescription of 3U years ; in the conimerolal preijcription of 5 years and under, prescription runs against all. Husband and wife cannot prescribe against each other. Prescription as H rule runs against a married woman. Prescription of personal actions does not run with respect to debts depending on a condition, until such condition iiappens ; with respect to actions ia warranty, until the eviction talies place ; with respect to debts with a term, until the term has expired. Kftect of Presorlptloii.— Acquisitive prescription does not operate de piano ; it must be invoked by the p'issessor. In extinctivo prescription of tlve years and under, the debt is absolutely extinguislied, and no action can be maintained after the delay for prescription has expired. The courts will dismiss even if prescription l)e not pleaded. - (lu i(. L., p. rA'i.) Duration of Plea of Prescription.— Any pers<)n who is in possession as proprietor of a tiling or a right preserves liy reason of such pustession this rigiit to set up by plea against any demand in revendication of such tiling or right ail such grounds of nullity or other grounds as tend to defeat the action, altiioiigh his right to do so by direct action may liave been pre- scribed. In personal actions '' -ewise the defendant may effectively plead all grounds tending to defeitt the action, altLiough the time tion could prevent them from doing so. Thus a claim pre- scril>ed cannot be pleaded iu compensation, unless the compensation had taken eifect before it was prescribed, and then it may be pleaded, whether the claim be for a debt of a commercial nature, or for any other cause. The adoption of tlie grounds of sucii plea does not revive the riglit to urge them by direct action. PosseHslon Taut tltre.— Prescription in moveables is acquired by the sole elTect of posses.-ion. It is dispensed from the lapse of time. But for the maxim ''possession vaut titre" to prevail, there must be good faith (error, not fraud), a just title ; also the possessor, for instance, adcposilary or borrower, must not be personally bound to restore the thing he possesses. Kxcep- tions to tlie maxim are thingr. lost or stolen in hands of third parties wlio have acquired even in good lUitii. Tliese may be r'evendicated, but the revendication is prescribed by three years, reckoning Irom the time of loss or theft. But th ings, lust or stolen, bought in good taith in a fuir, market or at a public sale, <;annot be rcveniiicated unless the buyer be reimbursed tlid price. Time required to Pi'escrlbe.— Prescription is reckoned by I'-^ys and not by hours. It is acquired when the last day of tlie term has expired ; the day on which it commenced is not counted. Thirty Years.— Tldngs, riglits and actions, not otherwise regulated things in bad title and in bad faith. Ten Years.— Tlie action in rescission of contracts for error, fraud, violence and fear ; actions in restitution of minors for lesion, reckoning f ron\ the day wiieii the violence or fear ceased or tlie fraud or error was discovered ; action against areliitects and contractors for warranty of work di>ne. i lu n p i -' \-H 1 ii. 4» COMMERCIAL LAW OF Five Tears.— Fruitfi, natural and civil ; arrears of interest : actionR of advocates, notaries, officers of justice, physicians, surgeons for professional services ; actions upon projnissory notes and bills ot exchange ; upon sales of moveable effects between non-traders or between traders and non-traders ; actions for hire of labor, or for the price of manual, professional work and materials f urnishetl ; municipal assessments. Three Yearit. — Moveables acquired in good faith. Two Years. — Actions for seduction or lying-in expenses ; for damages resulting from olTences or quasi olfences ; for wa^es of workmen not re- puted domestics, who are hired for a year or more ; for sums due school- masters and teachers for tuition and board and lodging furnished by them. One Year. — Actions for slander and libel, for bodily injuries, for wages of domestic or fann servants, merchants' clerks and other employees whu are hired by the day, week or month or for loss than a year ; for hotel or board- ing bouse charges. Six Months.— Actions for any damage or injury sustained by reason of the railway, reckoning from the time when such supposed danutge is sus- tained, or if there is continuation of damage from the time the doing or comndtting of such damage ceases. OOXTKACTS WITH CARKIEKS. Who are Carriers.- A common carrier is one who undertakes for hire to transport the persons or goods of such as choose to employ him from place to place. ObliKatlons of Carriers.— Carriers areob'igedto receive and convey, at the time fixed by public notice, all persons applying for passage, if the con- veyance of passengers be a part of their accustomed business, and all goods offered for transportation ; unlesis, in either ease, there is a reasonable and sutiicient cause of refusal, for instance the dangerous naturt of the goods. lilabllitles of.— Carriers are liable for los-os caused by delay in trans- portation and delivery, as well as for loss or ilamage of tilings entru^tell to them, unless they can prove that such delay, loss or damage wiis caused by a fortuitous event or irresistible force, or has arisen from a defect in the thing itself. Their responsibility is greater for goods tlian for persons. For Injuries to persons carried, they are liable only when they result from negli- gence or want of due care, skill or reasonable foresight and prudence on the part of the carriers. (22 Can. S. C. H., p. 721.) When Liabilities begin.— Carriers' responsibility begins from the time the gootlshave been delivered to them at the port or plac.^ of depos't, to be put in their carriage or vessel. It is not necessary tliat the goods be al- ready in the waggon or siii,.. AVIien tliey end.— Th ; c( jeption of the thing transported and payment of the carriigrt or freigut, '.Ithout protest, extinguish all right of action against the carrier ; unless the loss or dai'iage could not then be known, in which case tl\e claim must be made without delay after the loss or damage becomes known to the claimant. The carr er's responsibility also ceases when he has given notice to the consignee of the arrival of the goods, and the latter hss had reasonable time to remove them. The carrier is then only liable as a depositary. Iilmltation of, by notice.- Notice by carriers of Fx>ecial conditions limiting their liability is binding only upon persons to whom It is made known ; and, notwithstanding such notice and the knowledge thereof, car- riersare liable whenever it is proved that the damage is caused by their fault or the fault of those for whom they are responsible. THE PROVINCE OF QUEBEC. Limitation of, by expreu contraol-.— Nerertheless, the Supreme Court lia.s (leciileil Unit the oarrler may by express contract validly stipulate azainst responsibility for the negligent ac<,8 of hli agents or se rants. (29 (.an. S. C. U.,p. 146.) Lilmltttlon of, by law— Ueclaratlun of value. — Carriers are not liablo f<>r large siimi' of money or billo or other securities, or for gold, or silver, or precious stones, or other articles of an extraordinary value, contained in any p.-ice of the obligations of the shipper. By whom made. -The contract may be made by the owner or the master of the ship or by the ship's husband as agent of the former. If made by the master, it binds himself and also the owner of the ship, unless it is made at a place where the owner or ship's husband is present and they disavow the contract, in which case It binds the master only. Charter Party.— By this contract the whole ship or some principal part of it is let for ;he conveyance of goods for a deterndned voyage or a specilled time. The contract is generaily made in writing, but may be verbal. It is interpreted according to the usage of trade. The memorandum of the charter party usually specifies the name and burden of the ship, with the stipulation that she is tight and staunch and well furnished and equipped for the voyage. It also contains stipulations as to the time and place of loading, the day of sailing, the rate an 1 payment of freight and the condi- tions of demurrage, with a declaration of the lortuitous events which exempt the lessor from liability and such other covenants as the parties may see fit to add. Contract for Conveyance oi Cood^ in a general Shl|i — Is that by vhlch the master or the owner of a ship destined for a particular voyage engages separately with various pprsons, unconnected with eacL other, to convey their respective goods according to the bill of lading to the place of their destination, and there to deliver them. nillofliading.— The bill of lading is the Instrument which generally contains the terms of the contract. It Is signed and delivered l)y the master or purser in three or more parts or copies, of which the master retains one, the shipper also keeps one and sends one to the consignee. It is a document of title, transference of which by means of endorsement and delivery operates as a transference of the goods to the endorsee. > fe II 'I I 422 COMMERCIAL LAW OF Obligatlonsof Owners.— The owner must provide a ship of thestipa- tated burthen, tight aii'l Btaunch, furnished with all tackle and apparel ces- sary for the voyage, and with a competent and sufflclent number of percons of skill and ability to navigate her and so to keep liet' to the end of the Toyage. Obllgatlona of Maatora.— Stowage of (ioods.— The inaster is obligeil to receive the goods and carefully arrange and stow them in the sliip, and to sign such bills of lading as may ba required by the shipper or lessee upon receiving from him the receipts for the goods. Fro'«oatlon of VoyBsro.— The snip must sail at the stipulated time, or. If no time be llxed, within a reasonable delay, and must proceed to her destination without deviation. The master is obliged to exercise all needful care of the cargo, and in case of wreck, or other obstruction to the voyage by a fortuitous event or irresistilile force, he is obliged to use the dillgenre and care of a prudent administrator for the preservaiion of the goods, and for their conveyance to the place of destination, and for that purpose to engage another ship, if it be necessary. H Ih Duty on completion of the Voyage is to deliver the goods with- out delay to the consignee or his assignee im production of the bill of lading and payment of the freight and other charges liue in respect of it. Llabllltlea of Owners and Masterf*.— In general, the rules of liability as regards carriers prevail. Owners or masters lire not exempt fiom re- sponsibility, notwitll^tanding that their vctsel was in charge of a qualified pilot. Iiiinitatlon of.— A stipulation in the bill of lading that the shipowners shall not be liable for negligence on the part of the masters or mariners or their other servants or agents, Is valid. (28 Can. S. C. It. 14(i.) The owner of a seagoing slil;» is not liable for the loss or ilaniagc occa- sioned to any goods, wares or merchandise af any kind on board any such vessel, or delivered to him for conveyance therein, witliout his actual fault or privity or the fault or neirlcct of his agents, servants, 1. Hy reason of Are or the dangers of navigation. 2. By reason of any defect in or the nature of (he goods themselves, or from armed robbery or other irresistible force, or 3. Hy rear in of any robbery, theft, emblezzleinent, removal or secreting of any gold, silver, dianionds, watches, jewels, or precious stones, money or valuable securities or articics of great value, not being ordinary merchant (Use unless the true nature and value thereof have, at the time of their delivery for conveyance, been declared liy the owner or shipper thereof to the carrier or i>:!ent, or servant, and entered in the bill of lading or other- vrise in writing. In any case of loss of life or iwrsonal inj». t, damage or loss to anything on board of a seagoing sliip without any acttial fault or privity on the part of tlie owner of the vessel, on board of which or through the fault of wliicli tlie loss happened, such owner is not responsible for the damage or loss ficua- sloned to an amoinit exceeding the sum of thirty-eight dollars and ninety- two cents per ton of the ship's registered tonnage in the case of sailing' ves- sels, and of the gross tonnage, without deduction of the enp'ue room, in the case of steam vessels. The owner, however, always remains responsible in ihe same manner, for every such loss and damage arising on distinct occations to the same extent OB if no other loss or damage had arisen. THE PROVINCE OF QUEBEC. 423 Obllgatlona of the Shipper or I.e8see.— 1. He must load the chip with the stipulated cargo and within the time epecifled by tlie contract, or if no time be specified within a reasonable delay. He cannot put on board any prohibited or unaccustomed goods, by which the ship may be subjected to detention, or ferfelture, or goods of a dangerous nature, without notice to the n.a8te.' or owner. 2. He must pay the freight with primage, average and demurrage, when any is due. Freight,— Freight is the recompense payable for the lease of the ship or for the carrying of goods upon a lawful voyage to the placf' of their destina- tion. When earned.— As a rule, it is not due until the carriage of goods is completely performed ; and ii has been held that the inr Uor cannot exact payment of freight before delivery of goods upon the wharf. (17 L. C. J,, p. 16.) Kfl'ert of Detention, Terll of the Sea, etc.— If the ship be detained by oniei* of a sovereign power, freight payable by time dopt< not continue to run during such detention. If it be obliged to return wHIi her cargo, by rea- son of a prohibition of trado occiirringdurln^ the voyage, with the o.ountry to which she la bound, freight is due upon the outward voyage only, although a return cargo luw been titipnlatcil. ]f the uoods are cast overboard for the ship's preservation, tlie sliipper must pay frt'lglit. but is repaid by general average contribution. If part of the goo Is be sold for necessary repairs to the ship or to provide provisions and urgent necossiiries, llie shi|)pi!rs pay the freight, but receive the value of goods from the owner. Freight is not due upon goods lost by shipwreck, taken by pirates, or captured by a public ene- my, or which, without the fault of the shipper, have wholly perishvil by a for- tuitous event, .lettison oxcepted. If the freight or any portion have been paid in advance, the master is bound to return it, unk'ss there is an agree- ment to the contrary. Amount of Fr«ilght.— This is regu'ated by the agreement In the I'har- tr'r party, or bill of lading, at a gross sum for the whole ship, or a certain part of it, or at a fixed rate per ton, or package, or otherwise. If not regulated by agreement, the rate is estimated upon the value of the service performed, according to the iiSHgo of trade. The amount Is not atfeetod by the longer or shorter duration of the voy- age, unless the agreement to pay a cortjiin stun by the month or week, or other division of time, in whieli ea^o the freight begins to run, if not others wise slipidateil, from the eoininonceinent of the voyage, and so continues as well during its course ns during all tinavoidabie delay i:ot oceasioned by the fault of the master or owner, save in the case of detenliou by a «(>v..-'ign power. liten for Frolq^lit.— The owner or master has a lion on tho gcvxis uutil payment of the freight, with primage and aeeiistomed average, as ex- pressed in the bill of lading. He ounnot keep the goods in his ship in default of payment ; but at the lime of unloading he may prevent them from being carried away or cause them to be seized, Primage is a small customary payment to the master f:>r bis rare and trouble. Average denotes several petty chargec, towage, bi^nconngo, etc. [i. ti ^r 424 BILLS OF EXCHANGE ACT. Uetnuri-ase is tlie conipeiigatioii to be paid by tbe tibipperfor thp deten tion of tlie ehip beyond the time agreed upon, or allowed by usage for loading and discliarging. If expressly stipulated, it is due for all delays which are not caused by the ship owner or his agents. It dots not bogin to be computed until the ^oods are ready to be dis Jiarged, after which, if the stipulated time baa expired, a further reasonable time must be allowed for their dischurge. If the time, couditions and rate of demurrage bv not agreed upon, they are regulated by the law and usage of the port where the claim arises. (jeneral Average Iioss.— Tty this is meant a loss sustained by one or more shippers for the benefit of the ship and of 'ill the other shipper.s; for instance, loss by jettison. If it be incurred volmitarily,be necessary and sue cessful in the result, then it is made good by general average contributions. These are made up from the ship, the freight :iud the caigo; but not from the ship's warlike stores and provisions, nor from tiie baggage of pa^seiigers. of Exchange, Cheques, and Promis- sory Notes. u3 ViOToniA, Chap. 33 (1890). ANNOTATED BY ALBERT SWINDLEHURST, B CL, Advocate, MECHANICS BUILDING, MONTREAL. The Bills of Exchange Act is a codifying Act, and the rule for its construction was thus stated by Lord Herschell in the case of The Bank of England v. \'ag- liano [1891], A. C, at p. 144: — "The proper course is, in the tirst instance, to ex- amine the language of the statute, and to ask what is it.T iiatural meaning, uninfluenced by any considera- tions derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intend- ed to leave it unaltered, to see if the words of the en- actment will bear an interpretation in conformity with this view. If a statute intended to embody in a code a particular branch of the law is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely wa.s that on any point specifically dealt with by it the law should be ascertained by interpret- BILLS OF EXCHANGE ACT. 426 ing the language used, iuatead of, as before, by roam- ing over a vast number of authorities in order to dis- cover what the law was, extracting it by a minute cri- tical examination of the prior decisions, dependent unon a knowledge of the exact effect even of an obso- lete proceeding, such as a demurrer to evidence. I am, of course, far from asserting that resort may nevei be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful im- port, such resort would be perfectly legitimate. Or, again, if in a code of the law of negotiable instruments, words be found which have previously acquired a tech- nical meaning, or been used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the code. I give thesf; as examples merely; thev, of course, do not exhau?t the category." lAasented to mh Mov, iS90.1 PART I. ^. PRELIHINART. 1. Thla Act may be cited as "The Bills of Exchange Act, 1890." 2. In this Act, "unless the context otherwise requires,— (fl.) The expression "Acceptance" means an acceptance com- pleted by delivery or notification; Aa to the requisites of a valid acceptance, spe section 17, and as to delivery or notification necessary to complete an accept- anot, see section 2l. (b.) The expreaalon "Action" includes counter-claim and aet off: See sections 24, 30, 52, G9. S6 and 93. which require this defini- tion. (c.) The expression "Rank" means an Incorporated bank or savlnffs bank carrylngr on business In Canada; (d.) The expression "Bearer" means the person In possession of a bill or note which Is payable to bearer; For operative definition of bearer see eectlons 7 (3) and S (3). The possessor of a bill or note payal>1o trv order is not toch- nlcaniy the "bearer" of It: Dni) v. Lnnnhumf, w. N.. p. 3. Aa to tVie rights of a person who has given vahie for a. '>lll payable to the order of some other person, see section 31 (4). (r.) The expression "Bill" means bill of exchantre and "Note" means promissory note; A BUI of Eit^'hansre Is defined In section 3, a Promlasory Note In seotlci 82, and a Cheque In section 72. 426 BILLS OF EXCHANGE ACT. (f.) The expression "Delivery" means transfer of possession, actual or constructive, from one person to another; Actual delivery ia made by didivering the bill to the Indorsee or to his agent, or by transmitting it to either of them by post. Constructive deiivery takes place when the parson in pos- session of a note retains it in another quality, and there is no change of actual possession. As to the necessity for deCivery to complete the contract on a bill or note, see section 21. A delivery by mis>take may be revoked by mutual consent : Ex parte Cote, L. R. 9 Ch. 27. (g.) The expression "Holder" means the payee or Indorsee of a bill or note who is In possession of it, or the bearer thereof; The rights and povvers of the iOlder of a bill are given In section 'in. See ailso "holder for value" defined by section 27 (2) ajid "holder in due course" by section 29. The term "holder" includes alike the paye, the indorsee, and the bearer of a bili. It slpmifles the mercanti'e owner of the instrument, who may or may not be the legal owner of it. It is generally used, however, to denote the lawful holder or holder In due course. But "holder" in this sub-sec'.ion is also used to denote an unlawful holder; that Is. the person to whom a bin Is bv its terms payable, who.se possession is unlawful, (e, g., the flnder of a bill indorsed in blank), but who neverthe- less can ffivo a valid discharge to a person who pays in good I'aith, and also a good title to a person who takes it before maturity in good faifh and for value; see section 38. An un- lawful holder must be distinguished from a mere wrongful pos- spsaor, r. (/., a person holding under a forged Indorsement, or a person who has stolen a bill payable to the order of another. (7. Smith V. Ihiion fiank. L.. R. 10, Q. B. 295. Such person has no rights and can give none: see section 24. (Chalmers, p. 5.) (/i.) The expression "Indorsement" means an indorsement completed by delivery; The requisites of a valid indorsement are set out in section 32. See section 21 as to delivery required to complete same. The term "indorsee" is used to denote not only the person to whom the bill is special" ' Indorsed, but also the bearer of a bill indorsed in blank, i. c, any person who makes title to a l>ni through an indorsement : Barber v. Richardu, 6 Exch. at p. 65. The term "Indorser" primarily denotes the holder of a bill who indorses it, but it Is also used to denote any person who backs a bill with his signature, and thereby Incurs the liabil- ity by an indorser, see section 66 (Chalmers, p. 6). In the pro* vmc« of Quebec such person is spoken of as the giver ot an "aval." , (i.) The expression "Issue" means the first delivery of a bill or note, complete in form, to a person who takes it as a holder; See sections 9, 12 and 71, which require this definition. A bill la complete In form when it complies with section 3. and a note when It complies with section 82, An aocommodatdon bill o» note is not "Issued" until it comes into the hands of some one who has given value for it. (>.) The expression "Value" met is valuable consideration. The term "valuable consideration" is defined In section 27. (ft.) The expression "Defence" Includes counter-claim. "Person," "irrittnt" and "uriting," which are all usetl In the Bills of Kxchaiige Act ''i a peculiar sense, are defined In the general Interpretation Act, R. S, C, c. 1, sec. 7, as follows: "(22) Tho expression 'persoti' Includes any Ixxl.v corporate and politic, or party, and the heirs, executors, administrators or other legal representatives of such person, to whom tho context caji apply according to the law of that part of Canada to which such context extends." BILLa OF EXCHANGE ACT. 427 '(23) The expression 'writing,' ' written,' or any term of like import includes words printed, painted, engraved, lithographed, or otherwise traced or copied." PART II. BILLS OF EXCHANQB. Form and Interpretation. 3. A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving It, requiring the person to whom it is addressed to pay, on demand or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer: 2. An instrument which does not comply with the condi- tions, or which orders any act to be done in addition to the payment of money, is not, except as hereinafter provided, a bill of exchange: The words "except as hereinafter provided" refer principally to those bills In which the drawer and the drawee are the same person, which, strictly speaking', are not addressed by one per- son to another (Maclaren, p. 44). FORM OP A BILL OF EXCHANGE. Prrmissivc.—A I-lll of Exchange may be written in pencil, Oraiu V. I'lii/nic, 5 B. and C. 238 (1826). and drawn In any lan- guage, ro Mursiillva Co., 30 Ch. D. 598 (1885). No special form of words Is essential, lUUnon v. Collinf/ridgc, 9 C. B. B70 (1850), pro- vliled the foregoing statutory definition Is compiled with. Where an Instrument Is so amb tuousI.'- worded that it Is doubtful whether It was Intended for a bill or note, the holdeir may treat it at his option as either: Mix v. Hhid, ti B. and C. 433 (1827). Also In the cases mentioned in section B (2). Knafntl(tl.—(\) A bill is an "order." It/t tnmirtesy will not make it precative. Thus, an instrument running "Mr. B. will much oblige Mr. A. by paying to the order of C, etc.," was held good as a bill: ntiff v. Wrhh, X Ksp. 129 (1791), but an Instrument running "Plnisf let bearer 'have £100 ami you will much oblige me," was held not to be a bill: Ltfllc v, Slarlford, 1 M. and M. 171 (1828). (2) Thr rffWi»ii<'H hf n mil tnunt nnrtrnr on ita iac with traso.i- ahle cerfnfnfj/;— CToncerniIng the neiialnty required aa to ithe drawee, see section 6; as to the payee, see section 7; as to the sum payable, s^e sfotlnn 9, and as to the time when payable, see sections 10 and 11. (3) Thfl Hill must hr pniiahlr In inonry nlonr, but It may be the money of any country: Third \iitiniwl Itank v. Cmh\i. 41 TT. C. Q. B. 408 (1877). // muat not nrdvr nmithinn to hr doiv in addition to th'' pnyni'vt of mnnvii. (Stnrv. section -iri), then^forp an order rfqulrlnc poympiit of a certain sum "and to take up a note for ♦ ^e drawer" wns he'd to bo invalid na a >>ill: frvinr v. Tioirni. 14 Peters (TT.S ), 293 (ISWV Money in Canada would be specie or Dom'nion Notes, see B.a.r., c. 30. (4) The ordrr to vnu muiit hr iinronditio»n1 — A bill <1rawn Pay- able In the eommon for"! "as nT n.'.vlce" Is uncond'tlonni (Sto- j-v, Qootion flr>> but p bill pa^'ti'>i'^ «ri mnnv da^'« "after ^hp ar- rlvnl"' of a certain sh'p is conditional and invalid, for the ship mav never arrl'p: f'nlmrr v. Prntt. 2 Bing. 185 n''24). As to t'lfl Instruments payable on a contingency, see spctlona 11 and 82. S. An order to pay out of a particular fund is not uncon- ditional within the meaning of this section; but an unqualified II i 1 428 BILLS OF EXCHANGE ACT. order to pay, coupled with (a) an Indication of a particular fund out of which the drawee is to re-imburse himself, or a particular account to be debited with the amount, or (6) a statement of the transaction which gives rise to the bill, is unconditional : This prohlbltioin of a bill being pail^^ out of a particular fund arises from the taot that tihe fund may prove msutticlent. It would be resitrictlve instead ofbelng merely directive. Aa oruer lo pay on the saie or produce wnen sold of the X Hotel" was deciared invalid, Uitl v. liuliord, 2 B. and P. 413, Ex. Ch. (isui); but an order to pay a sum mentioned "which you will please charge to my account and credit according to a registered letter I have addressed to you" was held to be valid under the above sub-section: Itv Uoysv, 33 Ch. U. (>12 (1886). Although a bill may not be diaiin conditionally, it may be accepted conditionally (section 19), indorsed conditionally (sec- tion 33, or, aa> between imjn'edlat© parties, delivered condition- ally (section 21). (5) The Bill must be signed by the person giving it.— The drawer may sign a blank paper which may be subsequently filled up, section zu, or it may be accepted first and signed by the drawer afterwarus, section IS; but even if accepted It is not a biU If It lack ilie drawer's signature: Hnj. v. Jluiper, 7 y. B. D. 78 (1S81). The drawer may sign o) any part of the bUl so long as he signs as drawer (Uylts, p. 97). It has been held in France that, where a bill payable to drawer's order was Indorsed by him, though he omitted to sign it on the face, this was sufll- cient (Aoi«jlii(r, section 199). The drawer may sign in pencil, or with a cross or mark; Coupal v. Voupul, 5 R. Li. 465 (1873). Inltt^is, a iraue or assumed name, a stamp or a printed or en- g'-aved signature, are valid, where it is clear that the parties Intentied to adopt them as their signatures: l^tpurte liirmingham Banking Co., L. H. 3 Ch. (153 (lS(iS). in the case of a Corporation the signature of any autliorized agent, officer or servant would bind them, or the seal alone would be sufficient. The signature Qf a parly need not be written with his own hand. It is sufficient if it be by some other person by or under his authority, see sec- tions 25 and 90 (Maclaren, p. 39). IRREGULARITIES IX BILLS WHICH DO NOT INVALIDATE THEM. 4. A bill is not invalid by reason— (a.) That It is not dated; (b.) That it does not specify the value given, or that any value has been given therefor; (c.) That it does not specify the place where it is drawn or the place wht.'e It is payable. A bill without a date is irregiij'.ar, although not invalid; such a bill lis presumed to be dated on the day of the delivery, OUea V. Boiiinv, G M. & S. 73. As to filling in ihe date in the case of an undated bill or acceiHance, see sections 12 and 20. The al- teration of the date is a material alteration, section 63. In the case of an accepted bill payable to drawer's order, the words "va'.ui> rpcelved" mean value rPCPived by the accept- or: Higmorc v. Primrose, E M. & S. 65 (1816); while, in a bill payable to a lliird party, they mean prima lacie value received by the drawer: (Irant v. Da Coitta (181;')), 3 M. and S. 351 (1815). If no place of payment is specified the bill is payable gon- eraMy. It may be payable at either of two places at the op- tion of the holder. Birching v. (lower, Holt N. P. C. 313 (1816). As to presentment for payment when no p'ace of payment is ppeclHed and the address of the drawee Is not given, see sec- tion 45 (4). The addition of, or change In, a place of payment is a material alteration, section 63. Proof admissiblb in actionb on Bills and Notes. The contpact-s on a bill ore contraota in writing, and, subject to tiho provlslonis of section 21 (2), parole evidence is not admlsalhle to vary the rights and' obllgatlon» of the BILLS OF EXCHANGE ACT. 429 partlee aa app«ariiiir upon the face of tihie instrument, ex- cept to shew (1) that tihe daite of the bdlH or note is not the true diate, section 13, or (2) that the delivery is Incom- plete and oonditionaJ only, so that tihe oontraot is not opera- tive, section 21 (3), or (3) to impeach ithe consideration for the comtnact and prove its abeence, failure, or Illegality: .Sorthfield v. hninrnce, M. L. R., 7 S. C. 148 (1891): Ahrrn v. Criij; L. R., 5 C. P. 37 (1869); or (4) to show that the contract has been discharged by payment, release or otherwise: Hamilton v. Perry, Q. R., 5 S. C. 76 (1894). but see section 61. POSSIBLE LEGAL EFFECT OF INSTRUMENTS INVALID AS BILLS. (1) An instrument invalid as a bill may be vaJid ob an agree- ment if it is otherwise conformable to the general law as to contracis, n>ice v. HannlHter, 3 Q. B. D. 569 (1878); or (2) an order 10 pay out of a particular fund may be valid as a.n assignment of the fund or a part of it and operate without acceptance by the debtor, Huck v. Robson, 3 Q. B. D. 686 (1878); or (3) an ac- cepted bill In the hands f the drawer, unsigned by him. may be a security for the payment of money within section 326 (d) or section 353 of the Criminal Code, 1892 (Maolaren, p. 38). FORM OF FOREION BILLS OF EXCHANGE. The validity of a bill as legards requisites in form Is deter- mined by the law of the pla-ie of issue, section 71 (u). but if it conforms to Canadian I^aw as regards requisites in form it is valid, in Canada, as between all persons who become parties to it there, section 71 (2). The laws of the countries mentioned below are most strin- gent as to form, and the followlner essential requirements are in addition to those necessary under the Canadian Act:— A mil Mtint he (/mrd.— Freroh Code, Art. 110: Oerman Ejf. Law. Art. 4: Netherlands, Art. 100; Ita^y, Art. 251. The nature of thr conf>idrrniion 7nu8t hv stated. — French Code, Art. 110; Netherlands, Art. 100. The Bill iiiuxt lir dratrn pni/ahlr to order.— A bill payable to bearer is invalid. French Code, Art. 110; Spanish Code, Art. 430; Russian Code, Art. 29.'^. The pajiir iiniKt hr iianird.— Germa,n Exchange Law, Art. 4. The plaev where the Hill in drawn must he stated.— Vrench Code, Art. no. The plane of payment mvi*t he stated.— Vrevtch Code, Art. 110; Italian, Art. 251; German Exchange Law, Art. 4. 4. An inland bill is a bill which Is, or on the face of It purports to be, (a) both drawn and payable within Canada, or (b) drawn within Canada upon some person resident therein. Any other bill is a foreign bill: 2. Unless the contrary appears on the face of the bill, the holder may treat It as an inland bill. Dishonored foreign billa must all be protested, section 48. nishonored inlnnd liills need only be protrsteayable at the aUdress of the drawee or acceptor, .sec- tion 4."i (C) ^d^ (H) (n). As to tile measure of damages when a bill is disb.inored nl>ron'i: see section 57 (3) (h), and as to conflict of lav/s see section 71. 5, A bill may be drawn payable to, or to the order of, the drawer; or It may be drawn payable to, or to the order of, the drawee: A bill pnyable to " order," which Is lndor<>od hv 'ho drawer, is deemed to be payable to drawe, and also as regards an In- dorser who was aware of the fact at the time he indorsed the bill, section 50 (2) (d). If both drawer and drawee are fictitious persons, the biU might, perhaps, be treated as a note made by the first indorser (Chalmers, p. 18). 6. The drawee must be named or otherwise indicated in a bill with reasonable certainty: Illustbations.— (1) Instrument in the form of a bill, but ad- dressed to nooiie. B. writes an acceptance thereon. This is not a bill, and B. is not liable as an acceptor, Pfto v. Bei/nolds (1855), 11 Kxch. 418, Ex. Ch.. but he may be liable as the maker of a note: Ficldtr v. Marshall (1861), 30 L. J. C. P. 158. (2) Instrument in the form of a bill payable to drawer's or- der, not containing the name of a drawee, but expressed to bo payable "at No. 1 Union iStreet, London." B., who lives there, accepts it. This Is a bllfl, and B. is liable as acceptor: Orai/ v. JUilmr (1S19), 8 Taunt. 739. As to a fictitious drawee, see section 5 (2). 2. A bill may be addressed to two or more drawees, whether they are partners or not; but an order addressed to two drawees in the alternative, or to two or more drawees In succession is not a bill of exchange. Where a bill is addressed to two or more drawees, it must be accepted by a!), or It is a qualified acceptance, section 19 (2) (d), but those who accept are bound even if the others do not (Maxjlaren, p. 56). Though a bill may not be addressed to two drawees in suc- cession, or in the alternative, it may name a drawee In case of need, see section 15; but his status is wholly different from that of an ordinary drawee. Alternative or successive drawees would give rise to difficulty as to the recourse If the bi'lJ was dishon- ored. This difficulty does not arise In the case of a note, con- sequently the^makers of a note may be liable jointly, or jointly and severally, according to Its tenor (section 84) while the ac- ceptors of a bill can only be liab'.e jointly. A note payable in the alternative by one of two makers Is Invalid: Ferris v. Bond (1821), 4 B. & Aid. 679. (Chalmers, p. 19.) 7. Where a bill is not payable to bearer, the payee must be named or otherwise indicated therein with reasonable cer- tainty: The payee need not be mentioned by name. It is suflficlent that he be indicated so that he can be clearly identified. Ex- trinsic evidence Is admlssll>le to identify the payee when mis- named, or when designated by description only, but not to ex- plain away an uncertainty patent on the bill: Sonrra v. Oliin (1846), 8 Q. B. 24, Ex. Ch. Thus, if a bill la payable '^to tiha BILLS OF EXCHANGE ACT. 431 order of the Treasurer of Portugal," evidence Is admissible to «how that C. was the treasurer when the bill was Issued. tV. Uolmea V. Jacquva (1886), L- R.. 1 Q. B. 376; and If the bill Is pay- able to the order of J. Smythe," evidence Is admissible to show that T. Smith is the person Intended to be described thereby: Willia v. Barrett (1816), 2 Stark 29. But if a bUl be drawn in the form "Pay or order," evidence is not ad- missible to show that C. was Intended to be the payee: R. v. Randall (1811), R. & R. 195. In a New York case a note payable to the order of the indorser" was held good as being payable to any holder who might indorse it: United States v. White (1841), 2 Hill, R. 59. By section 32 (2), where the payee is wrong- ly designated or his name is mis-spelt, he may endorse the bill as therein described, adding. If he think fit, his proper signa- ture. If the name of the payee be left 'n blank, the legal holder of the bill may AM up blank, C. C, art. 2282. Bagleu v Ellison (1890), 16 V. L. R. 263. !/«'>• 2. A bin may be made payable to two or more payees jointly, or it may be made payable In the alternative to one of two, or one or some of several payees. A bill may also be made payable to the holder of an ofUce for the time being: When a bill Is made payable In the alternative to one of two payees. It passes by the Indorsement of cither: Spauldinn v. Kruns, 2 McLean, 139, (1840) 3. Where the payee is a fictitious or non-existing jjerson, the bill may be treated as payable to bearer. Real persons are con.slderert fictitious when they are the nominal payees of a forged bill: Bank nf Enqlnnd v. Vdj/iVino (1891), A. C, 105 H. Li. It Is not neceesary for the payee to b« Ilctitlous or non-exIstIng to the knowledge of the drawer or ac- ceptor to bring It within the Act. A cheque drawn to the order of a fictitious person may be treated as payable to bearer, al- though the drawer believes and intends the cheque to be ray- able to the order of a real person: C'luttoH v. AUrnhnrough A ). As to estopped by negligence, see section 24 (1). Where a bill is drawn payable to a deceased person In Ig- norance of his death, his personal representatives mav enforce the bill: Murray v. East India Co. (1S21), 5 B. & Aid. 204. 8. When a bill contains words prohibiting transfer, or in- dicating an intention that it should not be transferable, it l3 valid as between the parties thereto, but It Is not negotiable: 2. A negotiable bill may be payable «Ither to order or to bearer: This aub-sectlon must be read with sub-section (4). As to when a bill negotiable In Its origin ceases to be negotiable, see sections 35 and 36. A bi'l or cheque payable to order or bearer cannot be de- prived of the negotiable character of such Instruments except by restrictive indorsement or by statutory provisions made for that purpose, exactly complied with. A chenue drawn payable to the order of M. and crossed "account of M. National Bank," Mi M I .'A rr 432 BILLS OF EXCHANGE ACT. held not to be thereby made not negotiable: amith v. Union Bank of London, 1 Q. B. D. 32; Satiunnl Uank. v. Hilkr 0891), 1 Q, B. 435. The Statutory provisions referred to are sections 75 and 80. (Canipt)ell'3 Ruling Cases, Vol. IV., B. of E. Rules 27 and 28). 3. A bill is payable to bearer which is expressed to be so payable, or on which the only or last indorsement is an in- dorsement in blank: See "bearer" defined by section 2. See section 34 (1) as to blank indorsements and converting blank Indorsements into spe- cial indorsements. 4. A bill Is payable to order which Is exprersed to be so payable, or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or Indicating an Intention that it should not be transferable: If the acceptor of a bill payable to drawer or order when acceirting it strikes out the words "or order" and writes over his acceptance the words "in favor of drawer only," the altera- tion is immaterial, and thft negotiability of the bill Is not af- fected: Vrrroix v. Miyir (1890), 25 Q. B. D. 343, C. A. affirmed (1891), A. C. ,520, H. L. A bon made payable to a party therein named is negotiable though the words "or order" are omitted: DesM V. Daly, 3 Rev., d© Jur. 492 (1897). 5. Where a bill, either originally or by Indorsement, is ex- pressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order, at his option. 9. The sum payable by a bill is a sum certain within the meaning of this Act, although it is required to be paid— (a.) With interest; (&.) By stated Instalments; (c.) By stated instalments, with a provision that upon default In payment of any instalment the whole shall become due; (d.) According to an indicated rate of exchange, or accord- ing to a rate of exchange to be ascertained as directed by the bill: Sum (7rr/rti/i.— Instruments suoh as the followinpr would be invalid as bills or notes, as not heinp for sums certain within the meaning of section 3, name'.y:— An order to pay C. "JIWI, .ind all other sums which may be due to him," Smith v. Ninht- inffiilr (1818). 2 Stark 375; or an order to pay C. "the proceeds of a shipment of goods, value $2.00*1. consigned bv me to you." .Tonr.i V. Simpunn (1823), 2 B. * C 318; or an order to pay O." "thft balance due to me f^r building the Baptist College Chapel:" Crowfoot V. Giirnri/ (1832), 9 Blng. 372. Intrrrst.—A bill pavable "with lawful interest" is valid: Cf. Wnirinnton v. Earljf fl8r>3). 2 R. & B. 703. 23 L. J. Q. B. 47. The legal rate In Oanadn is G per cent., but the nartles mav agree upon any his-her or lower rate (R. S. C. c. 127. ss. 1 and 2). v>'f>- vhlrd th.Tt If the bill or note is made pa^yable at any rate or per- eentnge for any period less than a year, ary interest exceed- ing 6 per cent, per annum shall not be ehargeable, payable or reeovernible unless the bill or notei cont.air.s an express state- ment of the yearly perc^ntaere of interest to which the rate charged is eauivalent. and any sum paid on account of interest not chargeab'e mav be recovered bark or deducted from any amount remaining due, RO-Gl Vict., c. 8, s. 1 and 2, Tn.ttnlwfvf/i.—The instalments mav be either with or without Interest. E ch instalment is treated as a. servarate bill with re- gard to day.-? of grace, presentment and notice of dishonor. A bill payable "by two equal instalments due 1st January and 1st BfLLa OF EXCHANGE ACT. 433 July" l9 valid. OuHkin v. Davis (1860). 2 F. & F. 294; but a bill payable "by Insialmenta," not specifying dates or amounts or payable "by equal in3ta.ments tc ceaae on the death of X," would be invalid: Moffutt v. HaicutUH (liJ41>, Car. & M. 16; y/orlvy V. Harrison (1835). 3 A. & K. 669. Ejcchangc— Where a bill is to be paid in one country, and the sum is expressed in the currency of another, the amount is de- termined according to the rate of exchange on the day the biil is payable: Jlimcfificld v. finnth, L..R.. 1 C.P. 340 (1866). A bill pay- able "'at exchange as per last indorsement," or "according to the course of exchange upon Paris," wouild be valid: Vf. Poilurd V. IhrriiH 1803), 3 B. and P. 335. The indorsement of a rate of exchange without authority is a material alteration which may avoid the bill: Iltmchfltld v. Smith, Huiira. 2. Where the sum payable Is expressed In words and also in figures, and there Ls a discrepancy between the two, the sum denoted by the words is the amount payable: The rule in this sub-section is so binding that when tho fig- ures in the margin difter from the amount in words, evidence l9 inadmissible to show that the amount In figures Is the correct one: Hauii'tcrson v. Pipvr, 5 Bing. N. C. 425; but when tihe words are not distinct, the figures in the margin may be loolced at to explain them: limrdnhy v. Hill, 61 111. 354 (1871). 3. Where a bill is expressed to be payable with interest, unless the instrument otherwise provides, interest runs from the date of the bill, and if the bill is undated, from the issue thereof. See "Issue" defined by section 2. Interest proper, payable by the in.strument Itself, must be distinguisheii froi.i interest by way of damages, payable on its dishonor. As to the tlatter, see section 57. If a wrong date is inserted in a bill which comts into the hands ot a holder in due course lie can coKect interest from the date Inserted, even if it be previous to the true date of is- sue. Ejections 12 and 20. 10. -V bill is payable on demand— (a.) Which is expressed to be payable on demand, or on pre- sentation; or— (&.) In which no time for payment Is expressed; Bills payable on demand are not entitled to days of grace, but bills payable at a determinable future time are entitled to three days' grace. See section 14. As regards instruments payable on demand, see section 36 (3), when overdue; section 45 (2) (b), presentment for i)ayment; section 72, cheque; and section 85 as to notes. 2. Where a bill is accepted or indorsed when It is overdue, it shall, as regards the acceptor who so accepts, or any indor- ser who so indorses it, be deemed a bill payable on demand. As to the rights of a transferee of an overdue bill against parties liable thereon before its maturity, see section 36. 11. A bin is payable at a determinable future time, within the meaning of this Act, which is expressed to be payaljile— (a.) At sight, or (6), at a fixed period after date or sight: There is no limitation as to lengtli of tdme. "If a bill of exchange be made payable at never so disitamt a day, if lit be a day that mtwt com«, it ia no objection to itihe bill." Per WllteB, C. J., in Colehan v. Cooke, Wlkles 396. . 26 . ' . - -Ik!' 484 BILLS OF EXCHANGE ACT. Se« section 44 (2) (3) as to flxlnsr the due date of bdlls in ordlnaxy oases, and sectiion 64 (5) as to the diue date when ac- cepied for honor. "After sigtit, " In a bill means after accept- ance or noting for protest for non-acceptance, i.f., sight evid- enced on the bill. (6.) On or at a Jixed period after the occurrence of a speci- fied event which is certain to happen, though the time of hap- pening is uncertain: Amonp other thiiips death has been held to be an event cer- tain to happen. anJ bills and notes payable upon, or a speci- fl^-T fi^^r, nfter »t o death of a ne'"'"'^ bn\"^ been fl'»'''nr"'i i-oi'd. Vide Cooke v. Colehan, 3 Str. 1217 (1742); Rolfey v. Greenuiell (1839). 10 A. and K. 222; hut notes payabl»» "when I marry X," Pramon V. Garrett (1689), 4 Mod. 242, "when I am in good olrcumstances." I7a> parte Tnotcll (1789), 4 Ves. 372, and "ninety days after the dis- solution of partnership between C. and X., and the' settling of the books," Saekett v. Pnlmer (]8.'S7), 25 New Yorl< R. 179. have been declared Invalid. A bill, however, mav be made payable at a particular fair or exhibition, though the dav on which it will be held Is not Itnown: Colrhan v. Cooke, nupra. 2. An instrument expressed to be payable on a contingency la not a bill, and the happening of the event does not cure the defect. 12. Where a bill expressed to be payable at a fixed period after date Is issued undated, or where the acceptance of a bill payable at slgrht or (1) at a fixed period after sight Is undated, any holder may insert therein the true date of issue or ac- ceptance, and the bill shall be payable accordingly; Provided that (a) where the holder in good faith and by mistake inserts a wrong date, and (ft) in every case wherr ^ wrong date is Inserted, if the bill f ubse thereby, but shall operate and be payable as if Ihe date .^ inserted had been the true date. See "issue" and "holder" defined by section 2. "erood faith" by section 89. and "holder in due course" by section 29. This presumption of authorization to insert true date of i"- sue or acceptance is now extended, as regards the kind of bills named, to any nayee or Indorsee in possession of the bill and to the bearer (Maolaren, p. 84). See section 20, for the general rule as to material omissions in a bill, and the conseauences of supplying them, and section 63 PS to material alterations. Where the accepta^fe is not dated, the blH is presun'ed to have been aece^tofi a few days after its date: Roberta v. liethrlt (1852), 12 C. B. 778. Is. Where a bill or an acceptance, or any indorsement on a bill, is dated, the date shall, unless contrary is proved, be deemed to be the true date of the drawing, acceptance, or indorsement, as the case may be: Parole eiMdence is adr^'ssible fo sho-w 'hat the da.to on the bill Is not the true date: Bifigx v. P/pt. 8fi Tenn. 589 (1888). Tf a bill be dated on an impossible dav. such a« the Sllst" September tbo ^nw adnntt! the nearest dav bv tvio rior-tr'no "f cv T>reg, and the oomputatlom will be frorn the 30th Septeml>er: "Wanner v. Krnner. 2 Robinson (T.,a.) 120 (1842), 2. A bill is not invalid by reason only that it is ante-dated or post-dated, or that It bears date on a Sunday or other non- Juridicfll day. Time is computed on ante-dated or nowt-dated bi'Ms from th" n: Hitch<^rk V. KOiamlM (1S89). «0 L. T. N- S t.36 To ante i?o aa notice; /llt»»HW. 14. Where a bill is not payab'e on demand, the day on "Which It fails due Is determined as follows; 5 (a.) Three days, called days of grace, are. In every casiB where the bill Itself does not otherwise provide, added to the tJme of payment as fixed by the bill, and the bill is due and payable on the last day of grace: Provided that— 1. Whenever the last day of grace faills on a legal holiday or non-juridical day In the Province where any such bill is payable, then the day next following, not being a legal holiday or non-juridical day in such Province, shall be the last day of grace: This sub-section applies on'v to bll'.s payable In Canaifla. Those payable elsewhere are go rned as to their due date by the law of the place where tl ,• are payable. Section 71, ss. 2 (e>. Where a bill is payable bv instalments, days of grace are allowed on each instalment: Orklgc v. Sherboniv, 11 M. & W. 374 (1843). Non-negotlab'e notes not payable on demand are entitled to days of grace: i^mith v. Knuhtll, 6 T. R. 123 (1794). 2. In all matters relating to bills of exchange the following and no other shall be obser\-ed as legal holidays or non-jurldlcal days, that is to say: (a.) In all the Provinces of Canada, except the Province of Quebec— Sundays; New Year's Day; Good Friday; Kaster Monday; Christmas Day; The birth The term "Month" In a bill means the calendar month: C. Every bill which Is made payable at a month or months ■after date becomes due on the same numbered day of the month in wli'ch it is mp''e payable as the day on which it is •dated — unless there is no sucli day in the nonth in wliicli it is •made payable, in which case it becomes due on the last day of that month— with the addition, in all cases, of the .) Waiving, as regards himself, some or all of the toolder'a duties. BILLS OF EXCHANGE ACT. 437 Chalmers gives tlie following illustration, p. 40:— C'., the hold- er of a bill indorses It to L>, adding the words "notice of dis- honor waived. " No subsequent party is obliged to give notice of dishonor to C. Such an Indorsement relates only to the in- dorser's liability, and does not otherwise att*ct the negotiation of the bill In the United States it has been helc^ that an indorsement In tlie above form dispenses with the necessity of notice to all subsequent indorsers, Parahlcy v. IJcath (1879), 31 Amer. R. 246 (Daniell, seotion 1090), but the English and Canadian Acts av- pear to contemplate the restriction of the waiver to the drawer or lndoehftlf of a Company If made, accented or Indorsed (n) In the name of the Company bv any person aothiBr under the authority of the Company, or (h) iiy or on behnif of or on account <'f the Companv bv any person aellnBT under Its an- thorltv The nconra.te and full name of the Comnanv Is Import- ant. Where a Company Is "limited," that word forms a part of Its nii'ne. nnd nnv iiocentance omlttlnc tVi's (ir>n« not bind the Company: Atkins v. Warillv, :,S I,. J. CJ. U. 377 (1889). 43d BILLH OF EXCHANGE ACT. 18. A bi' nay be accepted— (a.) Before it has been signed by the drawer, or while otherwi:?e incomplete; See section 'M as to acceptance in blank. (ii.) When it is overdue, or after it has been dishonored by a previous refusal to accept, or by non-payment: The ho.der may treat a bill eis dishonored by non-acceptance if it turns out that the drawee was incompe^enL to contract. (Madaren, p. lOiJ. A bill accepted when overdue is payable on demand, section 10 (2). After a bill has been retuseU acceptance, and notice of dishonor has been given, the holder may apply to the referee in case of neea if there be one namea in lUe bill, section 15 ; or it may be accepted for honor by a third party, section M; tor the urawer may change his mind aiid accept. If he should do so the date from which time shoulu run is llxed by the next eub-section. 2. When a bill paya.ble at sight, or (1) after sight, is dis- honored by non-acctpiance, and the drawee .subsequently ac- cepts it, the holder, in the absence of any different agreement, is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance. If the holder took an acceptance of a later date it wouJd be a quaihlled acceptance, and he would do so at his own risk (sec- tion 41). (Maclaren, p. 103). Unless the contrary appear by its terms a bill of exchanga is prima iiicw deemed to have been accepted before maturity and within a ieasonal)ie time after its issue, hut there is no pre- sumption as to the exact time of acceptance. For example ; B. accepts, without dating, a bill drawn payable three months after date. He attains his majority the day before the bill ma- tures. This is prima lucic evidence that B. accepted it while an infant: Roberts v. Jhthcll (1852), 12 C. B. 778. 19. An acceptance is either (a) general, or (b) qualified: a general acceptance assents without qualification to the order of tlie drawer ; a qualified acceptance In express terms varies the effect of the bi.l as drawn: By section 44 the holder may refuse to take a qualified ac- ceiJtance. If he takes it, he must give notice to the drawer and indorsers, who may decline to be bound by it. but they must express tlieir dissent within a rpasonal>;e time, or their ac- quiescenoo is presumed. If no notice is given, the drawer and Indorsers are discliarged, unless they have authorized the tak- ing of the qualified acceptance. 2. In particular, an acceptance is qualified which is— (a.) Conditional, that is to say, which makes paj'ment by tlie acceptor dependent on the fulfilment of a coiwlition therein stated; but an acceptance to pay at a particular specified place Is not conditional or qualified. Words importing a conditional or qualHle(Vniix (18!tl), App. Oases 520. In Fannhawe v. I'vtt (1857), 26 Ij. J. Kx. 314, it wa.s held that a mere memorandum, such aiS a wrong due date, Introducod into tlie acceptance, contrary to the tenor of the bill, formed no part of the acceptance, and, BILLS OF EXCHANGE ACT. 489 therefore, did not make it quaJifled (Campbell's Ruling Cases, Vol. IV, Ruies S, • rson who became a party thereto prior to Its completion. It must be lU.ed up within a reasonable time, and strictly in accordance witli the authority given; reasonable time for this purpose is a question of fact: The onus of proving the delivery of the blank paper by the Uigiier in order tnat it might be converted into a bid or note is on the holder. Once it is proved that it was so delivered, the onui) i'S shifteil, and It is then for iiie slg-ner to prove that It Was not filled up wlithdn a rea>.sonyable time or in accordance with the authority given. Kxlrlnslc evidence of all the malarial circumstances 'Is ad- missible to dietermi'iije whoit i» ai reia.soniable time: IlalcH & London it Aortli Western Kaiiuau, 4 .'.!. & S. W. It i.s for tlie parly seeking to enforc^i the bill to aecouiil for tho delay If it has been un- usual, but when the wlj^ner s.'ek.i to escape inability on the Rround that the authority given lias been exceeded, tlio onus of proof is upon him as the holder has prima facie authority to illl it Ui; 23 he sees lit. Death revokes the authority to fllJ up a bill unless the hold- er be a hoilder for value. Provided, that If any such Instrument, after completion, la negotiated to a holder In due course, it shall bo valid and effectual for all purjwses in his hands, and he may enforce it as If it had been llllcnl up within a reasonable time and strictly .in accordance with the authority given. M » ^ li. 1 ; ^ ■ -4- I it'i ^:! ^A\ m BILLS OF EXCHANGE ACT. The instrument so taken must have been originally deliver- ed as a bin or delivered in an incomplete state Jn order that it might be converted into a bill. When a bill or note is writtfn over a signature griven for other purposes, the signer Is not liable: Ford v. Auger, 18 L. C. J. 296; Hnnqur Jacqurx Cartirr W Leacdrd, 13 Q. Ij. R. 39. If a bllEunk acceptanice is stolen from tlie signer and filled up, he is not liable to a holder in due course: Baxendale v. Bennett, 3 Q. B. D. 525. The liability of the signer begins when the bfll is first issued complete in form, and not when he signs: Ex parte Hapicard (1871), L,. R. 6 Ch. 546. An indorser of a note who signs before the maker or payee, and before the amount is filled up, is liable on the note as com- pleted: Bossin V. McCarthy, 7 U. C. Q. B. 100 (1849). 21, Every contract on a bill, whether it Is the drawer's, the acceptor's or an Indorser's, is incomplete and revocable, un- til delivery of the instrument in order to give effect thereto: Provided, that where an acceptance Is written on a bill, and fhe drawee gives notice to, or aiccordlng to the directions of, the person entitled to the bill that he has accepted it, the acceptance then becomes complete and irrevocable: The acceptance must be in writing, but the notification may be edtiher wrltiten or verbaJ. Delivery is necessary also to render the contract of the mak- er or indorser of a promissory note complete and irrevocable. The mailing of the bill to the party to whom it is addressed constitutes delivery: Ex parte Cote (1873), L. R. 9 Ch. 27. If the indorser of a bill or note delivers it to his own agent, he can recover it; if to the agent of the Indorsee, he cannot recover It. A delivery by mistake may be revoked by mutual consent; Ex parte Cote, supra. 2. As between immediate parties, and as regards a remote party, other than a holder in due course, the delivery— (a.) In order to be effectual must be made either by or under the authority of the party drawing, accepting or indorsing, as the case may be; (b.) May be shown to have been conditional or for a speciail purpose only, and not for the purpose of transferring the property In the bill; But If tihe bUl Is in the h«-nds of a holder in due course, * ^alid delivery of the bill by all parties prior to him, so aS' to make them liable to him, is conclusively presumed: 3. Where a bill Is no longer In the po.'^sesslon of at party who has signed It as drawer, acceptor or Indorser, a valid and unconditional delivery by him is presumed until the contrary is proved. Where ti bill has been delivered conditionally or for a spe- cial pun)Ose oiiily, and the person who has so received it vljoOates his trust, the owner may recover the bill or Its amount from such person or anyone who has taken It with notice: Muttyloll Heal- v. Dint. S Moore P. C. 319 (185.3). A 1)111 or note may be dellvere-fers to a collnteral writ- ing or agreement which Is conditloival in Its t?rmB wUl not vltl- BILLS OF EXCHANGE ACT. lil ate the bt'.l in the hands of a person who has no notice of Its contents: lAmlWy v. Lacry (1864), 34 U J. C. P. 9. (See Ensrilsh and American oaaea revlf;rtred, Taylor v. furry [1871], 109 Massa- chusetts 3U. Capacity and Authority of Parties. 258. Capacity to Incur liability ae a party to a bill is co- extensive with capacity to contract: Provided, that nothing In this section shall enable a cor- poration to make Itself liable as drawer, acceptor or Indorser of a bill, unless it is competent to It so to Jo under the Jaw for the time being In force relating; to such corporation,: 2. Where a bill is drawn or Indorsed by an Infant, minor, or corporation having no capacity or power to incur liability on a bill, the drawing or Indorsement entitles the ho'der to receive payment of the bill, and to enforce it against any other party thereto. (Capacity to contract Is regulated by law ajid cannot be alteired by private agreement. Questions of capacity are determined according to the laws In force in each Province, and, when these conflict are govern- ed in Quebec according to the law of the domicile of the con- tracting party (C. C. Art. fi), and though the law of the other provinces is not settled, the leaning appears to be towards the aaime rule (Maclaren, p. 120). In the United States, on the other hamid, the law of the place of tihe contract ds generaUy followed (Story on Contlict of Laws, s. 102). Im England capa.city Is per- haps determined according to the trx domlrilii of the contra,ctln'' party (Chalmers, p. 61, citing Sottimuyer v. De Jiarros [1877], S P. D. 1, at p. 5; C. A. & Westlake, 3rd ed., p. 44). (See a'.so MacUaren, p. 120 and 121.) Capacity to incur iliability must be distingushed from (a) capacity to enforce rights; (h) csipacity to transfer; and (() ca- pacity to contract on behalf of another, as a iM>rson who can- not, himself be held liable may be al>le to V>Jnd others, or to make a legal transfer, or to act as agent when duly authorized. The incanacity of one or more parties to a bill in no way diminishes the liability of the other parties thereto: (7. Onu v. f'ooprr (1872), 3 Dougl. fin. Thus the acceptor cannot set up the Incapacity of the drawer, section M (2). the drawer cannot set up the incapacity of the aeoeptor or payee, nor can the indor- ser set un the Incapacity of the drawir or a lucvlous Indorser (section 55). The principal o'.asses without full capacity to contract are:— (fl) Natural incnpnhlr/t.— Those i>er.«?onLS who, from natural in- flrmilty, are enitilrely Incapabl'e of etnclently lookinig after their own interewtis, viz.: Idiots and lunatics, (h) Trmpnrnrii incnpahlr/i. — This class liieludes mlniors, drunken persona and tho<*e who.so menitial faonltle*! «re 1mpair«?d tor the tlmie being on aocoiint of age, a<^'Oildent or .silckness, (c) Artiflctal incapahlri^. — Those per.sons who, though perfectly able to protect thedr own Interests, are forbidden by some si)eiclaJ Jaw from emiterlnig ln>to oontrncts. Tliiis class Includes persoTia clvWly dead, non-trading oornoratlonws nnd married women who»e domicile is in thf Provlnoe of Que1>ec. Miiinrn.— 'No person In Canada under the ago of 21 .vears ca.n Incur liability on a bill of exchange or note, except under the law of the Province of Oueb'^c, which alln%vs minors emancip- ated bv marriage or by the Court to sign bills nnd notes In the nerformance of all acts of pure administration (C. C. Arts. S14- S22). n"d minors rngnered In tra('e> rr busliie<:s to bind themse'l^'es by bills and no4es relat'nfr to such trade or buslnews (Art, ,123), (Citii nani- v f,rtfff>i;r. 20 T.. C. .T. 131), but a minor dfimlctled and encRtred in bu.olness In Ontario cannot bind himself bv a not« pRva.bip In f)uel>ec, the law of Ontario irnvern'ng as to his capa- city; JoniD V. DivklnHoit, Q. R,, 7 S. C. 313 (181)5). A minor Is not If ■ !■ i . i I..? ii !if' I 442 BILLS OF EXCHANGE ACT. bound on a bill or note given hy him for necessaries, although lib limy UK uaoie On me cuiidiuciauoii: iij,- ^urio iViauqut9i.Le iCn bitliiixott ».iaai^, 1 (J. u. uio, *^. A., out iiie acuon Cdimoc ue laK- tu on suca condiueraiion untu aiitr lue uue oace oi the note, ii uu uuuu peiBou uecomea aoccpLor or a Di.^, the mere lact uiau It was uravv;i anu uai-ed wnj.e jie wa^s unuer age wiil not uo a g.e six montns after uaie. tie ratihes uie uansactiun on attaining his majority, ana tne bi.d is ne- goiiaitu. ±>. IS iwt aiauie on his acceptance;: Uj; imnu Kibble USioA U R. 10, Ch. 373. (b) B., alter attaining his majority, accepts a bill to pay a debt comtracted before ihls miajonty. Tne biul is indorsee to a nomer in uue course. The ho.uer can sue B: livijaisi itunktny Co. V. uoiurty uSTO), 4 Ir. L. R. y. B. SJ. IZi. (c.) B.. after attaining his majority, accepts a bill to com- promise a joint liability on a biK which he accepted during his minoruy. rie is not liable to a ho.der wiin notice: timuh.rf. htng (1892), 2 Q. B. 543. If an infant be a pa;rty, jolntfly with aji axiulit, to a negotiable instrument, uie owner may sue the adiilt aJone, without taking notice of lihe infamt: Burycsa v. Mvrrill, 4 Taunt. 468. Where an infamt is i>apbner m a firm, unless, on comline of age, he noLineis the ulscoml nuance of the portJiershlp^ he Is liable for oontrajois maide by tne tirm after his majority: Oood V, //son, b B. & Aid, 147. ICiylits of Minor ua Jloldvr of bill.— A minor may transfer, or sue, oa a bill which he holds, whether he is the drawer or not, for, tliough ho is not bouiKi, other partits may be bound to him. Idiots, Lunatics, (7c.— In Quebec persons Interdicted for im- becility, madness, insanity, prodigality or ('.unkenness, cannot bial taemselves by bill or note (C. C. Art. 987). BiKs and notes maiie by such persons when not interdicted are valid, but may be uiinulloii if injurious to them, provided their condition waa notorious or known to the other party at the time of the exe- cution of the instrument. (C. C. Arts. 334, 335). In the other Provinces of the Dominion the ru'.e is that the conti-act of a lunatic or drunken rnan who, by reason of luna- cy or drunkenness, >> not capable of understanding the terms or forming a raitlonal judgment of Its effect upon his Interest is not void but only voidable at his option, land tliia only if his state Is known to the otner party. Polilock on Contracts, p. 91 (adopted by Maclaren, p. 121.) See Robertson v. Killy, 2 O, R. 163 (1883), Imperial Loan vo. v. titone, 1 (j. B. 509 (1^92); U'^re v. Uibaon, 13 M. & W. 623. Married Women.— A married woman having separate property may t)y bill, note or otlierwise bind the separate property wh'-;h she has or may acquire in all respects as If she were /erne ir, except in 'tihe Province of (Quebec, where the general ruile is lat a Wile cannot contract without the authorizaiion of her .us- banil tC. C. Arts. 176, 296 and 986), Uitmiijvr v. Hitihir, 8 L. C. J. 103 (lSti4); but in the case of a note such authorization Is suf- liclent'.y proved by the indorsement of the husbund, Johnson v. iicott, 3 L. N. 171 (1S8U), or by his signing a note as witness to the signature of his wife, Keanvy v. (Jcrvais, R. J. Q., 3 S. C. 496. If the married woman is separate as to proprrty by mar- rla^re contract (C. C. Art. 1422), or if she be granted by the Court a separation from bed and board (C. C. Art. 210), or even a sepp ration «s to property only (C. C. Art. 177), she may BJd- inlnl.sier her own proptrty and give bills and notes when neces- sary for such admlnlstrutlon. If she is a public trader she may bind her.self without the authorization of her husband for all that re'.ates to her commerce, lieauhirn v. Ifiissnn. 12 L. C. R. 47 5) nor together with him, Uchn- v. Ouimtt, 19 R. \j. 78 (1890). She cannot even indorse a note piven by her hus- band for necessaries for their common support. Bruneau & Burnes, 25 L. C. J. 245 (1880), but a note made by a wife separ- ate as to property in favor of her husband and indorsed by him for necessaries purchased by her Is valid without proof of ex- press authority to her to sign the same: f'bolrt v. Duplcmiit, 6 L. C .T. 81 (18fi2). A woman may incur a debt or l)ecom«» surety for a third person, with the authorization of her husband. TIhe principles of Quebec law applying to the incapac.ty of married women to contract have always been held to be matters of public policy (Glrouard. p. 59). A woman who is divorced, or whose husband is civilly dead, has full power to contract. Rights of Women as Ftoldrrs of Bills and Kotrs.—lt a married woman is the holder of a bill or note, she may sue on it In her own name except in Quebec, where the husband alone can col- lect and sue upon it, if there be community of property (C. C. Art. 1298). if the wife Is separate as to property, It forms part of lier separate estate, but she cannot sue upon it witiiout the authorization on her husband (C. C. Art. 176), nor can she valid- ly pass the property in a bill payable to her oruer without such authorization, except as against an acceptor, drawer or indors- er, wlio is precluded from denying It under sections 54 and 05 (Aiaclaren, p. 131). If the bill or note be given to a married wo- man, marcliandv i)ubliora/ioHs.— These corporations can become parties to notoa and bills which are given special authority to do so by their •charters or by the general laws by whloh they are governed. A'so when it is al>solutely necessary to enable them to carry on tlveir business or attain the objects of their creation. In the case of a trading corporation, the fact of incorporation for the purpose of trade would give capacity. In the case of non-trad- ing coi ^orations, the power must be expressly given, or there must be terms in the charter wide enough to include it (Chal- mers, p. (M). The bill of a company lacking cai)acitv is. as re- gards the company, dncurably bad, for a contract ultra vires of a coriioration cannot be ratified. The capacity of a company ceases when a resolution to wind it up has been passed. Companies incorporated by Letters Patent of the Dominion or Provinces of Nova Scotia and British Columbia, are required to add the word "limited" after the name on every bill, note or cheque, and If they fail to do so are liable to a penalty. Other incnpahle rxruonii. — Persona civilly dead have no capa- city to contract. These include persona in the Province of Que- bec: who take solemn and perp^-tual vows in a religious com- munity recognizeil at the time of the cession of Canada to Eng- land, and subsequently approved (Art. 34 C. C). 23. No person is liable as drawer, Indorser, or acceptor of a bill who has not signed It as such: Provided that— (a.) Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name; Tlie first part of this section should 1h' read In oonjunctlon with section 56. If an agent becomes a party to a bill or note in his own name his undisclosed principal cannot be made liable on the bill: AdiWHonla Co., 43 L. .1. Ch.. p. 734. but a.*? between imme<]late parties he may nevertheless be liable on the oonsld- fTatioa. (b) The signature of the name of a firm is equivalent to the signature by the i)erson so signiing; of the names of all person liable as partners in that firm. i ''It; I ^f| tw 44* Bills of exchange act. I. The persons liable under this sub-section are (1) working, (2) Uormant or secret partners, I'ouup v. Ortcer tlSib) 5 Ch. D. 4!)8, and (a> those who. a- though not really partners, have held themstxves oui as such: Ournty v. iJvann 11866), 27 L. J. Ex. 166. The pariners in trading or commercial firms are presumed to have given each other authority to bind the lirm by drawing, Indorsina or accepting bilis in the illrm name for partnership purposes, but not otherwise. Fcdtrul Hank v. Northwuod, 7 C. R 389 (lSi84): and after the bill gets into the hands of a holder in due course, the presumption of authority becomes absolute : Henderson v. Curvcth, 16 U. C. Q. B. 324. In civil or non-trading partnerships there is no such pre- sumption of authority. The partner who signs is bound, and so are his co-partners if they have authorized his act, or If they subsequently ratify it, but not otherwise: Wilson v. Broicv, 6 Ont. A. R. 411 (1881). The holder must show authority, actual or ostensible, to bind a non-trading firm (Lindley, 5th ed., p. 130). Partnerships, such as professional partnerships, mining partnerships, agricultural: partnerships, and commission agen- cies, have been held non-trading; but banking is a trading part- nership (Chalmers, p. 69), Where the name of a firm, and the name of one of the partners in it is the same, and that partner draws, indorses or accepts a bill in the common name, the signature Is prima farie deemed to be the signart^ure of the firm. If the firm carried on bfiiness and the individual does not, but the presumption may be rebutted by showing that the bill was not given for part- nership purposes or under the authority of the firm: Yorkshire Uanknq ro. v. Biatson (1880), 5 C. P. D. 109, C. A. When a bill payable to the order of the firm is indorsed by a partner in the firm name in fraud of his co-partners, the pro- perty therein does not pass to an indorsee with notice: Ilrilhiit V. Nevill (1870), L. R., ^ C. P. 478, Ex. Ch. The m.andate and powers of the partners to biii-l the part- nershin by bill or note cease with Its dissolution, evtn though the bi'^l or note be given in oonn'ection with a transaction begun beforf> pucb dfpsolution. Such bills or notes would require spe- cial authf^rity from the co-partners: Hank of Montrcnl v. Pan''. 98 111. 110 (1881). But if a partner retires from the firm, and pivea no notice r>f his retirer^pnt. he is liable on a bill accented by the firm subsequent to his retirement. (Pollock, p. 52; LiiUlley, 5th ed., p. 181). 24. Rubipct to the provisions of this Act, where a signature on a bi'iJ Is forged or placed thereon without the authority of the person whose signature it purports tn be, the forged or unatJthorized signature is wholly inoperative, and no right to retain the bi'.l or to give a discharge therefor or to enforce pay- ment thereof, against any party the^reto can be acquired thTough or under that signature, unless the parly against whotn dt is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority: Provided, that nothing in this section shall affect the ratifi- cation of an unauthorized signature not amounting to a forgery; And provided also, that if a cheque, payable to order. Is paid by the drawee upon a forged indorsement out of tht funds of the drawer, or is so paid and charged to his account, the drawer shall have no right of action against the drawee for the recovery back of the amount so paid, or no defence to any claim made by the drawee for the amount so paid, as the case may be, unless he gives notice in writing of such forgery to the drawee within one year after he has acquired notice of such forgery; and in case of failure by the drawer to give such notice within the said period, such cheque shall be held to have been paid In due course as respects every other pr. -ty thereto or named therein, who has not previously instituted proceedings for the protection of his rights. BILLS OF EXCHANGE ACT. ia The words "subject to the provisions of thiis Ax5t" apply to sectioiu) 54-56, relating to the parties precluded from setting up forgery or want of authority, and sections 79 aoid bl, relating to the payment of crossed cheques by a Bank. Forytry is the making of a false document knowing it to be false, wlt'h the intention that it slvall in any way be used or acted upon as genuine to the prejudice of any one, and any per- son committing this crime is liable to imprisonment for life. The following acts have been decided to amount to forgery if done with fraudulent imtent :— (1) The writing by one mtun the iieime of anotiher; (2) writing the naane of a tictitlous persooi; (3) writing a man's own name with intent that it should paiss lor anotlier's; (4) tilling up a blank cheque with an unauthorized sum: (5) obliterating, addung to, or altering the crossing of any cheiiue; (6) altering a bill, note .or cheque, whether by addition, subtraction, or substitution; (7) writing a bill or note over a gen- uine siigiiature not given for that purix)se. Where several join in a forgery, each forges the whole instnimtait. The following acts do not amount to forgery; ((/) writing words amounting to a bill or note over the signature of another, purposely given ; ('») drawing a bill upon a persoin with false addition or descrip- tion to that person's name; and (c) writing another's ntime with or without the words "per procuration" under a mistaken belief of having authority. See cas'es cited in Maciaren, p. 145, 147. A forgery cannot be ratified, MvnhantH Hank v. /jiwas 18 S. C. ■ Can. 704, but a person whose signature has bwn forged may by his conduct be estopped from denying its genuineness to an In- nocent holder: I'nion Hank v. Fanixiroilh. 19 N. S. 82 (1882): ^rott \. Hank of New Brunswick, 31 N. B. 21 (1891) as to when the fact of becoming a party is an estoppel from setting up that the sig- nalure.s of other parties thereto are forged or unauthorized. See as to tZrawer. section 55 (1): maker of note, section 87 (b): lii- dor.ser, section E.'i <2): acceptor, section ."4: acceptor for honor, section ."5; fictitious I'ajee, section 7 (3); fictltiou.'i drawee, sec- tion 5 (2). 2. If a bill bearing a forged or unauthorized indorsement is paid in good faith and in the ordinary course of business, by or on behalf of the drawee or acceptor, the person by whom or on whose behalf such payment is made ahaM have the right to recover the amount so paid from the person to vhom It was so paid, or from any indorser who has indorsed the V>iM sub- sequently to the forged or unauthorized Indorsement, provided that notice of the Indor.9ement being a forged or unauthorized Indorsement Is given to each such subsequent Indorser within the time and In the manner hereinafter mentioned : and any such person or Indorser from whom said amount has been re- covered shall have the like right of recovery against any prior imior.ser subsequent to the forged or unauthorized Indorsement. 3. The notice of the Indorsement being a forged or unauthor- ized indorsement shall be given within a reasonable time after the person seeking to recover the amount has acquired notice that the Indorsement is forged or unauthorized, an discount a bill by a signature which ho afterwards discovers to be forged, whether he takes through the signature or Independently of It, that Is, whether he has a good title to the bill or not. he may at once recover the money from the person who brought the bill for discount. IPo, If such a bill was given for the price of goods or other consideration, the receiver might, on discovering the forgery, 0-t once sue on the consideration. A bin held under a forged slgrnature must be distinguished 11 H u\ fi.(i f4 i ; 1 HI' I • ?■ •A :i, A. C. 179. A power of attorney to draw. In- dorse or accept bi.ls does not authorize tlie agent to become a party to accommodation paper, Girman yutioiiui Hank v. tStud- Icy, 1 Mo. App. 2W (IbTu), but the principal would be liable to a holder In uue course: EdicardH v. J Itoinun, (Hi Mo. 469 (1877). An agent appointed to wind up the business of a firm has not authority to accept bills drawn on the firm: Odt7i v. Cormack, 19 Q. B. D. 1223 (1SS7). A person who, without authority, signs the name of another to a bill, either simply or by procuration signature, is not liable on the Instrument: Pothill v. Walter (1832), 3 B. & Ad. 114. He would, however, be liable for any loss arising from the false re- presentation: West London Vomimrcial Hunk v. Kitson, 13 Q. B. D. 362 (1884). If the alleged princiipal be a fictitious or non-existing person, the signer is liable on the bill: (Jf. KcUur v. Baxter (1866), L. R., 2 C. P. 174, and guilty of forgery. See section 23 (1). 26. Where a person signs a bldl as drawer, indorser or acceptor, and add^ words to his slgimiture ind'ioatlng that he signs for or on behalf of a principal, or In a representative character, he is not personally liable thereon ; but the. mere addition to his signature of words describing him as an agent, or as tilling a representative character, does not exempt him front personal liability: The principle is that the ;erms, agent, manager, etc., at- tached to a signature are regarded as mere dmiymitio pcmonac, aaid unless the signer sets forth clearly that he subscribes it for anoither he is liable: Liadbittcr v. Farrow (1816), 5 M. & S. at p. 349. As to liability of agent signing his principal's name without authority, see note to last section. By section 31 (5), a reprtsentative. who is compelled to indorse may do so in such terms as to negative personal liability. The case of an executor or administrator often gives rise to difficulty. Where an executor merely winds up a transaction commenced oy tlie testator it is right that he should be able th protect himself from personal liability, but where he carries on the business and engajges in fresh transactions, it is, clear that the fact that he is an executor will not enable him to car- ry It on as a limited liability concern (Chalmers, p. 79). 2. In determining whether a signature on a bill Is that of the principal or thiat of the agent by w'hose hajvd it is wnlttein, the construction most favorable to the validity of the Jnstru- meTit shaM be adopted. Authority to execute and negotiate bills and notes in the name of the principal will be implied from the appointment to a particular clerkship or office where the customary duties are tp execute and negotiate bills in the name of the principal. BILLS OF EXCHANGE ACT. 447 Where a principal has repeatedly recog lized or ratifletl the act of the agent by payment of blKs or no.es, or in ainy other way, an lmplle<;l authority will be presiin.ed. or, al least, the principal will be estopped In the future from denying the au- thority of the agent. 27, Valuable consideration for a bill may be constituted by— (a.) Any consideration sufficient to support a simple contract; The subject of contract is within the Jurisdiction of th« local legislatures, and where Provincial laws conflict as to con- tracts on bills and notes, the principles governing contlici of laiws will be applied. It was held by the Privy Council, In the case of McGrarn v. RuHnrll, 56 L. T. N. S. 501 (1887), that th^re Is no difference oe- tween French (Quebec) law and English law as to the necessity for a valual)le consideration for the validity of a contract. A conaideration sufficient to support a simple contract may consist either in some right. Interest, profit or benefit accruing to the one party, or some forhtearance, detriment, loss ur re- sponslbilitv given, sulTered or undertaken by the other: Curr'u' v. Misa, Li. R. 10 Ex. 162 (1875). The payment of money, however. .«mall the sum, and the sale of goods, however low the va'.ue— If there is an absence of fraud— will enable the holder to recov- er against prior parties. The Courts do not enquire Into the adeauacy of a bona fldi' consideration, Jonrs v. Onrilon (1S77). 2 Add Cas. 616 H. L. : but inadequacy of consideration may ba evidience of bad faith or fraud: Himnn v. CrUUand (1862), ."> T.,. T. X. S. 524. A cross acceptance. BuriVn v. licnton (1847). 9 Q. B. 843: a forbearance of the debt of a third person, G rears v. Iluntrr (1887). 19 Q. B. r>. 241; the compromise of a disputed claim, al- thouTb It nfterwards annpars that the claim wn.>i whollv tin- founded, Callishcr v. Biacholfaheim, L.. R.. 5 Q. B. 449 (1870); a pro- mise to give up a bill thought to be invalid. Smith v. Smith. 13 O B. N. P. 418 nS6,3): a debt barred bv the Statute of Limita- tions. Wrifiht V. Wright, 6 Ont. P. R. 2fl.'. (1876): the oblfgatinn on the part of a thief to res'tore stolen property. London rf fminttf Bank V. liivrr f'Intr Bank (1888). 21 O B. D. 535 C. A.: the nblitra- llon to recompense the father fnr Injury done to hia minor .son. TJuUf'u V. Moranh. 27 N. S. 281 (18d patent rights tr> what nrovp« not tr» bo n new and useful invent'on, Altnnur v. Cnhl". Ramsay A. O. 87 (18S6), do n-^t mns-'Itnto va'ne. A fIuctnfl;tinE' bi.ln'iee m"-"- form a consideration, for r bill. Pease v. Hirst, 10 B. & G. IZi. (ft.) An antecedent debt or HabMIty : such a debt or liability Is deemed valuable consideration, whether the bill is rayable on demand or at a future time; .A bill must not be expresand to be e-Iven for a future consid- eration, for this would render it conditional and invalid. 16 M. &r W. 146. but notes eriven to an insurmioe comnany for preni- lums subsequently earned are valid: Wood v. Shnic, 3 L. C. J 169 (1858). 2. Where value Iia.s at any time been given for a bill, the holder is deemed to be a holder for value as regards the a. If, while ihey are in the possession of the creditor, the debt- or contracts oilier uebis, he wl.l have, in tbe absence of agree- ment lo the contrary, a lien on tliem by implicaiion ol law for the payment of mese new debts, c. C An. IDiu (Maclai'en, p. yi2). in England a banker has a lien by imijlication of law on all bills or notes rineived trom his customers m ihu ordinary course of uankiiiK business lo secure any baiance that may be due, J.uinlun Vlutrtii\d Hunk of Australia v. Mliin-, 4 App. Cas. 413 (ISTW : but if the banker knows that the biils do not belong to his customer, no lien can attach; Ex pane Kingston USV1>, L.. R. ti Ch. U32. If the amount of the lien is less than the note, the holder is a trustee for the pledger for the difference: HviU v. Ftirnivat, 1 Cr. & M. 538 (1833). 28, An aocommodaition party to a bill is a person who has signed a bill as drawer, acceptor, or Indorser, without receiving vaiue therefur, and for the purpose of lending liis name to some other person: An accommodation bill is a bill whereof the acceptor is in sub- stance a mere surely for some other i>erson who may or may not be a party thereto: Vf. Oriental Jtnaiwial Vorp. v. Overend (1871), 1j. K., 7 Ch. 14:!, but where there is a running account between the drawer and the drawee, and a bill is accepted, it is not an accommodation bill, even although the account was against tlie •irawer at the time of acceptance: re Overend, Ourney & Co. /.-. jnirte Siran, L. li. 6 Kq. 35« (1868). An accommodation bill is not issued within the meaning of section (!3 of the Act unti'. it comes into possession of some per- son who can sue upon it: Engel v. tecame the holder of it before it was overdue and without notice that it had been previously dishonored, if such was the fact; (i.) That he took the bill in jrood faith and for value, an a that at the time the bill was negotiated to him he had nd notice of any defect in the title of the person who negotiated it; The bill must be "complete and regular on the face of it," and meet all the requirements of section 3. If the bill Itself conveys a warning, caveat emptor. Th« holder, however honest. BIbLS OF EXCUAXOE ACT. 440 can fcCQfirrt no better title than the person had from whom he t»ok U. TkUs if the hoJder tadces a blank acceptance (aectlon 20), or a bi.l wanting In any material particular, such as an un- (kued blW, etc.. he takes it at his peril, Atcdc v. Duron (isoi), 9 Exch. im. but the fact of a bill beinR post-dated does not pre- vent its beinsr regular within the meaninK »f this section . Vut^penttr v. Htrect. € T. 1... R. 410 (1890). The holder also takes at his riak a bill which has be«ii torn ami tlbo piece* p««ted to- Kether. if the tears appear to show an Intention to cancel it : Itwhami V. I'HmroHP. (1859), 7 C. B. N. S. 82. For bills overdue, see sections 14, 36 (3) and 85. "Notice" means actual, though not formal notice, that is tO «ay, either knowletlge of the facts, or a suspicion of something wrong, combined with a wilful disregard of the means of know- ledve: Raphael v. Bunk of Kngland (1885), 17 C. B. 174: but mere negligence does not fix a holder with the defective title of the person passing it to him. The fact that at bill Is overdue, or that there is an irregularity patent on the face of it, operatea as notice. Notice to tho principal is notice to the agent, and notice to> the agent ig notiop to the principal, subiect to the proviso (IV that wheoii fhe agent is himself a party to the fraud he is not to be taken to Tiave disclosed It to his prlncipa', Kx partr Orient- al Bank (1870), L.. R. 5 Ch. 358 (1870) ; anil (2) whoare a bill Is n«- gotiateil to atn agent and notice is given to the principal, or vice wrua, there must l)e a rea»9onab!e time for communication: Of. Williit V. Hnnk of England (1835). 4 A. & E. 39. As to ''pood falfh" and the tests thereof, see section 59. "FVir value," see section 27. 2. In particular, the title of a person who negotiates a bill ie defective within the mea.ni'ng of this Aot when hie ob- tained the hill, or the aeceptance thereof, by fraud, duress, or force ajid fear, or other unlawful meanw, or for ar* illegal consideration, or when he negotte.te8 it in breach of faith, or under such circumstances as amount to a fraud: Fraud.— A hill Is al¥ected with fraud when the Issue or any subsequent negotiation of it is obtained by some misrepresenta- tions or untrue statements intentionally made for that pur- pose, MrColhim v. Church ; or when it wai* nei?otiated in breach . f faith, />/ovrf v. llmcard (1850). 15 Q. B. 995; or In fraud of third parties: Itonintcel v. ftaylor. 17 Ont. A. R. 6)3 <18)0): Joi-^s v. Gordon (1S77). 2 App. Cas. 616. H. L. Fraud is never presumed; it must be nroved : C. C. Art. 993. Durcin. — May consist in actual violence or In threats thereof: Duncan v. Scott (1807), 1 Camp. 100. Tiolrncr or Frar ig a cause of nullity whether practicev statute. Promissory notes to creditor."? for the lialanoo of their clsiim for signing a deed of coT"T)osition or dis- charge Oarn'^nu v. J.arhirrr. Q. R.. 1 S. C. 491 (1S!)2): notes f,iven In satisfaction of a wager on rn election. Dufrifnr v. Ourvrtmrynt, n L,. C. J. 27S (IS.W: or as a subscrlntion to an election fund. DnnsrrrriH v. fit. Louix. IS S. f. Tan. 587 (1S. R.. 7 S f. JOO n890): or to a hotel keener in payment for liquor, Brnard v. itcKai/. 9 Man. ITfi dssa). are void. A renewnl or stibstitiition of a new 'n.sfnment for the o'd would not cure the defect arising fro-" lllpp-nl consideration 'Maclaren. n. 18."). The 'test whether a h-lll or note be conitamimate*!' with n.n Mlegal tiransaction is this: "Does the nlaintlff renulre anv aid from the llIeBa! trRTisiaotion to establish his case?" Simpson v. Bloo-t. 7 Taunt. 246. CV)nfracts with a public enemy are illegulr and n. hill drawn hv an aJlen en^emv on hig debtor here, nnrt indori^ed to the pteulritlff. a Bri'tteh soibject resident in the hostile counitry, ceuimot be recovered on, thooigh the plaintiff do not sue uimtil 29 1:9 !) ! pt 1 i1 I r I ( ]iMJ 450 BILLS OF EXCHANGE ACT. the retiiTTi of peace, and though he were resident at the time t>t taking the Mil In a hostile country. WiUinon v. Patteson, 7 Taunt. 440. But where a British pruesooier In tYance d"©w a bill on an Kngdish subject, and indorsed it to (the pJatiiwit, then an aillon enemy, I't was held that alter the return ot peace Che plialnitlff might recover. Antome v. Morahead, (j Taunt. 237. A bill drawn by a Briti&h prisoner hi favor of an alien eneinay cannot be enfor eu by the payte. Byies, I4ih ed, ip. 159. 3. A holder, whether for value or not, who derives his title to a bi.l through a holder in due course, and who Is not himself a party to any fraud or illegality atlecting it, has all tiie rights of t!hat holder in due course as regards the acceptor and all parties to the bill puor to that holder. Previous notice or knowledge of the original defect In th3 bill is noL suthcieiil lo preclude liim from acquiring a.l the nghta and privileges of a iioider in due course: Jiuu v. C/iupwu/t (isii), Iti M. & VV. 3oD; Lmbny v. Jimistm, 131 U. S. :«(i (ISiS). 30. Kvery party whose signature appears on a bill is primo faciii deemed to have become a party thereto for value: Kxtrinsic evidence is admissible between immediate parties to prove absence, failure or illegaliiy of consideration, but when a p, s. 1 and 2, would not be "complete and regular on the face of it," and the omission would be notice to a holder that no greater Interest than G p. c. per annum was payable on iliQ note. 4. Every bill or note the consideration < ? which consists, In whole or in part, of the purchase money of a patent right, or of a partial Interest, limited geographically or otherwise, in a patent right, shall have written or printed prominently and legibly across the fa,ce thereof, before the same Is issued, the words "given for a patent right:" and 'Without such word* thereoB such inc^trum^nt and any renewal thereof shall ba void, except In t.ht> '^■;nda of a hoilder in due course wltJhoiit notice of such consideration: 5. The Indorsee or other transferee of any such instrument having the words afoii-e.said so printed or written thereon, shall ti ke the same subject to any def'^nce or set-off in respect of th J whole or any part thereof which would have existed b©'* tween ili'.; original parties: 6. Every one who issues, sella or transfers, by indorsement or d^lvcry, any such instrument not having the words "given tor a patent right " jirlnted or written In manner aforosp.ld across tlia facet thereof, knowinj^ the oonsideration e see. 21. mi II ill ^•i' li 452 BILLS OF EXOSANGE ACT. \ '■ i f I ) 8. A bill payable to order is negotiated by the Indorsement of th« holder completed by delivery: As to indoraement. see sec. 2 and sec. 32. As to "bill payable tp order" see sec. 8 (4). As to restrictive indorsements, see sec. fe. An individual who pe/sonates the holder or who makes title througrh a forged Indorsement is not the holder: Smith v. Fnion Bank (1875). I^. R., 10 Q. B. 295. The indorsement and deliver:' must be made or authorized by the sam© person, sec. 21 (2) (a). Where tihe payee of a note Indorsed it in blank before bis death, and his expcutors deliv- ered it to plaintiff, it was held that the latter could not recover: Brotnage v. Lloyd, 1 Ex. 32 (1847). On the death of the holder of a bill payable to his order, all his riphts pniss to his eTceputors or personal representatives, who tnav negotiate It by indorsement: Rohinson v. Fitnn<\ 2 Str. 1260 (174fi). Sn also if a bill be made payable to a dead man in icr- norance of his death: Murray v. E. I. Co., 5 B. and Aid. 204 (1821). 4. Where the holder of a bill payable to his order transfei-a it for value without indorslnpr it. the transfer sives thp trans- ifwree micih tl'tSe as the tran'siferreir had in the bi'l, amd the transferrer In addition acquires the rlpht to havp the indorse- ment of the transferrer: Tf the tranferrer shoulii die before indorsinr' his personal repre.^entativps would be sub.iect to the same obligation: Dnj/ v. Lonnh)irst. G2 T.,. J. Ch. 334 (1893). When indorsement is subseou°ntly obtained, the transfer takes effept as n nesrotiaf Inn fror" the Mme when the indorse- ment is ffiven: Wh'ntlrr v. Fnrnfrr (18631. 14 C. B. N. S. 258. Where a note i^ not indor.<»ed bv the pavee. t^^e nresumption i<» ♦>int It is still his property: Drmrr/> v. TToqlr. Q. R., 7 R. C. 470 (1895). B. Where any person is under oblifration to indorse a hill In a representative papaeity. he may indorse the bill in such terms as to nepative personal liability. See spp. ^(^> (1> as to Indorsements limiting or negatlvlnp lia- bility, and sec. 26. 32. An Indorsement In order to (,rvernte as a nepotiation must comply with the following: conditions, namely: — (n.) Tt must be written on the bill itself and he sicned by the indorser. Tne simpl" sipna.ture of the Indorser on the bin, without ivdilitionHil words. Is sufflplent; An indorsement writti'n on an allonge, or on a "copy" of a bill Issued or nepntiateil in a pountry where "ponies" are repopnized. is deemed to bo written on the bill itself; The Indorser need r it sipn with his nwii liand. Ills signa- ture may be written nv some one authorized hv him, seption.«l 2R and fio Tbo ind'-r'-'^iTien nnd s'^naUit-e mav ii'> In nencil n:nd mav be on any part of the bill, even om the faico; Yniirio v. filovrr (1857). 3 .Tur. N. S. O B. 637. As to Indorsement of hill drawn In P =et BOO Hpp. 70 (2). Au fiUnnnf 's a paper attaphed to the 1>I)1 to reeeive 'ndnrse- ments when there Is no lonper room for them on the hlU It.eplf. (h.) Tt must he an Indorsement of the entire bill. A pnrtinfl Indorseinont. that Is to spy. an indorsemo'it wliieli purnnrts to transfer to the indorsee n part only of tli(> amount ninalile, or w'hlcti ptirports to transfer Ihie bill <•> »wo or more indoraee* severally, does not operate as a negotiation of the bill; There mav be a partial aepeptniion of a hill, sep, 19 f?1iV and an Indorsement o-f sueb a bill would bo \-aild. as H woulil he nn indonsrmor.i of the enlire bill as aepopled (Maolar^^n. p. 204). tN'hllp Invalid as n nepntintlon, a partlni Indorsenient. nuruort- Inf to sullt the ritrh* o'' action nij. n biP. 'u'"' o'lernto a" a.n nu^'orifv »o repolv" pavment oif th»» nmount tlierehy specified: IMIhut v. ynill. I., R., 4 r, P. 358 (18«9). MLLS OF BXGUANOE ACT. ^ (c.) Where a bill is payable to the order o< two op mov* Rayees or Indorsees who are not partners, all must IndprMi unless the one Indorsing has authority to indorse f r the others: a. Where, in a bJM payable to order, the payee or indorsee is wroag-ly designated, or his name is misspelt, he may Indors* the bill as therein described, adding his proper signature; of tM may indorse by his own proper signature: 3. When there are two or more indorsements on a bill, each tadorsemem is deemed to have been nwule In the order In Wihich it appears on the bill, umtil tlie ooti'trary is proved: •1. Aa indorsement may l>e made in blank or special. It i f in y Jilso contain tiirms making It restrictive, iS«o sectioiiiS 34 and 35. 33. Where a bill purports to be indorsed condltionailly, th« condition may be disregarded by the payer, and payment to the indorsee is valid, whether the condition has beea fullllled or not. Thus "Pay E. F. upon my being elected Felloe of St. Paui'a College ' does not oblige the acceptor or maker to refuse pay- ment it' the election lias not taken place. If tlie condition is not fuCfllled, the holder who receives pay- ment may be responsible to the prior indorser, who made a conditional indorsement (Maclaren, p. 208). 34. An indorsement in blank specifies no indorsee, and a bill Bo iiidursed becomes payable to bearer: By sect. 31 a bill payalile to bearer is negotiated by delivery. 2. A special Indorsement st>eclties the person to whom, or to whose order, the bill is to be payable: Such a bill can only be negotiated by the jierson designated. Under sec. is, a special Indorsement foKowlng an Indorsement in blank (controls the effect of the indorsement in blank. 3. The prov'slons of thlsi Act relating to a payee apply, with the nixiessary moditlcatlons, to an indorsee under a special indoi'senieiit: See sections 7 and 8 as to payee. ■1. Where a bill has been indorsed In blank, any holder may convert the blai'- Indorsement into a si>eclal indorsement by ■wrillnK above ti indorser's signature a dliv<'Uoii to pay the bUl to or to the order of himself or some other person. In such a case the indorsee takes the bill as specially In- do! .'d to him by the last itiilorser, and the person giving him the illl would incur the liability only of a transferor by deliv- «ry Maclaren, p. 211). li tiere ore several blank Indorsements, the holder may con- vert I a lirat Into a special iiidorsetneni without discharging the fiubsi .uent Indoraers: llaiik hi Hntixh X. A. v. HIUh, 2 Fwleral Beporter IG (.liiSl)). Ho may lUso strike out any numlM-r of blank Indorsements, but any Indor.'ier subse or pays it whon dishonored, ho ma.y strike out blR own luid all subsequent IndorBenientf* whether blank op spe- cifU: VnUinr v. iMurauv (1814), 3 M» and 9. 1»6. Tho pos.se««lon of ■t, bill at't.«>r dishonor bv aiti Indorser with his sptKilul lndor9tt» 1 I li ^^11 II il il '1 \ I I i .Ifi ( n , t n: 454 BILLS OF EXCHANGE ACT. ment struck out is prima facie evidence that he took up the bill ack, it was held that such a ohtniue coiild not lie restrictively Indorsed. The check was pavahle to bearer, and the Court decided that no Indorsement othnr thn.n that hv the payee duld ston the negotiability of the bill, unn. . Art. 2288 of the Quebec rivl! Code. As to transfer of an Incomplete bill, see sect. 20. 2. Where nn overdue bill Is? negotiated. H can he nepotlated only subject to any defect of title affecting It at its maturity. and thenceforward no person who takes il can acquire or give a better title than that 'which had the person from whom h» took it: A t'"!" hill o"- note Is overdue after the exnlration of the la.« and sect. ?(> (4> Merf> absence rf consideration Is not an ennit'" which nt- taclies to a bill, Stii temnt v. Ford (1842), 4 M, & Or. 101; but that BILLS OF EXCHANGE ACT. 455 if there be an agreement, express or Implied, nayable at a fixed period, and an interval cf «lx or eight days' has been he.U i;oi to ne an unreasonaole length of time. KothschiUl v. flnri'ii. 1 r> S' T.. 32.">. London <(■ Coiintii Umik v. Oroom, Ij. R. 8 Q. B. D. 228, but a cheque taken two mon'ths after date has been held to be stale, ticinll v. Ihihyxhivc ItuiUcay Co., 9 C B. iU. 4. Except where an indorsement bears date after the ma- turity of the bill, every negotiation is prima facie deemed to have been effected before the bill was overdue: In any of such cases the contrary may be proved: Bounaall V. narrison (lS3(i), 1 M. & W. 611. 6. Where a bill which is not overdue has been dishonored any person who talces It with notice of the dlshorior takes it subject to 'any defect of title attaching thereto at the time of dishonor; but nothing in this sub-section shall affect the rights of a holder In due course. As to notice and holders in due course, see sections 29 and 38. As to dishonor by non-acceptance, see sect. 43. 37. Where a blM Is negotiated back to the drawer, or to a prior Indorser, or to thel acceptor, such party may, ' aubtf eo t' to the provisions of this Act, re-issue and further negotiate the bill, but he is not entitled to enforce the payment of tho bill against any intervening party to whom he was previously liable. 38. The rights and powers of the holder of a bill are as follows :— («.) He may sue on tho bill In his own Jiame; Tho right to sue urmn a bill acc^ll<^s upon Its dishonor for nom-acceptanoe, sect. 43 (2); or for non-payment, set^t. 47 (2). OhH.lmerw, p. 123, gives the following rules as> to rights of action:— Rule 1.— The holder of a bill 1b entitled to maintain nn action theriH).n In hl.s own name agnln.st all or any of the parties liable thereon, unless it be i«ho\vn that he holds the bill adversely to the true owner: Jowh v. nrodtlhiirxt (1850). 9 C. B. 173. It a holder sues on a note, and he Is not the owner, but is merely acting for another, any defence that ooiild bi> sot up agaiinut the real owner Is available agaln.st him, Ulron v. TJro.i- mrd. M. U R., 2 a. C. 105 (1880): but whore a person hoTda a bill as ago'nt or trustee for n.nofher, he cannot use It lus n. «et-ofP against a claim made against him Individually: London rf Bombnu Hank v. Nnrnnrnu (1872), li. R,, 15 Kq. 93. Kulf 2.— Subject to the tu\cm as to trannmleslon by act of law, when a bill Is pnvub'p to a pnrtloulnr person or persona, or to his or their order, an action thereon must be brought in the I. ' 'r ^ ■■ i i ", ill 4 ■ft n 4o(; BILha^ OF BXCHANQM ACT. i«Wn« of such person or persons: At/wood v. Itattcnburu (1822), < Moore 583. liulc 3.— Subject to Rule 1, when a- bill is payable to bearer, an act.on may be brought in the name of any person who has either the actual or constructive poBsess.on thertot. and con- ■structive possedsion jointly with others is sunicieni to entitle the possessor to sue alone: Ji.nkinn v. Toiiyiic (IStiO), 29 Li. J. Kx. 147. A bill or a cheque may be seized under a writ of execution. Wuiis vri. Jcirt:rie», i Mac. & G. 422. On the death of a huliier of a bill the tiMe thereto passes to his personal representatives: Williams on Executors, 7th ed., 786, Eiaoh one of the heirs of the creditor of a bilil or noite may sue for and recover his share of it: Hx-imrtv iMxhuinulH, Q. R., 11 S. C. 484 (1897). In case of insolvency the title to the debtors' bills and notes, and the right to sue thereon, passes to the assignee or trustee (.Maelaren, p. 222). An executor or administrator who indorses a bin may, In express terms, exclu.lp personal UabUity, see .sect. 31 (."i); and as he is not the agent of the deceased he cannot by his delivery complete an indorsement writte'n by the latter. He must iin- dorse it dv novo. When there are two or more executors, the indorsement of one Is prohably sufficient to transfer the pro- perty in the bill. (Cha'.mers, p. 127). (ft.) Where he is a holder in due course, he holds the bill free from any defect of title of prior parties, as well as trom mere personal defences available to prior parties among them- selves, and may enforce payment against all parties liable on the bill; The principal defects of title arise from the causes men- tioned in sect, 2B. "Mere personal defences" include, in addi- tion to these, set-or, compensation, "etc. They would not in- clude want of capacity, want of authority, the defence of for- Kery, or the like (Maclaren, p. 225). (r.) Where his title is defective, (1) if he negotiates the bill to .a holder in due course, that holder obtains a good and com- plete title to the bill, and (2) if he obtains payment of the bill the person who pays him in duo course gets a valid discharge for the bill. If a bill be made payable to bearer or Indorsed In blank, the person in possession may be presumed to be entitled to re- ceive payment in due course, and payment to him is v.alid If made in good faith, although he may be a thtef, finder or fraud- ulent holder (ByU^s, n. 2U3). In order to vitiate such ii payment, bad faith mnst be clear- ly atiown. Proof of sufi'piicious clrcum«tance» would no^t suffice, Ferrif v. 'Warttvnx of the Ilounv of Iiuliintn/, 1 Rev. de Leg. 27 (1815). 3®i Where a bill Is payab'e ,at sight or after sight, pre- sentment for acceptance is necessary in order to fix the ma.- turlty of the Instrument. 2. Whore a bill expressly stipulates that It shall be presented for acceptance, or where a bill is drawn payable e'sewhere than at the residence or place of business of the drawee, it must be presented for acceptance before It can be presented for pay- ment: 3. In no other case Is presentment for acceptance neces- sary in order to render liable any party to the bill: As. to due date of bUls payable at and after sight, see sect. 14 (3 and 4). Where presentment Is optional, the object of presenting is (1) to obtsiln the acceptance of the drawee, and thereby secure his liahUity as a party to the bill; and (2) to obtain an Imme- 't mmmmm ■M BILLS QtW EJ$GBAN&E ACT. 4i1 ' ?!S ? '"l^^l' °' recourse against antecedent parties In. case the Dm iB'dishonored by nonraeoeptance. An agent is bound to use due diiiKence in DreaenttuR for acceptance, even wiien preaent- meut is optional for the purposes of tlie Act, and he Is liable to his principal for damage rosulting from his negligenpe : Bank of Van Dtenrnt^a Land v. Yictoria Bank (1871). L. R., 3 P. C. •i-*^- -A-^f*'!! 'T the form "Pay without acceptance" is valid : H. V. Kimuar (1838). 2 M. & R. 117. Subject to sect. 40 (2) the question of due presenunent is only material when acceptance cannot be obtained. If accept- ances is obtained, the informality of the presentment is imma- terial (Chalmers, p. 132). For persons to whom presentment should be made, see sect. 41. For place and hour of presentment, see sect. 45 and note to sect. 41. 4. Where the holder of a bill, drawn payable elsewhere than at the p'.ace of busin€s.s or residence of the drawee, has not tlmo, with ithe exercise of reasonable diligence, to present the bill for acceptance ibefore presenting it for r'lynient on the day that it falls due, the de'.ay caused by presenting the bill for acceptance before presenting It for payment is excused, and does not discharge the drawer and Indorsers. What is reasonable diligence will depend upon the facta and circumstances of each particular case. 40. Subject to the provisions of this Act, when a bill payable at -sight, or (1) after sight, is negotiated, the holder must either present it for acceptance or negotiate It within a reasonable time: 2. If ihe does not do so, the drawer 'and all indorsers prior to that holder are discharged: 3. In determining what is a reasonable time within the meaning of this section, regard shaM he had to the nature of the bin, the usage of trade with respect to similar bills, tund the facts of the ipartioular case. The provisions of the Act to whlclh this section is subject are tlioi^e ifound in sect. 41 (2) relating to excuses for presentment. Reasonable time is a mixed question of law and fact, and in determining it regard must be had to the Interests of the holder as \ve.i; as to tht> interests of the drawer and indorsers: Kamchurn MuUick V. L. Itadakismn (1S54), 9 Moore P. C. 46. 41. A bill is duly presented for acceptance which is pre- sented in accordance with the following rules: (u.) The ipresentmont must be made by or on hehalf of the holder to the drawfe or to some person authorized to accept or refuse acceptance on his beha'.f, lat a reasonable hour on a business day and before the bill is overdue; The holder by whom or on whose beihalf the biHl is presented need not be the owner or even a lawful holilt^r: V!. Mnrrinon V. Buchanan (1833), G C. & P. 18; Noughicr, seot. 462. He must ac- tually exhibit the l>ilil: I'atl River Ij . linnk v. Wmnra. 5 Metoalf (Mass.) ai6 (1842). Presentment to a iservant of the drawee who opened the door of his residence would not be siufflcient (Chltty on Bills, 11 ed., p. 196), but presentment to a clerk in his office would be valid. Reasonable dUigen'ce must be used to llnd th« drawee or some person authorized to act for him. When the drawee is a trader, j)rrsentment should be made to him at his place of business, if possible. As to what is a reasona.ble hour, the rule may be stated as follows:— If a bill be payable at a Viaiik. it iru-!t be presented within hanking hours: Wntrm v. R>lifrniit''h, , 1« T.. r. P. ?9T (ISfifi). If nt a trader's n'ace of busl- refls, thuri within oi\linary bualnesa hours. Presentment at 6 i;i H- ^4 n 1 M 1 Mi ■ ! ti. iyiiil. -468 BILLS OF EXCBANOE ACT. p.m. at Uhe door of a store which was found cJosed held out- ncient: Rvtd v. Kuvunagh, 9 N. B. (4 Allien) 457 (liioa). It at a private 'house, probably a presentment up to bed-time would b« sutllcient. In the U. S. presen'tmenta at 8 a.m. and 11 p.m. have been held unreasonable (Daniel, p. 448), but present- ment at the maker's residence at 9 p.m. was held sufficient, al- though he and his famUy had retired: Farnsworth v. A.lku, i Gray 453 (1855). Any day is a business day except those mentioned In sect. 14. See sect. 91. A bWl should be presented for acceptance before maturity. If accepted after maturity it becomes a iblH payable on demand, and should then he presented for payment within, a reasonable time so as to bind Indorsers after acceptance: sec. 45 (2 6) (Ma«ilaren, p. 235). (6.) Where a bill Is addressed to two or more drawees, who are not partners, presentment must he made to thjm all, unless one has authority to accept for all, when presentment may be made to him only: If aJl the drawees do not accept, the acceptance is a quali- fled one, sect. 19 (2 d). A3 to the consequences of a qualitied acceptance, see sect. 44. (c.) Where the drawee is dead, presentment may .be made to hia personal representative; (rf.) Where authorized Ijy agreement or usage, a present- ment through the post office is sufficient: No such usage it is believed has yet been established in Canada (Maclaren, p. 236). For presentment for payment tfhrough the post or at the post office, see sect. 45 (6) and (7). 2. Presentment in accordance with these rules is excused, and a bill may be tieated as dishonored by non-acceptance— (rt.) Where the drawee is dead, (1) or is a nctitious iper.son or a person not having capacity to contract by bill; As to a fictitious drawee, see sect. 5 (2), and for capacity to contract by bill, see sect. 22. (b.) Where, after the exercise of reasonable diligence, such presentment cannot be effected; See section 45 (2) and sect. 50 (2 a). (c.) Where, although the presentment has been irregular, acceptance has been refused on some other ground: 3. The fact that the hotder has reason to believe that the bill, on presentment, will be dishonored does not excuse pre- sentment. 42. When a bl.i is duly presented for acceptance and la not accepted on the day of presentment or within two days thereafter, the person presenting it must treat it as dishonored by non-acceptance. If he does not, the Ihodder shall lose his right of recourse against the drawer and Indorsers. The person who presents a bKJ of exchange ifor acceptance must deliver it up to the drawee if required so to do The drawee Is entitled to retain it for two business days, but alter expiration of this time he must re-dellver it accepted or unac- cepted: Hank of Von Dirmrn'H Land v. VMnria Bank (1871), \j R 3 P. C. 542 It l.s the duty of the party who leaves it to call again for it, and to enquire whether It has been accepterl or not. It Is not the duty of the other per.son to send it to him unless there is a usuaJ course of deaClne- between the imllvil duals concerned »o to do: Jvunc v. TF(f/Y/ (1S18), 1 B. & Aid 6,Vt BILLS OF EXCHANGE ACT. m II the 'bril be retained or destroyed by the drawee, protest may toe made on a copy or written particulars of the bill, sect. 51 (8). 43. A bUJ is dishonored by non-acceiptance — (a.) When It is duly presented for acceptance, and suoh an acoeptance as is prescribed by this Act is refused or cannot be obtained; or — (6.) When presentment for acceptance is excused and the bill Is not accepted: As to presentment for acceptance, see sect. 41 ; as to t'ho requisites of a vauid acceptance, see sects. 17 and 19. By ^ect. 44 (1). the hoilder has an option to take or refuse a qualified HjC- ceptance. See also Jast section. As to excuses for no^t present- ing for acceptance, see suet. 41 (2). 2. Subject to the provisions of this Act, when a bill is disihonored by non-acceptance an Immediate rigrht of recourse against the drawer and indorsers accrues to the holder, and no presentment for payment is necessary. The provisions referred to in this sub-sect, are those relating to acceptance and payment for honor; sects. 64-67. If a referee In case of need hasi been named (sect. 15), and the holder exer- cises his option of applying to him instead of proceeding' Imme- diately against the parties liable, he must await itihe maturity of the bill to see whether it will be paid. If, after dshonor, the drawee is wiMing to accept, the hold- er may allow him to do so: but .«iuch acccntance, if the blM is payaiWe at or after sight, should bear the date of the first pre- sentnnent; sect. 18. The holder has ati immediate right of rfcourse on non-accept- ance, but no right of action arises until he has performed the condition.^ precedent bv giving notice of dishonor and protest- ing, when necessary (Chalmers, 140). 44- The holder of a bill may refuse to take a. ■quaJifled ac- ceptance, and if he does not obtain an unqualified acceptance may treat the bill as dishonored by non-acceiptance: For definition of a qualified acceptance, see sect. 19. 2. Where a qualified acceptance is taken, and the drawer or an indorscr has not exprp.=sly or impliedly authorized tvisions of this Act, a bill must ^e duly presented tor payment. If it Is not ao presented, the drawer and inUorsers shaill be discharged: The provisions of the Act referred to are sect. 39 (4), sect. 48 (2), and sect. 46. In presenting a biM it should be exhibited, sect. 52 (4), and upon payment being made delivered up to the party paying. Aa to presentment of cheques, see sect. 73. A drawer or Indorser who is dlscharg'eil from iiis liability on ttie bill la also dlsoharged from his liabdlity on the oonsldeautlon therefor: Ua'tt v. McOvwjull, 25 N. S. 38 (18t)2). No prtaenUnent is necessary as against 'the acceptor, wiho is the primary debtor, but if the bilJ be payable in a. specified iplace and be -iued be- fore i)resentment, the costs are in the discretion of 'the Court: sect. 51. See McLillan v. McLninnn. 17 U. C. C. P. 109 (]S6fi). The rules applicable to the drawer or indorser of a bill ap- ply equally to the indorser of a note or cheque, but thny do not apply to the maker of a note, and they are modified as to time €t8 regards the drawer of a cheque: sect. 73. 2. A bi;; is du'y presented for payment which is presented In accordance with the following rules: — (a.) W'here the bill is not payable on demand, presentment must be made on the day it fa:is due; The riiles as to the due date of bllle not payable on. demand are given in section 14. Presentment must be made on tihe third day of grace, unless that he a non-bu.sine.';.'; day. when it must 'l>e pre.'!ente«'ote®t can be made cm a oopy": sect. 61 diys sec?. 9L ^ "" ^^^' ^^ ^^"^^ ™- ^' ^ non-b^no.^- nutirs of Agfnt;—A collecting afl»nt is. of course, Mal>l«» to his principal if he does not use due diligence in presenting a WH BILLB OF EX( fANGE ACT. 461 for payment ami take the proper proceed liisrs on dishonor : Of. iMbboek v. Tribe (l«te), 3 M. & W. 612, an, and, after the exercise of reasonable diligence, no person authorized to pay or refu.se payment can bo found there, no further pre- sentment to the drawee or acceptor is required: 4. Where a bill is drawn iipon, or accepted by t"wo or more persons who are not partners, and no place of p:iyment Is specifled, presentment must be made to them all: Presentment should be made laccording to sub-sect. 2 (■, if such there is, and with the exercise of reasonable diligence ho can be found: Presentment for acceqitance in such a case ls> excused, but may be made: sect. 41. 6. Where authorized by agreement or usage, a pre.sentmrnt throoisrh the post office is sufficient: 7. Where the place of payment specifled In tlie bill oraco<>pt- ance Is any city, town or village, and no place therein Is specifled, and the bill is presented at the drawee's or acceptor's kno-wri place of bti.~-iness or knoT\'n ordinary residence therein, and. If the^re is no such place of buslnes.s or residence, the bill Is pre- sented at the post office, or principal post office In such city, town or village, such presentment is sufficient. li VT... >t h m\ I 8 462 BILLS OF EXCHANQE ACT. If a bill is payable at a Ijank in clearing housse it has been iheld that Clearing house is sutticient: Hiynoldn v If ajlternative places are named, It is one: Hviching v. Umnr, JIult, N. P. C. The person who presents a bill for and must 'be reaily and wilving to deli ment: sect. {12 (4). As to the hour of sect. 41. a town where there is a presentment through the . Chcttle, Z Camp. 696 (18Hn sutticient to present It ac 313 (1816). payment must produce It, ver it upon receiving pay,r pret^entment, see notee lo 46. Deday in making presentm nt for payment is exeusea when the delay is caused by clrcumstai "es beyond the control of the holder, and not imputable to his defaud't, misconduct or negligence. When illie cause of delay ceia^es to operate, jwe- sentment must be made with reason^Llle diligence: The death of the holder just before the biM matures, Rotha- child V. Clinic (ISil), 1 Q. B. 47; a state of .siege or war render- ing presentment impracticable. I'atiintc v. Toirnlry (ISO')). 2 Smith 223, and de'.ay in transmi.s.-sion through the Post Office, where it was mailed in ample time, I'Ur v. Ilcinru-hschnfjir (1877), 29 Amer. R. 501, have been held to excii.«e delay. If presentment 1.=i delayed at the renuest of the drawer or indorser sought to be charged, Ihe delay Is presumably excused: Burnett v.Mona- ghan, 1 K. C. 473 (1871). 2. Presentment for payment is dispensed with — (a.) Where, after the exercise of reasonable diligence, pre- sentment, as required by this Act, cannot be effected; The fact that the holder has reason to believe thajt tlie bill will, on prtKentment, be dishonored, does net dispense with the necessity for ipresentment; (6.) Where the drawee Is a fictitious person; When the drawer is a fictitious or an incai>aV>;e person, the holder may treat the in.strument as a promissory note: sect. 5 (2). The fact that the drawee is a person not having capacity to contract does not excuse presentment for T>ayment unless the ca.=e falls within the next clause, though it does excuse present- ment for acceptance, see sect. 41 (2) (o). (c.) As regards the drawer, where tlie drawee or acceiptor Is not bound, as between himself and the drawer, to at 3pt or pay the iblll, and tiie drawer has no reason to be;ie\-e that the bin would be paid If presented; A bill accepteti for ♦he accommodation otf the drawer need not be presented in order to charge 'him where he has not pro- vided fund.<5 to mee.t it, tut should be presented to charge the indorsers: Knapp v. Bank of Montreal, 1 L. C. R. 252 (1850). id.) As regards an Indorser, where the bill was accepted or made for the accommodation of that 1ndor.'5er, and he has no reason to expect that the blH would be paid if presented; Prior indorsers are not liable without presentment: Turner V. .S'amso/i, 2 Q. B. D. 23 (1876). (r.) By waiver of presentment, express or Implied. Waiver is binding without consijderatlon. It may be either before or after the ti"^e for (presentment; in writing, or verlMl. or inferred from conduct or circumstances. As to express waiv- er. Boe sect. 16 (b). , , , , . Waiver of notice of dishonor does not include a waiver or presentment for payment: mil v. Heap (1823), D. and R. N. P. C. 57. BILLS OF EXCHANGE ACT. 463 47. A bill is dishonored .by non-payment (a) when It Js duly presented for payment and payment Is refused or cannot be obtained, or (6) when presentment Is excused and the bill la o\erdue aud uiipald; o « u « Svhi^,^.!°i ^''^sentment for payment, see section 45; and as to sections' [:; and"u."' ''''■ ''■ ^'^ ''' ^""^ ^ ^''' ^ overdue*%^ 2. Subject to the provisions of this Act. when a bill is dis- honored by non-payment, an immed. ate right of recourse again -t the drawer, acceptor and indorsers accrues to the holder. The provisions of the Act referred to in this section are sects. -r.> lo ol, and t)4 to 07. As J, general rule the holder's right of action against a draw- er or uidorser ilaie^i from the time when nouioe of dishonor ia or ought to be rectdved, and not from the time when it is sent lTnent, notif>e of dishonor must be given to the drawer and each indorser, and any drawer or indor.ser to whom saich notice is not given is discharged; Provided that — (a.) Where a bill is dishonored by non-acceptance, and notice of dishonor is not given, the rights of a tiolder in due course subsequent to the omission shall not be prejudiced by the omission; (ft.) Where a bill is dishonored by non-acceptance, and due notice of dishonor is given, it shall not be necessary to give notice of a subsequent dishonor by non-payment, unless the bill shall in the meantime have 'been accepted. The provisions of the Act which dHapens© with notio© of dis- honor in certain cases, and excuse delay in giving notice in others, are In section 50. 49. Notice of dishonor in order to be valid and effectual, must be given in accordance with the following rules:— (fi.) The notice must be given by or on behalf of the holder, or by or on behalf of an lndors«r who, at the time of giving it, is himself llatole on the bill; (ft.) Notice of dishonor may be given by an ag^nt either in Ms own name, or in tihe name of any party entitled to give notice, whether that party is his principal or not; St - ! ' Hi; «M BILLS OF EXCHANGE ACT. (c.) Where the noticp is given by or on 'behaii ct the holder, it enures for the benettt of aJl aubmKiri'p.t holders and all prior Indorsers who have a right of recourse aguinst the party to whom It is given; (rf.) Whei notice is given tby or on behalf of an Indorser entitled to give notice as hereinbefore provided. It enures for • the benefit of the holder and all indorsers subsequent to tha party to whom notice is given; (t.) The notice may be given in writing or by personaJ com- munioatdon, and may be given in any terms which sufflcdentJy identify the bill and intimate that the hUl has been dishonored by non-acceptance or non-payment; (/.) The return of a dishonored bill to the drawer or an indor?er Is, in point of form, deemed a suflicient notice of dishonor: It is not prudent to give notice by returning the bill, for that is to hand over to tlie person ilaible the chieif evidence of tiis Ijrability. (y.) A written notice need not be signed, and an ineufflcient wiit'ten notice may bo supplemented and validated by verbal communication. A misdeacription of the bill shalJ not vitiate the notice, unless the party to whom the notlc' is given is in fact misled thereby; A nO'tioe to the drawer which describes the bill as payable at the "S. Bank," whei. in faoi it was payable at thu "T. Bank," liromage ,. Vuughan (l!S4ii), lU L. J. Q. B. 10; or which describes a bill of exchange as a. note, titockman v. I'an- (1843), 11 M. &. W. 809; or wihicli transpoaes? t)"» namts of drawer and acceptor, Mellerah v. Rlppin (1852), 7 Kxoh. 678; r>r which desrribes the ac- oeMor by a wrong name. Harpham v. Child (1859), 1 F. «&. F. 653, may be sufficient. (7i.) Where notice of dishonor Is required to be given to any per.son, it may be given either to the party himself, or to hlB agent in that behalf; The agent shou'.d be some person designated for that pur- pose by the party, or In charge or employed at his office, or re- presenting him at his residence, A verbajl or written notice of dishonor given to or left with a clerk at the drawer or Indor- ser's place of busincs.s, AITan v. Kdmufulson (1S4S), 2 Exch. 724: or given to the wife of tlio drawor at his hoiiso during his ab- sence, Ilounrgo V. Cowdc (1837), 2 M. fi W. 318, were lield .«=ufficlpnt; it l)elng the duty of the drawer or Indor.ser of a bill If he be ab- sent from hl.'s place of business or residenoe tn see that there i? some person there to receive notice on his bnhalf. (/.) Where the drawer or Indorser is dead, and the party giving notice knows It, tlie notice must be given to a personal representative. If such there is and, with the exercise of rea- sionartile diligence, he can be founo; (}.) Where there are two or more drawers or Indorsors who are not partm'rs, notico must be given to each of them, unle.«3 one pf them has {luthorlty to receive such notice for the others; (k.) The notice may be given as soon as the hill is dis- honored, and must be given not later than the next following juridical or husiness day; 2. Where a r)lll, wlien dishonored, la 'n the hands of an agent, he may dtlier him.self give notice to the parties liable on (ho bill, .,r lie may give notice to hip principal. If he gives notice to his priiicliial, he must do so within the sa.ne time as If he were the holder, and the principal, upo.n receipt of BILLH OF EXCHANGE ACT. 46 such notice, has himself the same time for giving notice as if the agent had been an independent holder: 3. Where a party to a bill receives due notice of dishonor, he has, after the receipt of such notice, the same period of time for giving notice to antecedent parties> tliat the holder lias after the dishonor: Kach party receiving notice of dishonor has tlie whole of the foillowing business uay to send notice to any party to the bill wiiuui he uesires lo hoid liable. As the Usage in Cariaaa has been for the holder lo give no- tice 10 all iianies entitled to it, he should either do so stHI, or let the parlies whom ho notifies know that he is not giving r^o- tice to the others, so that they may taKe steps to protect theui- selves if necessary; Maclareii, p. :i7U. i. Notice oif the protest or dishonor of any ibill payable in Canada shall, notwitihstandiu'g anything in this section contain- ed, be KufUcienlly given if ll is addressed in due time to any party to such bill entitled to such .lotice, at his customary address or place of residence or at the place a > 'hich such bill is dated, unless any such party haa, unde' signature, designated another placo ; and ir. such latt' . se such notice shall be suHicieiit\, given if addressed to i ■. ' n duo time at such other place; and such notice so addressed shall be sutflclent, although the place of residence of such party is other than either of such above-mentioned places ; and such notice shall ha deemed to have been duly served antl given for all purposes if it is de- posited in any post office, with the postage paid thereon, at any time during tlu^ day on which such protest or presentment has been made, or on the next following juridical or business day; such notice shall not be invalid by reason of the fact that the party to whom it is addressed is dead: 5. Where a notice of dishonor is duly addressed and posted, as al)ove provided, the seniler is deemed to have given due notice of dishonor, nolwillifJandiiig any miscarriage b ■ l!ie post office. It lies on llie sender to prove that the letter containini: tiie notice was duly addressed and posted; Jliiiiliin v. tiatlir (1^2>i), 4 iilng. 715. The sutHciency of the direction on the letter is a. ijuoslion of reasonable ililigence (Clialn^ers, p. 135). Indorsers who may wish to luok to prior parties should be careiful to see (1) that their proper address Is given, and (11) Hunt notice of dishonor has been given to such prior parties, and if not to give it themselves within the legal delay (Mac- lareii, p. 273). 50. IH'lay in giving notice of dishonor Is excused where th.) deJay is caused by circumstances lieyond the control ol' the party giving notice, and not Irnputalxlo to his default, miscon- duct, or negligence; when the cause of delay ceatses to operate t'he notice must lie given with reasonable diligence; If an indorser gives a wrong address, delay caused by his doing so woidd lie excused, llnritt v. Tlioinitudii (IS.'id), 1 M. & Holili. .'ill; and if the holder does not know an liulorser's ad- dress, delav occupied in making liKinii'ies would lie excused: lUlldiiiii V. 'h'iclKirdsoii (lS2;i), 1 H. i*t (". 2l,"i. W'lien th(> delay is ciiused by the party to whom notice !.« sent, he cannot glx'e an I'ffeeluiil Mollee to antecedent jinrtles, but is liable liimselC: (,"/. t^hrlloii v. Ilrtiilhinilti: (ISIl), 8 M. & \V. 254. 2. Notice of dishonor Is dispensed with— HO it' '■.: i M u 46£ BILL^ OF EXCUANQE ACT. (a.) When, after the exercise of reasonable diligence, notice as required by thi.-? Act cannot be given to or does not reach the drawer or inUorser sought to be cliargetl; (b.) By waiv T express or implied; notice of dislionor may be waivecl before the time of giving notice lias arrived, or after the omission to giye due notice; Waivei or notice cif dishonor in favor of the holder enures for the beneiit of inarties i>rior to sueli holder as well as sul>se- quent holders: liaku v. Uilbat (ISUl), 30 L,. J. Ex. 170. Waiiver ot notice of dislionor by an iudorser does uut aftcct parties prior to such indorser: Tiiymr v. Lcnh (ISJitl), 4 is. & A.ld. -151. An acknowledgment of liability must be maile wltli full knowlwlge of ;he laotis in order to operate, as a waiver of no- tice of (iislunor: (loodluill y. Imlliy (libT), 1 T. H. 712. Thus, a bill is refused payment at maturity. The indorser promises the holder to pay it, not knowing that it had been previously dis- honored by non-acceptance. This is no waiver. Again, a waiver of notice of dishonor may not include a waiver of presentment for payment: hdth v. HuiUc (18S5), 1 C. & K. 551. In the L'nited States it has been held that verbal waiver of noticvi may be revoked before the time for giving notice has ^Tplred: nccand National Bank v. Maguire (1877), 31 Amer. R. 539. (e.) As regards tho drawer, in die following cases, namely, (1) where drawer anu drawee are the sani':) person, (2) where the drawee is a fictitious person or a person not having capa- city to contract, (3) wliere the drawer is 'he person to whom the bill is presented for payment, (4) where the drawee or acc&ptor is, as between 'himself and the drawer, under no obligatior, to accept or pay the oi ', (5) where the drawer has coiintermaaided payment; I'riina favic the acceptor is, a-s between himself and the drawer, the person bound to pay it; but evidence is admissible to shew that he is in leaiity a mere surety for tlie drawer or some other party: tV/ofc v. lAstir (IStxi), 32 Ij. J. O. P. 127. (rf.) As regards ;he ^< dorser, in the following cases, namely, (1) wliero the dni-wee Is a fictitious person or a person not having capacity to contract, and the indorser was aware »£ the fact at the tim(3 he endorsed the l)iU, (2) where the indorser is the person to whom the bill is presented for payment, (b) where the bli) was accepted or made for his accommodation. Notice of dlsihonor is not di;.pensed with because present- ment is dispensed wi.li, or beciiuse tlie drawer or indorser has reason to believe the bill will not be paid, or because the ac- ceptor is dead aind no re. resetitativo can be found: (V/rcto v. Duckworth, L. R. 4 JOx. 319 (18C9): Vaunt v. Thompaon, 7 C. B. 400 (1S49); or becau.se the drawer or Indorser l.i dead: section Vi (I), (Maclaren, :>. 27U). Liahility (if pirnoiir. not poWi'is.— The liability of persons who are not i)arties to a bill, but wlio may be guarantor.s of tho bill or sorno of the iiai'tle.q to it, or who may be liable on the coti- slderation for which tho bill is given, Is not affected by tho act, but will remain suliject to the laws in force in the several provinces (Maclaren, p. 2S2). A person who hn.s given a guarantop for the payment oif a bin is liable without notice of dishonor, I'liliiirr v. Jialxcr. 22 U. C. C. P. 5ii (1S71); also if he guarantees ;he payment of the price of goods for which the bill Is glvoii, AiiiUrHnn v. Arrhihald, !» N. a. (3 O. it O.), SS (1R72>; or prolia.bly II' he Is liable on the consldei'allon for the blM (Chalmers, p. 170, and case.i thorn cited); but If the gond.s are for the driiw<>r of tho bill the gua- rantor Is entitled to notice: Vtiillins v. Asllinti. 2 Taunt. 20r, (1S00>. As to tiiosr who have iilaccd their names on bills \n Que- bec "pour aval" or na warra.itors e'sowhore, see section W1, BILLS OF EXCHANOE ACT. 467 51. Where an inJand bill has been dishonored It may, if the holder thinks tit, be noted and protested for non-eccept- ance or non-payment, as the ease may be; but, subject to the provisions of this Act with respect to notice of dishonor, it sliall not, except in the Province of Quebec, be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser; but in the ease of a bill drawn upon any person in the Province of Quebec, or i>ayable or ac- cepted at any p'aco therein. In default of protest for non- acceptance or non-payment, as the case may be, and of notice thertof, the parties liable on the bill other than the acceptor are discliar(.red, subject, nevertheless, to the excepti.r.s in this section hereinafter contained; liy section 72 this provision applies to cheques, and by sec- tion 8S to promi.ssory notes, liy section 57 (3) the expenses of noting can be recovercil as liquidated damagi's. The protesting of inl-md t)llls for non-acceptance or for bet- ter security, elsewliere tlian in Quebec, is only compulsory as a preliminary to an acoepiance xiiimi protest for 'honor, section ()4, and a protest for non-^paymeiit, only as a preliminary to pre- sentment for payment to the acceptor for honor, or referee in ca-se of need: section tjti. 2. Where a foreign bill, appearing on the face of it to b3 such, has been dishonored by non-acceptance, it must be duly protested for non-acceptance, and where such a bill, which has not been previously dishonored by non acceptance, is dis- honored by non-iKiyment, it must be duly protested for non- payment. If it is not no protested, the drawer and iiulorsers are discharged. Where a bill does not appear on the face of It to be a foreign bill, protest thereof in cas of d'.s'honor, ex- cept as in this section provided. Is unneces.' ary: See foreign 1)111 dellned by section 4. Foreign notes aa well am blMs should be .prote.sied in order to bind the indorsers: sec- tion .?S (i). By section .">2 (3) iirotest is not necessary In order to charge the acceptor of a bill. 3. A bill which hats been protested for non-aeceptance, or a bill of which protest for non-acceptance has been waived, may be subsequently protested for non-payment: Protest in sucn case might be necessary for the purposo of charging a foreign drawer or indorser In his own country (Chalmers, p. 172>. 1. Subject to the provisions of this Act, when a bill Is protested, the prote.'^t must be made or noted on the day of Its dishonor. When a bill has been d jly noted, the protest may be substHpiently extondcd as of the date of the noting: The provisions of this sub-section as to the extension of the protest are supplemented by section 02. 5. Where the acceptor of a bill (1) suspends payment hefore It matures, the holder may cause the bill to be protested for bet or security against the di'uwer and Indorsers: (!. A bill must be proleht.'ti;a:' in noting or protesting is excused when tlie de'.ay is r n by circnms'tances beyond tlie control ai ihe holder, and n ...putablo to hi.s de- fault, misconduct, .if iiegDgcnce. When (.ho cau.se of delay ceases to operate, the bill must be noted or protested witli reasonable diligence. Seo .Seel ion ."lO (2) as to excuses for noii-notice and delay, and si'i-iion ii; (/ii :is to indDr.semeiits waiving pr(.)t«.'St. 10. Is'o clerk, teller or agi'iii uT .Miy liank sluill act a.s a notary in the protesting of any biM <. v note payable at tl;e bank or at any of the branches of the bank in wliicb lie is etnploye.I. The jirc'^ent section applies to promissory notes, us well a.s to bills ;in,ry in order to render the acceiHor liable : 2. When a place of payineni i.s >:pncined In the lilM or ai'cept- Hiicp, tlie acceptor, in the aibsi lur nf an expres.s stipulation to that effe(>i. is inM discharged b\- Im ■ oniis.sion to ineseiU the 1(111 for jia.xinciu on ihe dny ihiU ', ni.i:liires. but If any suit or action !"• In.-^titutfd iln'r.'on in I'ore pres 'illation the cost'^ tl'.t riMil' sli i:i be in tlu' dl.'^rrct ion of the court: Winn a. bill is acci'iiled ii:i.\alile at ft. particular iihtce, and there only, llic .icc: ptor's jiositloii I;-, for miMiy piiriioses aiialo- .ron=i *ri that of Mil- diawi'V of a pheipie- R\i MiiUiik v. L. Kiidaklssrn (1851), 9 M<'K)re P. C, at ji. 70. Vf, then, ne oould show that hi' was d.i/nnllled by llio holder's o.ml.-islon to pre- fcni on tlie iiroper day. lie woyld probably be discharged: ^^ Alcxanikr v. huvkfiild Um, 1 M. & Or. loni. BILLS OF EXCHANGE ACT. 469 3. Ill order to rentier the acceptor oi a bill liable, It Is not necessary to protest it, or that notice of dishonor should be g'iven to him: The same rule aiiplies to the maker of a note; secetion 8S (2). 4. Where the holder of a bill presents it for payment, he sha..' exhibit the blH to the jjerson from whom he demands payment, and when a bill is paid the holder shall forthwith deliver it up to liie party paying it. If on demand of payment the bill is not asked for and pay- ment IS retusejl on some other ground, or anability to pay Is acknowledged, exhibition of the bill la waived: Vhumllvr v. Ucck- vAth, 2 N. B. (Berton), 423 (1838). If a bill is payable at a bank or other particular place, and is lying there on the day of maturity, no s.peclal lorm of pre- sentment is necessary: Hurrix v. I'vrry, 8 U. C. C. P. 409 (1858). As 10 the cacse of a lost bill or note, see note to section 61*. LiahilitUs of Parties. 53. A bill, of itself, does not operate as an assignment of funds in the hands of the drawee available for the payment Chereof, and the drawee of a bill who does not accept as re- quired by this Act is not liable on the Instrument. Subject to the ru'.e that a customer Is entitled to draw cheques on his banker, a creditor, as such, is not entitled to draw on his debtor in respect of his debt; and the drawee of an unaccepted bill of exchange is under no obligation to acceii>t or pay it unless he has for valuable consideration expressly or Impliedly agreed to do so: Chitty, p. 200. Cf. lloudwin v. Uobarts (is;,")), L. U. 1(1 Kx. at p. 351. It is u.sual, but not necessary, for the drawer to advise the drawee of drafts drawn on him by letter of advice: Arnold v. ChniKv lUink (lH7(i), 1 C. P. D. 58ti. If, .says Story, section HS, a bill is drawn "as per advice," then the drawee is not ixtund to accept or pay without such advice, and if he does V is at hi.^ own peril. When the drawee contracts with the drawer to accept hUs drafi, anil dishonor.s It, the consequences reasonably resulting from tlie breach of contract ooTistltuto the moa.niro of damage : Prvlin V. Uiimtl llaiik itf Unrinxil (1S70), T^. R. 5 Kx. 92. 54. The acceptor of a bill, by accepting it— Ui.) Kngagea that he will pay it according to t'he tenor of his accfi)tance; See secitlon 17 as to form of valid accei)tance; sortlon 10 •a.s to ^'(ineral and (luaJlfied a(H'ei>1aiices, and section .">2, as to pre- sentment to charge acceptor. As to vmriatlon of the acceptor'.'* llabiillv hv (.(• post (arid legislation, c. '/., a I'Veiich "loi mora- t, 1,. U.. 10 Q. B, .'i2r.. A.i to measure oif damages, see section .■>7. The drawee of a lilll by accr.piing it becomes the party prlmarllv lifi.lile thereon to the holder. Si e the tirlinnry. and In general, absolute. ll;ihi;!ily _of nn iieceiiior dlsliiimilshed frnm tlie aeeondary and conditional Ilaliilltv of a drawer or indorser by Ttavloy. ,T., In /I'oi/v v. Ydxit'i (1S:^0), ? Hliirh 11. 1 ■. at l>. 4r>7. As to the lelal'ntis inirr itn of loint ficcei>tors who are not partners, see per Wilde, r. .1 In li'irwr v. Slnh (lsi:n. ( My. Ch. 13. Tirnwees who Imve iirnnil.>-'pil to ;iereivt, or who lia\'o know- ingly ficc«M>teil the hiMii fit of funds obtaitieil on !> ri"nresenliitlon 11i;i' Ihcv WDii'il accept, 1ia\e beiin held I'nble: Tomiiir- v. Un»l- e' . i-llixh \nrlh I ... . i.«. T.. R,, .". P. C. (1S7.S); H•*?!.' , If 470 BILLS OF EXCHANGE AC. (6.) Is precluded from denying to a hoJder in due course— (1.) The existence of tlie drawer, tiie genuineness of his signature, and liis eaipacity and authority to draw the bill; (2.) In the case of a biil payalile to drawer's order, the then capacity of the drawer to indorse, but not the genuineness or validity of his indorsement; (3.) In the case of a bill payable to the order of a third person, the existence of tlie payee and his then capacity to indorse, but not the genuineness or validity of his indorsement. This section deals only wit'h estoppels arising on the bill. There may, of course, be other estoppels arising on evidence. See section 24, whidh is modified by this section. If the biaj be materially ail'tered the acceptor is not precluded from setting this up: ^Vhite v. Central National Bank (1876), 64 New York R. Mf). and see section 63. But where a bank issued a draft ifor $25.00 on one of its branche-q without advice, and the holder raised it to |5,000 and deiwsitod it in another bank which drew the money, and the forgery was discovered six days later, it was held that the bank which ihad paid could not recover : l-nion Hunk v. Ontario Hank, 2 1.. N. 3S6, 24 I^. C. J. 30!) (l&SO). The acceptor may of cour.so decldne to qiay on the ground that the payee's signature bas been forged, or his signature not authorized. If, however, the pa.yee 'be a fictitious perso'n, the holder is entitled to treat tiie bill as if drawn payable to bearer. See sect! n 7 (3) md notes t' "oreon. 55. The drawt !• of a bill, by drawing it— (f7.) Kngages t'hat on due presentment it .^hall be accepted and paid according to its tenor an^l that if it is dishonored Tie wi'.; compensate t'he holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonor are duly taken; As to "dishonor." see sects. 43 and 47. Tbo liaViility of the drawer of an accejitefl i)ill must in general be measured' by that of tho acceptor, their relation for most, but not all, purposes re- sembling iTirincipal and surety: Roiiqiirttr v. Orrrmnnii (187.^). Tj. R. 10 Q. B. at patge 53fi-r>37. A® to express stipulations In the bill re-^itricting the ordiii.iry llabiillty of the drawer, or releasing the holder from the performnnoe of his ordimary duties, see sect. 16. As to measure of damages, see sect. 57. For effect of Incapacity of drawer, see sect. 22 (2), and for compensation due 'by him to the indorser who pays, see sect. 57. (?).) Is preclude 1 from denying to a holder in due course the existence of the iiayee and his then capacity to Indorse: The drawer Is not Tp ecluded from denying the gonulneness or valiility of the indorsement by the payee (Maclaren, p. 302). 2. The indorser of a bill, by Indorsing it— (a.) Kngages that on due presentment it shall be aiccepted and paid according to its tenor, and that if it Is dishonored he will compensate the holder or a stibsofiueiit Indorser who l.s compelled to pay it, provided that the requisite proceedlngpa on dishonor are duly taken; (fi.) Is precluded from denying to a hftlder In due couTsa tho giiiulnencss and regularity In all respects of the drawer's Mignatiire and all i)revlous Indorsements; (r.) Is precluded from denying to his ImnuHliate or a sub- sequent Indorsee that the bill was, at the time of his indorse- ment, a \ali€rson signing a bill ot'herwijse than as drawer or aA-oejitor is said to incur the liabiMtie.s of an indorser. See sect. 55 (2), which dellins what these liabilities are. They may be varied as provided in sect. 16. 67. Where a WiJ t* dishonored, the mecisure of damages which shall be dee«nit'.' recover from the acceptor or from the drawei', or from a prior indorser— ». (1.) The amount of the bill; (2.) Interest thoreon frowi the time of presentment for i>ay- ment, if tlie 1)111 is payiiib> on demand, and from the maturity of the bill In any otiher caase; This section applies w.liwn ai bill i.s dishonored either by non- aocepbance, sect. 43, or by non-i>ayment, .sect. 47, and the par- td^B have no valid (lefeiice. Bll.s dishonored aliroad fall e.xclu- svi^ly under the next sub-seei.: n I'omniercial IJank of South Australia (1VS7), 3ti (Mi. D. 522. Aiiiuiinl of the Hill. \t the blU btars interest from It.s date or Issue, this would l>e iiieluded, section 9: ViOHxr v. Park, 3 V. C Q. l^. Viirle The Bank of Brazil (1W13), 2 Ch. 43vS. (3), The expenses of noting and protest; ' I' I I 472 BILLS OF EXCBANGE ACT. (J>.) In the csuse of a bill which has been dishonored abroad, In addition to the above damages, the holder may recover from the drawer or any indorser, and the drawer or an Indorser who has been compelled to pay the bill may recover from any ^arty liable to him, the amount of the re-exch*nge with Interesi thereon until the tim* of payment. Re-exi-kange Is the amount which the party who has been oompttlled to pay the dishonored bill would have to pay for a sigrhi bUl, drawn at the time and place of dishonor at the then current rate of excha.nge on the p. ace where llie drawer or In- dorser soug'ht to be dbarged residua, to cover the amount of the dishonoreu bill with interest and expenses; Williumn v. Aytrit 'i App. Cas. Hfi (1877). (Maclaren, p. 313). 58. Where the hodder of a bill payable to bearer negotia/tes It by delivery without indorsing it, he is caJted a "transferrer by delivery:"' See holder defined by sect. 2, bill payable to beairer by sect. 8, and negotiation by sect. 31. 2. A transferrer by delivery is not liable on the instrument : No person is liable as drawer, Indor.ser or acceptor of a bill who has not signed It as such: sect. 23. 3. A transferrer by delivery who negotiates a bill thereby wfiHiiits to Ills Immediate tran.sfcrreo, heing a holder for vaiue, that the bill is vvluM 11 i)urporta to be, that he has a right to transfer it, and that at the time of tran.«fer he is not aware ot any fact which niidcr.s It valueless. The transferrer by delivery, alilioiigli not liable on the in- strument ilael'f, may Ir certain c^es, in the evf-nt of its dishon- or, l)e lial)l(' on tlx' consideration for wlil,ch the bill ha* bei transferred: iivnllaiitu- lUink v. Wlililiin. 10 S. C. ,Caii. 53 dS'Jl; This is the case If the bill was given for Un antecedent det) ililchiH V. nollniiil. Ifi S C. (^n. ml (i>iy.111 is discharged by payment in due course by or rn behaif of the drawee or acceptor: "Payment in due course" means payment made at or after the maturity of the bill to the holder thereof In good faith and without notic" that lii.s title to the bill Is defective: A bill may be dlscl.orged by payment, release, prescription, comiiensaMon or si't-off, r^onfusion. novation, by !)eing merged Im a "oi'uritv f>f a liieher nature, such as a bond, mortgage or the like, and by iudifimenit— ihe Indebtedness on the bill being merged in the judgment. A tiai-ty to a i)i;i may be reileasud ami discharged under the circumstances mentioned in sects, 48 and fil (2). /•'o'oi t)f nninti'nt. -Vho holder of a bill is onlitled to he paid In legal tendcjc, which consists in Canada of British eoverelgnis and lialf .''a!f -l<>s. Doniinl'Mi notes. Poniinion silver to the amount of ton dollars and Dominion lotiper coins to the amount of twenty-five cents. It is provided bv 31 Vic c. 1, .s BILLS OF EXCHANGE ACT. 473 7, that tho holder of the notes of any person to the amount of more than $10 shall not be bound to receive more than that In si.ver coins in payment of such notes presented lor jmymen't at one lime, although any of such notes be for a less sum. Th-e holder may, however, receive satisfaction In some other form than by way of legal tender. Anytihing which wou'd operate as a (lisoharge in the case of an ordinary contract to pay money is equally effectual in the case of a bill, and, as provided by .sect. 61, a 'bill may even be sati?ifl£d in a manner which would not be sufficient in the case of ordinary contracts. Amount of I'uymcnt.— If payment be made at maturity the fuH arrount of the bill must be tendered, but if made thereafter It must also cover the damages specified in sect. 57. Part payment of a bill in due course operates as a dischaii^e pro tanto. Time of Payment. — Payment to operate as a discharge must be made at or after the maturity cif the instrument, but premature payment or any other premature discharge is of course valid between the parties (Chalmers, p. 203). If payment be made be- fore maturity tlie payer should see that the bill is delivered up. Payment by the drawee or acceptor before maturity operates as a mere purchase of the instrument, and, subject to seot. 61, if the form of the bill permit, it may be re-issued and further ne- gotiated by the person paying. If premature paymeir is made l->y an indorsrr, 'he may wait until maturity to rei'iver from other parties liable, or at once re-negotiate ithe bill. No pay- ment can be forced before maturity, except in the Province of (Quebec, when the debtor 1^ insolvent or en deconflture. Lovrll v. MrikU', 2 I>. C. R. 69, and then only against the debtor's esrtate, tne other imrties to the bill not becoming liable until maturity. Owing to compensation differing in Quebec from that of other Provinces, a bill transferred there after maturity would be sub- .iect \q any money claim which the acceintor might have agaln.st any prior holder at or after maturity (Maclaren. p. .324). Place of Pfjj/mrnf.— Payment must be made at the place Indi- cated in ithe bill. When nO' place i® speciO*^. presentment for payment must he made In accordance with seotion A'l. The indication of a hank as a place of payment by one of Its oua- tom'T.* is a siufflcient authority to the bank to pay the blM, al- thoiH'h not bound to do .xn in the .absence of special agreement; jinhrjlii V. Tucjcer (1851), 16 Q. B. 579. Ililldn>i' /iJittlitu.—ln England possession is piiiiin farle evid- enoV of ide/iflty, /'/ ffiilkiliy v. Huthr. 2 B. & C at p. 441: and if t'he payer doiibii ifie identity of the person presenting, or the pi.-nulneness of the instrument, he must pay or refuse payment at ' ■•■ own risk CChalmera, p. 203). / A'hen a renewal bill is taken the original one I- ijiilc.s.a there Is a Ljpeclal agreement to that Miional payment. So where the l>ill of " remedy on the ""'.gina! bill is sus- pcii'Ji ■ 'he new one. if that is is paid or diachu. if the new bill Is dishonored, the original ...,.i. ,,,, i)i as to parties who are merely .ouretles, and who i 'H dl.seharged by the delay grant- ed to the principal i i I'laien. i). 'iVJ). Paumint of UUIh In (. (i/ ninH.—See Sects. 69 and 70, (5), (fj. ' '" II roviry by Payer if Mumu t'n'il ''// ifiitukc—Kvery payment presupipose.s a Jubt, and wlint lias Ijeen paid bv error may be reco\erod: (_'. C. \rts. 1047, JOfs and 1049. The followiny rules are laid down by Chalmers, p. 206: (1) Tile payer of a forged, altered or '■aiicelled bill, wlio has beeti led to pay it by the neitr'ig< nee of hi- etirre.spondent or cus- ,(on*ier, and 'has not hlmselif b< < n guilty of negligence, can re- <*diot th6 money so f)ald from ->iicf/ 'o/Tospondent o,- eustomer. (2.) 'thv jiajer ran recover the mun' y firum the [h i.s.mi who received it When such per.-u»ii did nO,t oct buna llile in demanding payment i,t the blM: Knnlal v Wnnil (1S71;, I.. R., 6 Ex. 243. (3) Subject to the' provisions ui the Act as to a lollectlng liaiker. In tho case or ,i eros.jed clK'M"** (section SI), the payer cjii recover the money i>aid l*rom tht- p^r^on who received it, 1^, i: f 474 BILLS OF EXCHANGE ACT. whun such person acted bona fiilr in demanding payment of the bill, provided (a) iliat the payer was not guilty of negligence in making the payment, and probably (b) that tiie position of the party receivmg payment lias not been altered before the dis- covery of the mistake and notilica.tion thereof. I'limiiptK/n.—^'he: riglrts of the parties with regard! to pre- scription are governed by the local laws of each province. In yut'bec the lime rtyuired is live years reckoned from maturity: C. O. An. 22t>j {i). Utie debt is then absolute. y extinguished, and no action can be maintained after the delay for pre.scription is ainuirea: C. C Art. 22t;7. In the other provinces of the Domin- ion, and in Kng'and, the time retiuired fur prescription is six years. No indorsement of a bill or note made by a person receiving payment will take it out oif the operation of the law relating to pi-escnpiion: Art. ITI'J, Que. C. C. ; li. S. Ontario, c. 123; K. S. J\ova Scotia, c. 112; C. S. New Brunswick, c. 85. The debtor should write the memorandum of part payment, whether of priac.pal or interest, on the iiack of the bill or note, and he and tn<.) credi>or should sign it, but if this is not done, payment on account may be proved like any other fact. No premise or acknowledgment is sufttcient to prevent pre- scription unless in writing and signed by the party making the i.ivjmise, K. S. O., R. S. N. S., and C. S N. 15., siiiira (unless the aiTiourit is under $50.00, Que. C. C. Ari. 1235). A simple ac- kn.rwledtfment of a sum due is presumed to mean a i)romise to pay, though it may be written without any such intention, l>ut the promise of paymemt must not be repelled by any expressions in the acknowledgmen'. No person is liable on accoun't of the act or promise of his co-conti actor cr debtor, and one may be liable and may be .'■lued without the other: R. S. O., R. S. N. S., and C. S. N, B., supra. In Quebec, prescription cannot be renounced by anticipation, luit time acquired may be renounced- C. C. Art. 21S4. Renun- ciation by one person doea not prejudice his co-debtors, his sureties, or third persons: Art. 2229. Time iihcn Prescription commences 1o run. — Prescription begins to run on bills and notes from the first day an action could be brought upon them. As regards the acceptor, time begins to run from tho maturity of the bill, unless (1) presentment for payment is nci r'ssary in order to charge the acceptor, in -which oas.e time (■Dtohably) runs from the date of such presentment, cectlon 72 (2); or (2) the bill is accepted after its maturity in which case time (probably) runs from the date of acceptance, section 10 (2). As regards a drawer or Indorser, time (generally) begins to run from date when notice of dishonnr is 'eceived : Cf. Vnafriqur v. liarnnho (1814), 6 Q. B. 49S. and section 43. When an action is brought against a party to a. bill to enforce an oblipration collateral to the bill, though arising out of the bill transaction, the nature of the particular transaction determines the period from which time begins to run: Chalmers, p. 292. Time does not run with respect to debts depending on a condi- tion until the condition happens, or on debts with a term until the term has expired: Art. 22,'!fi, Qitt-. C. C. In Quebec, prescription runs against absenteos, Art. 2232; ajl.so aga'tist marrie<1 women, minors, idiots and insane persons, paving their recourse against those who legallv represent them, Arts. 2234, 22fi9 C. ('.: but in all the other provinces, prescription only coinmence." to run from the date of the return of the absentee, and in the ca^'o of minors, idiots and rither incapable persons from the time of the removal of the imp'^diment. The Ontario Revised Statutes, ch. fid. provide, however, that time shall run in favor of a joint debtor, although one or more of the joint debtors may be out of the Province. Any one or more of the followine pre«crintions may be In- voked in Onelieo:— (1) Any prescription entirely arnidred under a foreign law. on a bill payable oiitslde of Quebec. In favor of n person living abroad. (2) Any prescription entirely acquired in Quebec, reckoned from maturity, on a bill payable there, •when the party was domiciled there at maturity: Iri other cases from the time be became domiciled there. (3) Any nrescrlption resulting from the lapse of successive periods in the preceding BILLS OF EXCHANGE ACT. 476 cases, when the first period elapsed under the fortigii law; Art. 2190. The court cann-Jt of its own motion supply the deifence resulting- from prest-i iption except in cases where the rigrht of action Is denied: Am. mm. See Maciaren, p. 326-333, and cases there cited. As to confliot of the above laws, see section 71. 2. Subject to the provisions hereinafter contained, when a, bi'l is i)aid by the drawer or an Indorsor, it is not discharged, but— (o.) Where a bill payable to, or to the order ot, a third party is paid by the drawer, the drawer may enforce payment thereof against the acceptor, but may not re-issue the bill: ' (6.) Where a bill is paid by an indorser, or -where a bill payable to drawer's order Is paid by tlie drawer, the i>arty paying it is remitted to his former rights as regards the ac- ceptor or antecedent parties, and he may. If he thinks fit, strike out his own and subseiquent indorsemen'ts, and Uigain negotiate the bill: If a bill be paid by an indorser he is entitled to the benefit of ill; securities deposited with the holder by the acceptor or any niher party prior ii> himself: See Uuyc v. MrUonald, 16 L. C. K. r.)l; Itiincan Fox tt Co. v. \tw Soittli Wales liuiilc (lisWj, App. Cas. 11. L. and Que. C. C. Art. 1156. The provision to which the foregoing sub-section is subject is the following (3). 3. Where an accommodation bill is paid in due course by the party accommodated, the bill is discharged. For a definition of an accommodation party and his liabil- itie-s, see section I'S, and see sections 30 (2) and 37. Though the right of action on the bill is discharged, the ac- commodation acceptor has a personal right of action for indem- nit\ (Chalmer.H, p. 199), and prescription only commences to run in favor of the drawer from the time th- accommoilation ac- ceptor paid the money due on the bill. If several persons en- dorse a bill or note for the accommodation of the acceptor or maker, and one of them pfiys it, the wli. •■ circumstances at- tendant ui)on its making, issue and trau icrence may be legi- timately referred to tor the imrpose of a.scertaining the true relation to each other of the partie.s who put their sign .tiras uKoii it. and reasonable Inferences from these facts :i.n.l cir- cumstances are admitted to the effect of qualifying, aJlerlng, or fvpii invi riiiig the relatixe UabiHties which the l.tw merchant would otherwise assign to them. See Mardonnld v. Whilflelil, 8 Api>. ras. 733 (18S3). "Where an action .against the indorser of a note had bp'Mi disniissoil. on the griniiid tba*. he had ind'vrsed for the accom- modation of the plaintiffs, this was held to be an ans'w:^r to an ac- tion set king to liold him nspnnsihle as a partner liv estoiipel in the lirm which made the note: Jtnt/ v. Ixbixlir (1896), 2) S. C. Can. 60. When the acce'ptor of a bill is or becomes the holder of it at or after its maturity, in his own right, the bill is discharged. Whenever the acceptor or mak^r of a bl'M or note Is dis- charged, all the other parties ai'e discharged, and the instru- ment ceases to he a hill or note. If the ateoptor becomes the holder of the Tiii; l)efore its maturity, it is not discharged, and he mav re-i.ssiie and furtlier negotiate it; l)ut he is not entttled to enforce payment r-f It against anv ir.torvening party to whom he wa.s pre .-iously liable, section 37. T ho become-s holder at maturity in the capacity of exP'Cutor. ndrninistrator. trustee, .assignee, tutor, curator or the like, tho bit' '« pot dischnr"-ed. Jle must liold the bill "in his own right " (Macl irei,. p. 337). #. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 Ifiai I.I 1.25 2.5 1^ 12.2 I l^ IIIII2.0 1.8 1.4 ^m II 1.6 V] vy ,% ''^: '/ /«^ Photographic Sdences Cx)iporation 23 WEST MAIN ST«IIT WHSTIR.N.Y. MS80 (716) •72-450 J ^ iV '^ \ 476 BILLS OF EXCHANOE ACT. If fl. bill accepted by two or more Joint acceptors, is held by one of them at or after maturity, it is discharged; but such ac- ceptor does not uhereby lose his recourse or right otf contribu- tion ag'ainst his co-acceptors: Uarmer v. Steele, 4 Ex. 1 (1849). 61. When the holder of a bill at or after Its maturity ab- solutely and unconditionally renounces his rights against the acceptor, the bill is discliarged; the renunciation must be In writini,'?, unless the bill is delivered up to the acceptor: The best kind of writing would be a memorandum on the bill signed by the holder rellr, lulshing all claim against a party named; for this would fco notice to ■anyone afterwards taking the bill, if still current. The bill is discharged only when the renunciation by the ac- ceptor Is at or after maiturity, and when it is absolute and un- conditional. See re Grorgr Franc's v. Brure, 44 Ch. D. 627 (lS90j. A bill or note payable at demand is "at maturity" immediately on its being made, and the holder in desiring to renounce all rights in it, when delivering It to u,ny person ot.her than the acceptor, must make 'his renunclatioti in writing: Edwards v. Walt'rs. W.N., Fe'\ l."). i896, p. 15. Where there is . payment of a sum less than the amoimt of the bi'J, the bill may, l"i Quebec and Ontario, be discharged un- der the provision.-, of the present section; or it may be consider- ed s« discharged by payment under section 59 (Maclaren, p. 339). 2. The liabUitles of any party to a blM may in like manner be renounced «y the holder before, at or after its maturity, but nothing in this section shall affect the right.'* of a holder in due course without notice of renunciation. An accommodation par'y to a bill, whether drawer, acceptor or Indorser, is a surely for the party accommodated, who is cixe principal debtor, and if the holder, being aware of the accom- modation, grants a discharge to t'he prlnsiipa.l debtor or gives him time, tho .sureties are discharged, unless the bolder has ex- pressly reserved his rights against t'he sureties, or h'as reserved their rights a*raln»t the principal debtor: liolhlay v. Jackaon, 22 S. C. Can. 4T9 (1891). In Quebec suretyship becomes extinct by the same causes as other oblligatlons: C. C. Art. 1956. The dis- charge of the principal debtc discharges the surety, C. C. Art. ]95«S: but dela.v given to the principal debtor does' not discharge the surety. whr> may in case of such delay sue the debtor In order to compel Irlm io i>av: C. C. Art. 1901. The suretyship Is alsc, Ht an end when by the act of che cretlltor the surety can no longer be subrogated in the rlghtis, hytK)thecs and privileges of snf"h creditor; O. r. Art. ]9ri9. As to t'he effect jf the con- flict 1 elwpt-n the law nf Quebec and t'hat of the other provinces, see notes on secilon 71. and section 8 of the Amending Act of 1S91. (Sen also MT.claren, ]). 343 and 344, and cases there clleis agent. In such case, any Indorser who would have had a right of ie<^ouise against L,io party who.se signature Is canoeMed is also illsoharged: As to striking nut Indorsements, see ^'ectlon .W (2) ('*). Prior partti's are not relea-sed by tlie cancel'ailon of a signature : n«rn\v. v. ArmKUmig, 5 R. L. 213 (1869); liifwn v. Wood, 2 Man. 272 (issn). H. A canc^'llatlon made unintentionally, or under a mistake, or without the authority of tlie holder, la Inoperative ; but when- a bill or any s'lgnature thereon appear.-* to have been car.iclled, the burden of prodf Ilea on the party who alleges BILLS OF EXCHAN'iH ACT. 477 that the cancellation was made unintentionally, or under a mistake, or without authority. If a banker cancel a bill by mistake, without any want of due care, he (ioe« not incur any liability; but if there la ne- g-iigence, ana any loss result therefrom, he may be held liable- 'Junk o( tSvottanU v. Uommion Hank, 'loio.itu (1891), A. C. 592. 63. Where a bill or acceptance is materially altered without the aissent cf aU parties liable on the bill, the bill Ls voided, except as against a party who has himself made, authorized, or assented lo the alteration, and subseiiuent indorsers: Proviileil, that where a bill has been materially altered, but the alteration 1-} not apparent, an.d the bill is in the hands of a iholdtr i'l due course, such holder may avail hinisolt of the bill as if it had not been altered, and may enforce payment of it according to its original tenor: All alteratioi; is material which in any way alters the opera- tion oi the bill and the dabilities of the iJarties, whethtr ilie change be prejudicial or beneficial, or whicti wouitl alter its ei- fecL 11 usiii for business purposes: ';urriqui: v. Until/, '^i Ont. A. R. 302 11897J. VN hero a bill aitpiars to have been altereil, or ther,^ are marks of e'\4sure oi. it, tlie parly seeking to enforce the instru- ment is l>ouiid to give evRlence lo .show that it is noL avoided thereby: hiui/ht v. t liinttitu (IWih), S A. and K. 215. 2. In i)articular, the following alterations are namely, any alteration of the date, the sum payable of payment, the place of payment, and where a bKl accepted generally, the addition of a place of payment without the acceptor's assent. The foUouitui allriatious in bills and notes have bnn hrld to In: «ia/i»i«/.— Alleraition of the date, Mrndith v. Vulvir, 5 U. C. U. B. 218 (iS48); alteration of the sum payable, IluUtow v. Jveiii/, -* U. C. C. P. 551 (1878); alteration of the time of payment material, the time has been Mrrnlith v. Culvn; HUi»u; alteration of the place of i«iyment, -UfViicot v. MclntytT, 30 U. C. C. V. 42(1 (1879); adding a place- of Payment, Vahvrt v. linUer, 4 M. and VV. 417 (1838); makhig a "joint no e, "Joiivt and several," Siimxtm v. Ydiicr, 4 U. C O. S. .i 0><-\\y. ".V striking out or clipping off a conclitloii indorsed, r';im;»(((7' v. McKinnm, 18 U. C. Q. B. C12 (1859); by adding: '"or order to make the notQ negotiable. Latcton v. itilHdge. 4 N. B. .i Kerr). i)20 (1844), but se(^ contra ////com v. Thomitxon, 11 A. and K. Jl (IXJD, by adding a new maker after Issue, livid v. Ilunti'hnii, <> Ont. A. R. dVi (1881); • ■ ■ ' " '""" '"'•■* " Nicholson v. Draper v. Wood, _ er," re Commereiat Hank, 10 Man. 171 (ISIM). The follotring alterations hare been held not to be material: inserting the word "months" where inadvertently <«nll'';l. iMine y. Clarke. 3 Rev. de I.eg. 434 (ISl.l): writing , >":„„'y,?' 1 .^ '■pour arar over the signature of the first In.lorsrr when 1 had in fnot Indorsed the note above the payee, ami as .in lU- moll v.Wurlele. Q. R., fi S., C. ^W nSlM>: a menriora^^^^^^^^^^^^^ a new maker after issue, iteia v. iiumpnnn, » yn\i. .-v. !• erasing the signature of one of two joint makers, Revill. 4 A. and 10. 075 (lS;lti); nhanglng "I'' to "Wo," Vood. 112 Mass. 315 (1873); changing "order" to "bear- iH ; D. 343 C. 478 BILLS OF EXOHANQE ACT. There are, however, two cases ir which an aJteratloii in a moteri'al pert will not vacate the inatrument: (1) where suoh al- leraiion is made botore the Wll or note is issued or becomea an available instrument, and (2) where the bill is altered to cor- rect a mistake, and in furtherance of the orit,inal Intention ot th3 parties: UruH v. ricard (1S21), K. & M. 37. Subject to two exceptions, the holder of a bUl, which has been avoided by a material alteration, cannot sue on the consi- deration in respe?-t ol' whicli it was negotiated, to Mm: Alacrnon V. Lamjilale (1S32), 3 B. and Ad. (!G0. BJxception 1. If the bill was neprotiarted ;to 'him after the al- teration was made, and he was not priv:* to the alteration, he may .sue on the consideration: liiirrhflvid v. Moon: (1854), 23 L.. J. Q. B. 261. ExcepHon 2. If the 1)111 was altered whi'e in his custody or uiKler his control, ho can still recover, provided ( accei)tor for honor Is conditional upon non- payment by the drawee. The bill must still be presented at BILLS OF EXCHANGE ACT. 479 maturity to the drawee, and protested for non-payment before being presented to the acceptor for honor, who is in the position of a surety, rather than as being primarily liable: sees. 66, 67 65. The acceptor for honor of a bill by accepiting it engages thait he will, on duo presentment, pay the bill according to the tenur of his acceptance, it it Is not paid by the drawee, provldid k has been duly preseiUed for paymeiiit ami protested for non-payment, and that he receives notice of these facts: If a place of payment is specitled in t'he bill, it shouid be presented there: sect. 45 (2, d. 1.) 2. The acceptor for honor is liable to tlio holder and to all parlies to the bill subsequent to the party for wiiose honor he lias accepted. An acceptor for Iionor is bound by tho estoppels which bind an ordinary acceptor, and also l)y the astoppeis wliich would bind the party for whose honor he accepted; as to which see sects. 64, 65. Tho acceptor for honor is only secondarily liable on tlie b'll. If ho pays the l)i;i he has a recourse for re-payment to the person for whose honor lie made tho acceptance, and to all other persons who are liable to that person. 66. Where a dishonored bill has been accepted for honor Kiiinii iprotest, or contains a referenco in case of need, k must be protested for non-payment before it is presenteil for payment to the acceptor for honor, or referee In case of need: '2. Where the ad.icss of the acceptor for honor is In the siamo place where ilio ))ill is protested for non-payment, the bill must 1)0 presented to him no't later than the day following its maturity; and where the address of the acceptor for lionor is in some place other than tho place where It was jirotested for non-payment, the bill must be forwarded not later than the day foUowing lbs matunity for presentment to him: The day following would mean the next business day: ae^. 0!. 3. Delay In prasentmemt or non-presentment Is excused by any circumstances which would excuse delay In presentment for payment or non-presentment for payment: For the circumstances which excuse delay In presentment for iiayment or which dispense with presentment for payment, .«ee sec. 46. 4. When a bill of exchange is dishonored by the acceptor for honor, It musit be protested for non-payment by him. Notice of dishonor sho'U'd be sent to each of the parties. 67. Where a bill has been protested for non-payment, any person may Intervene and pay It siipca protest for tho honor of any party liable thereon, or for the lionor of the persoii for w'hose account the bill is drawn: When a bill has bo'en paid Diiprn prolost It ceases to be ne- gotiable: lU-iuirtv ftirini (1868), L. R., 6 Eq. 344, Noughler, sec. 1026 and Pothler Nos. 113, 114. 2. Where two or more p-f^rsons offer to pay n bill for the honor of different parties, the penon whose payment will discharge most parties to the bill shall have the preference: I! f\\ ii r- t i,i 480 BILLS OP EXCHANGE ACT. 3. Payment for honor supra protest, in order to operate as Fuch and not as a mere voluntary payment, must be attested by a notarial act of 'honor, which may he appended to the protest or form an exiciLslon of it: For form of notarial act of honor, see Appendix. 4. The notarial act of honor mus't be founded en a declara- tion made by the payer for honor, or his agent in tliat behalf, declaring his intention to i>ay the bill for honor, and for whose honor he pays: 5. Where a bill has been paid for honor, all parties subs»- quent to the party for whose 'honor it is paid are discharged, but tlje payer for lienor is subrogated for and sjcceeds to both the rights and duties of the holder as regards the party for whose honor he pays, and all parties liable ito that party: If the holder is a holder in due course, or if any party to the bill subsequent to the party for whose honor the bill has been paid was a holder in due course, llio payer lor honoi- ac- quires their right in this respect. Among the duties to whioli the payer for lionor succeeda is that of giving notice of dis- honor: (loodlHill V. rolhill, 14 L. J. C. P. 145 (1S45). C. The payer for honor, on paying to the holder the amount o«f the i)i!l and the notarial expenses incidental to its dishonor, is' entitled to receive both the bill itself and the protest. If the holder does not on demand deJiver them up, he shaili bo liable to the payer for honor in damages: "Protest in this sub-section means the protest for non-pay- ment by the acceptor, which is necessary In order to charge the acceptor for honor. 7. Where the holder of a bill refuses to receive payment •sH/x'rt prote.st, he shall los© ills riglit of recourse against any parly who would have been discharged by such payment. Lost Inatrumcnts. 68. Whero a bill ha.s been Co.st before it l.s overdue, the person who was liolder of it may apply to the drawer to give him anolhe.- bill of the same tenor, giving socurHy to the drawer, if reciuired, to indemnify him against- all iiersons whatever in case the bill alleged to have been lost shall he found again: 2. If the drawer, oa request as aforesaid, refuB..s to give such duplicate bill, he may be compelled lo do so. The loss or destruction of the bill docs not relieve from the duty of demamling paymeml. A copy sliould be presented in a-ccordancp with sec. a:>. This sliould bo accompanied by an of- fer O'f indemnity, and if payment i.s. rerus(Ml, i)rotest mav be mode on the copy or written partlculers, sec. 51 (2), and notice of dishonour must be given. Neglect to offer indemnity to the maker or acceptor on demand of payment does not deprive the payee of his right of action, but It wIM prevent him fix)m recov- ering costs, and will comipel him to bear anv .sipertal damagfs resulting from the neglect on his sub.sequenl suit: 2 Daniel sec 1465. See Thockrai/ v. lihukvtl, 3 Camp. IW (1S12). 69. In any action or proceeding upon a bUl, the court or a Judge may order that A\\o lo'ss of the Instruiment shall not bfi sot up, provided an indemnity is given to the satisfaction nf the court or judge against the claims of any other person upon the instrument in question. BILLS OF EXCHANGE ACT. 481 No indemnity is required If the bill Is not negotiable: Cooleu V. Dominion liuilding tarts were se;)arate bills: 3. Where two or more parts of a set are negotiated to differ- rnt holders in due course, the holder whose title first accrues is, as between such holders, deemed the true owner of the bill; but nothing in tliis subsection shall affect the rights of a per- son Who in due course accepts or pays 'the part first pre- sented to him: A person who negotiates one part of a set does not warrant that he has the others: I'imml v. Klockman, 3 B. & S. 388 (lS(i3). 4. The acceptance may be written on any part, and it must be written on one i>art only: 5. If the drawee accepts more than one part, and such accepted parts get into the hands of different hoilders in due course, he is liable on every such part as if if were a separate bill: 6. When the acceptor of a bill dr.xwn In a sec pays it without requiring fhe part bearing his acceptance to be de- livered up to him, and that part at maturity is outstanding In the hands of a holder in due course, he is liable to the holder thereof: 7. Stibject to the preceding rules, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bllJ is discharged. As to how a bill may be discharged, see sects. .W to 63 in- clusive. The aec(>i>tcr should l)e can f ul not to pay unless the part he has acrf>i>tod be surrendered to him. In an action against th<^ drawer or indorsers. the part of the set which was protested must be produced. Conflict of Laics. 71. Where a bill di^wn in one country is negotiated, accept- ed or payable in another, the rights, duties and liabilities of tho parties thereto are detemilned as follows: (a) The validity of a bill as regards requisites in form la determined by the law of the place of issue, and the validity as ref?iards requisites in form of the supen'enlng contracts, such as acceptance, or indorsement, or acceptance supra pro- :u fVb ' I ml' n '-, t ' u 482 BILLS OF EXCHANGE ACT. test, is deternlncd by the law of the place where such contract was made: Form of BIM.— Ohalmers, p. 239, Illustrates the effect of thia sub-sect, by t'he following easels:— (1) A bill drawn and payable in Fnance expresses no value received, and 'is therefore invalid according to French Law. If it l3 indorsed in Bng-Iand, the indorser couid be sued there (Vf. Wynne v. Jackam (lb2U> 2 Russ. 351 and (!34) thoug-h the drawer could not. (2)By the law of Illinois a verbal acceptance Is valid. A biHl drawn in London on a town in Illinois is vert)ally accepted there. The acceptance is valid (Vf. avudder v. Union Hank (1875), 1 Otto, Sup. Ct. U. S. 406). Maclaren, p. 367, is doubtful as to how far the principle of such a decision would be law under the Act, seeing that 'the rule of sub-aect. («) is "sul)ject to the provisions of this Act," and under sect. 17 a verbal acceptance Is invalid. tV/pHp/^//.— W'here there is a conflict of different laws on this ques'tion the general rule, as stated in thp notes to sect. 22, is that it is governed by the law of Ihe domicile. The Act has no provision on thia question of conflict, unless such a wide mean- ing should be givL-n to the word "Interpretation" in clause (h) of this section (Maclaren, p. 375), and it would be straining the meaning of that word to make it include oapa.city (Lafleur, p. ISl). Comph'tion of Contnicl. —ThB different contracts of the drawer, acceptor and indorser of a bill are only complet<^ upon delivery, and the contract is made in each case wliere tiiis is atfected, not where tlie signature is nttacliod, Clinitwan ^'. Cottrill, 34 L. J. Ex. 186 (1865); buit itbe presumption is that a bill is issued, in- dorsed anf TKi-Tn»^^« and Brazilian Bank v. Maguire, R. J? q": 8 S C?^^ (1895) '""'" Mfiq nnH Vn^V^1.']^^''i.*''^®'=L?' the^sub-sectlon, see Maclaren, p. m and .3.0: Chalmens, p. 241: Lafleur, p. 182: Wesf.ake d 2erformed, is to be he!d to be of equal validity in every place where the question may come to be litigate*!. In Kngland and America the same rule lias been adopted, and acted on with a most liberal justice. Story on Conflict of Laws, sees. 331 and 332, quoted by Maclaren, p. 375. A bill discharged in Quebec by either compensation or pres'orl))tion would be held to be discharged in other countries where these would not operate as discharges as to bills made or payable there. See tlarris v. (Juiiiv, L. K., 4 Q. 13. 653 (1869); Storj-, sec. 582. Lix I'ori.— The law of the place where the action is brought or proceedings are taken governs as to all matters belonging to the remedy or mode of enforcement: Dc hi Vcon v. I iaiiiiu, 1 H. .t Ad., I'st (1830). Under this head are compri.sed :— (1) The limi- tation of actions subject to the operation of the law in places like Quebec, when it operates *is a dlsehargf; (2) set-off, sub- ject to the same limitations, and (3) the almisslon of evidence. See Maclaivn, p. 378, and cases tliere cited. I'rnof of Fori inn /,(Mc.— When a question arise.s as to the law of a foreign country, it must be i)leiided and proved us a fact in the case bv competent witnesses: Westlake, p. 364: Lafleur, p. 23: I'onrha v. Muriittii (1890), 40 Ch. D., 543 C. A. It is usual to state what the forelirn law Is, and then to all'ege the facts, bringing thf case within that foreign law; Byles, ]4th ed., p. 392. In the absence of allegation and proof of tho foreign law, It Is presumed to be similar to that of the locM fori. ih'^i I i 44 484 BILLS OF EXCHANGE ACT. PART III. CHEQUES ON A BANK. 72. A cheque Is a bill of exchange drawn on. a bank, pay- able on demand: See "Bill of Exchange" defined by s*^!©!! 3: "bank" by sec- tion 2 "CO. and "bill payable on demand" by section 10. The Aot is declaratory in so far as it detlnes a chey fals<^ pretences, and Is liable to ithree years' impri.sonment : Criminal Code, 1S92, sec- tion .3.50; llrih V. Iftiziltoii. I.. R., 2 C. C. 13-1 (1874). 2. Except as otherwise provided in this part, the provisions of this Act applicable to a bill of exchange payab:e on demand apply to a cheque. The exceptions are ccntained in sections 73 (2), and 74 to 81 inclusive. 73. Subject to the provisions of this Act— (n.) Where a cheque is not presentcfl for payment within a reaaonab'.e time of its issue, and the drawer or the person on whose account it is drawn had the right at the time of such presentment, as between him and t'he bank, to have the cheque paid, and suffers actual damage through the delay, he is dis- charged to the extent of such damage, that is to .«ay, to the extent to which .such drawer or person is a creditor of such bnnk to a larger amount than he would have been had such chenue been paid; (h.) In determining what is a resonaWo time, regard shall be had to the nature of the instrument, the usage of trade and of banks, and the facts of the particular case; (c ) The hodder of eudh cheque, BiS to which such drawer or person is dlschargeui special instructions, pay any bills or notes of which the cuslonier is acceptor or maker, and which are pav.ible at the bank: .frnwa v. lianlc of Mnntmil. 29 TT. (1 Q. B. 448 (IMiO); Vniiliaiio v. Hank of TUuil'ind (1891), A.. C. 107. (4.) In the absence of snecial directions from the customer, it Is the duty of the banker to pay the customers' cheques in the order in which Ihev are presented. Irresnective of their dates, iirovidod the date is not subseoTient to the presentment: Kilxhii v. Willinwx (1S22), 5 R. & Aid. 819. (^.) Where a customer keeits his account at one branch of a bank, other liranches are nut l)oiind to honor his cheques: Vrnndliind v. Fcnr (1857). 7 R. •& R. 519. Rut if he has accounts in two or more l)ranches the liank may cumbine them against him. iirovlded they are all In the same right. A iiersona! and a trust account cannot lie combined. See th*^ whole status of branch banks In regard to l)llls discussed by the Privy Council In the case of l^rinfr v. Oriir.in/ Unnk (1K7N), 3 Ap)). Cas. 325. Ufifirh of 7')■l^'^^— Where a banker refuseil to cash a cheque on the ground that a hrencb of trust was contem!)1ated by the rlrawpr to his. the b.aiiker's. knnw'odr-p. he vns he"d to be justifietl in so doing. Ornij v. Jolimlon, L,. R. 3 H. of Ij. 1. Countninand.—A customer may ston payment of a cheque before It is accented. l)Ut not after: }frfjrnn v, Cliidtxddh- Brink. 9 .\. C. 95 0883). It has also been held that a bank Is not liound to honor a customer's cheque after a garnishee order Is served on 't even nlthouch the balance exceed the iuderment: Ronrra V IT'/m7(7'» ns92). A. C. 118. Authority to pay the 'Mistorner's ohenne wr.uUl also be revoked by notice of his Insolvency: ■Roqirx V. yvhiirlcii, supra. :&'• ii .•K4: I ' I "1 <«6 BILLS OF EXCHANGE ACT. Death of a VuHtoinvr.— Payment after the death but before notice IS valid, icuytmon v. LuUbroki, 1 Bing. U3 tlb22>. It has been he.d In England that, after the death of a partner, the surviving partner may draw cheques upon the parinershlp account, liackhomv v. Churlioii, a Ch. D. 444 (li>7b). In Quebec the death of a partner te/mlnates the partnership, and also the right of the survivors to act for the lirm. In the absence of a special agreement to the contrary: C. C. ISiJli, lba7. Oviidraf I. —In the absence of special agreement, express or Implied, founded on consideration, a banker Is. of course, under no obligation to let a customer overdraw. As to Implied agreement, see Aniifitld v. London & Wistminntcr Bank (1883), 1 C. & E. 170; as to presumption, see Uitiiiir v. ClydiHdalc Bank (18S6), 13 Sess. C'as. 114 As to the general duty of a bank not to disclose the state of a customer's account without good reasons, see Jlanli/ v. Vfafny (1S68), L. R., 3 Kx. 107. A cheque on payment becomes the i)roperiy of the drawer, R. V. WtittH (1850), 2 Den. O. C. 15, but the banker who pays it is entitled to keep 't as a voucher until his account with his customer is settled: Cf. Charles v. Blavkwell (1877), 2 C. P. D. 162 C. A. Entries made in customer's pass book are prima facie evi- dence against the bank: Commercial Bank v. Rhind, 3 Macq. H. L. 643 (1860). Fraudulent Alteration.— JC the sum for .-"hich a customer draws a cheque be fraudulently altered, and increased, and the bank pay the larger sum. it caiinot charge Us customer with the excess, but must bear the loss: II nil v. Fuller, 5 B. & C. 750. But should any act of the drawer have facilitated or given occasion to the ffr^ery, the drawer must bear the loss: Young V. (Irote, 4 Bing. 253. Branch Bankn.—A balance at one branch ma; be applied In reduction of an overdrawn account at another, even without notice to the customer: Oarnett v. McKctcan, L.. R. 8 Ex. 10. Crossed Cheques. 75. Wlhere a cheque bears across its face an addition of— (o) Ihe word "b€unk" between two parallel transverse llneo, either with or without the words "not negotiable;" or— (6) Two parallel transverse lines simply, either with or without the words " not negotiable;" That addition cons'titutes a crossing, and the cheque is crossed general ly; 2. "Where a cheque Ijears across Its face an addition of the name ol a bank, eitfher with or without the words "not nego- tiable," that addition constitutes a crossing and tlie cheque is crossed specially and to that bank. The mere crossing nf a chi^nue dues nnt nffeet its nego- tiability, unless it is also crossed "not negotiable." National Bank v. Silke (ISflO) Law Journal Notes 157 C. A., and even with sach words it is still transferable, but within certain limits delinod by section 80. This part of .he Act does not apply to cheques on private bankers, nor can a cheque or. an Incornora^ed bank be crossed in fnvor of a private banker, or if crossed generally be pre- sented through hiim (Maclaren, p. 393). 76. A cheque may be crossed generaUy or specially by the drawer: 2. Wheire a cheque is uncroBsed, the holder may cross it generally or specially: 3. Where a cheque is crossed generally, tflie holder may crosi it speciaaiy: BILLS OF EXCHANGE ACT. 487 4. Where a cheque Is croaaed generally or specially, tM holder may xdd the words "not nearotULbto:" The holdei- of a. che(iue Is ihe nayee «r Indorsee, If It Ifl T)ayal)U' to order, i)rovi«U'(l he is* in possession of It. If it is imyab »■ to iiearer the holder Is the person who is in possession of it (Maclaren, p. 394). 5. Where a cheque is crossed specally, the bank to which It Is crossed may again cross it specially to another bank for collection: 6. Where an uncrossed cheque, or a cheque croeeed gener- ally, is sent to a bank for colleotion, It may croea it specially to itself: 7. A crossed cheque may he reopened or uncrossed by the drawer writing between the transverse lines, and initialing the same, the words "pay oash." 77. A crossing authorized by this Act, Is a. material port of the cheque; it shall not be lawful for any person to oWl- terate or. except as authorized by this Act, to add to or aliter the crossing: As to el'.Vot of material alterations generally, see section 63. If the obliteration, addition or j'lteiation dooH not amount to forKi-ry, it would come under seetl m 13(1 of the Criminal Code. 1s;i2. which makes any person who, without lawful ex- cuse, disobeys an Act of Parilament. guilty of an offence, and liable to one year's imprisonment (Maclaren, p. 395). 78. Where a cheque is crossed speolally to more than one bank, except when onossetl to ajwther bank as agent for col- lection, the bank on. which it is drawn shall refuse payment thereof: 2. Where the bank on %Vhioh a cheque so crossed is drawn nevertheless pays the ssvnu. or pays a cheque crossed gener- ally othierwisie than to a bank, or, If crossed sipecially, other- wKse than to the bank to wiiich it is cros.S'pd, or to the bamk acting as its a^enit for collection, It is liable to the true own€r of the ohieque for any loss he sustains owing to the cheque having been .so paid. Provided, that where a uheque is presemted for payment which does not at the tim-; of pre»entmervt appear to be crossed, or to have had a crossing which has been obliterated, or to have l>een added to or altered otherwise than as authorized by this Act. the bank paying the cheque In good faith and vithout ruegligence shall not be respoiiislble or incur any liabH- Ity, nor shaM the payment be questioned by rea.soin of the cheque having been crossed, or of the cro.sislng having been obliterated or having been add€K:l to or altered otherwise than as authorized by this Act, and of imymenit having been made otherwise than to a bank or to the bank to whioh the cheque is or was crossed, or to tlie bank acting as its agent for collec- tion, as the caj*o may be. 79. Where the bank en which a crosised cheQiie is drawn in gooo capable of g-iving a better title to tiue cheque than that which had the person from wnom he took it. Making a cheque "net negotiable" puts it on the same foot- ing as an overdue bill, so that any holder take.s* it subject to the -iquities attaching to it, and no person can become a holder in due course. Chalmers, p. 25!), g'ves the following illustrations: A cheque payable to bearer and crossed "not negotiable" is stolen. The thief gets a tr.'ulesman to cash It for htm, and the tradesman gets the cheque paid on present- ment through a banker. 'I'he banker who pays and the banker who receives the money for the tradesman aro protected, but the tradesman would be liable to refund the money to the true owner, and, assuming payment of the cheque to have been stopped, he could not pue the drawer. So, too, where a. chpque crossed "not negotiable" was di awn in favor of a Arm, and one of the i>artners in fraud of ills co-partner indorsed tlie cheque to the defendant, who caslied It, it was held that the other partner, who, under the terms of the partnership agree- ment, was entitled to the- chp(|UP, could recover tlie amount from the defendant: Fishn- v. Rohcrls (l,S90t, T. L,. R. 354, C. A. See thf '-ection incidentally discussed in NaiinntU Bank v. Silke (isni), 1 Q. 13. 4M, r. A. 81. Where a bank in good faith, and without negligence, reoeivt^.^ for a customer payment of a cheque crossed generally or specially to itself, and the customc ~ has no tlMe, or a defec- tive title thereto, the bank shall not incur anj liability to the true owner of th« cheque by reK.-^on only rf having received such payment. Whether a person Is a "customer" of a bank is a question of fact. "Whore a banker, in good faith, and without negligence, re- ceives !>aymeiit for a customer of ,^ crossed dieque, and the custoiner has tut title or a defective title, the banker Incurs nn ll:il)i'lty to the true nwrer. by reason only of ha.ving re- ceived iiavment: (Innl ll'c.v/coi Itniliniji Vnmpaiiy v. London & Coiinlii Hinihiun Coiiiiitiuil (IS!)91. 2 Q. B. 172. Wliei'o the only transactlr.n hotwi'cn an milivldual and a bank Is the collection ol" a crossed chetnio, such imlividual is not a "customer" rf the bank within this s.ctlon: Matthvwa v. yyniini.in, 10 R. 210 (l,S9t). Section 79 rollevoa ihe hank on which the crossed cheque is drawn; this section, (he b;,iik which collects it. l*" It l)e in- dorped "per proc." ,-ind the banki-r makes no huiulrv as to the nnlhoriiv «o *n indorse, this may be negllgenee: IIIhhiI v. For, 53 Z.. T, N. S, 193. PART TV. PROMISSORY NOTl^lS. 82. A pi'omlaisory note is an unconditJonal piXjnilse In writ- ing in;idi' li>' one pe'-.son to another, signer! oy tihe maker, en- ffaglng to pay, or. demand or at a fixed or determinable future time, a sum certali 'n mont'y, to, or to :ho order of, a speol- fled pei'son, or to bearer: II'*' BILLS OF EXVHA\GE ACT. No form of words is essential to the validity of a note, provided the requirements of this section be tuiiilled, Uooptr V. Wuiuims {.IbiH), :>, iuxcn. 2u; but, on me other hand, a docu- ment might conform to the terms of the section and yet not be a promissory note, it niusr be suoh as to shew ttie Jrueniion to make a noic: «io*tu v. TniJii UfiiuJ. 15 M. & W ■£). If there be no words amounting to a promise the instrument is merely evidence of a debt. For instance, a ban,ter's deposit note running "Keceived of Mr. C. .tloU to be accounted for on de- mand." and signed, wl.l not be treated as a promissory note: U()l)k\iis v. A'oholt (1S75), L. R. 10 Kq. 222. An Instrument promising to do anything in addition to the payment of money Is not a note, sec. 'i (i), but It has been held In the U. S. thoit a promisisory note may give the hoikler tihe. option betwee' the- payment of the sum speciHed and the performance of some other act by th» matters, thougii as to the latter it la not a note: CV- i>iiininorc v. Ltunvun (.If''-*;, 57 New York R. 673. As the holder can demand money, and no option is given to the maker, it is said there is no uncertainty in the instrument (Cha.mers p. 2ii3). If the instrument is ambiguous, and it is uncertain whether It vas meant to be a bill or note, the construction niost favor- able to the validity of the Instrumont will be adopted: Marc v. CliarUn. 5 E. & B. 9N1 (1n5i;). A bill i uiy aljo be t?eated as a note under the circumstances mentioned In sect. 5 (2). An instrument Inva id ;is a note may be valid as an agree- ment. ;'iil;ironiJ v. Siiiitli, \V. N. I'lKi, ■K (Hi). lion or I. O. If. If the instrument Is a simple I. O. U., and contains no promise to pay, It is a mere aoknowledgmant ol the debt, and It Is not negotiable, (loulii v. Vnnmhs, 1 C. B. M'i i}>A^,t. If there Is a promise Vn pay It Is a note, the fallowing having b.?en held sufflclent : "11th Oct., 1831, T. O. U. £20, to be paid on the 22nd Inst., W. B.": ISrookn v. i tcins, 2 M. & W. 74 (ISSii). An I. O. U. ought regularly to be addres.sed to the creditor bv name, but though not addressed to anyone, it will be evi- dence fo- " ^ plaintiff, If produced by him: Taylor on Evidence, 8. 121. 2. An lastrumen/t In the form of a note payable to maker's order Is not a note with'n the meaming of this oectJon, unil'eas and until It is indorsed by the maker. 3. A no'te Is not Invalid by reason only that it conitalna also a pledge of collaiterail security with authority to sell or dis- poise 'thereof. Will n a nol'^' on its face contains a staii^iiiMit that it la given US c( laiteial s-tcurlty, it is not a proml.S'Sory note: Luther' land V. Paltcrson. 4 O. R. .■)Go (1884). Whcri- (M'lli'tcral security is given trith a note, the right to such collateral goes v.ilh the not*': ('iiitml Until: v. (Inrlatul, 20 O. rr. 112 (1S'..0), aiid tlie creditor has a right to hoi.l the soctirltlr'S p-^ov ifter tl"' reniinlv mh t'li' note is ')a'ic(l by the statute of llm'ta 'ons: Wiley v. Lrdynrd, 10 Ont. P. R. 182 (18S3). 4. A note which is, or on the face of It purports to be. both made and payable within Canada, fs an inlaml note, ai.y other note Is a foreign note. 83. A promissory note Is Inchoate and l^comp) te until delivery ther^'of to the payee or bearer. The nature of the delivery necessary to give effect to a note Is set out In sect, a. 84. A pixwnlssory note may be made by two or more makeri^ and they may l>e liable thoreon Jointly, or Jointly and sev*t*« ally, accordltiig to its tenor: 490 BILLS OF EXCHANGE ACT. 2. Where a note runs "I promise to pay," and is signed by two or more peo-sonis, it is ueemed to be their joinit and sev- eral note. The Jaw respecting joint and joint and several liabilities differs In yueoec from tnat In lorce in oinur parts ol Canada. Under the i' rench law in force In Quebtc wnere se\ eiai per- soiis are jointly iiabie for a aeot, eacn of them is liable for an equal fractional part to tne crednor, wnaiever may ue their respective rights as against eacn otiier: i'othltr on uoligatlons, JSo. 1^, 17 i-.aureni, xnob. ;;74, ;ibU. under Kiigilsn law, on me other hand, each joint debtor is liable to the creditor for the whole. If one dies his representatives are not liable tor any part to the creditor. If liie creditor does not sue all who are alive and in the country, those who are sued might have pro- ceedings stayed until the living joint debtors wHj are in the country are made parties. A judgment taken against some of the ^oint debtors frees llie others from all liability. (.See Macijaren, p. -108-409 and oa.ses tneie cited. Also Leake on Contracts, d. inu.j If a note is on its face "joimt," and not Joint and several, the law would ditter as above, according as to whether it was a Quebec note or not, and the note would be interpreted ac- coiding to the law of the place where it was made, sect. 71 (b); thai, is where it was delivered to the jiayee or bearer, sect. 83 (Aladaren, p. 409). Where one of two joint makers of a note signs for the ac- commodation of the other, their relation is that of principal and surety, and the prtscriiJiion of 5 years does not apply: Vui'rn V. Hiynon, Q. R.. 2 S C 36 (lb92). A "joint and several" liability is sutvstantlally the same In English and French law. Kach of the debtors is liable for the full amount, and on his death his liability descends to his re- presentatives. Payment by one discharges the liability of the others to th<' creditor. The debtor who has paid may have his right of contribution against his co-debtors. A judgment against one m;iker is no bar t<> procecillngs against the others: Re I>a\iison, 13 Q. B. D. 53 (1SS4). If one or (more are sued, hut not all. Ihose who are sued have no right to delay the plaintiff by having the others called In: Dinochir v. Lupaimc, M. Ij. R. 1 S. C. 494 (ISSS). (Maclaren, p. 4(i!).) 85. Where a note payable on demand ha:i been Indorse'l, it must be presented for payment witJidn a reasonable time of the Indorsement; If it is not so presented, the Indorsor Is dlschargied ; if, however, w'th tih© assent of the Indorsier It has been deliv- ered as a ooil'ateral or continuing spcurity, H ne«d not be pre- seirte 1 for payment so long as It is held as such security: For notes payable on demand, read sect. 10 with sect. S8. 2. In detei'mluiiing wliat Is a reasonable time, regard shall be had to the nature of the Instrumenit, tihe usage of trade, and the facts of the particular case: Where ;v demand note is payable with Interest, this has been considered as an liidlcalidii that an early presentment was not contemplaleil: 'J'linni v. .S'cori/, 4 N. B. (1! Kerr) 557 (1S44). lieiisonablo time ajipears to be a mixed fiuestlmi of law and fact. Itegard must be had to the nature of the Instrument as a continuing security, r'. r/., ten mnntlis may not be an un- reasonable time: Clitirlnrtl Hunk v. lUcknoii (1S71), L. R. 3 P. C. 579, hut t)res(>ntmeiit of ii demand note over three years after It was TP ide Is n^it within reasoimble time; lUimiUf du I'ruplv V. DmincoK , Q, R. 10 S. r. 428 (1S97). 3. \^ ere a note payable on demand Is niO'gotlated, it la not deemet to be ovei'due, for the puri>oi*e of affeetlng the hoWier with defects of title of which he had not notice, by reason that BILLS OF EXCHANGE ACT. 491 ilt lappeaxs that a reasonablie time for piresentlne It for pay- ment hfos elaipeed since its issue, TJiis subsection negatives the application of section 36 (3) to promissory notes payable on demand, which p.re in the nature of continuing securities. 86. Where a promissory noto is in the body of it made pay- able at ^ particular place, It musit be presented for payment at that place. But the maker is not discharged by the omissdon to present the note for payment on. the day that it matures. But, if any suit or aoUon la instituted thereon agadnst him be- fore presentation, the costs thereof, stiaill be in the discretion of the court. If no place of payment Is specified In the body of the note, preaentmient for payment is not necessary In order to render the maker liable: 2. Presentment for payment is neoesspjy in order to rend«r the indoirser of a note liable: 3. Where a note is in the Ixxly of it made payable at a partdcuilar place, presentment at that place is niiceseary In order to render an Indorser liable; but when a place of pay- ment is indicated by way of memorandum only, presentment at that place Is sufflclent to render the indoraer liable, but a presentmetnt to the maker elsewhere, if sufflcdent in other re- si>ects, stiall also sufflce. Kor the rules as to presentment for payment, see sects. 45 and 52, which .aiiply to pniinlssory notes, with the modiflc utions specified in section 8S. The provisions of section 46, as to ex- cuses for delay in makinfi: jn-esentment, or prosentmeiit being dispensed with entlreiy, as we'.l as those relatins to notice of dishonor, also apply to notes with the necessary modifications. A promissory note payable at a particular pli^ee need not be presented there at maturity in order to charge the maker, althoiicrh there are funds to meet it. the duty of the maker of such a noto beinp: to keep the funds there until presentment: Thi Mirrhaiit.1 Hank of Ciixiila v. Ilnidrrsnn, 2S Ont. R. 300 (1S!)7); but If the funds so left were flnially lost through the neglect of the holder to present the note, as, for instance, by the failure of ii bank, the m.'ker would be discliarged, at least to the extent of the loss. 87. The maker of a promissory note, by making It- fa) Emgiages that he will pay it according to its tenor: (6) Is precluded from denyinig to a holder in due course the existence of the payee and hils then capacity to indorse. The nieasiu'e of damages ayalnst the maker of a note would in general be the same as against the iieeeptor of a. bill, as to which, see section 57. 88. Subject to the provisions in this part, and except as by this .section provided, the wovi.slons of this Act re^atinn" to bills of exchange api>ly, wMh the nieces.sary motdflcatiotis, to ppomdsvsory rjites: 2. Ira applying t^hose pr>, M, 40, 41, 4i!, 43, 44, 53, 54 (1) (2), 64, C5, 66, 67 and 70 (Maelaren, p. 418). The following are the chief points in which promissory notes differ from bills of exchange, causing the above men- tioned sections of the Act to bo inapplicable to notes:— 1. The contract of the maker of a note being similar to that of the acceptor of a bill, the rules rogul-iting presentment for acceptance, acceptance and i)ayment Hiipru protest do not apply to notes: 2. Notes are not made in sets, nor is protest required in the case of a foreign note dislionored here, except to charge indorsers; 3. Notes may be joint or joint and several, and may, in addition, contain certain other matters, such as a pledge, with power to sell as a. collateral security; 4. The strictness of the rule as to defects attaching to the title of the transferee of an overdue instrument is relaxed In the case of a promissory note payable on demand: Byies, p. 14 and 15. PART V. SUPPLEMENTARY. 89. A thilng Is deemed to be dome in good faith, wiithin the meaning of tihia Act, where It Is in. fact don© honestly w*hetber It Is done neg'Ue«ntly or not. Negligence or carelessness on the riart of the holder of a bill is not of itself sufficient to deprive'him of his remedies for procuring its payment, Jonrs v. Onrdon (1877). 2 App. C^'as., H. Iv. 629: but negligence or carelessness when considered in connec- tion with the surrounding circumstances may be evidence of bad faitb: /fc Gomersall nS75). 1 Ch. D. 146. Every case must be determined on Its own merits. 90. Wbere, by this Act, any Instrument or writing Is re- quired to be .silgned by any person, it is not nece-^tsary that he should sign it with his own hand, but It la suiflcienit if hla signa/tui-e Is writ --n thereon by some other persnn by or under his authority: 2. In the caso of a corporation, where, by thig Act, any in- strumen't or writing is required to be signed. It is sufllclenit If the iiistrunient or writing is du'ly sealed with the corporate seal; but nothing In this section shall l>o consitrucd as requiring the bill or note of a cori'OT'aitlon to be under seal. 91. Where, by this Act, (he time limited for doing any act or thintr is h^ss thiui tliree days. In reckoning time, non-buslne«a days are excluded; "non-buslness days," for 'the purposes of this Act. mean the days mentioned in tbe fourteenth section of this Act; any other day is a business day. Some of the short delays In tne Act nre:— The drawer has two days to decide wheth(>r he will accept n, 1)111, section 42; notice of dishnnor must be given the next following business day, section Id i7,) and s-s. 4. and iires-entment to the .acceptor for hou'ir should be on the day following maturity, section 66. s-s. 2. BILLS OF EXCHANGE ACT. 493 92. For purposes oi this Act, where a bili or note is re- quired to be proLeated within a speoilied time or before some further proceeding is taken, it is sufficient that the billl or note has been noted for protest before the expdraition of the (Sfl?tecl- fled t'me or the taking of the proceeding; and the formal pro- test may be extejided at any time thereafter as of the date of the noting. 93, Where a dishonored bill is authorize'' or required to be protested, and the services of a notary caimo^ be obtained at the plaxje where the bill is dishonored, any justice of the peace resitient in the pdace may present and protest such bill and give all necessary notices, aaidshaJl have all the neces- sary powers of a notary In respect thereto: 2. The expense of noting and protesiting any bill or note, and the postages thereby incurred, shall be allowed and paid to the holder in addition to any Initerest thereon: 3. Noitnries may charge the fees in each Province heretofore allowed them: 4. The forms in the first schedule ito this Act may be used in noting or protesting any bUl or note and in giving notice thereof. A copy of the bill or note and indorsement may be included in the forms, or the original bill or note may be an- nexed and the necessary changes in that behalf made In the forms: 5. A protest of any bill or note, and ajny copy thereof as oopded by the notary or justice of the peace, shall, in any action be prima facie evidence of jyresentation and dishonor, and also of pervioe of notice of such presentation and dishonor as stated in such protest. A notary who is one of the Inrtorsers on a promissory note is not Piitltlerl tg act as notary to mak(! the protest, even where he pulistitntps the namo of another person for his own and piirprirts to niako th(? proopss at tho request of the person so substituted CMaclareii, p, 425). 94. The provisions of this Act as to croesed Cheques Shall apply to a warrant for payment of dividend. 96. The enactments mentioned In the secord schedule to this Act are hereby repealed, as from the commence, iiont of this Act, to the extent in that schedule mentioned: Provided, that suoh repeal Rhall not vaffeot anything done or suffered, or any right, title or Interest aoqulri-^d or aocrued before the commencement of this act, or any lecril proi^omliii'? or remedy in respect of any such thing, right, title or Interest: 2. Nolhlng in this Act or In any repeal effected thereby shall affect tho pi"ovlsions of "The Bank Act:" 3. The Act of the Parliament of Great Britain passed in the fifteenth year of the reign of His late Majesty Georpro ITI., In- tituled "An Act to rp.straln the negotiation of Promissory Notes and Inland Bills of Exchange under a limited sum within that ixirt "f tlrcat I^rllmiii (ia'lehtilmern, see 5th edition (1896); to Mailairn, see 2nd edition (1896). FIRST SCHEDULE. FORM A. NOTINO FOR NON-ACCEPTANCn. {Copy Of BUI and Jndorsementa.) On the 18 , the above bill was, by me, at the request of , presented for acoepbanoe to E. F., the drawee, personally (or, at his residence, offlce or usuoJ place of business), in the city (town or village) of and I received for answer, " :" The soJd bill Is therefore noted for non-acceptance. A. B., Kotarv Puhlic. (Date and Place.) 18 Due notice of the above was by me served upon ( A.B., C. D., ( day of (or, at his residence, office or usual place of business) In the f Z™^'*^'' [ personally, on tihe " indorser ' BILLS OF KXCHAXG^ ACT. m , on the day of , or, by deposit- ing such notice, directed to him, at , In Her Majesty's jKist office in the city [town or village], on the day ol , and prepaying the postage thereon., A. B., notary Public. {Date and Place.) 18 FORM B. PROTEST FOB NON-ACCEPTANCE OR FOR NON-PAYMENT OF A BIL.L PAYABLE GENERALLY. iCopu Of liitl and Indor-^cmcnta.) On this day of , in the year 18 , I, A. B., notary public for the Province of , dwelling at , In the Province of , ait the request of , ddd exhibit the original b'U of exchange, whereof a txue copy is above written, unto E. F., the drawee » thereof acceptor ^ personally, {or, at hly residence, office or usual place of busl- nieee) in , and i peaking to hlmsedf (.or his wife, his clerk, or his servant, &c.), did demaind ; ^ ^ i thereof: unto I payment ' ' he Which demand | . | answered: " ." I she I Whei-efore, I, tjhe said notary, at the request aforesaid, have protested, and by these presents clo protest against the acceptor, drawer, and lindorsers (or drawer and indorsers) of the said bill, and other parties thereto or therein concerned for all exchange, re-exchange, and all Oui»ti?, damiases and interest, presient and to oome, for want of / _ ^ "?^ \ ' payment J of the said bill. All of which I atltest by my siignature. (Protested in duplicate.) A. B., "notary Public. FORM C. PROTEST FOR NON-ACCEPTANCE AND NON-PAYMENT OP A BILL PAYABLE AT A STATED PLACE. (Copy of Bill and IndorsementH.) On this (lay of , In the year 18 , I, A. B., n'Otory public for the Province of , dwelUng at , In the Province of , at the request of , did exhibit the orierinal bill of exchainare, whereof a true copy is above written, unito E. F., the I drawee thereof, at , being the stated ' acceptor place where the said blill Is payable, and there, speaking to did demand a°<=«Pt«-n<^. , payment ( of the said bill; unto which demamd he answered: " ." mm lit ;. I f'l 496 BILLS OF EXCHANGE ACT. Wherefore I, the aaid notary, at the request aforesaid, have protested, and by these preeernts do protest agialnat the aooeptor, drawer, and Imdorsers {or drawer and indorsers) of tihe said bill, ami all other parties tlhereto or therein concerned, for eill exchange, re-exohangre, costs, damages and Interest, present and ito come, for want of j n^vm nt ' «f the said bill. All of which I attest by my signature. (Protested In duplicate.) A. B., FOKM D. PROTEST FOR NON-PATMBNT OF A BILL NOTED, BUT NOT PROTESTED FOR NON-ACCEPTANCE. Jf the protest is made by the same notary who noted the hill, it 8hould immediately follow the act of noting and memorandum of service thereof, and begin with the tcords, "and afterwards on, &c.," continuing as in the last preceding form, but introducing between the words "did" and "exhibit," the word "again," and, in a parenthesis, between the words "writiten" and "unto," the words: 'and which bill was by me duly noted for non-accieptamc© on the day of But if the protest is not made by the same notary, then it should follow a copy of the original hill and indorsements and noting marked on the bill — and then in the protest introduce, in a parenthesis between ti. words "written" and "unto," the words "and which bin was on the day of , by notary public for the Pro\lne of , •noted for non- acoeptance, as appears by his note thereof marked on the said bill." FORM E. PROTEST FOR NON-PATMBNT OF A NOTE PATABLE GENERALLY. {Copy of Note and Indorsements.) On this day of , in tflie year 18 , I, A. B., notary ;,iblic for the pix>vince of , dwelling at , in th« Provlnoe of , at the request of , did exhibit the original promissory note, whereof a true copy is above written, unto , the promisor, personaiWy {or, art: his residence, ofBoe or usual place of business), In , and speaking to hiimsclf (or his wife, his clerk or his servant, &c.), did demamd payment thereof; unto which demand ■ ^^ 1 ' she ' answered: " ." Wherefore I, the said notary, at the request aforesaid, have protested, and by these presentsi do protest againsit the promisor and Indorsers of the said not'e, and all other parties thereto or therein concerned, for all costs, damages ami in- terest, present and to oome, for want of payment of the said note. Am of whicih T Fjttest by my edgnature. (Protested In duplicate.) A. B., Notary Public. BILLS OF EXCHANGE ACT. 497 FORM F. PROTEST FOR NON-PATMBNT OF A NOTE PAYABLE AT A STATED PLACE. [Copu of Note and Indoracmcntn.) On this day of , in the year 18 , I, A. B., notory public for the Province of , dwelling at , in the Province of , at the request of , did exhibit the original promissory note, whereof a true copy Is above wnltten, unto the promisor, at , being the s'ta-ted place where the said note Is payable, and there, speaking to did demand payment of the said note, unto wMdi d'Omand he answered: " ," Wherefore I, the said noitary, at tlK equest aforesaid, have protested, and by these presents do proite*it against the pro- misor and Indorsers of the said note, and all other partita thereto or therein concerned, for all cos.ts, damages and In- tereet, present ajnd to come, for wnant of payment of the seJd note. All of which I attest by my sdgnature. (Protested in duplicate.) A. B., Notary Public. FORM G. NOTARIAL NOTICE OF A NOTINGj OR OF A PROTEST FOR NON- ACCEPTANCE, OR OF A PROTEST FOR NON-PAYMENT OF A BILL. (Place and date of Noting or of Protest). 1st. To P. Q. (the drawer.) at Sir, Your bill of exchange for $ , dated at the , upon E. P., In favor of C. D., payable days 1 sight i after ^ ^^. ! was this day, at the requesit of duly ( noted ( ' protested I by me for I 2nd. non-acceptance, non-payment. ' A. B., Notary Public. (Place and date of Noting or of Protest.) at To C. D. (indorser), (or F. G.) Sir, Mr. P. Q.'s bill of exctiange for I , dated at Notary Public. , upon E. F., in your favor (or In favor of days aft^T | ^' } and by you indorsed, was this day, at tihe request of I noted ' w . _ r '> non-acceptance, i ) 1. 1. J ( oy me for ; ,. ; I nriitte t . 1 . - I noai-aoceptanc© i , ., foregoing protested fOr f n«n-payment ' ""^ ^^'^ . . J P- Q«» I ^»- I drawer t thereby protested upon i ^ ^ , the , ^dorsers ^ P^' Bonally, on the day of (or, at his residence, oflice, or usual place of business) in , on t'he day of ; (.or, by depositing suoh notice, ddreoted to the said I Z,' ^' \ at , in Her Majesty's posit office, In on the day ai , and pr6p««rln^ the postage thereon). In testimony whereof, I have, on the last mentioned day and year, at aforesaid, signed these presenit9. A. B.. Notary Public. FORM J. PROTEST BT A JUSTICE OF THE PEACE (WHERE THERE IS NO NOTARY) FOR NON-ACCEPTANCE OF A BILL, OR NON- PAYMENT OF A BILL OR NOTE. (Copy of Bill or Note and Indorsements.) On this day of , In the year 18 , I, N. O., one of Her Majesty's justices of the peace for tihe district (or county &c.), of , In tlie Province of dwelling at (or near) the vMlage of , in the said district, there being no practising noibary public at or near the said BILLS OF EXCHANGE ACT. 499 orlgrlnal whereof a true copy Is above written villacpe (or any other legal cause), did, at the request of and in. the presence of well known unto me, exhibit the \ bin j "' note ' J- drawer , unto P. Q., the J acceptor thereof, personally {or at his I promisor I residence, office, or usual pilace of biislness) in and sp«i.king to hJmseif (hte wife, his olerk, or his ser- vant, &c.), did demand ', 'l^ ! thereof, unto which ' l«aymen.t I demand ' ^® ) answered: " ." Wherefore I, the sadd justice of tlie peace, at the request aforesaid, have protested, and by these presents do protest ( drawer and indorsers against the promisor and indorsers [ of the Bald ( acceptor, drawer and Indorsers ' note I ^^™^ *''' other parties thereto and therein con- cerned, for all exohang'e, i-e-exchange, and all oosrts, damages, and interest, present and to come, for want of ; acceptan«« j ^, ^^^ ^^^ . bill j " payment ' • note. ' All which Is by these presents attested by the sigTiarture of the said (the toitnrss) and by my hand and seal. (Protested In dupliicate.) (Signature of the icitness.) (Signature and seal of the J. P.) SECOND SCHEDULE. ENACTMENTS REPEALED. Province and Chapter. Dominion of Canada ; Chap. 123, Revised Statutes. Province of Quebec : Civil Code of Lower Canada Nova Scotia ; Reviseil Statutes, third se- rlub, chap. 82 New Brunswick : Revised Statutes, chap. IIC. 30 Vlc, 18C7, chap. 34 Title of .\ct and extent of repeal. An Act respecting Bills of Kxchantje and Pro- missory Notes.— The wliole .Vet. Articles 2279 to 2334, Iwfh inclusive [*]. " Of Billsof Kxchiinge and Promissory Notes." Section 2. Tlie other sections of this chap- ter have been herptofore ref Central Bank, 30, Uii. Bank of British North America v, Clarkson, 73. Bank of Commerce v. Jenkins, 23. Bank of Commerce, Stevenson v., 73. Bank of Ha/mllton, Bailey v., 75. Bank of Hamiltooi v. Hallsted, 75. Bank otf Hamilton, Henderson v., G4. Bank of HamlLton v. Noye, 73. Bank of Hajnil'ton v. Shepherd, 75. Bank of Liverpool v. Blgedow, 19, 31. Bank of MomreiaJ, Busiby v., 22. Bamk of Montreal v. Geddee, 64. Bank of Montreail, Hen eke" v., 41. Bonk of Montreal v. Rankin, 19. Bank of Montreal, Sweeny v., 43, 64. Bank of Montreal v. Thomas, 64. Bank of New Brunswick, Boyd v., 41. Bank of New Bniniswlck, Scott v., 84. Bank of Novia Seotla, Barss v., 35. Bank of Nova Scotiiia, Black v., 64. l^nk of Nova Scotia v. Forbes, 31. Bonk of Nova Scotia v. Dandry, 64. Bank of Nova Scotia, The Queen v., 53. Bajnk of Nova Scotda, Richairds v., 23. Bank of Nova Scotia, Thompson v., 23. Bank of NoMa Scotia v. Smiiith, 35. Bank of Toronto, Drake v., 99. Bank of Toronto /. European Assurance Society, 23, Bank of Toronto v. Ha- illtoe, 64. Bank of Toronto v. Perkins, 68. Bank of Upper Canada v. Bradshaw, 23. Bank of Upper Oonada v. Klllaly, 68. Banque d'Hocheliaga v. Merchants Bank. 73. Ban^iue d'Hochelaga, Robertson v., 32. THE liANK ACT. 601 Banqu« Jajcques Oartler, Danohue v., 41. Batique Jacques Cartler, Geddes v., 31. Baiuiue Jacques Carti ^1 11 .■ ti( ^ 1 -■.M t's 602 THE BANK ACT. Oorponation of th« Parish of St. Cesajlre, MacForlane v., 64. Cushlnigr V. Dupuy, 1. Etoa^eau, Merchiaintis Bfunk v., G4. Demetra, Young v., 73. DonogOi V. Glll€spl€, 64. Donoihue v. Banque Jaxsquea Cartler, 41. Drake v. Bcmk oif To(ron'to, 99. DuiniB>pau£!h v. Molatoins BajiA, 64. Dupuy, Gushing v., 1. EisBex Land & Tlmbei' Co., Toronto Case, 64. European ^£suraince Society, Bank of Toronto v., 23. Kxchatigpe Bank, Baimes v., 23. Exohang«i Bank v. Canadian Bank of Commerce, 64. Exchange Bajik, Cleveland v., 64. Exchange Bank v, Fletciher, 23. Exchange Banh v. Gault, 23. Exchange Bank, Goodall v., 64. Exchcr.ge Bank v. HaU, 91. Exchannre Bank v. La Banque du Peuple, 23. Exchange Bank v. Montreal C. & D. S. Bank, 64, SO. Exclhanige BanJr v. Montreal Coffee House Association, 91. Exchange Baink v, Nowell, 64. Focchanige Bank v. The Queen, 53. ExGhang>e Bank, Senecall v., 91. Exdhanige BanJt, Sipringer v., 23. FaJtt V. Shortley, 73. .. . Fletcher, Exchange Bnjuk v., 23. Ftorbes, Bank of No\in Scotia v., 31. Oarland, Central Bamk v., 64. OauJt, Exchange Bank v., 23. Qeddes v. Bamque Jacques Oartle^r, 31. Oeddea, Bank of Montreal v., 64. Geddes, Montreal O. & D .iS. Bank v., 64. Giibb V. Poston, 19. Gllll€®ple, Donogfh v., 64. GI111<« V. Commercial Bank, OS. Gllmai-. V. Court, 31, 89. GooKlall V. Rxo-hnngo Bank, 64. Ooodiftillow, Tividena Bank v., 76. Granit v. La Banque NaUonalo, 68. Grieve v. Mols«»nis Bar.k, 23. Wall, Exchan^ro Bank v., 91. Hnnwterl, Bank of TTiunllton v., 75. Hamilton,, Hank of Torcwiito v., 64. Henderson v. Bank of Hamilton, 64. Hemler.son'.s Cnuio. iXc Ccn.traV Uank, 96, Honoker v. Itank of Montreal, 11. Henry v. SImit-rd, 2. H lucks. The Queen v., 99. HlriBohfrfdt V. Union Bank, 74. Hoolu'lafra Bank, Tinwky v., 64. Hoolielngia l^unk v. Ix)ndon Onarainlco & Aecldent Co., 23. Hodhelaga Banl: v. Mt-aTdiants Bank, 74. HoKg. Re Con I ral Bank, 96. ITome flavliiKw i*i l/niiui Co.'s Case. Ho (V-nlral Bank v., 89. 9fl. HuRflies V. Cle. dos Villas, 30. IHE BANK A(JT. \m 23. 68. 23. Bank v. Receiver-General of New 23.. Cosa;irc, 6S. 64. Inskey v. Hochelag^a Bank, 64. Jaoqu«6 Ciartier Bank v. The Qu«en, 64. Janiieson, Watson v., 75. Jeffery. Lftwls v., 64. Jenkins, Bank of Commeroe v.. Johanseni v. Chapllm, 64. Kennedy, Moleona Bank v., 64. Kerr, MllQoy v., 73. Keirry v. Merxjiianits Bank, 84. Killlaly, Bank of Uppor Canada La Oaiese d'Eoonomle die Quet>6c, Petrey v., 664. La CSisee d'Eoonomle Notre Dome' d« Qu©l>ec, Bolland Lajotiie, Robertson v., 75. Landry v. Bank of Novp, Scotia, 64, Leanleux, The Queten v., 99. Les-peraaice, La Banque Natlomale, v. l(fi\vi» V. Jeffe!-y, «■!. Liquidators ATaritime BrumsTvlck, 53. Liquidators' Mai-dtlme Bank v. Ti-oop, S9. Litman v. Montreal C. & D. S. Bank, 64. Lonnlon Guarantee & Aocldt'ont Co. v. Hochelasa Bank, Loupret, Moll«ur v., 99, Macdonald v. Bulmer, 99. MacParlan*; v, Coo-p. of Parkh of St. McCaffrey In ro & I^i Banque du Peuple, McCracken v. Mclntyre, 31. McDonald v. Rankin, 64. Mclntyre, McCrackon v., 31, McKay, Morchianit« Bank v., 64. Macnider v. Young-, 64. Maritime Bank v. Union Bank, 64, Maritime Ita'vk, J^lfiuli'ators of, v nnm«wl'^k, 53. Maritime Bank, Liquidators of, v. Troop, 89, Marlllmi^ Bank v, Thf Qu«x>ii. 55. Mayrand, La Banque Ville Marie v,, 64. MorohMvtiH Hank, Bathgate v., OS. Merchants Bank, Consolldorted Bank v,, 64. MeTC'liamls Hunk v. Darveau, 64. Merchants Bank, Kerry v., M, Mercli!i.;i,ts 13ank, I^a Bainquo d'Hociheilapra v., 74. Meroli;i.!it» Bank, F^ii Himique NaUonnJe w, 64. Merchamts Bank v. McKay, G4. Merchants Bank, Suler v., 75. Merchants Bank v. Smith, 1 73. MerchanLs Biuik v. Whldilon, 23. Milloy V. Kerr, 73. Molleur v. Ijoupret, 99. Molsona Bank, Bruh v., 64. Molsonfl Bank v. Ciarsa Baiique Jajcques Oartier v., 23. Montreal C. & I>. S. Bank, Litman v., 64. Momtrtal Coffee House Assooiation, lOxchangre Bank v., 91. Miilr V. darter, 43. Nasmlt'h's Case. In re Central Bank, 30. NoweM, Exchianee Bank v., 64. Noye, Bank of HamMon v., 73. Onitfirlo Bajik v. Ohaplln, 91. Ontario L.ank, SaderquiBt v., 84. Ontario Bank, Union Baoik v., 64. Paoaud v. La Banque du Peuple, 64. Perkins, Bank of Toronto v.. 68. Perkins v. Ro9.s, 7."). Petrey v. Da Caisse d'Economiie de Quebec, 64. Poeton, Glbb v., 19. Quebec Bank, Brown v., 84. Quebec Bank, Ward v., 64. Queen v. Baaik of NovP' -^ooitla, 53. Queen The, Benque Jacques Cartier v., 64. Queen The, v. Buntin, 97. Queen The, v. Cotte, 99. Queen, Exchaaigie Bank v., 53. Q'.ieen The, v. Hlncfcs, 99. Queen The, v. I^emleux, 99. Queen, Maritime Bank v., 53. Queen The, Quirt v., 1. Queen The v. Weir, 99. Quirt V. The Queen, 1. Railway & Newspaper Ad. Co. v. Molaoms Bank, 64. Rankin, Bank of Montreal v., 19. Rankin, MoDonaild v., 64. Rattray. In re Ohinic & Union Bank v., 65. R'ecoIver-Genei-al of New Brunswick, Ij'quldators Maritime Bank v., 53. Reg'ina v. Buntin, 97. Refflna v. Cotte, 99. R<^gina v. Hincks, 99. Replina v. T/emleux, 99. Replna v. Weir, 99. Richards v. Bank of Nova Scotia, 23. Richer v. Voyer, 64. Rhind, Williiamson v., 73. R'hoiU'H X. Starncis, 99. Robciil«on V. l^a Uanowers of the trustees. Tfrlil, that these acts were lii>rn rJirs of the Dominion .'ar- llament. 'M m W\\ 1 E'PI 1 1 i 1 HP Blk'' H IH 608 THE BANK ACT. The authority to pass the said acts cannot be referred to the legislative jurisdiction of Parliament over "banking and the incorporation of banks," but to that over "bankruptcy and insolvency" only. Tvnnant vs. Union Bank of Canada, P. C, 6 R. 382; [lsa4J App. Callee and actually in the place, or In one or more of the places owned or kept by him, whether such person is engaged in other business or not; (e.) Bill of IjAdinq.— The expression "bill of lading'' includes all receipts for goods, wares or merchandise, accompanied by an undertaking to transport the same from the place where they were received to some other place, whether by land or wavsr, or partly by land and partly by water, and by any mode of carriage whatever; (f.) Manitfacturer.- The word "manufacturer" Includes maltsters, distillers, lirev/ers, refiners and producers of petro- leum, tanners, curers. packers, canners of meat. p-rk. fish, fruit or vegetables and any person who produces by hand, art, process or mechanical means any goods, wares or merchandise. TUt: BANK ACT. 609 APPLICATION OF ACT. 3. To what Banks the Act applies-— The provisions of this Act apply to the several banks enumerated In Schedule A to this Act, and to every bank incorporated after the first day of January, in the year one thousand elgrht hundred ajid ninety, whether this Act is specially mentioned In Its Act of incor- poration or not, but not to any other bank, except as herein- after specially provided. SCHEDULE A. BANKS WHOSE CHARTERS ARE CONTINUED BY THIS ^ ACT. 1. The Bank of Montreal. 2. The Quebec Bank. 3. La Banque du Peuple. 4. The Molsons Bank. 5. The Bank of Toronto. 6. The Ontario Bank. 7. The Eastern Townships Bank. 8. La Banque Nationale. 9. La Banque Jacques Cartler. 10. The Merchants' Bank of Canada. 11. The Union Bank of Canada. 12. The Canadian Bank of Commerce. 13. The Dominion Bank. 14. The Merchants Bank of Halifax. 15. The Bank of Nova Scotia. 16. The Bank of Yarmouth. 17. La Banque Ville Marie. 18. The Standard Bank of Canada. 19. The Bank of Hamilton. 2^). The Halifax Banking Company. 21. La Banque d'llcchelaga. 22. The Imperial Bank of Canada. 83. La Banque de St. Hyaclnthe. 24. The Bank of Ottawa. 25. The Bank of New Brunswick. 26. The Exchange Bank of Yarmouth. ?7. ''Mie Unln Bank of Halifax. 28. The People's Bank of Halifax. 29. La Banque de St. Jean. 30. The Commercial Bank of Windsor. 31. The Western Bank of Canada. 32. The Commercial Bank of Manitoba. 33. The Traders' Bank of Canrda. 34. The People's Bank of New Brunswick 35. The Saint Stephen's Bank. 36. The Summerside Bank. Of the above 36 banks, 4 have suspended payment, namely;— d) Commerclnl Bank of Manitoba, which suspended payment on the 3rd July. 1S93, and went Into llquldntlnn. (2> Ijr P'>»inne du Peuple. which suspended payment on the ICth July. 1S95. ■ ■ r ' ( ^» '■V [l|;i| ilia I A' i M , 610 THE BANK AOT. (3) La Banque Vllle Marie, which suspended payment on the 25th July, 1899, and went into liquidation. (4) La Banque Jacques Cartier, which suspended payment on the 31st July, 1899, and reopened on the 27th October, 1899. 4. Charters continued to 1st July, 1901.— As to other particulars-— Proviso : as to forfeiture— The charters or Acts of Incorporation, and any Acts in amendment thereof, of the several banks enumerated in Schedule A to this Act are continued in force, so far as regards the incorporation and corporate name, the amount of capital stock, the amount of each share of such stock and the chief place of business of each bank, until the first day of July, in the year one thousand nine hundred and one, subject to the right of each bank to increase or reduce its capital slock in the manner hereinafter provided; and as to all other particulars this Act shall form and be the charter of each of the said banks until the said first day of July, in the year one thousand nine hundred and one,— subject in the case of La Banque du Peuple to the pro- visions hereinafter made in respect to that bank: Provided always, that the said charters or Acts of incorporation are hereby continued in force only in so far as they, or any of them, are not forfeited or rendered void under the terms thereof, or of this Act, or of any other Act passed or to be passed, by reason of the non-performance of the conditions thereof, or by Insolvency, or otherwise. Sarrazin vs. La Banque de St. Ifyacinthc, 28 L. C. J. 270 (1881). This was an application to the Minister of Justice of the Dominion of Canada for a flat for a writ of scire facias for certain breaches of the terms of the charter of the bank, in order to declare the charter of the bank to be forfeited, to- gether with its rights, powers, privileges and franchises of cor- poration. The Attorney General found thr t the officers of the bank had not intentionally and materially violated the terms of their charter, and for immaterial or unintentional breach of the terms of the charter, the Crown would not, at the present day, seek to forfeit a charter, and declined to grant the prayer of the petition. 5. What Provisions shall apply to Iia Banque du Peuple-— Proviso : as to Directors— Inconsistent Enact- ments Repealed-— All the provisions of this Act, except .hose contained In sections three, six to seventeen (both in- clusive), nineteen to twenty-seven (both inclusive), thirty-three, forty-flve, and eighty-nine to lu. jty-six (both inclusive), apply to La Banque du Peuple: Provided, that wherever the word "directors" is used in any of the sections which apply to the said bank, it shall be read and construed as meaning the princi- pal partners or members of the corporation of the said bank; and so much of the Act incorporating the said bank, or of any Act amending or continuing it, as is inconsistent with any sec- tion of this Act applying to the said bank, or which makes any provision in any matter provided for by such sections other than such as is hereby made, is hereby repealed; otherwise the said Acts are continued in force, subject to the proviso con- tained in section four of this Act. 6. What Provisions shall apply to the Banks of British North America and of B. C— The provisions con- tained in sections two, seven, thirty-seven, forty-seven to THE BANK ACT. 611 eighty-eight (both Inclusive), and ninety-seven to one hundred and lour (both inclusive), apply to the Bank of British North America and the Bank of British Columb.a respfccilvely; and the provisions contained In the other sections, of this Act do not apply to the said banks. 7. Chief Seat of Business of the said Banks —For the purposes of the several sections of this Act made applicable to the Bank of British North America and the Bank of British Columbia, the chief office of the Bank of British North America shall be the office of the bank at Montreal, In the Province of Quebec, and the chief offlce of the Bank of British Columbia shall be the office of the bank at Victoria, In the Province of British Columbia. 8. How Merchants' Bank of P. £• I. may oonie undrr this Act— The provisions of this Act may bt extended to th ■ Merchants' Bank of Prince Edward Island by the Treasury Board, upon the application of the directors of the said bank, before the expiration of the present charter of the said bank; and upon publication in the Canada Oazvttv of the resolution of the directors applying hereunder, and of the minute of the Treasury Board thereon allowing such applica- tion, the provisions of this Act shall, from the time named in such minute, or if there is no time named therein, from the dale of the publication thereof in the Canada Oazette, apply to the said bank; and its charter and Act of incorporation, and any Acts in amendment thereof, shall thereupon be extended for the same time and to the extent as if the name of the said bank had been Included In Schedule A to this Act. INCORPORATION AND ORGANIZATION OF BANKS. 9. Matters to be provided for in special Act-— The capital stock of every bank hereafter Incorporated, the name of the bank, the place where its chief offlce Is to be situate, and the name of the provisional directors shall be declared in the Act of incorporation of every such bank: 2. Form of Act of Incorporation.— An Act of Incorporation ot a bank In the form set forth in Schedule B to this Act shall be construed to confer upon the bank thereby incorporated all the powers, privileges and immunities, and to subject it to all the liabilities and provisions set forth in this Act. rM, < ii ii»^! SCHEDUT.E B. FORM OF ACT OF INCORPORATION OF NEW BANKS. An Act to incorporate the Bank. Whereas the persons hereinafter named have, by their petition, prayod that an Act be passed for the purpose of pstabllshlng a bank in , and it is expedient to grant the prayer of the said petition: Therefore Her Majesty, by and with the advice and con- lent of the Senate and House of Commons of Canada, enacts te follows:— I (12 THE BANK ACT. 1. The persons hereinafter named, together with such others as become shareholders in the corporation by this Act created, are hereby constituted a corporation by the name of hereinafter called "the Bank." 2. The capital stock of the bank shall be dollars. 3. The chief office of the bank shall be at 4. shall be the provisional directors of the Bank. 5. This Act shall, subject to the provisions of section six- teen of "The Bank Act," remain in foice until the first day of July, in the year one thousand nine hundred and one. 10. Capital Stock and Shares-— The capital stock of any bank hereafter Incorporated shall be not less than Ave hundred thousand dollars, and shall be divided Into shares of one hun- dred dollars each. 1 1. ProTisional Directors— The number of provisional directors shall be not less than five nor more than ten, and they shall hold office until directors are elected by the subscribers to the stock, as hereinafter provided. 12. Opening of Stock Books— For the purpose of organ- izing the bank, the provisional directors may cause stock books to be opened, after giving public notice thereof,— upon which stock books shall be recorded the subscriptions of such persons as desire to become shareholders In the bank; and such books shall be opened at the place where the chief office of the bank Is to be situate, and elsewhere, in the discretion of the pro- visional directors, and may be kept open for such time as they deem necessary. 13. First Meeting of Subscribers —Notice —Election of Directors.— So soon as a sum of not less than five hundred thousand dollars of the capital stock of the bank has been bona fide subscribed, and a sum not less than two hundred and fifty thousand dollars thereof has been paid to the Minister of Finance and Receiver General, the provisional directors may, by public notice, published, for at least four weeks, call a meet- ing of the subscribers to the said stock, to be held in the place named in the Act of incoporatlon as the chief place of business of the bank, at such time and a.t such place therein as set forth in the said notice; at which meeting the subscribers shall determine the day upon which the annual gonera! meet- ing of the bank Is to be heJd, and shall elect such number of directors, duly qualified under this Act, not less than Ave nor more than ten, as they think necessary, who shall hold office until the annual general meeting In the year next succeerllng their election: and upon the election of directors as aforesaid the functions of the provisional directors shall cease. 14. Conditions previons to commencing business by npTir Banks.— The bank shall not issue notes nor commence the business of bankinsr until It has obtained from the Treasury r?onrd a certificate permitting It to do so, and no application THE BA2iK ACT. &1 foi- such certiticattj shall be made until directors have been elected by the subscribers to the stock in the manner herein- before provided; and every director, provisional director, or other person. Issuing or authorlz'ner the issue of the notes of such bank or transactlngr or authorlzingr the transcustlon of any business in connection with such bank, except auch as is hereinbefore provided, before the obtaining of the certiftcate from the Treasury Board, shall be eruilty of an offence againsv this Act. 15. When Certifioate may be sranted.— No certifl. cate shall be given by the Treasury Board until it has been shown to the satisfaction of the Hoard, by affidavit or other- wise, that all the requirements of this Act and of the special Act of incorporation of the bank, as to the payment required to be made to the Minister of Finance and Receiver General, the election of directors, deposit for security for note Issue, or otherwise, have been complied with, and that the sum so paid was then held by the Minister of Finance and Receiver General; and no certificate as aforesaid shaJl be given except within one year from the parsing of the Act of incorporation of the bank applying for the said certificate. 16. If Certificate in not granted.— In the event of the bank not obtaining a certificate from the Treasury Board within one year from the time of the passing of its Act of incorporation, all the rights, powers and privileges conferred on such bank by its Act of incorporation shall thereupon cease and determine and be of no force and effect whatever. 17. Disposal of amount deposited with Minister of Finance.— Upon the issue of the certificate in manner herein- before provided, the Minister of Finance and Receiver General shall forthwith pay to the bank the amount of money bc de- posited with him as aforesaid, without interest, after deducting therefrom the an'ount required to be deposited under uectlon fifty-four of this Act; and in case no certificate is issued by the Treasury Board within the time limited for the issue thereof, the amount so deposited shall be returned to the person de- positing the same; but in no case shall the Minister of Finance and Receiver General be under any obligation to see to the proper application of the same In any way. INTERNAL REGULATIONS. 18. By-laws may be made.— The shareholders of the bank (or, in the case of La Banque du Peuple, the principal partners or members of the corporation thereof,) may regulate, by by-law, the following matters Incident ito the management and administration of the aflCairs of the bank, that is to say: The da^ upon which the annual general meeting of the share holders for the election of directors shall be held; the record to be kept of proxies, and the time, not exceeding thirty days, within which proxies must be nroduced and recorded prior to a meeting in order to entitle the holder to vote thereon; the number of the directors, which bhall not be less than five and \\ ,) ■, I n M ' '{'■'?'■ m m i fffl 1 ji 614 TBB BANK act: not more than ten, and the quorum thereof, which shall not be less than three; their qualification, subject to the provisions hereinafter made; the method of flllingr vacancies in the board of directors whenever the same occur duringr each year, and the time and proceedings for the election of directors, In case of a failure of any election on the day appointed for it; the remuneration of the president, vice-president and other direc- tors; and the amount of discounts or loans which may be made to directors, either jointly or severally, or to any one Arm or person, or to any shareholder, or to corporations: 2. Guarantee and Pension Funds.— The shareholders may authorize the directors to establish guarantee and pension funds for the officers and emi>Ioyees of the bank and their families, and to contribute thereto out of the funds of the bank: 3. CERTi.iN BY-LAWS CONTINUED.— Until it Is Otherwise pres- cribed by by-law under this section, the by-laws of the bank on any matter which may be regulated' by by-law under this section shall remain in force, except as to any provision fixing the qualification of directors at an amount less than that pre- scribed by this Act; and no person shall be elected or continue to be a director unless he holds stock paid up to the amount re- quired by this Act, or such greater amount as is required by any by-law in that behalf: 4. Banque du Peuple EXCEPTED.— The foregomg provisions ot this section, touching directors, shall not apply to La Banque du Peuple, which shall in these matters be governed by the provisions of its charter. 19. Board of Directors.— The stock, property, affairs and concerns of the bank shall be managed by a biurd of directors, who shall be elected annually In manner hereinafter provided, and shall be eligible for re-election: 2. Qualification.— Each director shall hold capital stock of the bank as follows:— When the paid-up capital stock is one million dollars or less, each director shall hold stock on which not less than three thousand dollars has been paid up; when the paid-up capital stock is over one million dollars and does not exceed three million dollars, each director shall hold stock on which not less than four thousand dollars ha.s been paid up; and when the pair»-up capital stock exceeds three million dollars, each director shall hold stock on which not less than five thousand dollar:' !>.^ been paid up: 3. Majority to be iRiTisH subjects.— A majority of the di- rectors shall be natural-born or nxturalized subjects of Her Majesty: 4. Election.— Notice.— The directois shall be elected by the shareholders on such day in each year as is appointed by the charter or by any by-law of the bank, and such election shall take place at the head office of the bank at such time of the day as the directors appoint; and public notice thereof shall be plvon by the directors, by publishing the same for at least four weeks previous to the time of holding such election, in a newspaper published at the place where the said head office Is situate: . : "'r"^l TUK BANK ACT. 5. Who shall bb Dirsctors.— The persons, to the number authorized to be elected, who have the greatest number of votes at any election, shall be directors: Uibb vs. Poaton, 16 L. C. R. 257 (1866). The polling of Illegal votes in favor of the election of a director of a bank does not per ae annul his olection, unless it is alleged and proved that another candidate had polled a larger number of legal votes. 6. Provision in case op equality of Votes.— Election of President, Etc.— it It happens at any election that two or more persons have an equal number of votes and the election or non-election of one or more of such persons as a director or rtlroctors depends on such equality, then the directors who have a greater number, or the majority of them, Bball deitermlne which of tihe sadd persone so bavlnsr an equal number of votes B'holl be the director or direotorB, so as to compleU.' the full number. And the said directors, aa soon as mar be, ajfter t!he said e(lg as a misdemeanor and suDject to a pecuniary penalty, but It was not ultra vires. Art. 14 C. O., which declares that pro- hibitive laws Import nullity, has no application to such a case. Thompson vs. Bank of 'Nova Scotia, 13 C. U Times 311 (1893). It is no part of the business of a bank agent to Institute criminal proceedings against a debtor of the bank, and his doing so is in excess of authority. liichurda vs. Hank of AToutt Scotia, 26 S. C. R. 381 (1896). Where an agent does an act outside of the apparent scope of his authority, and makes a representation to the person with whom he acts to advance the private ends of himself or someone else other than his principal, such representation cannot be called that of the principal. In such a case It Is im- material whether or not the person to whom the representation was made believed the agent had authority to make It. The local manage" of a bank having received a draft t" be accepted Induced the drawer to accept by representing that *.' r- taln goods of his own were held by the bank as security v the drafts. In an action on the draft against the acceptor— Held, that the bank was not bound by such representation; that by taking the benefit of the acceptance it could not be said to adopt what the manager said in procuring It, which would burden it with responsibility instead of conferring a benefit; and that the knowledge of the manager with which the bank would be affected should be confined to knowledge of what was material to the transaction and the duty of the manager to make known to the bank. 2. Security to db given.— Before permitting any cashier, officer, clerk or servant of ti.o bank to enter upon the duties of his office, the directors shall require him to give bond, guar- antee, or other security to the satisfaction of the directors, for the due and faithful performance of his duties. Cili/ Hank vs. liroirn, 2 L. C. R. 246 (1852). A bond conditional upon the due fulfilment of the duties of an officer !n a bank is made void by the reduci'on of the salary slipulatpd. in favor of such officer, In and by the deed contain- ing such bond, and that such reduction, without the consent of tho .sureties, has the effect of a novation. hank of Upper Vannila vs. nradshair, L. R,, 1 P. C. 479 (1867). In an action brought by a banking company against their late manager and cashier, to recover moneys belonging to the bank alleged tr> have been Improperly applied in discounting bl.ls, etc.. for hlH own advantage, for the benefit of partled and companies with whom he was connected, and In which he was Interested, It apiieared that such trnnanctlons w«-re all in the ordinary rour.se of th • business of the bank; that he had not exceeded the power and nuthorlfv with which he was en- trusted: nnd that nn cpse of bnd fnUh could he proved against him. TTndor such circumstances, the action of the bank was dismissed. rtnnk of Toronto vs. European Assurance SoeUtv, 14 Li C J 186 <1S7()). "• " '^- '^' "• ffihl. thnt the nllowlng, by a hank manager, of overdrafts wlth..ut security. Is an Irregulurlty within the meaning of a policy gnaranteetnif the bank airalnst such loss as mlSht be nccnHloned to thi- bank by tho want of Integrity, honostv and fldoMtv. or »>y the npirllgence, defaults or Irregularities of the manager, where. In the opinion of the court, the evidence ea- tab:iHhed thill thi\ manager concealed tho fact of the overdrafts THE BANK ACT. 51i) from the head office by lictitlous returns, and acted in improper concert with the pariies wnoni 3 allowed to overdraw. Banque Nutionaiv vs. Ltupauncv, 4 L. N. 147 (18S1). lUe leD'-r o£ a bank endorsed on a parcei 01 bank notes the amount which iL was supposed to coniain. it was suDse- quantiy discovered tnat the parcel was ♦o.auo short, and It was ascertained that a denciency ot the same amount existed in the teller's accounts, and had oeen during several years skil- tuliy covered up and concealed trom the knowledge of the autnorities ot the bank, who had made the usual inspections. Uvia, that a guarantee Insurance company wnich nad guar- anteed tlie iideUiy of the teller was liaole for the dettciency, . but only to the extent which occurred after the contract was made. Eachange Bank vs. Oault. 30 U C. J. 259 (1886). A gave a boiul that U , who wlis casnier or a bank, would faith. uUy perform his duties. C. was atterwards made president of the bank, and when in such a position committed a defalca- tion. Uvld, that the bond was void. Si.''i«tfcr vs. Ejschanae Bank; liarnca vs. Exchange Bank, 14 S. C. A. 71G (Dib'i). The sureties of an absconding bank cashier are not relieved from liability by showing that the bank employed their prin- cipal in transacting what was not properly oanklng business, in the course of which he appropriated the bank funds to his own use, the claim against sureties being for the moneys so appropriated by the principal and not for losses occasioned by such illegal transactions. London UuarunUv and Accldtnt Co. vs. Uochctaga Bank, R, J. Q. K., 3 Q. B. 25 (l^yS). The cashier of a bank remr/ved bundles of notes from the bank premises to his residence, for the purpose of signing them, but it appealed that he brought them all back, and subsequently, in his office In the bank, he p;it a number of $5.00 notes in the bundles. Instead of $10.00 nott.j, and thus de- frauded the bank of $«,140. Held, 1. In intrusting the notes to the cashier to be signed, there was no negligence on the part of the bank involving a ■violation of the terms of the contract, and the loss was one caused by "fraud and dishonesty amounting to embezzlement" on the part of the employee, and came under the guarantee given by the policy. The same employee, shortly before his flight from the country, caused his own cheQues to the amount of $15,574 to be certified by the ledger-keei)er of the bank, although he, the cashier, had no funds there. Held, 2. This act, aUhough, technically speaking, not con- stituting the crime of embezzlement, was "fraud and dishonesty amounting to embes/ilement" on the part of the cashier, and came under the guarantee of the policy. These words in the policy have to be taken In their ordinary or vulgar sense, as otherwise the words "fraud or dishonesty" would be without effect. 3. The fact that the bank recovered a large part of the money taken did not affect .ts right to claim under the policy, there being a balance of total loss remaining which exceeded the amount of the policy. 4. The claim of the bank was not affected by its commu» nicatlons with he employee after his flight, such communica- tions not having had any Injurious effect as regards the guar- antee company. On the .30th May the cashier did not appear at his offlce, and a number of the chequviS certified by the ledger-keeper, as above mentioned, were presontod and paid, although he had no amount to his credit to check against. On the following day the bank gave notice of the defalcation to the local a^;<■nt of the guarantee company— llrld, 5. The notice was given en temps utile, and the bank was not guilty of negligence. 24. Special General Meetlngi.— The dlreotuict of the bank, or any four of them,— or any number not less than t Mii 2U THE BANK ACT. twenty-flve of the shareholders of the bank, who are together proprietors of r.t least one-tenth of the paid-up capital stock of the bank, by themselves or by their proxies,— may, at any time, call a special general meeting of the shareholders, to be held at their usual place of meeting, upon giving six weeks' previous public notice, specifying in such notice the object of such meeting: 2. Removal of President, Director.htc— New Election.— If tlieobjcct of any Much special Keiieral meeting is toconsider tlic pro- posed removal of the president or vice-president, or of a director of the bank, for maladministration or other specified and appar- ently Just cause, and If a majority of the votes of the share- holders at such meeting is given ^or such removal, a director to replace him shall be elected or appointed in the manner provided by the by-laws of the bank, or If there ar« no by-laws providing therefor, then by the shareholders a* such meeting; and if it is the president or vice-president who Is lemoved, his office ,^hall be filled by the directors in the manner provided In casu of a vacancy occurring in the oflice of president or vice-president. 25. Votes on Shares.— Ballot.— Every shareholder shall, on all occasions on which the votes of the sliareholders are taken, have one vote for each share held by him for at least thirty days before the time of meeting; and in all cases when the votes of the shareholders are taken, the voting shall be by ballot: 2. Majority to determine.— Casting Vote.— All questions proposed for the consideration of the shareholders shall be deter- mined by the majority of the votes of the shareholders present in person or represented by proxy; and the chairman electtd to preside at any such meeting of the shareholders shall vote as a shareholder only, unless there is a tie,— In which case, except as to the election of a director, he shall have a casting vote: v. As TO Joint Holders of Shares. — If two or more persons are Joint holders of shares, any one of such Joint holders may be empowered, by letter of attorney from the other Joint holder or holders, or a majority of them, to represent the said shares, and vote accordingly: 4. Proxies.— Shareholders may vote by proxy, but no person other than a shareholder eligible to vote shall be permitted to vote or act as such pioxy, and no manager, cashier, clerk or other subordinate ofllcer of the bank shall vote nlther in person or by proxy, or hold a proxy for that purpose: 5. Renewal of Proxies.— No appointment of a proxy to vote at any meeting of the shareholders -f the bank shall be valid for that purpose unless It has been made or renewed in writing Within the two years next preceding the time of such meeting: (i. In certain casks calls must be paid before votino.— No shareholder shall vote, either in person or by proxy, on any question proposed for the consideration of the shareholders of the bank at any meeting of such shareholders, or in any case In which the votes of the shareholders of the bank are taken, unless he has paid all calls made by the directors which are then due and payable THE BANK ACT. 521 CAPITAL STOCK. 26. Increase of Capital.— Approval of Treasury Board.— The capital stock of the bank may be increase 1 from time to time, by such percentage or by such amount as is de- termined upon by by-law passed by the shareholders, at the annual general meeting, or at any special general meeting called for the purpose: Provided always, that no such by-law shall come into operation, or be of any force or effect, unless and until a certificate approving thereof has been issued by the Treasury Board: 2. Conditions of Application for Approval.— (No such cer- tificate shall be issued by the Treasury Board unless applica- tion therefor is made within three months from the time of the passing of such by-law, nor unless it appears to the satisfaction of the Treasury Board that a copy of such by-law together with notice of intentirn to apply for such certificate, has been published for at least four weeks in the Canada Gusettc, and in one or more newspapers published in the place where the chief office or place of business of the bank Is situate; nothing herein contained, however, shall be con- strued to prevent the Treasury Board from refusing to issue such certificate if it thinks best so to do. 27. How Stock shall be allotted.— Any of the original unsubscribed capital stock, or of the Increased stock of the bank, shall, when the directors so determine, be allotted to the then shareholders of the bank pro rata, and at such rate as is fixed by the directors, but no fraction of a share shall be so allotted; provided that in no cass shall a rate be fixed by the directors, which will make the pi-emium (if any) paid or payable on such stock so allotted exceed the percentage which the reserve fund of the bank then bears to the paid-up capital stock thereof; and anv of such allotted stock which is not taken up by the shareholder to whom such allotment has been made, within six months from the time when notice of the allotment was mailed to his address, or which ho de- clines to accept, may be offered for subscription to the public, in such manner and on such terms as the directors prescribe. m iriiii-; 28. Capital Stock may be Rednced— The capital stock of the bank may be reduced by by-law passed by the share- holders at the annual general meeting, or at a special general meeting called for the purpose; but no such by-law shall come Into operation or be of force or effect until a certificate approv- ing thereof has been Issued by the Treasury Board: 2. Certificate of Treasury Board.— No such certificate shall be issued by the Treasury Bnnrdunless application therefor Is made within three months from the time of the passing of the by-law, nor unless it appears to the satt-factlon of the Board that the shareholders voting for such by-law represent a majority in value of all the shares then Issued by the bank, and that a copy of the by-law, together with notice of inten- tion to ai ply to the Treasury Board for the Issue of a certlfl- eftte approving thereof, has been published for at least four Yii THE BANK ACT. weeks In the Canada Oazette, and In one or more newspapers published in the place where the chief office or place of busi- ness of the bank is situate; nothing herein contained however shall be construed to prevent the Treasury Board from refus- ing to issue iuch certificate if it thinks best so to do: i. Statements to be Submitted.— In addition to evidence of the passing of the by-law and the publication thereof in the manner above provided, statements showing the amount of stock issued and the number of shareholders, with the amount of stock held by each, represented at such meeting, and the number of shareholders, with the amount of stock held by each, who voted for such by-law, and also full state- ments of the assets and liabilities of the bank, together with a statement of the reasons and causes why such reduction is sought, shall be laid before the Treasury Board at the time of the application for the issue of a certificate approving such by-law: 4. Reduction not to affect Liability op Shareholders.— The passing of such by-law, and any reduction of the capital stock of the bank thereunde", shall not, In any way, diminish or interfere with the liability of the shareholders of tho bank to the creditors thereof at the time of the issue of the certificate approving such by-law: J. If Legislation is asked to sanction Reduction.— ir, in any case, legislation is sought to sanction any reduction of the capital stock of any >:ank, a copy of the by-law or resolution passeu by the shareholders in regard thereto, together with statements similar to those above provided to be laid before the Treasury Board, shall be filed with the Minister of Finance and Receiver-General, at least one month prior to the introduc- tion into Parliament of the Bill relating to such reduction: «. Limit to Reduction.— The capital shall not be reduced below the amount of two hundred and fifty thousand dollars of paid-up stock. SHARES AND CALLS. 29. Shares and Transfer thereof .—Books of Sub- scription.— The shares of the capital stock of the bank shall be personal estate, and shall be assignable and transferable at the chief place of business of the bank, or at such of ita branches, or at such place or places In the United Kingdom, or in any of the British colonies or possessions, and according to such form, and subject to such rules and regulations, as the directors prescribe; and books of subscription may be opened, and the dividends accruing on any shares of such stock may be made payable at any of the places aforesaid; and the directors may appoint such agents In the United Kingdom, or in any of the British colonies or possessions, for the pur- poses of this section, as they deem necessary. In re liank of Ontario, 44 U. C. Q. B. 247 (1879). Upon an application by a bank whose head office was In Ontario, under s. 25 of the Banking Act of 1871. 34 Vict., ch. 6, for an order adjudicating and awarding shares-- ITcld. that an execution from the Superior Court of Montreal might be validly executed by a sworn bailiff of that Court, instead of by the sh'^T-iff, and the bailiff might fulfil the duty imposed on the sheritt under s. la of the Banking Act. litld, also, that a sale under execution In Montreal might be made of shares of a uanlc whose head ottiue was in Toronto. 30. Payment of Shares.— Proviso : ten per oent< payable on Subscription.— The shares of the capital stock shall be paid in by such instalments and at such times and places as ihe directors appoint: Provided always, that the directors may cancel any subscription for any share unless a sum equal to ten per cent, at least on the amount suuscribed for is actually paid at the time of, or within thirty days after, the time of subscribing; but such cancellation shall not relieve the subfcriber from his liability to creditors in the event of Insolvency as hereinafter provided. In re Central Bank, Nasmith's ise, 16 O. U. 293 (1883). Where 10 per cent, was not paid at the time of the original subscription of bank shares, nor within thirty days thereafter, as required by the Banking Act, R. S. C, ch. 120, sec. 2C, but was paid before the first transfer took place, and was accepted by the bank— Held, that subsequent transferees of the shares were pro- perly placed upon the list of contrlbutories In winding-up pro- ceedings. The provision as to payment is for the protection of the publij, and till payment is made the person subscribing may not be able to deal with the stock, but he is at least equitable owner, and may become legally entitled on making the pre- scribed payment. Where the evidence showed that the bank had adopted the practice of dealing with their shares by way of marginal transfer, the first transfer being in blank, subject, as by mar- ginal note, to the order of a broker, and the ultimate purchaser signing an aceptance In the book Immediately under the trans- fer so signed in blank by the seller, the intermediate dealing of the broker being omitted from extended record in the bank books, and the transferees were duly entered as shareholders In the stock ledger of the bank— Held, that this amounted substantially to an acceptance of shares transferred In blank, which was lawful where transfer by deed was not prescribed, and the entry in the stock ledger amounted to registration within the meaning of the Act. Where It appeared that in one such case the transferee did not sign the acceptance, but that he subsequently dealt with the shares by selling and transferring them— Held, that the transferees from l:lm were properly placed Upon the list of contrlbutories, notwithstanding anything In the Banking Act. R. S. C ch. 120, sec. 29. Where one of those placed upon the list of contrlbutories acquired his shares within one month from the suspension ot the bank— Held, that he was liable as a contributory. R. S. C, ch. 120, sec. 77, Is cumulative so as to make also liable those who have been holders during the month preceding the suspension, leaving them to dlscu3S among themselves their respective liabilities. Where the shares which had been transferred to one placed on the list of contrlbutories had been previously held bv the cashier of the bank In trust, ns alleered. for the bank, which It was objected was thus trafficking In its own shares— TMd. that, even If the cnshler did hold tho shares In trust \or the directors of the bank, this would no.' be ncessarllv Il- legal, as he might have such shares, under a. 45 of the Banking A'^t. as spciirlty for overdue debts; nnd. besides, this wns a matter which, though It might give the appellant a right to rescind during the currency of the banking Institution, became of iio moment after the rights of creditors renreaented by the liquidators arose. The matter wan not nn .^bso1ute nullltv,' but, at most, one which the shareholders could waive as voidable, and It became, by the suspension of unimpeachable validity as between the appellant and the liquidators. .UJ<" ^irf-^ m 524 THE BANK ACT. On an appeal the judgment was confirmed. Vide 18 O. A. R. 209 (1891). ' Hughes vs. Cis. des Villas, M. L. R., 5 S. C. 129 (1889). That the Statute governing building societies does not auth- orize Interest on calls not paid. In re Central Bank, Balne's Case, 16 O. A. R. 237 (1889). One B. subscribed for certain shares of capital stock of the Central Bank of Canada, but did not at the time of subscrip- tion, nor within thirty days thereafter, make any payment thereon. About eight months later, however, payment was made by B. to the bank, and the bank accepted payment from him of 20 p.c. of the amount subscribed, and subsequently dividend cheques were Issued by the bank In favor of B., and endorsed by him, and were paid. Held, where there is an actually signed subscription contract, an actual receipt by the bank f/om the subscriber of a payment on account of a number of shares equal tr those mentioned therein, and a subsequent receipt by that peidon of dividends on that number, an acknowledgment of the subscription contract at a time within which a payment could be effectually made thereon Is to be presumed, and, under the curcumstancea, B. and the bank were respectively estopped as aprainst each other from denying that his subscription was re-acknowledged, and that he had been a stock holder. 31. Calls on Shares.— The directors may make such calls of money from the several shareholders for the time being, »ipon the shares subscribed for by them respectively, as they find necess.ary. 2. Time of calls and notice.— Limitation.— Such calls shall be made at intervals of not less than thirty days, and upon notice to be given at least thirty days prior to the day on which such call shall be payable; and no such call shall exceed ten per cent, of each share subscribed. MeCracken vs. Mclntyrc. 1 S. C. R. 479 (1877). A person purchasing shares in good faith, without notice, as shares fully paid up, is not liable to an execution creditor of the company, whose execution has been returned nulla bona for the amount unpaid on the shares. See under section 19, sub-sertlon 7. Bank of Liverpool vs. Bigelow. 3 R. & C. 236. N. Sc. (1878). arMca vs. Banquc Jacques Variler, 24 L. C. J. 135 (1878). Held, that, under the Banking Act (34 V., c. 5), a bank may lawfully make advances on the security of shares in an incor- porated trading company and sell such shares (in default of reoayment of the advances) on giving 30 days' notice to that effect. Bank of Liverpool v.s Bigelow, 3 R. & C. 236, N. Sc. (1878). Action was brought against defendant as transferee of shares in plaintiff bank for rails. There was no valid transfer of the shares under the Act. but defendant had paid calls, given a receipt for a dividend, combined with others in appointing a proxy. Held, that he must be treated as a shareholder. Oilman vs. Court. 13 R. L. 619 (1882). Several calls on th" double liability of the shareholders can only be made by a single resolution, and the calls must be made at intervals of not less than thirty days. When the calls have 1-ieen regularly made, at sufficient in- tervals, but the notice of not less than thirty days has not been given before the day on which the calls are payable, the amount cannot be recovered. Hank of Nova Scotia vs. Forl>cs. 4 R. & G. 295, N. Sc. (18831. Calls could not be legally made at nne time, and none could legally be made but wltliin ten days after the expiration of six months from the suspension of payment by the bank. And, further, that, in computine the statutorv intervals be* ween cal'fi. the time miist be reckoned exclusively of the day on which the previous call was payable. THE BANK ACT. 525 32. Recovery of Calls-— The directors may, in case of the »uii-^ct> iiibiu ut any call, in the corporate name OH ttie bank, sue tur, recover, collect anU get In all such calls, or may cause and ueclaie such shares to be torleitea to the bank. BoberUon vs. La Banque d'Hochelaga, 4 I*. N. 314 (1881}. bhares of Dank stucK cannui be ueciaieu loiiciteu for non- payment ol cans, without nrst noiuying tne owner of tne shares. 33. Forfeiture of Shares for non-payment of Calls-— Sale in sucli Oases.— And Transfer-.— Proviso-— ii: any sharehoiUtT reiuses or negiecis to pay any insialment upon his shares of the capital stock at the titiie appointed therefor, such shareholder shall incur a penalty to the use of the bank of a sum of money equal to ten per cent, on the amount of such shares; and if the directors declare any snares to be forfeited to the bank they shall, within six months there- after, without any previous formality other than thirty days' public notice of their intention so to do, sell at public auction the said shares, or so many of the said shares as shall, after deducting the reasonable expenses of the sale, yield a sum of money sufficient to pay the unpaid instalments due on tho remainder of the said shares and the amount of penal tieii Incurred upon the whole; and the president or vice-president, manager or cashier of the bank shall execute the transfer to the purchaser of the shares so sold; and such transfer shall be as valid and effectual in law as if it had been executed by the original holder of the shares thereby transferred; but the «).irectors, or the shareholders at a general meeting, may, notwithstanding anything in this section contained, remit, • eitiier in whole or in part, and conditionally or unconditionally, any forfeiture or penalty Incurred by the non-payment of in- stalments as aforesaid, or the bank may enforce the payment of any call or calls by suit, instead of declaring the shares forfeited. ' 34. Recovery by Snit-— What only need be proved-— In any action brought to recover any money due on any such call it shall not be necessary to set forth the special matter in the declaration or statement of claim, but it shall be sufficient to allege that the defendant is holder of one share or more, as the case may be, in the capital stock of the bank, and is indebted to the bank for a call or calls upon such share or shares, in the sum to which the call or calls amount, as the case may be, stating the amount and number of such calls, whereby an action has accrued to the bank to recover the same from such defendant by virtue of this Act; and It shall not be necessary to prove the appointment of the directors. ■T: ■'■i TRANSFER AND TRANSMISSION OF SHARES. 35. Conditions of Transfer of Shares— Fraction of Share not Transferable.— No assignment or transfer of the shares of the capital stock of the bank shall be valid unless it is made and registered and accepted by the person to whom f1 626 THE BANK ACT. the transfer Is made, in a book or books kept for that purpose, nor unless the person makingr the same has, If required by the bank, previously discharged all his debts or liabilities to the bank which exceed in amount the remaining: stock, if any, belonging to such person, valued at the then current rate; and no fractional part of a share, or less than a whole share, shall be assignable or transferable. Wahh vs. Union Bank, 5 Q. L. R. 289 (1879). , » , A transfer by a father to his minor son of shares of stock in a bank, and accepted by the father in trust for his minor son, is null and void for want of legal acceptance. Smith vs. The Bank of Nova Scotia, 8 S. C. R. 5&; (1883). Held, that a resolution passed at a special general meeting of shareholders, authorizing a loan of such sum as might be necessary to enable the bank to resume specie payments, the shareholders agreeing to hold their shares without assigning them until the loan should be fully paid, could not bind share- holders not present at that meeting, even if it had been acted upon; and under the facts disclosed in evidence the defendant could not be deprived of his legal right under the Banking Act to transfer his shares and to have the transfer recorded in the books of the bank. Baraa vs. Bank of Nova Scotia, 6 R. & G. (Nova Scotia) 254 (1885). The plaintiff being the holder of a number of shares In the Bank of Liverpool sold the same to S. and forwarded to him power of attorney, authorizing the reglstr-<- of the transfer. At the same time he forwarded to the manager of the bank his stock certificates to be cancelled on the transfer being regis- tered, and notified the bank of the transfer. S. paid the consider- ation for the shares and received the transfer, which he for- warded to the manager, whom he requested and authorized to register his acceptance. The bank declined to register the transfer until after payment of a certain loan obtained by the Bank of Llvernool from the Bank of Nova Scotia, which had been procured In pursuance of a resoiutlon passed at a meeting of shareholders at which plaintiff was present, and which pur- ported to bind the shnreholders to hold their shares without assigning them until the principal and Interest due on such loan bnd been ftjllv paid. In the meanwhile the bank retained ihe papers, promising that when the lonn was r^nald thp trans- fer v'nnid hp dniv entered. Suhspciuently. thp Bank of Tjlv'^r- pool became insolvent and a.sslgned to the Beink of Nova Scotia. TTrhl (on the authority of Smith vs. Bank of Nova Snntin, 8 S. r*. B. 5RS. there helng evidence that the loan was effprtpri nn other security than the resolution, and that tlh© resoJutlon was never acted upon), that plaintiff was not deprived bv the passage of the resolution of his leural right to transfer his shares and to have the transfer registered In the books of the bank. 36. List of Transfers to be ^ept-— A list of all transfers of shares registered each day In the books of the bank, show- ing the parties to such transfers and the number of shares transferred In each case, shall be made up at the end of each day and kept at the chief place of business of the bank-, for the Inspection of Its shareholders. 37. Transferrer of Shares must be registered owner- —All sales or transfers of shares, and all contracts and agree- ments In respect thereof, hereafter made or purporting to be made; shall be null and void (saving however, as to a pur- phaser not having knowledge of the defect, his rights and remedies under the contract of sale), unless the person making such sale or transfer, or In whose name or on whose behalf the same Is made, is at the time thereof the registered THE BANK ACT. 527' owner In the books of the bank of the share or shares so sold or transferred, or intended or purpox-ted so to be, or has the registered owner's assent to the sale, and the distin- guishing: number or numbers of such share or shares, if any, shall be designated in the contract or agreement of sale or transfer; and any person, whether principal, broker or agent, who violates the provisions of this section by wiifuUy selling or transferring, or attempting to sell or transfer, any share or shares by a false number, or of which the principal is not, at the time of such sale or attempted sale, the registered owner, or acting with the registered owner's assent to the sale, shall be guilty of an offence against this Act. 38. Sale of Shares nader ezeontion-— When any share of the capital stock has been sold under a writ of execution, the officer by whom the writ was executed shall, within thirty days after the sale, leave with the bank an attested copy of the writ, with the certificate of such officer indorsed thereon, certifying to whom the sale has been made; and thereupon (but not until after all debts and liab'llties of the holder of the share to the bank, and all liens existing in favor of the bank thereon, have been discharged, as herein provided), the president, vice-president, manager or cashier of the bank shall execute the transfer of the share so sold to the purchaser; and such transfer shall be, to all intents and purposes, as valid and effectual in law as if it had been executed by the holder of the said share. 39. Trans^oiission of shares otherwise than by trans- fer, hour authenticated. — IrroTiso: as to declaration made out of Canada, etc. — Proviso: further evidence may be required. — if the interest in any share in the capital stock becomes transmitted in consequence of the death, bank- ruptcy, or insolvency of any shareholder, or in consequence of the marriage of a female shareholder, or by any other lawful means than by a transfer according to the provisions of this Act, such transmission shall be authenticated by a declaration in writing, as hereinafter mentioned, or in such other manner as the directors of the bank require; and every such declara- tion shall distinctly state the manner in which and the person to whom such shares have been transmitted, and shall be made and signed by such person; and the person making and signing such declaration shall acknowledge the same before a judge of a court of record, or before the mayor, provost or chief magistrate of a city, town, borough or other place, or before a notary public, where the same is made and signed; and every declaration so signed and acknowledged shall be left with the cashier, manager or other officer or agent of the bank, who shall thereupon enter the name of the person en- titled under such transmission in the register of shareholders; and until such transmission has been so authenticated, no person claiming by virtue of any such transmission shall be entitled to participate in ihe profits of the bank, or to vm^ in respect of any such share of the capital stock: Provided always, that every such declaration and Instrument as, by this and the next following section of this Act, are required to I I I t, V ! ' 628 TBE BANK ACT. perfect the transmission of a share in the bank which Is made in any country other than Canada, or any other British colony, or the United Kingdom, shall be further authenticated by the clerk of a court of record and under the seal of such court, or by the British consul or vice-consul,or other accredited re- presentative of the British Government in the country where the declaration is made, or shall be made directly before such British consul or vice-consul or other accredited representative; and provided also, that the directors, cashier or other officer or agent of the bank may require corroborative evidence of any fact alleged in any such declaration. 40. Transmiiiioa by marriage of female Share- holder.— If the transmission of any share of the capital stock has taken place by virtue of the marriage of a female share- holder, the declaration shall be accompanied by a copy of the register of such marriage, or other particulars of the celebra- tdoo fbereof, cuid shall decilare the Identity of the wife with the holder of such share, and shall be made and signed by such female shareholder and her husband; and they may Include therein a declaration to the effect that the share transmitted is the separate property and under the sole control of the wife, and that she may receive and grant receipts for the dividends and profits accruing in respect thereof, and dispose of and transfer the share itself, without requiring the consent or authority of her husband; and such declaration shall be bind- ing upon the bank and persons making the same, until the f "•I persons see fit to revoke it by a %?ritten notice to that f to the bank: but the omission of a statement in any sue claration that the wife making the same is duly authorizex* -j her husband to make the same shall not invalidate the de- claration. 41. Transmission by Decease-— If the transmission has taken place by virtue of any testamentary instrument, or by intestacy, the probate of the will, or the letters of administra- tion, or act of curatorshlp or tutorship, or an official extract therefrom, shall, together with such declaration, be produced and left with the cashier or other officer or agent of the bank, name of the person entitled under such transmission. Boyd vs. The Bank of New Brunswick, New Brunswick Equity Cases, 546 (1891). Under the "Bank Act," ch. 120, R. S. Can., a bank cannot refuse to register a transfer to a purchaser by an executor ot shares in the bank standing in the name of the testator, though by the testator's will the shares are specifically bequeathed. Hencker vs. Bank of Montreal, R. J. Q., 7 S. C. 257 (1895). Section 1 of 55-56 V., Quebec, c. 17, enacting R. S. Q. 1191 d. sub-section 5, provides, that "No transfer of the properties ot any estate or succession shall be valid, nor shall any title vest in any person, if the taxes payable under this section have not been paid; and no executor, trustee, administrator, curator, heir or legatee shall consent to any transfers or pay- ments of legacies unless the said duties have been paid." 'Held, the above provision is intra virm of the Provincial Legislature, and a bank is therefore justified in refusing to register a transfer of shares by executors under a will, until proof is offered that the duties payable under the act above cited have been paid. Donahue vs. La Banque Jacques Carticr, R. J. Q., 11 S. C. 90 (1896). THE BANK ACT. bTJ Notwithstanding the fact that the sale of shares of bank stock belonging to an absent minor was maue whiie the minor was not properly represented, such sale, when subsequently ratirted by a person legally entitled to represent the minor, will not be set aside at the suit of the minor atter becoming of age,— more especially where it is proved that the proceeds of thf sale of shares were applied for the benertt of the minor's' estate, and were entered in the' account rendered by the tes- tamentary executors and duly accepted by the tutor. 42. Fnrther provision in ■noli case— ^f the transmission of any share of the capital stock has taken place by virtue of the decease of any shareholder, the production to the directors and the deposit with them of an authentic notarial copy of the will of the deceased shareholder, if such will is in notarial form according to the law of the Province of Quebec, or of any authenticated copy of the probate of the will of the de- ceased shareholder, or of letters of administration of hia estate, or of letters of verification of heirship, or of the act of curatorship or tutorship, granted by any court in Canada having power to ^rant the same, or by any court or authority In England, Wales, Ireland, or any British colony, or of any testament testamentary or testament dative expede in Scot- land, or if the deceased shareholder died out of Her Majesty's dominions, the production to and deposit with the directors rf any authenticated copy of the probate of his will or letters of administration of his property, or other document of like Import, granted by any court or autii ity having the requisite power in such matters, shall be s iilicient Justification and authority to the directors for paying any dividend, or for transferring or authorizing the transfer of any share, in pur- suance of and in conformity to such probate, letters of admin- istration, or other sucli document as aforesaid. 43. Bank not bonnd to see to Trusts.— The bank shall not be bound to see to the execution of any trust, whether ex- press, implied or constructive, to which any share of Its stock is subject; and the receipt of the person in whose name any such share stands in the books of the bank, or, if it stands in tlie name of more persons than one, the receipt of one of such persons shall be a sufficient discharge to the bank for any dividend or any other sum of money payable in respoct of such share, unless express notice to the contrary has been given to the bank; and the bank shall not be bound to see to the application of the money paid upon such receipt, whether given by one of such persons or all of them. }fiiir vs. Ciirtn: 16 S. C. R. 473 (ISSO). The fact of bank shares boiiiK purchased in trust ;it a time when the trustee was solvent imports an interest in somebody else, and the onus is upon .a iiarty who has seized such shares to prove that they are in fart tlie property of thf trustee, and as such available to satisfy the demand of his creditors. {Sweeney vs. Bank of Montreal, 12 Appeal Cases, C17 followed.) Siwnnon vs. Molsona Dank, P. C, 11 R. 427, (ISiS); [1895] App. Cas. 270. Where a statute incorporating n l)ank provides that "the bank shall not be bound to see to the execution of any trust, whether express, implied or ronstructive. to which any of the shares of the b.'rk may be subiect." such provision mii«t relate to. and free the lank from, liability for trusts of which the b.ink had knowledee or notlpp. as thf» bank eould not. an.art from the statute, incur liability by not seeing to the execution of a trust of which they had no knowledge. »■'!. ".I t 1 ■ 5 i J h i m i 530 THE BANK ACT.. But assuming that the bank would be liable If it were shown that they were possessed of actual notice of the trust, the tacts (1) that a copy of the testator's' will was In the possession ot the bank; (2) that in the case of three of the testator's children, notice of the eubstitution of grandchildren was contained in the transfer registered by the executors in the banK s books on a previous occasion; (.a> that one of the executors was pre- sident of tiie bank, and that the law asent of the executors was also law agent of the bank, and not sutticient to prove that the bank have received nollce of the trust. 44. Executors and Trustees not personally liable-— Exception.— No person holding- stock in the bank as executor, administrator, guardian or trustee, of or'for any person named in the books of the bank as being so represented by him, shall be personally subject to any liability as a shareliolder, but the estate and funds in his hands shall be liable in like manner and to the same extent as the testator, intf^slate, ward or person interested in such trust fund would be, if living and competent to hold the stock in his own name; and if the trust is for a livinc; person, such person shall also himself be Mable as a shr4,rtholder; but if such testa.tor, intestate, wivrd or person so repreiiented is not so named in the books of the bank, tlie executor, adm'nistrator guardian or trustee shall be personally liable in respect of such stock as if lie lield it in his own name as owner thereof. ANNUAL STATEMENT AND INST^ECTION. 45. Statement to be laid before Annual Meeting.— At every annual meeting of the sliareholders for the election of directors, the out-going directors shall submit a clear and full statement of the affairs of the bank, containing on the one part,— LiiADii.iTiES.— The amount of the capital stock paid in, the amount of notes of the bank in circulation, the net profits maxle, the balances duo to other banks, and the cash deposited in the bank, distinguishing deposits bearing interest from those n-t bearing interest; and on the other part, — Assets.— The amount of the current coin, the gold and sliver bullion, and the Dominion notes held by the bank, the balances due to the bank from other banks, the value of the real and other property of the bank, and the amount of debts owing to the bank, Including and particularizing the amounts so owing Upon bills of exchange, dlscounteu notes, mortgages and other securities,— What statement sham, show.— Exhibiting, on the one hand, the liabilities of, or the debts due by the nank, and on the othtr hand the assets and resources thereof; and the said statement shall also exhibit the rate and amount of the last dividend declared by the directors, the amount of reserved profits at the date of such statement, and the amount of debts due to the bank, over-dus and not paid, with an estimate of the loss which will probabij- accrue thereon. 46. Imspeotionof Books, etJ^.-The books, correspondence and funds of the bank shall, at all times, be subject to the Inspection of the directors; but no person, who Is not a direc- tor, shall be allowed to ln8p>ect the account of any person dpRlIn* with the bank. THE BANK ACT. DIVIDENDS. 631 47. Dividends.— 'i'he uneciors of the bank shall, suoject to the provisions of this Act, declare quarterly or half-yearly dividends of so much of the profits of the bank as to the ma- jority of them seems advisable; and they shall give at least thirty days' public notice of the payment of such dividends previously to the date llxed for such payment; and they may close the transfer books during a certain time, not exceeding (iftoen days, before the payment of each dividend. 48. Dividend not to impair Capital. — Capital lost to be xuade up. — Proviso.— No diyldend or bonus shall ever be declared so as to impair the paid-up capital; and If any dividend or bonus is so declared cr made payable, the directors who knowingly and wilfully concur therein shall be jointly and severally liable for the amount thereof as a debt due by them to the bank; and If any part of the paid-up capital is lost, the directors shall, if all the subscribed stock Is not paid up, forthwith make calls upon the shareholders to an amount equivalent to such loss; and such loss and the calls, if any, shall bo mentioned in the next return made by the bank to the Minister of Finance and Receiver General: Provided that, in any case in which the capital has been impaired as aforesaid, all net profits shall be applied to make good such loss. 49. Dividend limited unless there is a osrtain re- serve-— No division of profits, either by way of dividends or bonus, or boUi combined, or in any other way, 'exceeding the rate of eight per cent, per annum, shall be made by \.he bank, unless, after making the same, it has a rest or reserve fund equal to at least thirty per cent, of its paid-up capital; and all bad and doubtful debts shall be deducted before the amount of such rest Is calculated. RESERVES. 50. Part of Reserve to be in Dominion notes-— Penalty for non-compliance.— The bank shall hold not less than forty p"r cent, of Its ca.sh reserves In Dominion notes; and every bank holding at any time a less amount of its cash reserves in Dominion notes tliasi Is prescribed by this section shall Incur a penalty of five hundred dollars for each and every violation of the provisions of this section: 2. Supply of Dominion notes.— The Minister of Finance and Receiver General sluill make such arrangements as are neces- sary for InHuring the delivery of Dominion notes to any bank. In exchange for an equivnlent amount of specie, at the several offices at which Dominion notes are redeemable. In the cities of Toronto, Montreal. Halifax, St. John, N.B.; Winnipeg, Charlottetown and Vlcloi la, respectively; and such notes shall be redeemable at the office for redemption of Dominion not»g In tho place where such specie la given In exchange. NOTE ISSUE. 51. Amount and denomination of Bank Notes-— The bank may Issue and re-Issue notes payable to bearer on de- m ' 1 . ...... '■■ ! ■ t .i1 t j 1 *« ■ ' i ' ( { 1 ; i liL 5.-S2 THE BANK ACT. mand and inte ed for circulation; but no such note shall be for a sum 1 ds than five dollars, or for any sum which is not a multiple of five dollars, and the total amount of such notes, in circulation at any time, shall not exceed the amount of the unimpaired paid-up capital of the bank: Z. Note issue of Banque du Peuplb and Bank of British J^ORTH America.— Notwithstanding anything contained in tne next preceding sub-section, the total amount of such notes in circulation at any time of La Banque du Peuple and the Bank of Brltlsli North America respectively shall not exceed seventy- five per cent, of the unimpaired paid-up capital of such banks respectively, but each of such banks may Issue such notes in excess of the said seventy-flve per cent, upon depositing, with respect to such excess, with the Minister of Finance and Re- ceiver General, in cash or bonds of the Dominion of Canada, an amount equal to the excess; provided always that in no case shall the total amount of the notes of either of the said banks in circulation at any time exceed the unimpaired paid- up capital of such bank; and the cash or bonds oo deposited shall he available by the Minister of Finance and Receiver General for the redemption of notes Issued in excess as afore- said, In the event of the suspension of the said banks respec- tively : a. i'ENAT.TIES FOn EXCESS OF CtRCULATION.— Tf the total amount of the notes of the bank in circulation at any time exceeds the amount authorized by this section, the bank shall incur pen- alties as follows; If the amount of such excess Is not over one thousand dollars, a penalty equal to the amount of such excess; If the amount of such excess is over one thousand dollars and is not over twenty thousand dollars, a penalty of one thousand dollars; If tlie amount of such excess is over twenty thousand dollars, and Is not over one hundred thousand dollars, a penalty of ten thousand dollars; If the amount of such excess Is over one hundred thousand dollars and is not over two hundred thousand dollars, a penalty of lifty thousand dollars; and if the aaiount of such excess is over two hundred thousand dollars, a penalty of one hundred thousand dollars: 4. Notes unueu ^5 to be cal,led in,— All notes heretofore is- sued or re-Issued by the bank, and now In circulation, which are for a sum less than live dollars, or for a sum wliich is not a multiple of live dollars, shall be called in and cancelled as soon as praeticable. 52. Pledging of Notes prolilbited— fhe bank shall not pledge, assign, or hypotnecate its notes; and no advance or loan made on the security of the notes of a bank shall be recoverable from the l)nuk or lis assets: 2. Penai^ty for I'LEnaiNQ.— Kvery person who, being the pre- sident, vice-president, director, principal partner en commandite, general iiiiiuagi/r, manager, cashier, or otlu^r olllcrr of the hank, pledges, assign, or hypothecates, or authorize.., or Is concerned In the plf'dgo, assignment or hypnthecHii.in of the notes of tho bank, and every person who accepts, rreelves or takes, or authorl7.es or is concerned In tho acceiitanco or re- ceipt or taking of such notes as a pledge, assignment or hypo- THE BANK ACT. 533 thecatlon, shall be liable to a fine of not less than four hun- dred dollars and not more than two thousand dollars, or to Imprisonment for not more than two years, or to both: 3. Penalty for improper issub or takino of notes.— Every person who, being th© president, vice-president, director, princi- pal partner en commandite, general manager, manager, oashier, or other oHicer of a bank, with intent lo defraud, issues or delivers, or authorizes or la concerned in the Issue or delivery of notes of the bank intended for circulation and not then In circulation,— and every person who, with knowledge of such Intent, accepts, receives or takes, or authorizes or is concerned in the acceptance, receipt or taking of such notes,— shall be guilty of a misdemeanor, and liable to imprisonment for a term not exceeding seven years, or to a fine not exceeding two thousand dollars, or to both. 53,' Notes to be first charge of Asaets— The payment of the notes issued or re-i -sued Ijy the bank and Intended for circulation, and then in circulation, together with any Interest paid or payable thoreon as hereinafter provided, shall be the first charfjre upon the assets of the bank in case of its Insol- vency; and the payment of any amount due to the Government of Canada, in trust or otherwise, shall be the second charge upon such assets; and the payment of any amount due to tho government of any of the Provinces, In trust or otherwise, shall be the third charge upon such assets: The Queen vs. The Bank of Nova Seotin, 11 S. O. R. 1 (!««&)• /[eld, that the Crown claiming as a simple contract creditor of an insolvent bank has a right to priority over other creditors of equal degree. This prerogative privilege belongs to the Crown as representing the Dominion of Canada, when claiming as a creditor of a Provincial corporation in a Provincial Court, and is not taken away In proceedings in Insolvency by 45 Vict., eh. 23. Kxehaniie liatik vs. Queen, 11 A. C. 157 (188C). The Crown is bound by the tw Codes of Lower Canada, and can claim no priority except what \a allowed by them. Being an ordinary creditor of a bank in linuidation. It Is not entitled to priority of payment over Its other ordinary creditors. Maritime Hank vs. The Quern, 17 S. C. R. 1)57 (1Sn:)>. An Insurance company, In order to deposit |5(1,0(H) with the Minister of Finance and receive a license to do business In Cfinada according to the provisions of the Insunince Act (R. S. C, c. 124), deposited the money In a bank and forwarded the deposit receipt to tho Minister. The money In the bank drew lntt>rest which, b.v arrangement, was received by the compiuiy. Tho bank having fa'Icd, the government claimed payment in lUll of this money as money deposited by the (.'rown. Held, that It was not the money of the Crown, but was held by the Finance Minister In ♦rust for the company; It was not, therefore, siib.lect to the prerogative jf payment in full In priority to other creditors. The Liquidator!* of the Maritime Hank vs. The Ilccelver-Ucncral Of A'fir Ihunsviek. |1S!)2] A))]). Ciis. 137. The Kritlsn ^:orth America Act, lS(i7. has not severed the connection betweeti the l>own and the 1'rovince.s; the relation .between them is th(> same as that which siilislsts between the Crown and tho I^onilnlun In resjx'cl of the jjowers, executive and legislative, public property and revenues, as are vested In them respectively. In particular, all nroperty and revenues reserved to the Provinces by sections lOli an•. nsHlgneo or other proper official, to make arrangements within two months from :••! Ft I ^ ' ir .1 !lti'il m 536 THE BANK ACT, the day of suspension of payment by the bank as afore- said for the payment of all of its notes and interest thereon, the Minister of Finance and Receiver General may thereupon make arrangements for the payment of the notes remaining un- paid, and all interest thereon, out of the said fund, and shall give such noti'je of such payment as he thinks expedient, and on the day named by him for such payment all Interest on such notes shall cease, anything herein contained to the con- trary noitvlthstanding; but nothing herein contained shall be construed to impose any liability on the Government of Canada or on the Minister of Finance and Receiver General beyond the amount available from time to time out of the said fund: a. Payments from fund to as without regard to amount CONTRIBUTED.— Proviso. — All payments made from the said fund shall be without regard to the amount contributed thereto by the bank In respect of whose notes the payments are made; and in case the payments from the fund exceed the amount contributed by such bank to the fund, and all interest due or accruing due lo such bank thereon, the other banks shall, on demand, make good to the fund the amount of such excess, pro rata to the amount whicb each bank has at that time contributed to the .'und; and all amounts recovered and received by the Minister of Finance and Receiver General from the bank on whose account such payments were made shall, after the amount ot such excess has been made good as aforesaid, be distributed among the banks contributing to make goor' such excess pro rata to the amount contributed by each; Provided always, that each of such other banks shall only be called upon to make good to the said fund Its share of such excess, in pay- ments not exceeding In any one year one per cent, of the aver- age amount of Its notes in circulation,— such circulation to be ascertained in such manner as the Minister of Finance and Receiver General decides; and his decision shall be final: !». liEPAYMENF OF AMOUNT IF BANK IS WOUND UP.— In the event of the winding up of the business of a bank by reason of Insolvency or otherwise, the Treasury Board may, on the application of the directors, or of the liquidator, receiver, assignee or other proper official, and on being satisfied thpt proper arrangements have been made for the payment of e notes of the bank and any interest thereon, pay over to si h ^directors, liquidator, recelvei, assignee or other proper oHtclai, the amount at the credit of the bank, or such portion thereof as It thinks expedient: 10. Treasury Board may regulate management of fund.— The Treasury Board may make all such rules and regulations as it thinks expedient with reference to the payment of any moneys out of the said fund, and the manner, place and time of such payments, the collection of all amounts due to the said fund, all accounts to be kept In connection therewith, and prenerally the management of the said fund and all matters relatincr thereto: 11. Enforchmbnt op payment.- The Minister of Finance and Receiver General may. In his official name, by action in the Exchequer Court of Canada enforce payment (with costs of THE BANK ACT. 537 action) of any sum due and payable by any bank under the provisions oi tliis section. 55. Notes of Banks to be payable at par tbrougbont Canada— The bank shall make such arrangements as are necessary to ensure the circulation at p".r in any and every part of Canada of all notes issued or re-issued by it and intended for circulation; and towards this purpose the bank shall es- tablish agencies for the redemption and payment of its notes at the cities of Halifax, St. John, Charlottetown, Montreal, Toronto, Winnipeg and Victoria, and at such other places as are, :'rom time to time, designated by the Treasury iicard. 56. Redemption of Notes-— The bank shall always re- ceive In payment Us own notes at par at any of its orttces, and whether they are made payable there or not: 2. I'AYABLE AT CHIEF PLACE OF BUSINESS.— The chief place Of business of the bank shall always be one of the places at which its notes are made payable. 57. Payments in Dominion notes.- Torn or de- faced notes-- The bank, when making any payment, shall, on the request of the person to whom the payment Is to be made, pay the same, or such part thereof, not exceeding one hundred dollars, as such person requests, in Dominion notes for one, two, or four dollars each, at the option of such person: Provided always, that no payment, whether in Dominion notes or bank notes, shall be made in bills that are torn or partially defaced by excessive handling. 58. Bonds, notes, etc. bow and by wbom to be signed —Proviso: power may be deputed to officer — The bonds, obligations and bills, obligatory or of credit, of the bank under its corporate seal, and signed by the president or vice-president and countersigned by a cashier or assistant cashier, which are made payable to any person, shall be assignable by indorsement thereon; and bills or notes of the bank signed by the president, vice-president, cashier or other officer appointed by the directors of the bank to sign the same, promising the payment of money to any person or to his order, or to the bearer, though not under the corporate seal of the bank, shall bo binding and obligatory on It in like manner and with the like force and effect as they would be upon any private person, If issued by him In his private or natural capacity, and shall be assignable In like manner as If they were so issued by a private person in his natural capacity: Pro- vided always, that the directors of the bank may, from time to time, authorize, or depute any cashier, assistant cashier or officer of the bank, or any director other than the president or vioe-presldent, or any cashier, manager or local director ot any branch or office of discount and deposit of the bank, to sign the notes of the bank intended for circulation. 59. Notes may be signed by macbinery-Ono signa- tnrn must be written.— All bank notes and bills of the tink whereon the name of any person Intrusted or aulhoriz d ife! * 58; TUH BANK ACT. 10 sign such notes or bills on betialf oi' the bunk is l:iipr«:dstd by inaciiincry provided for that purpose, by or wall the author- ity ot the bank, shall be goou and valid to ail iiuents and purposes as If such notes and bills had betii suLscribud in the proper handwriting of the person iiuius.etl or authorized by the bank to sign the same respectively, and shall be bank notes ar.d bills within the meaning ot all laws and statutes whatever, and may be des'-»"ibed as bank notes or biils in all Indictments and civil or criminal proceedings whatsoever: i'ro- vided always, that at least one signature to each note or bill must be in the actual handwriting of a person authorized to sign such note or bill. 60. Penalty for unanthorized issue of notes for circulation.— Every person, except a bank to which this Act applies, who issues or re-issues, makes, draws, or Indorses any bill, bond, note, cheque or other Instrument, intended to circulate as money, or to be used as a substitute for money, for any amount whatsoever, shall incur a ptnalty of four hundred dollars, which shall be recovorablo with costs, in any court of competent jurisdiction, by any person who sues for the same; and a moiety of such penalty shall belong to the person suing for the same, and the other moiety to Her Majesty for the public uses of Canada: 1'. What shall, be deemed such notes.— The inter tlon to pass any such Instrument as money shall be presumed, if it is made for the payment of a less sum than twer. ty dollars, and is payable either in form or in fact to the bearer thereof, or at sight, or on demand, or at less than thirty days there- after, or Is overdue, or Is in any way calculated or designed for circulation, or as a substitute for money; unless such Instru- ment is a cheque on some chartered bank paid by the maker directly to his Immef-iate creditor, or a promissory note, bill of exchange, bond or other undertaking for the payment of money, paid or delivered by the maker thereof to his imme- diate creditor, and is not designed to circulate as money or as a substitute for money. 61. Defacement of Notes —Penalty— Every person who in any way defaces any Dominion or Provincial note, or bank note, whether by wr'tlng, printing, drawing or stamping there- on, or by attaching or affixing thereto, anything in the nature or form of an advertisement, shall be liable to a penalty not exceeding twenty dollars. 62. Counterfeit and fraudulent notes to be stamped as such.— Every officer charged with ihe receipt or d'.sburse- ment of public moneys, and every officer of any bank, and every person acting as or employed by any hanker, shall stamp or write in plain letters the word "counterljit," "alttr?d" or "worthless," upon every counterfeit or fraudulent note Issu.'d in the form of a Dominion or bank note, and Intended to cir- culate as money, which la presented to him at his place of business; and if such officer or person wrongfully statips any genuine note he shall, upon presentation, rcdeei'n It at the ..ice value thereof. THE BANK ACT. 539 63. No advertisement, etc-, to be iBsnsd in the form of a not*.— Every person who aesigas, engiavts, prints or in any manner makes, executes, utters, issues, distributes, circu- lates or uses any business or professional card, notice, placard, circular, hand-bill or advertisement in the likeness or simili- tude of any Doniinion or bank note, or any obligaiion or se- curity of any Government, or of any bank, is liable to a penalty of one hundred dollars or to three months' imprisonment, or to both. BUSINESS AND POWERS OF THE BANK. 64. Branches and agencies —General powers of the Bank— Certain business ma? not be transacted by the Bank.— The bank may open branches, agencies and offlcts, and may engage in and carry on business as a dealer in gold and silver coin and bullion, and it may deal in, discount, and lend money and make advances upon the security of. and may take as collateral security for any loan made by it, bills of exchange, promissory notes and other negotiable securities, or the stock, bonds, debentures and obligations of municipal ai.d other corporations, whether secured by mortgage or otherwise, or Dominion, I'rovlncial, Drltish, foreign and other public se- curities, and it may engage in and carry on such business generally as appertains to the business of banking: but, except as authorized by this Act, it shall not, either directly or indi- rectly, deal in the buying, or selling, or bartering of goods, wares and merchandise, or engage or be engaged in any trade or business whatsoever; and it shall not, either directly or Indirectly, purchase, or deal in, or lend money, or make advances upon the security or pledge of any share of its own capital stock, or of the capital stock of any bank; and it shall not, either directly or indirectly, lend money or make advances upon the security, mortgage, or hypothecation of any land, tenements, or immovable property, or of any ships or other vessels, or upon the security of any goods, wares and mer- chandise. lUownn vs. Commrrcial nank, 10 TJ. C. Q. B. 129 (1852). The plaintiffs indorsed a promissory note to the defendants for collection. The note was made by one C. C, living in Cobourg, payable to the order of one G. S. B. genera Uy, not at any bank or other place; and from G. S. B. it had passed by several indorsements to the plaintiffs. After it had been received by the defendants, it was indorsed by their teller at Toronto in favor of J. T.. their agent at Cobourg. The different endorsers were notili''d by the hank that the note had been presented to the maker, and payment refused, and that the bank looked to them for payme'nt; and the note was returned to the plaintiffs as having been duly presented. The plaintiffs then sued the indorsers, but were defeated in their actions, in conseciuence of a want of nroner presentment for payment. Ifrhl. that, '..nder the c'reumstancea of this ease, the bank were liable to the plaintiffs' for such want of presentment, notwithPtanding a notice Issued by them, and which the plain- tiffs had received, that all notes delivered to them, and that they Ohe defendants') wou'.d be responsible only for moneys nctnaHv received In payment nf such notes, but not for any omissions, informalities, or mistakes, in respect of such notes. Itichn- vs. Vnurr, I,. R., 5 P. C. 4fi1 (18741. A bank certlflcato was given In the following form:— I' rill ! ■ I ■ i ''. i, :! I 640 THE BANK ACT. Montreal, 7 S3ptembrc, 1863. "A. B. a depose dans cette banque a Interet a quatre pour cent, par on, la somme de deux mlUe doUiars, payable a I'oirdre C. £)., lors de la remise du present cercihcat. Ceite somme pour porter Interet devra rester au molns trois mols dans cette banque, et le porteur de ce certiticat ne pourra la retirer qu'apres qulnze jours d'avis, I'interet oessant du jour de cette avis." (Juacrc, whether this was a negotiable Instrument under Art. 2349 of the Civil Code of Lower Canada. Under the 77«th Article of the Civil Code of Lower Canada, which provides that gifts of moveable properly accompanied by delivery may be made and accepted by private writings or verbal agreements, the anterior possession of property w»wch can be the subject of don manitrl Is equivalent to delivery at the time of the gift, although the former possession was for an- other purpose. The maxim of the French law— possrsx/oH vaut fi on one of its branches, and fails to advise .said branch of the fact and the draft is theT.^n^'nnh 'n'^^^l^ ^T..^^ "^ *''•""«• '''"^^ SO skllfuHy as to Jecelve to ino^hPr i/nnS?' ^^r,'' "'li.'*' *^<^ f'm"unt of the draft as raised E^J^li^^'^ bank, holding the draft in good faith, and In con- Ice unfthprJf"f ,!?'^y™ent. this latter bank pays W.S'Mron ?i^r yi l*"*^'°°r *° ^^® person from whom the bank received it, W i^ld to It" ^^'"'""^ '■^'^"''*'' ^""^ "^^ '''^"^'' ''^"^ the amount Bank of Uonfrral vs. Oiddr.-^. 3 L. N 14fi (1880) I nder the Banking Act of 1S71, 34 Vict., ch ' .'; a bank could ^ninf'^'frn'^ "''^^'*' '°='"^ "'^"" the security 'of the stock of any th"reforr^an'Trirn/''hv^'H'''^*^". ^'""'^ "« "th^r banks' and intrtrore an action by the bank aga nst the directors of n st-eet raihvay company for loss sustained bv making i ^oan bv false'^.Ttatemplrt'i ""^^i^^'^f^^^^ to hav" bee?, 1^"/ Inflated maintained "'° ^""■' "^ ^^^'"^ directors) cannot be A^w/''''''^' """''' ^'^- ^frrrhant'< Bank. 27 L. C. J. 370 (1882) of LltiK'', "' ^"arantee given to a bank, securing the pavment of notes discounted by said bank, for certain firms men til S. Q. THE BAXK ACT does not bind the guarantors to a bank conslltu.fd by the amal- gamation of the said bank with another bank. JiaiH vs. TonaiHi, 1 Man. 32 (ISW). Plaintiff applied for payment over, by the bank, of money deposited at their branch ottlce at Winnipeg. Previous to the garnishee order being made, the money had been paid over by the head otttce at Toronto, under sequestra- tion Issued against the defendant in Ontario. Held, fojaowing Ittcin v&. The Bank of Montreal, 38 U. C. Q. B. 375, that a hank and its branches are but one concern, and that the applicaiion must therefore be discharged with costs. Sweeney vs. Bank of Montreal, 12 S. C. R. 661 (1885). S. brought an action aganist the Bank of Montreal to recover the value of certain shares of stock transferred to the bunk under the following circumstances;— S.'s money was orig- inally sent out from England, to J. R. at Montreal, to be invest- ed in ''anada for her. J. K. subscribed for a certain amount of Stock In a certain Incorporated company as follows: "J. R. in trust," without naming for whom, and paid for it with S.'s money. He subsequently sent over the certificates of stock to S., and paid her the dividends he received on the stock. Becoming indebted to the Bunk of Montreal, K. transferred to the manager of th>- bank as security for his Indebtedness a certain number of S.'s shares, and the transfer showed in its face that he held these shares "In trust." The Banlt of Mont- real then received the dividends on these shares, credited them to J. H., who ij.'iid them to S. J. R. subsequently became in- solvent, and S., not recelvln.T her dividends as usual, sued the Bank for an account. Ilrhl, that there was sufficient to show that J. R. was acting as tlie niandatar.v or ;igent of S., and the Bank of Montreal, not having shown tliat J. R. had authority to sell or ))ledge the said stock, S. was entitl^-d to get an account from the bank. Kj-cliaiipr Uutik vs. Cininilitiii Hunk of Vumnurcv, M. L. R., 2 Q. B. 47t; (1S8()). Where drafts and notes are placed with a bank by a debtor of the bank, not a ■ collateral security, but lor collection, com- pensation does nrit take place until tl ■ bank h>as received the amounts collected by them on such notes; and in the present case, the debtor having become insolvent before any amounts were received on such notes, the compensation did not take place between the amount collected by the bank and thi> debt due to it. (Reversing M. I.. R. i S. C. 225.) MarFiiilanr & Carporulinn of the Pariah of St. Ccxdirr, M. Iv. R., 2 Q. B. 1(H) (ISSG). A debenture is a negotialile instrument, and cannot Vjear a condition on the face of it. malting its vMlidity dependent upon obllcrations to be performed in future. .Xnd so where a mnnl- copal corporation voted a bomis to a railway company payable In delientures. and the by-law imposed certiiln future obligations upon the company as to the mode of operating the road, it was held that debeninres in which these (dili^ratiiins were set forth as conditions were not a vnlld tender. N.B.— This iudgment was confirmed in the Sunremc Cotirt of Canada, 11 S. O. R. 7?,s. E.rchnnqr liniik k Mimtnnl Cilii and hixlrirt Sfiriiitis Itanl;. M. L. R.. fi Q. B. ion (ISST-). A savings liank, hoMinj? bnnU sh^ire.s as nledgee. and ap- pearing as owner on ()!•■ ii )oks of the bank, is not the owner of siieh shares within tlh nie:niing of seetlon TjS of the Banking Act. Ill Viet., ch. 5, and tlierefore is not subject to the doid)le liability. A bank, sliares of which are transfe"red to a suvings l)ank, is presumed to know thiit the Hli;ires nre held by the latter as enllaternl security. inasm\)ch as under section IS of 31 Vict., ch. 7. n savings bank einnot nenii're >>nnk «hnres or 'eiid them excepit a-s pledgee. (Afflrmiing M. L. R. 2 S. C. 129 (1881). Jlrrhinifir nniik vs. XoirrH. M. T> R.. H S. ('. 120 (1SS7). Wiiere a biuik took a note endorsed t)y a customer as se- curity for nasi advances, amounting to .•il)ont $10.iiOO, and after the maturity of this note, deposits am'.nnting to more than |100,0()0, were passed to his credit in the books of the bank— M '!•■ !1 1 '1 ;' i •vil 1 • . i ■ \ 1:,-! ii' |^;^ Ml; iil- 1 1 '■' ' f .1 . •;. Bi L j 1 1 1 i 1 :!'; i|| 1 • J^'' i 542 THE BANK ACT. Ucld, that in the absence of any special imputation of pay- ments or reserve as to the application of the subsequent de- posits, these deposits were to oe imputed m payment of the oldest debt, and the customer's liability at the maturity of the collateral security being more than paid by the subsequent deposits, the collateral was dischargea, and the bank's action against the maker and lirst endorser of said note would be dismissed. Uoodall vs. Exchange Hank. M. L. R., 3 Q. B. 430 (1887). T., a ohstomer of the bank, discounted wltih that bank ap- pellant's acceptance. When u ft-.l due appt'Hant failed to pay It, and the bank charged to T's account, who at the time owed the bank a small baiance, whicn baiance was augmented oy subsequent transactions, wherein nevertheless, if the credits were imputed to the earliest indebtedness, the balance due when the acceptance matured would be more than covered. The bank retained possession of the acceptance, and brought this suit against appellant, the acceptor, to recovt^r its amount. Appellant pleaded payment and compensation. Udd, Tliat the bank was entitled to recover from appellant the amount of his acceptance, and th;it appellant was not discharged by the credits in the bank's account with T. Chvvhiml vs. Kxvhumjr Hank, M. L. R., 3 Q. B. 30 (1887). "Where the amount of a note discounted by a bank for the endorser waa charged on maturity to the endorser's account, and the dei>oslts oubseciuenliy made by the i-ndorser, as shown by the books of the bank, were more than sufBclent to cover his indebtedness to the bank at the time the note matured, such note must be held to have been paid, and the liaiilc has no action thereon against the maker who has paid the endorser (but without obtaining possession of the note); and the fact that the endorser's aggregate Indebtedness to the bank con- tinued to increase does not affect the question of payment of the note referred to in the absence of a reserve of recourse by the bank thereon. Hank of Montreal vs. Sweeny, 12 A. C. 617 (1887).— ITeJd, by the Privy Council, affirming the judgment of the Superior Court of Canada. A holder of shares "in trust" is not a manditaire, prcte-noin, and holds subject to a prior title on the part of some person undisclosed. Such holding not being forbidden by the law of the colony, a transferee from such holder is bound to enquire whether the transfer is authorized by the nature of the trust. Maritime Bank vs. Union Bank. M. L. R., 4 S. C. 244 (1888). A bank acting as agent for another bank is not authorized in the absence of express agreement, to cash a cheque drawn upon the principal bank ' ut unaccepted by It. A telegram from the : esldent of the principal bank to a depositor therein, stating .nat certain funds are at his credit, Is not an acceptance of a cheque drawn by the depositor upon the receipt of such telegram for the amount of the funds, such telegram adding nothing to the legal obligation of the principal bank towards the depositor to pay the cheque when duly pre- sented for payment, if there were then funds at his credit to meet It and no legal hlndranrr> to its payment existed. No compensation arises hot ween the principal bank and Its agent, entitling the latter to set off moneys paid under an unaccepted cheque upon the principal bank against moneys held by the agent and due to the principal bank. A custom of bankers cannot be put In evidence unless It has been specially pleaded. Merrhantit' Bank & McKay, 15 S. C. R. 672 (1888). McKay gave a mortgage to the Merchants Bank as security for the present indebtedness of. and future advances to, a cup- tomet' of the bank. By the tPT.-?! of the mortgage MoTCav was to be liable, amongst other things i, r the promissory notes, etc. of the customer outstanding at the date of the mortgage, and Hll renewals, alterations and substitutions thereof. UcW, That the bank Having given up the said promissory notes, etc., nnd accepted as renewnls thereof, forged nnd worth- less paner. McKav was, to the extent of such worthless paper, relieved from liability as such surety; THE BANK ACT. 543 Held, That the bank having accepted the renewals In the ordinary course of banking business, and it not being shown that they were guilty of negligence, the surety was not relieved. Bank of Montnal vs. ^uoniaa, 16 O. R. 503 (1888). On the maturity of a bill of exchange, the drawers thereof, thinking the acceptor would be unable to meet it, telegraphed him, that if unable to pay It to draw on them for the amount. The acceptor took the telegram to the manager of the bank, who. on the fiiith of it, discounted a sight draft by the ac- ceptor on the drawurs, with the proceeds of which he retired his acceptance, which was held by another bank. The drawers re- fused to accept the bill so drawn. llctd, that the telegram having been sent for the purpose of inducing persons to advance money on it, and to take the bill so drawn In pursuance of it, a privity was created between the bank which discounted it and the senders of the telegram, entitling the former to maintain an action against the latter for the money so advanced. Black vs. The Bank of Nova Scotia, 21 N. Sc. 448 (188»). The Bank of Liverpool being Indebted to defendant bank In the sum of $80 000, agreed to pay the amount in instalments, plaintiffs, among others, being sureties for three instalments, amounting to J6O,0OO. Acceptance« held by tflie Liverpool Baink were placed with the defendant bank as collateral security for the last of the instalments on which plaintiffs were liable, and were collected by defendant bank, but were afterwards ap- priated liy defendant bank to a different indebtedness. Plain- tiffs, in ignorance of the appropriation Hrst mentioned, paid in 1879 a balance oi $9,772.30 demanded from them, and on after- wards discovering the facts as to the appropriation and pay- ment, brought the i^resent action to recover It back as paid under mistake of fact. Jlcld, that the amount having been appropriated in the first instance to the debt on which plaintiffs were sureties, no other appropriation could be made without plaintiffs' consent; that plaintiffs were not estopped on account of their not having de- manded an investigation of the state of the accounts before paying, nor by the fact that when called on to pay they re- quested further time and made use of it to obtain securities from the Liverpool Bank; that defendants could not set up that they had been prejudiced by plaintiffs" payment, in their Qt.''Ungs with the insolvent bank, as the facts of the matter were within their knowledge and not in the knowledge of the plaintiffs; that plaintiffs were not bound to tender to defendants before action the bond of the Liverpool Bank which had been assigned to plaintiffs for the reason, among others, that it had been paid off by the money so appropriated, and was valueless. Johanurn vs. Chaplin, M. L. R., 6 Q. B. Ill (1889). A bank is not authorized to enter into a contract of surety- ship guaranteeing the payment by a customer of the hire of a steamship under a charter party. (And see Watts vs. Wells, M. L. R., 7 Q. B. 387.) Landni vs. The Bank of Nova Scotia, 29 N. B. g-H (1889). The plaintiffs drew and endorsed a bill of exchange and de- livered it to the defendants to discount, which they agreed to do if the bill was accepted. After acceptance the defendants re- fused to give tlie plaintiff either the proceeds of the bill, claim- ing the right to apply it to the payment of a debt which the plaintiffs owed them. Held, that the defendants were liable in trover for a con- version of the bill. A discount means an advance of money, upon the transfer of a negotiable instrument to the bank, payable at a future day, as security. Thompson vs. Volsons Bank, 16 S. C. R. 661 (1889). The Molsons Bank took from H. & Co. several warehouse receipts as collateral security for commercial paper discounted in the ordinary course of business, and having a surplus from the sale of the goods represented by the receipts, after paying the debts for which they were immediately pledged, claimed under a parole agreement to hold th; t surplus in payment of i: ' r .■ i % |r; ■ i 1 •r , « 4' i ■ ni'i 1 11 544 THE BANK ACT. other debts due by H. & Co. H. & Co., having become in- solvent, Thompson, as one of the creditors, brought an action against the bank claiming that the surplus must be dis- tributed rateably among the general body of creditors. Held, that the parol agreement was not contrary to the provisions of the Banking Act, R. S. C, ch. 120, and that after the goods were lawfully sold the money that remained, after applying the proceeds of each sale to its proper note, could properly be applied by the bank under the terms of the parol agreement. (See under seotlom 23, Exchange Bank vs. Fletcher,) Rv Central Bank, Morton and Jliack's Claims, 17 O. R- 574 (1889). An incorporaited bajok, by its cushJer, issued deposit reoedpis in the following form: "Received from the sum of $ , which this bank will repay to the said or order, with interest at 4 per cent, per annum, on receiving IB days' notice. No interest will be allowed unless the money remains with the bark six months. This receipt to be given up to the bank when payment of either principal or interest Is required." Held, that It was competent under the Bank'ng Act, R. S. C, ch. 120, to issue such deposit receipts, and that even if they did not possess all the incidents of promissory notes, yet being meant to be transferred by indorsement, they were so far ne- gotiable as to pass a good title to a bona fide purchaser for value, taking without notice of any infirmity of title. But, uniible, that these deposit receipt?, were negotiable instruments under which tlie liolders were entitled to recover as upon a promissory note made liy the bank. McDonald vs. liankin, M. 1^. R., 7 S. C. 44 (1890). The actioii of a shareholder of a bank against tne directors, to recover loss occasioned by their gross negligence and mis- management, being an action of mandate, is prescribed only by thirty years. The action against the directors for maladministration ap- pertains to the corporation, bu' in default of suit by the cok- ponation It is competent to the shareholder to institute It. Directors of a corporation rre bound to exercise the care of a prudent administrator In the management of its business. Sucli acts as allowing overdrafts b.v insolvent persons without proper security, the impnirmenr of the capital of the bank by tlie pavnieuL of unearned dividends, the furnishing fil false and deceptive statements to the Government, tlie expenditure of the funds of the l)ank In the U^gal purchase of its own shares, are acts of Kross mismanagement amounting to dol. and render the directors personally liable, iointly and sev->rally, for losses sustained by the shareholders l>y reason thereof. Directors cannot divest themselves of their iiersonal re- sponslliUlty. While the are at liberty to emi)loy such assist- ants as may be r'^.iulred to carry on the business n' trie cnr- por.'itioii. they are. nevertheless, respnnslble foi the Tault and misconduct of the employees a(iiininted i)y ihem, unless the injurious acts complained of be such as could not have been prevented by the exercise of reasonable diligence on their part. MoiitrrnI Cilii ,f Dinlrlct ,S^/rni'/.v li'ink vs. Uvddi's, M. L. R., G s. c. 2 in nsnn). A creditor Is not obliged to sell his r'.edge before liringing an action of damages against the directors of a corporation lnde!>ted to lilm for making false statements. Wiilt.1 vs. H'(7/.f, M. f-. R., 7 Q. B. ;!S7 (iSnO). A bank cannot validly entrr Into ,a contract of suretyship g-uarnnteelng the payment by a customer of th© hire of a steamship under a charter party; ojnd where ith« bank ha>4 derived no bi'neflt from such cojilraet, a claim made thereon against the bank in ll<|uidatlon will be dismissed, /,(( Haiuiiir Xiitinnole vs. Mrnhdnl/t' Hank, M, T^. R., 7 ,'?. C. 330 (ISim, A cr.stcnn of Irnde or banking In derogation of the common law must be strli'tly proved. And win- a bank sought to ex- cuse Itself from t.'iklng l)ack nn tmnccepted cheque nn another bank, which had been nont into the clearing h(nise In the morn- ing, on the ground that by a rule of the association a cheqiie THE BA\K ACT. 545 for which there were no funds should be returned to the pre- senting buuK before noon ol me aay ot preoemaiion, wneieas the cheque In question was not oftered back until 3.3U p.m., and It appeared that the ru.e in Question was of a temporary character only, and was not usuaiiy followed by the banks which belonged to the Clearing House Association, It was held that such rule could not derogate from the ordinary rule of law as to the return of cheques for which there are no funds. PilrU vs. Lu Vaixnr dEconomU; dc (Juibn; 19 S. C. R. 713 11891)- The curator to the substitution of W. Petry paid to the re- spondents the sum of $S,ti32 to redeem 34 shares of the capital stock of the Bank of Montreal, entered In the books of the bank in the ruam.'e of W. G. P. in trust, and which the said W. G. P., one of the u'l i"<'« and managers of the estate, liad pledged to re- spondents for advances made to him personally. J. H. P. ft ul, appellants, representing' t'ho saibstitution, by thcdr action de- maudetl to be refunded the money which they alleged H. J. P., one of them, had paid by error as curator to redeem shares belonging to the substitution^ The shares in quesition were not mentioned in the will of William Petry, and there was no in- ventory to show they formed part of the estate, and no avte d'cmiiloi or rtinpliti to show that they were acquired with the assets of the estate. //(■/(/, that the debt oi' W. O. P. having been paid by the curator with full knowilcdge of the facts, the appellants could not recover. Arts. 1017, ll)ii» (.". C. Bank stock ciiiuiot be held as regards thini parties in good faith to form iiart of sulistiluted property on the ground that they have lit-t'ii purchased with the moneys belonging to the substitution witliKUi an act of investment in tiie name of the substitution and a due registration thereof. Art;!. a31, 93S, !i39 t'. C Ciiitral Haul; v.s. (hirlnnd. 20 O. R. 112 (ISDl). A tradesman sold ^'oods to customers, taking i)romissory notes for tlio price, and also hire receipts by whicli tlie pro- perty rctaiiit'il in liiin till the full payment' was made. The notes Were discounted thniugli the medium of a third person by tlie plahililTf,, who were made aware when the line of dis- coiml was Dpciied ul' the course of (lealln^T and of tile securities held. They were not, howe\'er, put in actual possession of the securities, and thi're w.'is no i-xpres.s contract in rtgard to tliem. In an action to recover tlu> securities or theh- iiroceeds from the assignee for creditors of the tradesman, htUl, that the securities were accessory to the del)t. that in equity the trans- fer of the nites was tlie transfir of the secvirltles. that the defendant was in no liigher position than his assignor, an made by them with tlie r.i'Uv.iy eonipany to secure the notes. They also agreed with tlie b.mk that In ec'insidiTatlon of nil advance to lliem n( tlie money iipini their notes endorsed by a., they would nssign to the bank the said nionevs, and gave to N,. the bank manager. ,-i, oowim- of attorney autii >iizlng him to collect from the i-aiUvay company the said mone\s. S. en- dorsed tlie notes and the moneys were aclvaneed. tlvli', that this transaeilon amounted to an ei|uliable assign- ment to the bank for the moneys In question. Ifilil also, th'it moiic's arising out of future conirricis can lie assigned. ffild also, that it Is wlth'n the power:^ of Incorporatrd binks to make advrinces iliion the security of anv fhomn hi arliiitt «»xcenl In so far as the Banking A/ts expr(>ssly exclude sueli trat'saei Ions. /fr' Ihr Hnnr.r T.niid .f Tlmhrr Co. TioiiI'm rant\ 21 C). U. 3(i7 (IS'.i'.'). On a petition by a mortgagee In the winding-up proceedinR.<( ^'m i ^^Hi ; ' i ''ill I'. ;i ylU THE BANK ACT. of a company, under R. S. C, ch. 129, asking for the conveyance to him by the liquidator of the company's equity of redemption, the court has jurisdiction to make the usual order for fore- closure or sale. It is a matter of discretion with the court whether an action will be directed or summary proceedings sanctioned. A mortgage upon land given to secure endorsations upon negotiable paper to be made by the mortgagee for tne benefit of the mortgagor becomes operative only upon the endorsements being made; and an assignment of such mortgage to a bank before the making of the endorsements is not a violation of section 45 of the Banking Act, R. S. C, ch. 120. Re Central Bank, Canada Shipping Vo.'s Case, 21 O. R. 515 (1892). A bank in this Province, under an agreement with a cus- tomer, domiciled here, advanced money to him to enable him to buy cattle in this Province, which, under the agreement, when purchased, were to be forwarded by rail to him at Montreal, and to be shipped by steamship to Liverpool, the bank having no control over the cattle until they reached the vessel, when they were to be received by the steamship for the bank, and the customer's possession and control over them was to end; bills of lading therefor In favor of the bank being then signed. The cattle were purchased and sent to Montreal as agreed on. On arriving at the steamsliip, and before the bills of lading were made out, a creditor of the customer attached the cattle under a writ of suiaiv-arrvt, but the steamship owners, disre- garding the writ, signed the bills of lading and conveyed the cattle to their destination. The creditor subsequently recovered a judgment for the value of the cattle in the Province of Quebec, against the steamsliip owners, which tiie latter having paid, sought to prove on the estate of the bank in winding up proceedings, but the claim was disallowed by the master. On ai)peal: — JJeld, that, apart from the Banking Act, R. S. C, ch. 120, by virtue of the agreement between the bank and its customer, the possession and a special property in the goods passed to the bank, of which the steamship owners were aware, and having assented thereto upon receipt of the cattle, before any process was sevred, must be taken to have held the cattle for the bank. Jlehl, also, that the rights of the parties were entirely gov- erned by the provisions of the Banl.ing Act and following, though not altogether approving. Merchants' Hank vs. Sitter, 24 Gr. 35tj, that under sec. 53, sub-sec. 4 of the Act, the bank had, under the agreement and the facts proved, an equitable Hen upon the cattle from the time of the making of the agreement, which prevnilcd over the attachment. Jteld, lastly, that the bank "acquired" the bills of lading within the meaning of the Banking Act as soon as the cattle were received by the steamship, although it did not at that time actually "hold" the bills. I'acauil vs. La Danqiie du Peupiv, R. J. Q., 3 S. C. 8 (1893). The pledgee who applies to his own uses a sum of money pledged us security for the payment of a note, is guilty of an abuse of the pledge, wlth.n the meaning of ArLldti 1975 of the Civil Code, sufficient tj justify the pledgor in demanding re- payment of such money wi i interest. Where the return of money pledged as security for the pay- ment of a note is conditioned upon the collection by the i)ledgoo of the amount of such note, the fact that he has been himself the means of preventing the collection of the note (as by re- leaslnf.' one of the i)arties thereto, the others being solvent) will make the conditional obligation (to reiurn the money) absolute. A bank is bound by the entries in its bookri, and especially In Its customers pass-books, at least in the absence of other proof of error. La Bnnquc du Peuple & Paeaud, R. J. Q., 2 Q.B. 424 (1893). A bank which, in discounting a note, receives from a third party its value In pledge as collateral security for Its payment, on the condition that It will use diligence to recover the amotint of the note from the maker and the endorser before realizing the value, vl 'ates this condition in accepting a renewal of the note and in treating with one of the endorsers for his discharge THE BANK ACT. 647 for a partial payment, giving blm thus a means of contestation Of the action whloh It has against him. The owner of the value put in pledge Is trim that time entitled to recover from tne bank, followed In Frivdman vs. valdwiU, K. J. Q., 3 Q. B. 200 tlSiM). liruHh vs. MolHona Bank, K. J. Q., 3 Q. B. 12 (llUfi). Appellant on the 22nd March, issti, addressed the following letter to the bank respondent:— "In consideration of your making advances to W. C. Hlb- bard upon his drafts upon W. R. Hibbard, and accepted by the latter to the extent of |6,000, 1 hereby guarantee you, the said bank, the due payment of all sums at any time due and owing to you, the said bank, from the said W. C. Hibbard, under said drafts, not exceeding the sum of $0,000, and any Interest and costs wlilch may accrue thereon, and that no payment received by you from said W. C. Hibbard, or otherwise, shall be taken in reduction of my liability Upon this guarantee, and that you may give any time to, or take any security from, or accept any composition from said AS'. C. Hibbard, or any of the parties to any bills, drafts, notes or cheiiues discounted or held by you as aforesaid, without prejudice to your claim upon me under this guarantee. And I further agree that all dividends, compo- sitions and payments received from him, them or any of them, or his or their representatives, shall be taken and applied as payment In gross, and that this guarantee shall apply to and secure any ultimate balance that shall remain due to you, the said bank, under said drafts. And I further agree that this guarantee shall be a continuing guarantee for an amount not exceeding the said sum of $(5,000 due to you from the said W. C. Hibbard for any or all of the causes aforesaid, and t'hall re- main in force until revoked by written notice to the said Mol- sons Bank, and that the same shall not be revoked by my death." Upon receipt of this letter, respondent advanced to W. C. Hibbard $0,000 in three sums, upon his drafts upon \V., R. Hib- bard and accepted ,y the latter. These drafts were renewed from time to time as they became due, by similar drafts, which were similarly renewed when they became due until 1889. in 1R8S Hibbard closed his account with the bank, drew out his balance, $S8, and went out of business. In an action by the bnnk ,ni,';iinst the appellant, for t'le amount of t'.ie draft as representing the balance due upon advances made under the letter of guarantee — IIiM. 1. The guarantee, being a continuing guarantee for the amount, was not n'strlctcd to the original drafts, but ex- tends to those b> which they were renewed, until revoked by written notice. 2. The fact that ITibbard clo.sed Ms account and drew out his balance did not afftct the case, as it did not appear that any draft wn« then due, to which the bal.ance could be applied. nanqu lacqucs Vartiir vs. Thv Qiicin, R. J. Q., 8 S. C. :!40 ('.893). Pelltiun of right claiming the amount due on a letter, usually styled a letter of crcilit. given by the I'rovlndal Secretary to one D., to enable hlii 'o execute a printing contract with the government, and tran. i erred to petitioners. //'''/, that it was not comiiotont to the Provincial Secretary, by tills letter of credit, to hind the province to the payment of any ; >lvances to the said D.. and that though the snbse note, tho pledgee, as regards the surplus, sues as trustee for the pledgor and can recover If the latter could do so. Marnidrr vs. Yoinio, R. J. Q., 3 Q. B. 531) (18!M). The sale and transfer of Instruments of no Intrinsic value. i I I;: rm ■i: f (' 548 THE BANK ACT. but evidences of value, as notes, bills of exchange, bank bills, bills of lading, warehouse receipts, bonds and debentures, is not subject to Arts. 1487, 1488 and 1490 C. C. Such Instruments, when payable to bearer, require no other evidence of proprletorsnip than simple possession, against which the only practically effective plea is bad faith in the holder, and the burden of proof is on the party who sets it up. In the absence of such allega- tion and proof, the owners of debentures pledged, without authority, by their agent, as security for a loan to himself by a i)rolso faclo, a radical mililty of publii' order of such a character as to disentitle thi' l)ank tnider Arts. !IS!I and lifHi ('. ('. from elalming liaek the money with Interest. Hank of Taionlo vs. I'nkiiis (S Can. S. C. R. 1103), distinguished. Jar(IH(n earlier Hank vs. 77ic Qnriii, 25 S. C. R. The I'rovlnclal Secretary of Qnel)ec wrote letter to D. with fh© assent of hla colleagues, authorized ly (irder in council: "J'al I'honneur de vous infoi'mer que le gouvernemcnt fera voter, dans le hialKiM siinitlementalre de 18111-02, im Item de six mille piiastres qui vous .seront iwtyecs immedlatement apres la session, el eela a litre daeoniiile siir liinoression de la "Idste dea Terres d© la Couronne, concedees depuia ITfiS, jusqu'au 31 deceinbrt', ls:iO.' donl je vous ai coiilie I'lnipressioii dans une lettre en date r(>forc not a negotiable Instrninen .vlthln tlie Rills of Kxehange Act of IKIIO or Tll(> Rank Act, R. S. ('. ch. 120, sees. 45 and liO. Donotih vs. (lillrxpic, 21 O. A. R. 2!t2 11805). Hankers are sul>Ject to the i)rlnclples of law governing ni'dinary agents, and. therefore, batd^ei's to whom as agents a bill of exchange Is forwarded for collection, can receive i)aynient In tnoney only and cannot bind the i)rlnclpals by setting off the amount of the hill of exchange against a balance due by them to the acceptor. La HaniiiK' Villi' Mariv vs. Mai/raii0 (ISOii). A bank havlne discounted a noti? signed hv M. and en- dorsed by the defendiant, a public trader, acting by her hus- 84 (1805). the following but not being THE BANK, ACT. 54J band who was her attorney for the PU'-Pff/* "jf/ifJ^^s^^^PTne the proceeds of the discount were entered '" ^^^ booKS oi u bank to the credit of M., and it was proved that the female defendant had received no consideration. UvUl, that the endorsement of the note exceeded the power of the defendants husband, and that the bank hav ng pald lie proceeds of the discount to the maker of the note who \^is clearly not doing the same business as the defendant, on a not« sltrned. not by the latter, but by her attorney, haa no action against the defendant, It being understood that she hat! received no consideration for the note. Voomr vs. Molson-s Hunk, 20 S. C R. 611 (189G). If a merchant obtains from a bank a line of credit on terms of depositing- his customers' notes as collateral security, the bank is not obliged, so long as tjie paper so deposited remains uncollected to give any credit in respect of It, but when any portion of the collaterals is paid, it operates at once as pay- ment of the merchant's debt, and must be credited to him. /»«/>•;/ vs. Ilochvluya Ituiik, R. J. Q., 10 S. C. 510 (ISUti). The agreement between a merchant and a bank that the deposits made by the merchant would be kept by the bank to guarantee the payment of promissory notes bearing the for- mer's signature, and discounted by the bank, is a commercial transaction which can be proved by witnesses. Haul; of Jontntu vs. llawiltoti. 28 O. R. 51 (ISiHi). The plaintiffs, under telegraphic instructions from one of their branches, telephoned from the head office to one of their sub-agencies to credit the defendant with $2,000. The sub- agency, however, by some misunderstanding, credited him with $3,000, which he drew out. The $2,0U0 had been paid into the branch bank in the first Instance by way of an advance on the shipping bills of certain cattle bought from the defendant for about $2,S00, but of this the plaintiffs had no notice. The de-. fendant, however, refused to pay the difference between the $2,000 and the price of the cattle, on the ground that in faith of the payment to him he had allowed them to be shipped abroad, which by his agreement for sale was not to be done till payment of the jjrice in full. Ilclil. that the defendant was bound to repay the excess over the $2,000. lAtman vs. Montreal City and Dintrirt SaringM Uank, R. J. Q., 13 S. C. 2u2 (IS'JT). Where a bank receives a note for collection, and in the regular course of business i)laces the same In the hands of a responslh|(> and perfectly solvent agent, It is not liable for the loss of the note in the malls. In any case the defendant's offer to give security to the makers and endorser that they would never be troubled if they i)aid the note, was suttlclent. Mo-fhanis Hank of Canada vs. Darriau vs qualitr, R. J. Q., 15 S. C. 32(5 (lS!t8).> The Adams Shoe Comiiany sliipped goods to a Toronto house. Drafts were drawn for the iirice of siicli goods and discounted by the Merchants' Hunk. As sccnrily fur these a(lvances, not only the title to the drafts was transferred to the bank, but also the claim against the Toront" house for tlv nriee of the goods shipiied and whose value tlte drafts renr'S , .led. ...\,.^ .-.llll'l.,,! (lll.i *»1I'P.-H \,lll|. Ill, llllllir. ||-],|'ril.i»',|. HcW;— There Is no prohibition in the Banking Act against taking as security, for advances made bv a b;iiiU. tlie transfer of a certain debt, and the same Is permitted. Consequently, t'^" transactions above ineiUloned were valid and within the le powers of the bank. the gal 65. Bank to have Hen on debtor's sharea — Sale of Buoh sharea- Notice. —'Transfer In caae of sale.— 'I'he bank shall have a privileged lien, for any debt or liability tor any clebt to the bank, on the shares of Us own capital stock and on any tinpald dividends of the debtor or person liable, and may decline to allow any transfer of the shares of such debtor or person until such debt la paid; and the bank h ■ "f I t (• 650 THE BANK ACT. shall, within twelve months after such debt has accrued and become payable, sell such shares, and notice shall be given to the holder thereof of the Intention of the bank to sell the same, by mailing- such notice in the post offlce to the last known address of such holder, at least thirty days prior to such sale; and upon such sale being made the president, vice-presi- dent, manager or cashier shall execute a transfer of such shares to th* puiTchaseir thereof In the usual transfer book of the bank, which transfer shall vest in such purchaser all the rights In or to such shares which were possessed by the holder thereof, with the same obligation of warranty on his part as If he were the vendor thereof, but without any warranty from the bank or by the officer of the bank executing such transfer. In re Chinic d Union Bank vs. Rattray, 14 Q. L. R. 289 (1888). Under R. S. C, ch. 120, sec. 89. a bank has a lien on the stock held in It by a member of a firm for a debt due to it by such firm. When a debt is due a bank, and the debtor acquires stock in the same, such stock is at once affected by the lien of the bank, and moneys realized by the bank out of such stock may be applied by it to the payment of said debt, in preference to another debt contracted subsequently by the same debtor. Under the common law of the Province of Quebec, a credi- tor claiming against the estate of a joint debtor Is bound to give credit for whatever he may have received for his other joint debtors. 66. Collateral securities may be similarly dealt w^ith.— The stock, bonds, debentures or securities, acquired and held by the bank as collateral security, may, in case of default to pay the debt, for securing which they were so acquired and held, be dealt with, sold and conveyed either in like manner and subject to the same restrictions as are herein provided in respect of stock of the bank on which it has acquired a lien under this Act, or in like manner as and subject to the re- strictions under which a private individual might in like cir- cumstances deal with, sell and convey the same, but without obligation to sell the same within twelve months: 2. Right to do so may br waived.— The right so to deal with and dispose of such stock, bonds, debentures or securities in manner aforesaid may be waived or varied by any agree- ment between the bank and the owner of such stock, bonds, debentures or securities, made at the time at which such debt was incurred, or if the time of payment of such debt has been extended, then by an agreement made at the time of such extension. , 67. Real Estate for occupation.— The bank may acquire and hold real and immovable property for its actual use and occupation and the management of its business, and may sell or dispose of (he same, and acquire other property in its stead for the .same purpose. 68. MortKaees as additional seonrity.— The bank may take, hold and dispose of mortgages and hi/l>othrqiicx upon real or personal, immovable or movable property, by way of addi- tional security for debts contracted to the bank in the course THE BAjSiK act. 551 of its business; and the rights, powers and privileges which the bank is by this Act declared to have or to have had in respect of real or immovable property mortgaged to it, shall be held and possesseri by it in respect of any personal or movable property which is mortgaged or hypothecated to it. Dank of Upper Vaiiada vs. Killaly, 21 U. C. Q. B. 9 (1861). One P., in January, 1860, agreed to build for the orand Trunk Rali way Co. 100 cars of a specified pattern to be delivered in four months and a half from that time on their track at Toronto fiee of charge; the company to pay $825 for each car, payments to be made monthly on the estimate made by a per- son appointed by the company on materials I'urnished and wovU done; "payments to be made to the satisf.icti )n of the Ba.iK of Upper Canada, who are to act as receivers." All but 16 cars were delivered, and these IG, the inspectov of the company iuid approved of, and they were sent to the Suspension Bridge to wait for the springs, which the company wore to furnnh. On the 24th of September, 1860, the bank and the Grand Trunk Railway Co. entered into an agreement reciting ilie ecu tract, and that the bank had made large iidvr.nces on iicroimt of it, and had agreed to lajdvainioe the necessary sum to com- plete it and to acquire the title to the cars. The company then assigned all their Inte'rest in the 'agreement ami oars to the bamk, and the bank leased them back to the company for thr'.^e years at a rate named, with a proviso that on payment ol' iheir debt to the bank the cars should revert to '.he 'oniijiiiiy. Afier ihi.s, P. received monies from the bank on accoumt of the contract Held, that by the agreement the cajrs vested in the comipony before delivery; that the bank were not precluded bv their charter from t.nking .security upon them, and that they were entitled therefore as against an executive creditor of P. Bank of Toronto vs. Prrkins. S S. C. R. 603 (1883)). B.. on the l!)th January. 1876, transferred to the Bank of T. (appellants), by notarial deed, an hypothec on certain real estate in Montreal, made by one C, to him, as collateral se- curity for a note which was discounted by the annellants and the proceeds placed at Tt.'s credit on the same day on which the transfer was mad >. The action was brought by th;^ appt^llants against the insolvent estate of C. to set aside a prior hypothec given by f'., and to establish their priority. ffrhl, (affirming the I'udgment of the Court of Queen's' Bench), that the transfer by B. to the Bank of T. was not given to secure a past debt, but to cover a contemporaneous loan, and was therefore null and void, as being in contravention of the Banking Act, 34 Vic. ch. 5, sec. 40. arniit vs. La lianuuc 'SalionaU', 9 O. R, 411 (188!)). Advances made on a pledge of certain timber limits to the Province of Quobf^c, which pledge i)urported on its face to be "for advances made and to be made," was valid as to ailvances made before the pledge, but that as to the future advancea the pledge of the timber limits was invalid as being In con- travention of 34 Vic, chap. 5, sec 40. liallit/ate vs. Mrrrhants Hank, 5 Man. L. R. 210 (1888). The full .and true consideration fr>r which a bill of sale l3 given must be set out in It with sul)stantial accuracy, otherwise the bill is void. fj. beinir indebted to B.. fMve his note for the amount, which B. discounted at a chartered bank. As security for the d'sconnt. G. exeeuled a. chattel mortgaK-e to the bank. At mntiuity B. took on the note. Afterwards he oroeiired from G. a bill of sale of the (roods. The bill reeltinl the mortgage, and an agreement to sell the eoods for $100 over the mort- gage. The expressed consideration was the premises and $1(M). The *'f>0 was not i)aid or Intended to be ))atd. ffrliJ thit the mortgage was void under the Banking Act, (Sec. 45.) fii re McCuffrvy & La lianquc du Pfupir, R. J. Q., 5 S. C. i:i6 (1S94V An alleged infringement of The Banking Act (r. a., taking \% W ' « ^b2 THE BAWK ACT. security for future advances), though a matter affecting public policy, will not support a contestation of the DuiiK's ciaim unless pleaded and legally provea. UilUm vs. Vommciriiit Hank, 10 Man. L. R. 4G0 (1895). The plaintiff, a married woman, carried on business separ- ately from her husband, and, being largely indebted to numerous creditors and to the defendant bank, ai)i>iled to the bank for an advance. This was agreed to, on tlie p.a.ntiti giving the bank a mortgage on her real estate and stock and all future stock to be acquired during the currency of the mortgage. She also assigned to the bank all her book debts as further security. Ih'ld, (1) that the securities taken were valid under s. 4S of the Banking Act then In force, R. S. C, c. 12i). (2) That the plf.intiff had no eiiuity under the circumstances to compel the bank to perform Its covenant to pay her credi- tors without offering to perform the agreement on her pan, and to pay her d«bt to the bank. (3) That under the circumstances no trust was created by the said covenant of the bank in favor of the creditors referred to therein, such covenant having been intended to refer only to the proceeds of the plaintiff's sales and to deposits and collec- tions of book-debts whl'.e the business was being carried on, and having been given only with a view to enable the plaintitt to keep the business going. 69. Purchase of land under execution, etc— The bank may purchase any lands or real and Immovable property offered for sale under execution, or In Insolvency, or under the order or decree of a court, as belonging to any debtor to the bank, or offered for sale by a mortgagee or other encumbrancer having priority over a mortgage or other Incumbrance held by the bank or offered for sale by the bank under a power of sale given to It for that purpose, in cases In which, under similar circumstances, an Individual could so purchase, without any restriction as to the value of the property which It may so pur- chase, and may acquire a title thereto as any Individual pur- chasing at sheriff's sale, or under a power of sale. In like cir- cumstances, could do, and may take, have, hold and dispose of the same at pleasure. 70. Absolute title may be acquired.— Proviso : Sale of property so acquired— The bank may acquire and hold an ahsohile title in or to a real or immovable property mortgaged to it as security for a debt due or owing to It, either by obtaining a release of the equity of redemption In the mortgaged property, or bi procuring a foreclosure, or by other means whereby, as between Individuals, an equity of redemption can, by law, be barred, and may purchase and acquire any prior rrortgage or charge on such property: Pro- vided always, that no bank shall hold any real or Immovable property, howsoever acquired, except such as Is required for Its own use, for any period exceeding seven years from the date of the acquisition thereof. 71. Title to lands so acquired; power of sale, etc — Nothing ill any charter. Act or law shall be construed as ever having prrnented or ai preventing the bank from acquiring u,x(\ hnlding ,in absolute title to and In any such mortgaged real or imniovnble pronerty. whatever the value thereof is, or from exercising or acting up"n any power of sale con- tained In any mortgage given to It or held by It. authorizing or enabling It to sell or convey away any property so morf- gaged. THE BANK ACT. 653 72. Aa to advances for building ihipa— Bvery bank advancing: money In aid of the building of any ship or vessel shall have the same right of acquiring and holding security upon such ship or vessel, while building and when completed, either by way of mortgage, hypothet. 'Received In store In our warehouse, at . . from sundry parties, 17.900 ijounds batting, to be delivered pur- suant to the order of the Bank of British North America to be endorsed hereon. The said batting is senarate from etc etc." Neither M. & Co., nor the bank, endorsed the receipts. ' IlrUI, that they wore not warehouse receipts under tne statutes referred to. and that the bank could not, therefore, claim the property covered by them. Per Hagerty. C. J., that the transaction of the 2,3rd January was not in substance, thouch in form, a present advance to M. & Co.. but merely a mode adopted of paying iff an already existing debt. WHIiamson vs. Ifhitifl. 22 I.,. C. J. Ifi6 (1877) A warehouse receipt given by a warehouseman when the gcods in qiiestion are not in his possession is null and void. 3/17/0;/ vs. Kerr. 8 S. C. R. 474 (1880). A warehouse receipt given by a wareliouseman for gooda wlilch wei-e not in his aotuaJ possession was not a valid ware- house receipt. Hrhl. that M. never had any actual po.sse«slo^i, control over, or property in the goods in question, so as to make the receipt given by M.. under the circumstances In this case, a N-aliid w«-rehouse receipt within the meaning of the clauses in that behalf in the Banking Act. ■ Hi 1 ■ ' 'J m jH ay I 1 w. 1 f 564 TEE BASK At "J. A. R. 1 (1S93). or the benettt of the crediitors obtained larg-e advances f rosm ,i a third person's promissory Ucrehants Hank vs. Smith, 8 S. C. R. 512 (1884). Uetd, that it Is not necessary to the validity of the claim of a bank under a warehouse receipt given by an owner who is a warehouaeman and wharfln&er, and has the goods In Wa possession, that the receipit sihould reach the hands of the bank by Indorsement. Bank of Uamilton vs. Noye, 9 O. R. 631 (1885). In this case the question of the validity of warehouse re- ceipts was decided. It was held that a party havlmg undertaken to keep certain "grain seijerate aJid Uiisitlngulshable from other grain," and having failed to do so, it became his duty to enable the plaintiff to recover what the receipts ca.Ied for or its equivalent. Stevenson vs. Bank of Commerce, 23 S. C. R. 531 (1892). On an appeail to the Supreme Court, it was held that the finding of the courts below Usee R. J. Q., 1 Q. B 171 (1892) ] ot the fact of tihe bank's knowledge of their debtor's insolvency W£is sustained by the evidence in the case, and tliere had there- fore been a fraudulent preference made, to the banik by the Insoilvenit in transferring over to It all his customers' paper not yet due. Fatt vs. Shortlcv, R. J. Q., 1 S. C. 389 (1892). The transfer of a warehouse receipt to semire a past due Indebtedness Is not In Itself an unlawful act, but suoh iransfor gives the transferee none of the exceptiomaJ rights which would result from a transfer under C. S. C, ch. 54, s. 9. It gives him no right upon the goods reprtsented by the receipt, suoh goods, notwlithstanding the transfer, remaining the property of the transferror free of any lien whatever in ta.vor of the transiferee. Tennant vs. Union Bank, 19 O TIhe plaintiff was the a-sisiigm of a firm of saw miWers who li the defendants on 'the security note endorsed by the firm. To this third person, in pursuance of a previious written agreement to that effect, whereby the firm pletlged to him a quantity of los's on timber limits and the lumber to be manufactured therefrom, the firm gave ware- house receipts on logs describwl as being in certain lakes in transit to the mills, and auiso subsequently in conformnity with am agree^menit with the bank when the advances were made, on luml)€r in the miill yards majnufactured from th« logs pledged, and tlie warehouse receipts were by him endorsed over to the bank. Jleld, that the warehouse receipts were bad as to the logs, the lakes not l)eliig "places' kept by the signers of thr- re- ceipts." Held, further, Burton, J. A., dissenting, that Ihe warehouse receipts were good as to the lumber, and had been validly acquired by the l>ank by endorsemeret from the liolder under sub-section 2 oif section 53 and sectiion 54 of li. S. C, chap. 120. Youtiii vs. Uemers, R. J. Q., 4 Q. B. 364 (lV,i."w. A wood, sialt or coal mercliant, who occupies a wharf for the puriK)ses of hi.'! trade, where he receives and gives delivery of his mercliaawlise, has not the quality to give a receipt of thds merchandise which gives to the prejudice of third t)artles special rlghile which warehouse keejxers can create through their quality of warehouse keepers for the merchandlae of others. :;. When- phevious iioldeu is an agent.— U the previous holtler of such warehouse receipt or bill of lading is the agent of llie owner of the good.^, ware.s and merchandise mentioned there- in the bank shall be vested with all the right and title of th« owner thereoi. subject to his right to have the same re-trans- ferred to him, if the debt, as security for which they are held by the bank, Is paid: 3. iNTERrRETATiON OP "AGENT."— In thIs section the expi"S- sion "agent" means any person Intrusted with the possession of THE BANK iVT. 556 goods, wares or merchandise, or to whom the same are con- BigTiied, or who Is possessed of any bill of lading, retL-ipt, order, or other document used in the course of business as proof of •.he possession or control of goods, wares and merchand.se, or authorizing or purporting to aiitliorlze, either by Indorse- ment or by delivery, the possessor of such document to transfer or receive the goods, wares and mere 'mndise therebv repre- sented; and such iicrson shall be deemed tli'' possessor )f such goods, wares and merchandise, bill of laOiny;, receipt, c" ., or other document as aforesaid, as well if the same are he'd by any person for him or subject to his control as if he Is in actual possession thereof. jI * 74. Loans to wholesale mannf actnrers-— The bank may lend money to any person engaged in business as a wholesale manufacturer of any goods, wares and mercliandisp, upon the security of the goods, wares and merchandise manufactured by him or procured for such manufacture: Hirschfcldt s. The Union Bank, R. J. Q., 7 S. C. 300 (1895). Held, the jiQedgeo of grain pledged as co'iJateral security for advances, is not responsible for coimmLssions on sales made by an agen.t eonployed by the pledger and ax^ting solely umder his dnsit ructions as owner although such pales were made only on suOh terms a^s were .sat is factory to the pledgee. La Banque d'Hovhclaga \ts. Mcrchanta Bank, 10 Man. L.. R. 861 (1895). One A., a whoilesiaile purchaser and shipper of dead stock and the products 'thereof, ol>tai'neove described, and thLs quantity was ticketed with the name of the plaintiff bank, the defendants' tickets l)eing removed. Shortly afterwards A. absconded, and the defendants took possession of this 10,<>00 lbs. of bacon under their securities. Held, that they were entitled to hold it against the plaintiffs. Held, Uuso, tliat, notwithstanding the language of s. T."i of the Kank Act, a bank may take securities of the kdnd provided (or by 8. 74, even for pre-existing debts, as the general pro- visions of s. 68 sihouW not he held to be restricted by the language of s. 75 bo as to prevent it. 2. Loans to certain wholesale purchasers or shippers, —The bank may also lend money to any wliolesa;o purchaser or shipper of products of agriculture, the forest and mine, or the qea, lakes and rivers, or to any wholesale purchaser or shipper of live stock or dead stock, and the products thereof, upon the security of such producls, or of such live stock or dead stock, and the products thereof: i\ %\ 1 u 956 THE BANK ACT. ^'t. KORM OF SECURITY.— Such security may be given by the owner and may be taken In the form set forth in Schedule C to this Act, or to the lilie effect; and by virtue of such security, the bank shall acquire the same rights and powers in respect to the goods, wares and merchandise, stock or pro- ducts covered thereby, as if it had acquired the same by virtue of a warehouse receipt. SCHEDULE C. FORM OF SECURITY UNDER SECTION SEVENTY-FOUR. In consideration of an advance of dollars, made by the (name of ban!;) to A. B., for which the said bank holds the foKowing- bills or notes (dincribi: fully tly bltlx or not(n held, if nnij). the goods, wares and merchandise men- tioned below are hereby assigned to the said bank as security lor the payment, on or before the day of of the said advance, together with interest thereon at the rate of per cent, per annum from Uie day of (or, of the said bills and notes, or renewals thereof, or substitutes therefor, and Interest thereon, or as the case may be. This security is given under the provisions of section Beventy-four of " The Bank Act," and is subject to all the pro- visions of the said Act. The said goods, wares and merchandise are now owned by and are now in possession, and are free from any mortgage, lien or charge thereon (or as the case may be), and are in (iiUue or places trhcre goods are), and are the following: (particular description of goods assigned). Dated at 18 . 75. When such security may be acquired.— The bar''; shall not acquire or hold any warehouse receipt or bill of lading or security undei' the next preceding section to secure the payment of any bill, note or debt, unless such bill, note or debt Is negotiated or contracted at the time of the acquisi- tion thereof by the bank, or upon the written promise or agree- ment that such warehouse rec<;ipt or bill of lading or security would be given to the bank; bu,' such bill, note or debt may be renewed, or the time for the payment thereof extended, with- out afff>ftinpr any suoli security Suter vs. Mcrchanis Hank, 24 Grant's Ch. R. 365 (1876). The judgment In this ca-se turned upon advances maxle to a manufaoturer in goods manufactured remaining unsold without specifying any quanitity. Ifohn-lson vs. Laioie. 22 U C. J. 169 (1878). iV document in the form follnwing was a warefhouse receipt, and not a mere delivery order: "Received from .... on storage, in . . . the fol'owling merchandise, viz.: (300) three hundred tons No. 1 Clyde pig iron, .storage free till opening of navigation." Such warehouse receipt is transferable by Indorsement as collateral security for a debt contracted at the time, in goo-«dg«e having no notice tihart. the pledgor Is riot authorized to pledge, tihe proof of suoh fcnowledgie being on the party Blaming the receipt. An oWilgar.ion con'raoted at tJie time may be made to cover future £wlvaiw;e«, but not past indebtedness. See Watstm vs. Jamieson, 33 L,. C. J. 71 (1889). Pirkina vs. Rosa. 6 Q. L. R. 65 (1880). A quantity of timber was pledged for the payment of a draft, and if tihe draft was not paid, the holder was to sell the wood and place 'the proceeds to the owner's credit. The draft was not paid, the owner of the wood- became insolvent, and the pledgee sold the wood, of which he never had hojd actxial deiivery. Held, that the pledgee could not place the balance of the price of sale after paying ithe draft to the credit of a former indebtedness of the owner. Rosa V s. Molaona Hank, 2 Ltorlon's Q. B. R. 82 (1881). Banks- canTiot acquire a iien on logs under the Banking Act, S4 Viot., chap, o. If the pledge of these logs was made for a previous Indebtedness, or If they were not held by ■virtue of a transfer of a receipt by a cove-keei>er or by the keeper of any wharf or harbour, or other place, or of a speciflcatlon of timber deposited In a cove, wharf or harbour, wareliouse, mifll or other place in Can/ada withlni the meaning of the sadd Act. To acquire a lien under Articles 1745, 1966 and' 1967 of the Civil Code of Lower Canada, there must be an actual delivery or possession of the property pkdge^l or of some document In usie in the onldnary course of business entitling the l>earer thereof to claim possession of such i>roperty. Bank of Hamillon vs. Hhtphird ct al., and Bailey ct al. vs. Bank of Hamilton, 21 O. A. R. 156 (1894). The renewal of a note l.s not a negotiation of it within the meaining of section 75 of the Bank Act, 53 Vlotorla, ohap. 31 (D.), so as to support a security taken at the time of the renewal in substitution for a prevlous'ly existing security. Bank of Hamilton vs. llalstcd. 28 S. C. R. 235 (1897). A bill or note taken by a bank on acquiring a security In form C. to the "Bank Act," 52 Vict., eh. 31, sections 74 and 75, is not "negotiated" at the time of the acquisition thereof within the meaning of the latter section, when the person giving the security, and to whose account the proceeds of the bdll or note are credited, is not at liberty to draw against them except on fulfil'ing certain other conditions. Held by the Supreme Court of Canada, an asslgmment made in the form "C," to the "I^ank Act," as security for a MH or note given in renewal of a past duo bill or note, is not valid as a security under the seventy-fourth section of the "Bank Act." ^, . The judgment of the Court of Appeals for Ontario, which afflrmeeen in the habit of buying hops from time to time, and giving the li-ank his own warehouse receipts or direct pledges for the purpose of raising money to pay for them. Then, at the request of the bank, he constitutefl his bookkeeper his warehouseman, and the latter issued ware- house receipts to the bank in nubstitutlon fcr the securities or receipts theretofore held, there l>ei'ng no further advance made when the new securities were given: Held, that this exchaaige of securities should l>e treated as authorized under sub-.'seotion 2 of section 75 of the Banking Act. The plaintiff asked for a declaration that advances made by the bank upon a mortgage by the insolvent to a third person, and by him assisrned to the bank, were contrary to the Banking Act, and that the property was free from ths mortgage : Held, that no such declaration could l>e made in the ab- sienioe of the mortgagee, who was liable to the bank as en- dorser of a promissory note of the insolvent, collateral to the mortgage. ■ P5o THE BANK ACT. 2. KXCHANan OF WAREHOUSE RECEIPT FOR BILL. OF T.ADIKG AND Dice versa.— The bank may, on shipment of any goods, wares and merchandise for which it holds a warehouse receipt, or se- curity as aforesaid, surrender such receipt or security and receive a bill o lading in exchange therefor, or, on the receipt of any goods, wares and merchandise for which it holds a bill of lading or security, as aforesaid, it may surrender such bill of lading or security, store such goods, wares and merchandisa, and take a warehouse receipt therefor, or nmy ship them, or part of tliem, and take another bill of lading therefor: 3. Penalty for making false statement.— Kvery one is guil- ty of a misdemeanor and liable to imprisonment for a term not exceedinf,- two years wlio wilfully makes any false statement in any warehouse receipt, bill of lading or security, as atore- said: 4. I'FNALTT FOR ALIENATING GOODS SO SECURED.- KVCry one l3 f.ullty of a misdemeanor and liable to imprisonment for a term not exceeding two years, who, havinyr possession oi control of any goods, wares and merchandise covered by any warehouse receipt, bill ol lading or security as aforesaid, and having knowledge of sucli receipt, bill of lading or security, and with- out consent of the bank, in writing and before the advance, iiill, note or d(!bt thereby secured has Been fully paid, wilfully alienates or parts with any such goods, wares, or merchandise, or wilfully withholds frym the bank possession thereof upon demand after default in payn. nt of such advance, bill, note or debt. 76. As to goods manufactured from articles pledged-— If go-jdH, wares and merchandise are manufactured or produced from tli<> goods, wares and merchandise, or any of them, included in or covered by any warehouse receipt, or security given under section seventy-four of this Act, while so covered, the bank holding such warehouse receipt or security shall hold or continue to liold such goods, wares and mer- chandise, during the process and aftei the completion of such manufacturo or production, willi the same right and title and for the same purposes and upon the same conditions as it held or could have licM the original goods, wares and merchandise. Re Ooodfallotr, Ti dcrs Bank vs. Ooodfallow, 19 O. R. 299 (1890). A miller gave a warehouse receipt tO' a bank on soime wlioat "and its pioiluct" stored in his mlTl for advamoes made to him, and died liiisolveu't about two momths after. During this periotl whea^t wais coms'tanlly going out of and fresih wheat coming into the mill. Just before his; death the bank took possession, and foui.d a large shortage in the wheat wiitch had commenced '-'liortly after the receipt had been given, aJKl hrd oontlnued to a greater or less degree all the time. In tiho administraitlon of his ewtate it appeared that, during tlie period of sihortago, some of the Wheat hod heen oonvertee traced, whetthor It be In jlour or In m.oney, it is recoverable by th© batik aa against the deceased and his adTniinlatrators, THE BANK ACT. 559 77. Prior claim of the bank over unpaid vendor-— All advances made on the security of any bill of lading or warehouse receipt, or security given under section seventy-four of this Act, shall give to the bank making such advances a claim for the repayment of such advances on the goods, wares and merchandise therein mentioned, or into whicli they have been converted, prior to and by preference over the claim of any unpaid vendor; but such preference shall not be given over the claim of any unpaid vendor who had a lien upon such goods, wares and merchandise at the time of the acquisi- tion by the bank of such warehouse receipt, bill of lading, >r security, unless the same was acquired without knowledge on the part of the bank of such lien. 78. Sale of goods on non-payment of debt —In the event of tlie non-payment s* maturity of any debt secured by a warehouse receipt or bill of lading, or security given under section seventy-four of this Act, th ■ ink may sell the goods, wares and merchandise mentioned , jln, or so mucli thereof as will suaice to pay buch debt . interest and expenses, returning the overplus. If any, to .i.o person from whom such warehouse receipt, or bill of lading, or security, or the goods, wares and merchandise mentioned therein, as the case may be, were acquired; but such power of sale shall be subject to the following provisions, namely: 2. JNOTiCE TO BE GIVEN BEFORE SALE OP GOODS PLEDGED.— JNO sale without the consent in writing of the owner of any timber, boards, deals, staves, saw logs or other lumber, shall be made under this Act until notice of the time and place of sucli sale has been given by a registered letter, mailed in the post ottice to tlie last known address of the pledger thereof, at least thirty days prior to the sale thereof; and no goods, war'-° aruJ merchandise, other than timber, boards, deals, staves tiaw- logs or other lumber, shall h? sold by tho bank under this Act without the consent of the owner, until notice of the time and place of sale has been given by a registered letter, mailed in the post office to the last known address of the pledger thereof, at least ten days prljr to the sale thereof: 3. Sale by auction after notice.— fveiy such sale of any article mentioned in this section, without the consent of the owner, shall bo made by public auction, after a notice thereof by advertisement, stating the time and place thereof, in at least two newspapers published In or nearest to the place where the sale Is to be made; and if such sale is In the Province of Quebec, then at least one of such now.spapcrs shall be a news- paper published in the English language, and one other such newspaper shall bo a newspaper published In the French lan- guage. 79. Penalty for contravcition— Every bank which vio- lates any provision contained in any of the sections numbered sixty-four to seventy-eight (botu Inclusive) shall Incur for each violation thereof a penalJ^v not exceeding live hundred dollars. '"* ..Jvil ;'i-!^ii:i i'M 1 ; '■'-'^l ■ 1: ' % E '' 660 THE BANK ACT. 80. No penalty for usury.— AVhat interest may lie alloureU.— I'tit! bank shau noi be liable to incur any penally or t'crfeiiure for usury, aiiU may stipulate for, lake, reserve ci exact any rate of Inttrest or Uiscouni not exceeding seven per cent, per annum, and may receive and lake in advance any such rate, but no higli-ir rate of Interest sliall be recoverable by the bank; and the bank may allow any I'ate of intcjrtst whalevei upon money deposited with it. La lianquv de St. Uyacinthc vs. Sanaain, R. J. Q., 2 ®. C. 96 (1892). Baaikji can chai-ge, o^n noties which are presented to Ihera for disco unt, only interest of seven per cent, per annum. The prohibition in this matter, belngr one afte<:tlng public ordiT, tue pi r!rai(l lo a ii^uiK inii-ie.-.i excieu.iitj the rate fixed by law in entitled to receive from the bank the ainounit of the excess, 81. No instrument to be void on account of usury — As to innocer.t holders-— ^No promissory note, bill of ex- ehaii'i-- or other neyoiiable security, discounted by or indorstd or otherwise assigned to the bank, shall be he'd to be void, usurious or tainted by us'iry, as regards sucli bank, or any maker, drawer, acceptor, indorsor, or indorsee thereof, or oilier parly thereto, o>' dona fUlv holder thereof, nor shall any party thereto iie subject to any penalty or furfeiture by reason of any rate of interest taken, silpulaiod or received by such bank, on or v,l'h respect ^o such pi' ii;issory noie, bill of ex- change, or other negotiable security, o" paid or allowed by any parly thereto to another In conipehsaiion for, or in con- sideration of the rate of interest taken or to be taken ihtreon by such bank; but no parly theieto, other tlian the bank, shall be entitled to reco\er or liable to pay more than the lawful rale of interest i:i ^'u i'lovlnce where the suit is brought, nor shall the bank ue entitled to recover a higher rate than seven per cent, j.er arnum, and no innocont htUder of or party to any promissory note, bill of exchange or other negotiable socurily, sluill, in any case bo deprived of any remedy against any parly iherelo, or liable to any penalty or forfeiture, by reason of any usury or offence against the laws of any such I'rovince, respecting inter st, eomniilteml)er, 1SS4, doiiositeii with the defendants at one of their branch officer a sum of money, and received from the Imnk the usuail deposit receipt, at the time sJgning his name on the stub or oounterfoll of the receiljiit for tlie puriiose of I'lialillng tlie Uuik to lilemtlfy him at any t'inve the mom-y miKiil bi' demamh=^l. For the purjKise of safekeeping, plainitlff, being about to pi-oceed to work elisewhere, left the re«'eli)it with on** S. S. Al>out seven moni|ili3 afterwaixls plaintiff rp'lumed, wlien he wn« Informed by a. S. tihat he had withdrawn the mont>y from tlve Imnk, but promised to relutii it. The jiliiintiiff Ix'lng Ignorant of the manner In whloh t'he money hiwl been i>aid out and of his rlarhtfl as agninsit the defendants, took no »tep« whatever offalnst tliem, anul S.S. abSH-ondcd from the country in August, 1885, heavlKv Indebted. In th<' month of l>oicemlM-r following, the iWalntiff ''aving Ikm-u lnform<'d *us to hl« rights ngaiiisi the t)ank, coi..siiMi' moritVi of April following (188<)), the jilolntlff througli another solicitor mndo a demand on tlio Imnk for payment which was i-efused. The demand so nii!id(> wa.s the first notice tlie bunk hud of the fi'iiud will, li liad iKi'ii pfMcti I on them. JlrM, affirming the .ludgment of the Chancery Division (1'' O. R. r.8«), (1) that the plaintiff in entrusting the rwelpt t.» ft. S. wn-1 noit guilty of any act of negligence; (2) tihflt his delay In notifying the defendnnts of the fraud iH>riK>trated on th(>in was not a bncich of any legal duly on hl.s jwirt so «« to ?«top him from rocoverlnp the amount of hte deposit. If It l;J ^;*i Mi ^' 11 !:fe; ! ::iil !i 1(11 Mi 662 TUE UAMi ACT. Hcott vs. The Hunk of Xrw lininnu-ick, 31 N. B. 21 (Vsni). S., a ship-master, deposited $1,000 with a bank Jn 1883, aod received a deposit receipt therefor. lie left the receipt with R., the managing owner of hi» veissei. Soon afterwurde he went 10 .seu ami remained away till July, 18&7. In Deceinl)er, 1884, R. took the receipt 'lo the bank, with the name of S. endorsed on it, and gave tlie receipt to I'le Irank, receiving a deposit receipt for the same amount payalnle to hlmLSclf. 'J his R. gave the i;:ink a.s i-o.latoral security loi- ihe laymeiit cl' lus note for ?1,00() (i.iscounted hy them, and they afterwards applied It in iiayment of the note. On the return of S., K. admltited that he had drawn tlie money anti useay him. At llii.H time, II. owed S. rd.i.'i{\ l.i.-^.ius itie amoui.. m ,/u' de- l>osit receipt, and he gave iS. a 1)111 of exchange for JD^oO and a mortgage for $2,500 oil some properly in which he said he had an interest, payable in one year. S. said notliing to the bank about the matter, bu't went away again, and did not return for two years. R. left the country in November, l.SSS. On the return of S., in July. I.s8!>, lind.ng that ihe liill was cur;iy taken by S. did not include the *],000. The full rourt ordered w trlaJ on tho ground trat the la.st tinding wa.s agains, • ■ : ; iioe (31 N. B., Reps. I'D, ami an appefil i'ront that deeis ,. to the Suiire-me Court was not entertained (21 S. O. K. 30). On the second trial the bank olJtatned a verdict which ■was afttrmeii by the full court. <»n appeal fiom tlie liitter decision llui Supreme Court of Canada on the 21st May, 1894, Ji(/ank autnorized to receive deposits is not bound to see to the execution of any trust, wiiethtir express implded or constructive, to wliicli uliese ueijosits are subject; iliat the receipt furnished Ijy iiie person in whose name tiiese dopoddis are entered is a vailid disonarg'e. KIi,TLKA'S BY THE BANK. 85. Monthly returns to Government— Monthly returns shall be made by the bank to the Alinister of Finance and Receiver General In tlie form set forth in Schedule D to this Act, and shall be made up and sent in within the first fifteen days of each montli, and shall exhibit the condition of the bank on the last juridical day of the month next preceding; and such monthly reiurns shall be signed by the chief account- ant and by the president, or vice-president, or the director oi principal partner then aoting as president, and by the manager, cashier or otiier principal oflioer of the bank at its cMef pla'.-c of business: SCHEDULE D. Return of the liabilities and assets of the bank on the day of , A.D. Capital authorized S Capital subscribed t Capital paid up | Amount of rest or reserve fund $ Rate per cent, of last dividend declared. per cent. LIABILITIES. 1. Notes in circulation If 2. Balance due to Dominion Government, after deilucting advances for credits, pay-lists, etc. 3. Balance due to Provincial Governm' nls. . .. 4. Deposits by the public, payable on demand., 5. Deposits by the public, payable after notice or on a fixed day 6. Tjoans from other banks In Canada, secured 7. Deposits, payable on demand or after notice or on a fixed day, made by other banks in Canada 8. Balances due to otner banks In Canada in dally exchanges 9. Balances due to agencies of the bank, or to othpr banks or aKcnclos in foreign countries 10. Balances due to agencies of the bank, or to otVif-r banks or agencies In the United Klng- I'o'n 11. Liabilities not Included under foregoing heads til m w I ASSETS. 1. Specie 2. Dominion notes. m II ! 564 THE BA^'K ACT. 10. 11. 12. 13. 14. 15. IG. 17. 18. 19. 20, 21. Deposits with Dominion Government for se- curity of note circulation Notes of and clieques on other banks Loans to other banks in Canada, secured.. .. Deposits, payable on demand or after notice or on a tlxed day, made with other banks in Canada Balances due from other banks in Canada in daily exchanges Balances due from agencies of the bank, or from other banks or agencies in foreign countries Balances due from agencies of the bank, or from other banks or agencies in the United Kingdom Dominion Government debentures or stocks Canadian municipal securities, and British, Provincial, or foreign, or colonial public se- curities (other than Dominion) Canadian, British and other railway securities Call loans on bonds and stocks Current loans Doans 1j the "^."vernment jf Canada Loans to P'"o\.""ial Governments Overdue debts Real estate, the property of the bank (other than the bank premises) Mortgages on real estate sold by the bank .. Bank premises Other assets not included under the foregoing heads Aggregate amount of loans to directors, and firms of which they are partners, $ Average amount of specie held during the month, $ Average amount of Dominion Notes held during the month, S Greatest amount ot notes In circulation at any time during the month, $ I d(!clare that tho above return has been prepared under my directions and is correct according to the books of the hank. K. P., Chief Accoiinfant. Wp declare that the foregoing return is marti' up from the books of the bank, and that to the best of our knowledge and belief it Is correct, and shows truly and clearly the financial position of the bank: and we further declare that the hank has never, at any time during the period to which th(> Raid re- turn relates, held less than forty per cent, of its cash reserves In Dominion notes. (I'laci) this day of A. B„ President C D., General Manager. THE BANK ACT. 666 •:i^ 2. Penalty for not making up monthly return In due time.— Every bank which neglects to make up and send in, as ••foresaid, any monthly return required by this section within the time hereby limited, shall incur a penalty of fifty dollars for each and every day after the expiration of such time during which the bank neglects so to make up and send in such r'i- turn; and the date upon which it appears by the post ofttce stamp or mark upon the envelope or wrapper enclosing such return for transmission to the Minister of Finance and Re- ceiver General, that the same was deposited in the post otllce, shall be taken pvinm facie, for' the purposes of this section, to be the date upon which such return was made up and sent in. 86. Special returns may be called for.— The Minister of Finance and Iteceiver General may also call for special re- turns from any bank, whenever, in his judgment, they are necessary to afford a full and complete knowledge of its con- dition: 2. i'ENAI/l'Y FOH NOT MAKING SUCH RETURN IN DUE TIME.— BUCh special returns shall be made and signed in the manner and by the persons specified in the next preceding section, and every bank wliich neglects to make and send in any such special return within thirty days from the date of the demand therefor by the Minister of Finance and Receiver Genaid. etc. — Proviso.- The bank shall, wiiliiu twenty days i^ i\ ;i^'' 566 THE BANK ACT. after the close of each calendar year, transmit or deliver to the Minister of Finance and Receiver General, to be by him laid before I'arliament, a return of all dividends which have remained unpaid for more than five years, and also of all amounts or balances in respect to which no transactions have taken place or upon which no interest has been paid during the five years prior to the date of such return: Provided always, that in case of moneys deposited for a fix< d period, the period of five years above referred to shall be r. ckoncd from the date of the termination of such fixed period: 2. Details ok return.— FuRTHKFi details.— auch return shall be signed In the manner required for the monthly returns under section eighty-iive of this Act, and shall set forth the name of each shareholder or creditor, his last known address, the amount due, the agency of the ut^iik at which the last trans- action took place, and the date thereof; and if such jhare- holder or creditor is known to the bank to b*- di ad, such return Bhall show the names and addresses of his legal representatives so far as known to the bank: H. I'iaNAI.'I'r pnii NOT MAKING annOaj^ riETUBN.— Every bank whlcli neglects (n tranSinit or delivir to the Minister of Finant'o an ShP// lni:Ut a penalty o£ fifty dollars for each and every clay during WMPP siich neglrct continues: 1. IJISI'OSAI, OF UNCLAIMpp MONEYS.— ^'ftpVISO.—jPflOVISO.fiT. If, In the event of the windlhi' n{) hi ih' f n i- -: o^ the bank \i'.f, (Jf O't^ejf In inBiijveiiey, holders or tie r under any general wlm aloi', eitiier (( Doslfors, remain iinclaimed for the period of 1/uep wlac, any Jfioiii.'ys payable by the liqnidaloi, eitiier (i> ^UqrG- ■posifors, remain iinclaime<; years from the date of suspefis/t^^ of Jjaymcnt by th<' bank, Of from the commencement of the jvinding up of such busl- Hfess, or until the final winding up of such business, if such vake^ ij.-ico before the expiration of the said three years, such moneys and all interest thereon shall, notwithslatullng any statute of limitations or other Act relating to prescription, be paid to the Mlnlsti r of Finance and Receiver Ge.ieral, to be held h.\- lilm .subject lo all rigliltiil claims on behalf of any person other than the bank; and in case a claim to any moneys so paid as aforesaid is thereafter establislied to the satis- faction of the Treasury Board, the Governor in Council shall, on the report of the Treasury Board, direct payment thereof to be made to the person entitled thereto, together with in- terest fill the prineipal sum thereof at the rate of three per cent, per annum for a period not exceeding six yt ars from the date of payment thereof to the said Minister of Finance and Receiver CJeneral as aforesaid; Provided, however, that no »uch interest shall be paid or payable on such principal sum, unless interest thereon was payable by the bank paying the same to the said Minister of Finance and Receiver Gimeral: Provided also, that on payment to the Minister of Finance and Receiver General as herein piovided, the bank and its assets sbffT' be hebl to be discharged from further liability for the anrvovnte so paid. iit Till-: li.lXK ACT. 567 111 \0 0. KEQfinGllENT3 AS TO OUTaTANDlMCi NOTES IN CASE OF IN- SOLVENCY.— I pOU ihe wiiiilintj-up of a bank in Insolvtucy or under any general winUiiig-Ui< Act, or otherwise, the assignees, liquidators, directors or oilitr offlcials in charge of such w.nd- ing-up, shall, before the lii.al d.stributii n of the usseis, or within ihree years from the commencement of th.- susi)insion of pajnunt l.y tlie hank, wliichever shall lirsi happen, pay over to the Minister of Finance and Receiver General a sum out of the assets of the bank equal lo the amount then out- standing of the notes intended for circulati'.n issued by the bank; and, upon such payment being madi- the bank and Its assets sliall lie rtlievtd from all further liability in respect of such outstanding notes. The sum so paid shall be held by the Miiiistir of I'^inance and Rsceivtr General and applied for the purpose of rfdeeming, wlienever presen ed, such ou. stand- ing notes, without interest. M m $ 1 1*1 INSOLVENCY. I If: 89. Lialiility of sliareholdsr.ri in caaa of insuffi- ciency of assets-- In tlie event of th ■ property and assets of the l)anlc l,oing insutfi<'ient to pay its debts and liabilities, each shareliolder of the liank shall I1-? Halilo for the deficiency to an an oiint equal to the par value of tlie shares held by him, in aildition to any amount not paid up on sucli shares. Court vs. WdddrJl. 4 I.. N. 78 (IS^^Sl). A. fjlreetor of a bank who ha.s drawn divd Omipot <'S''np»- double liiabi'.ity on account ct pi/-'. 'Hig the l.s'sue of the preferen M J.. L A in (■ lati I 7. a Ooiirt vs. Wiiddrll. 4 I.. N. 78 (If^m. ' -• ■ '• ddent's on his stock f the absence of a entlal stock. III. )?, Jl. I.. fd9 (1SS2). ii ^;ir,u ei,() dec of a bank acquires debts of the bank su.spension of the I ank, he cannot offer these debts ■^!iP.»i of eall.s on his I'milde j'aliil ty made l)v tho r iM v., e. h. I: \< \l(i)lll(l I! VVIi'-T fiflei^ th( lal ("till iinO. Iiiitrirt .•^uriiigs Bank, r/y franwferred to a .'^itvings bank, :■<■.' he,:d l)v It latli-r as col- -.■elion IS of 34 N'iet,. cha.p. ...ipiiit liaiik Mhares or hold them A'„ Troni), n S. C. R. 4nr, (ISRS). mpany, who is also a ■ Urn l>y the eninpany ling-up proceedings exceivt as plens As a lonihtion r.r fir r L-b(s and pi'vdegrs connrr'd by ih'a Act r)r by any Aei ' ndn or any enactment or law relating to prescription: m i I ;■ 568 THE BANK ACT. 2. Ketroaction.— Tills section applies to mont\ s heretofore or hereafter deposited, and to dividends heretofore or hereafter declared. 91. Suspension for ninety days to constitute in- solvency-— Any suspension by the bank of jjaymeui of any of its liabilities as they accrue, in specie or Dominion notes, shall, if it continues for ninety days, consecuth . .:, . or at Intervals within twelve consecutive months, constitute the bank insolvent and operate a forfeiture of its charter or Act of incorporation, so far as regards all further banking opera- tions: and the charter or Act of incorporation shall renain in force only for the purpose of enabling the directors or other lawful authority to make and enforce the calls mentioned in the next following sections of this Act and to wind up its buslress. firnrcal vs. Jlxchangc Bank, M. L. R., 2 S. O. 107 (1884). The c^edit^r of im incorporated bank wli h has suspended Its pajymcnts can, even l>efoT'e t'he expiration of 90 days from fhe date of said suspension, sue the Imnk and obtain judgment for the amount of his claim. Exchunijc ISniik v.-;. Hall, M. L. R., 2 Q. B. 409 (1886). The reisjioiideriit having fund® to his credit in a l>ank which had suspeiTlcd i>ayme'nt, aid the respective amounts by the bank by credits or otherwise. 7/(7(/, that tihe bank had no action agaiinst respondent to recover the amount of the cheque's s^o paid, their recourse, if any, being against the parties' to whom they had paid the money. Kxrh(inr/e Bank vs. Montreal Coffee House Association, M. I.i. R.. 2 S. C. 141 (1886). The provision's of 45 Vict., ch'ai). 23, override any rule as' to insolvency oomtained in the Civil Code; therefore only payments m^ade by an inisi)l\en't corporation within thirty days before thi eommencem,ent of the winding-up order, /.«., the date of the order miatle by the court for the winding-up, '-an be re- covered by the liquidators. In any case, a deposit of money made with a bunk on the day and at the very hour when it suspended p'aymeiuis may lawfully he returned to the depositor. Ontario Bank vs. CJiiiplin, 20 S. C. H. 152 (1S91). A person whO' makes a deposM with a l>ank after its sus- pension, the deposit cniTsisting of cheques of third p'arties drawn on and a^ceiitcd l)y the bank in e day on which such call shall tiu payable, and any nuiiibir of such calls may be made by one resolution; any such call shall not exceed twenty per cent, on eacli share; and payn. .'nt of such calls may be enforced In like manner as payment of calls on unpaid stotk may be enforced; and the first of such calls may be made within ten days after the expiration of the said three months; 3. JliKFUSAL TO MAKE CALLS UNDElt THIS SECTION A MISDE- MEANOR.— Kvery director who refuses to make or enforce, or to concur in making or enforcing any call under (his section, is guilty of a misdemeanor, and liable to imprisonment for any term not exceeding two years, and shall furth< r be per- sonally responsible for any damages suffered by such default. 93. Calls under \pinding-np Act.— in the event of pro- ceedings being taken under any general or special wiiiding-up Act, in con.sequence of the insolvency of the bank, tlie said calls shall be made in the manner prescribed for the making of sucli ':'alls In sucli g< n. ral or special winding-up Act. 94. Forfeiture tor non-payment —Any failure on the part of any shareholder liatde to any such call to pay the same when due, shall operate a forfeiture by such shareholder of all claim in or to any part of the assets of the bank.— such call and any further call thereafter being nevertheless recoverable from hitn as if no such forfeiture had been incurred. 95. Liability of directors not diminished— Nothing in thi .six sections next preceding contained sliall be constru 'd to alu'r or diminish the additional liabilitie- of the directors as hereinbefore mentioned and declared. 96. Liability of shareholders iirho h tve transferred their stock— I'ersons who, ha\ing been stiareholders of the bank, have only transferred their shares, or any of them, io others, or registered the transfer thereof within s'xty <\i.'S before the commencement of !lie suspension of payment by the bank, and persons whose subscriptions to the stock of the bank have been ( aiicellnl in manner hereinbefore pro- vided witliin the said jjeriod of sixty days before the com- mencement of the suspension of payment by the bank, shall be liable to all calls on the shares held or subscrilied for by them, as if they held such shares at the time of such suspen- sion of payment, saving their recourse against those by whom such shares were then actually held. Tn re Central lianlc, Ilnine's Case, 16 O. A. R. 237 (18S9). Xo sipecial directions 'i*! to the transfP'r "it" sl-are.s had been foi-nvallv adonted by the directors of tlie bank, but the trans- fer lwK)k l-iad been nrepared for and adiat>te'.ank, subjeot by a margina.'. no^te initialled liy C, to the ordei- of a broker, and subject l>y subsequent marglniail note, initialed by the l-iroker. to the order of R. B. siirned nn oeeeptance of the .qhai'^s immeiUntely under the trans'fer !• Wank signp'd by C ii.nd was enteted in the ' eol-s of the bank as the holder of the .ciJvnrH-!, the 'ntermediate "-anisifers to and from the broker l>elne- onMttP<1. The trr-nKrer to B. ami acceptan.^e by him took ii'ace wlthhi a month of the time of the suaipension. 15 'I II ■'i1 » t^. B'lf \i i 5| I \ HlfM %. ^oTi- IMAGE EVALUATION TEST TARGET (MT-3) /. ^ .^A- ^ # m< m. m 1.0 I.I 2.2 l^|2^ 125 ■ 50 11.25 III 1.4 6" 118 1.6 III V] <%. n J!> ^ A %■ ^ V Hiotographic Sciences Corporation 1 ^ :\ \ 23 WIST MAIN STRUT WnSTM.N.Y. MStO (716) •73-4503 m^i 570 THE BA\K ACT. ilvld, that this transfer and acoeptanoo were a sufficient comii.>liaii.:'e with, or at least n(,t in any way a violation of the statu.'ory provus.onis, anti that B, liecame the ieeal holder of the s'harevs, and was liable as a contributory. Seciions 70 and 77 of It. S. C, eh. 20, muiit be read together, and make liable as contributorles all tho\se, who ho.ank, or who have held shares at any time wJtliin onu month before uie susi>ensiOTi. Itc Uintrul Bank, IJtndcrson's Case, 17 O. R. 110 (1S89J. Held, that 11., who had acquired ceriain shares ui a bank within one month before the su-spension of the bank, was rltrhitly on the list Oi ionl-il)Uioiits as to Uiese slvares, but that his transferrors sliould also be placed ui>on it. Kc Ventral Bank vs. JJome Huvinya and Loan to.' a case, 18 O. A. K. 4i>y (l!^yl). After a winding-up order has been made it is too late for hokit!rs of shares, entered as such in the books it the bunk to escape llabili'ty by showing irregularities 'U tran-sfera to more or less remote predecessors in title. A loan company whicii advance.'-, money on the security of shares, which, are trmusferred to ii. and acceincu by it, m the ordinary absolute •'onn, cannot tscajjo Mabiliiy on the ground that i't is merely ;, .rusiee lor the borrower. Jic t'vntrul Jtunk v.s. llow.), 19 O. II. 7 (ISlt^). A minor's fatlier signed her name to a stock subscription book of a bank, paid the calls and receiveil the divir Tiii'm, ISSi, of the Court el' lii.een's Hencli, at Momlrtiii', with liavlng, in cotiicurreiici' with oii«' (.'ralg, the presidenit of the Itonk. securttit>Ushed and cir- culated by th(^ authority oi the ilireolori or a goiieiral meeting. Olrec'tors of a ccnipany a.re pp-soiially liable for iiLiun' ciau.s<'d to third iiartles by f^a'so repivst triatlons contaiin'il in a report of the directors to the aharoholdors. tmt the injury must bn immedlatn and no't the rt-indlo cniu'eqinrticc of the represeiit.'ttion, and It must apjn ar thai the false rri sidoiit of the Cdiisolidiaie.l Bank of Canada, wfl." indU ted for UKiklng a wilfully false and tlve roturn under lit Vict., chap. r>, section iVJ, rotating to l)ank, return i-onslsti-ig in the im- lU'op"!' clasisitloiatloti of t Im> a.sisiois a.nd ll.tbilltlos, 4ind was tiiol (iii'd conviotod on the 2/lth fK-iolu^r, I'.TO. f>n an appeal to tlic Court of Cjueen's Hrnch for th<- Province of Quebec, Oio vr^rdlct w"ais (|iKisilii' or more news- papers published at the place where the head oftlce of the ">ank is situate, ami in the Cuiiinhi U(K tt-. DOMINION GOVIORNMENT CHEQUES. 103. Government oheqnss to he paid at par. -The bank siKill not cliai'nc any liisi'dunt or eomniissloii for cashing any nllifial clii'iiue of the Government of Canada, or of any depart- nu'Ul thereof, whether drawn on Itself or on another bank. COMMENCEMENT OF ACT AND REPEAL. 104. Coninienoeutent of this Act.— Repeal of R.S.C., c. 120andof 51 v.. c. 27 and 50-51V., c. 47 -Saving clause.— Tills Act sluiU come into force on the tlr.st day of July, THE BANK ACT. 5n In the year one thousand eight hundred and ninety-one; and from that day chapter one hundred and twenty of the Revised Statutes of Canada, Intituled "An Art resprctiug Banks and Hanking," the Act passed in the fifty-first year of Her Majesty's reign, chapter twenty-seven, in amendment thereof, the Act passed in the session held in the thirty-third year of Her Majesty's reign, chapte"- twelve, intituled "An Act to re- move rrrtnin rrntrlctionH icith rrsprvt to thr issue of hank notes in Nora Scotia," the Act passed in the session held in the fiftieth and fifty-first years of Her Majesty's reign, chapter forty-seven, intituled ".l;i Act irspfclin;/ the defacing of eoun- tcrf'it notes, and the use of imitations of notes," and chapter one hundred and twenty of the Revised Statutes of New Bruns- wick, "Of Hanking," and the Act passed by the Ijegislature of the Province of New Brunswick in the nineteenth year of Her Majesty's reign, chapter forty-seven. Intituled " An Act to crplain chaplir lift. Tittc XXXf. of the Rrisfd Sto'utis, ' Of flanking,' " shall lie repealed, except as to rights thereto- fore acquired or liahilltiea Incurred in regard to any m.itter or thing done or contract or agreement made or entered into or offences committed under the said chapters or Acts, and noth- ing in this Act shall affect any action or proceedings then pending under the said chapter or Acts then repealed, but the same shall be decided as if such chapters and Acts had not been repealed. AN ACT TO AMEND THK BANK ACTT. fi2-f.3 Vict., chap. II. (Assented to 10th Jnlit, 1809.) Her Majesty, by and with the aidvlce and consent of the Seiuate and House of CommorifS of Ca-mvda, emiaicit.s as follows:— 1. Note issue at asenoy in British possession other than Canada.— Notwithstanding the provisions of section 51 of Tho Bank Aot, any txa/nk to which tlisut Act applies may Issue and rc-lssue, at any office or agvncy of the Ixink ir. any British colony or possession other than Canada, notis of the bank payable to bearer on di^mand and lnten<1eh stim, provlde^l the Issue or pe-IsBi;e of such notea is not forbidden by the laws of such colony or possessilon. 2. Redemption.— The notes so Issuer' shaJl be redeemable at par at any office or agency of the bnnk iti the colony or poosesslon In which they aire issued for circulation, and not elsewhere, except as hetrelnafter specially i>rovl(leayable and redeemable at the par ^•lalue thereof (that is to way, at four tiollars and eig-hty-six and two-thirds cents per pound sterling) in the same manner as notes of the l)ank Issued in Cianada are payable and redeemable; providt'd always that r,o notes ij-isued for circulation In a British colony or posi»pi=isilon othfr than Can- ada shall I'e re-issued in Canada, and that nothing heroin shall be construed er pouml sterling, form part of the total amount of the notes in circula- tion within the meaning of section 51 of The Bank Act, and. except as herein otlierwlse speoialiy provided, shalU be subject to all the provisions of The Biunk Act; hut nothing herein contained shall enable the Ixink to increase the toital amount of its notes in ^circulation in Canada and elsewhere beyond the limit fixed by the said section 51 of The Bank Act. index to Bank Act, [Tha rffi:raicvn arc the nerfioiis of the Act.) Act— Short title of, 1. Application of, 3. Commencement and repeai of, 1(H. Act of Incorporation— What ehaJIl be declared in, 9. FoiTn of, 9. Aocounitant— Monthly return shall be signed by Chief, Sa. Declai-ation to Ix' m*ide as to monthly return by Chief, 85. Advertisement— Not to be Issued in the form of a note, G3. Agency— Bank may receive agency fees, 83. Agent— Interpretation oi, 73. Allotment of Stock, 27. Aniounit and denomination of Iwmk noti's. 51. Annual sitatement and inspection — 45. Of dividends remr'niing unpaid, 88. Annual return— Penalty for not making. SS. Authentication of declaration of transmission of shares, 39. Assets— Notes to bo first charge of, 53. li'ablllty for i>enallles in case of insolvency shaJl not fonn charge upon, until other liabilities paid, 53. I\Di:.\ Tit li.WK ALT. '}75 Baak— A public corporation. Accounts of a bank in liquidation. Branches and. agencies of, Business and powers of, Definition of, 2. Conditions previous to commenciiig business by new, 14. Entitled to hold good.« manufactured from articles pledged, 76. Has prior claim o%er unpaJd vendor for advances made on security of bill of lading, warehouse receipt or .se- rity, 77. General powers of (H. IiDsolveinicy of, t9, 91. May acquire real estate for occupation, 67. May take mortgages by way of additional security for detits contiv-cted to the bank, 68. May purchase land be'.onging to delator of bank uiuler execution, 69. May ac(iuire absolute title to property mortgaged to it, 70. May make advances for building ships, 64. May acquire security for advances made for building ships, 72. May take warehouse receipts as coUateaial stxsurity, 73. May open branches, agencies and nfllces, 64. May t UK-ase in and carry on businies.s as dealer in gold and silver coin and bullion, 64. May ills of ♦■xclianfo, promissory notes and other negotiable secur- ities, etc., 64. May sell goods secured by warehouse receipt, bill of ladling, or security, on non-i>ayment of debt, 78. Must give notice before sale of goods ple*lged, 78. May sell goods by auction after notice, 78. May exact and stipulate for iiuereisi cx 7 iier ot'iit. per annum, SO. May allow any raite of Intere.st whatever ui>on money deposited, 80. May receive oolleotlon fees, 82. May receive agency fees, 83. May receive deposits to the amount of ^oOO.OO from per- sons unable to contract, 84. May enprage in and carry on such Imsincss generally as appertains to the bu.slnoiss of banking, 64. May not transiact certain business, 64. May exchange wareihouse rt for Villi of lojdlng, and vice versa, 75. May s«ill sitock, lx>nds. debemtures or .securltie.s acquired as collateral Fecurlty, 06. May lend money to wholesale manufacturers upon »ecur- Ity of goods, etc., manufactureii or procured by him, 74. May lend money to whole«sile purchasers or shippers upon security of products, 74. Not bound to see to trusts, 84. '^; 'HSl 1 ■(, 1? 1 '^l^ • 1 676 IXDEX TO BANK ACT. Kot bound to see ito trusts in rekbtloin to deposits, 84. Not liable to euny penalty for usury, 80. Shall transmit annual statement of dividemls remaining unpaid, 88. Shall not hold any real estate except such as is required for Its own use for any period exce>eding seven years, Tu. Shall not acquire warehouse receipt, etc., to eecuie pay- ment of any bill not negotiated at tiimo, T5. Shall not Issue notes or commence business of liankilng until oertUicate obtained from Treasury Board, 14. ©hall not, either directly or indirectly, deal in, buying and selling, etc., of goods, wares and merchandise, 64. Shall not pledge, assign or hypothecate its notes, 52. Shall not, either dlreotly or indirectly, engage or be en- gaged in any trade or business whatsoever, 84. Siiall not, either directly or indirectly, purchaise, deal in, lend money or make advances upon security or purchase of any of Its own or any other bank's capital stock, 64. Shall not lend money, make advances on security, mort- gage or hypothecation of any land, &hip«, or upon the security of any goods, etc., 64. To what banks the Act applies. 3. To make monthly returns to Government. 85. To hav^ lien on debtor's shares, 65. Unauthorized use of titae bank, etc., lOO. Bank Manager— Power and autiiority of, Banks whose charters continued by Act, 8. Existing, to make deposits with Minister of Finance equal to 5 per cent, of note circulation, B4. Bill of Lading— Bank has prior claim over unpaid vendor for advances made on security of, 77. Dennltion of, ?. May t>e exchanged fOr ware^house receipt and vice versa, 73. May be taken as collatercil security by bank, 73. Penalty for making false statemenit In, 75. Penalty for alienating gocds covered by, 75. Provision when previovis holder of bill of lading is the agent of owner of goods, 73. Board of Directors— See Directors. Bonds— How and by Whom to be signed, 58. Power of signing may be deputed to officer, 58. Books of Subscription. 29. British Columbia— Provision of Act applying to Bank of, 6. British North America— Provision of Act appJylng to Bank of, 6. Business— Certain business may not be transacted by bank, 64. And powers of bank, 64. By-law for Increase of c.ipltaJl stock, 26. For reduction of capital stock, 28. Calls— After suspenurion of bank, 92. Effect of call made by directops. one of whom was not legally a director. Forfeiture for non-payment of, 94. INDEX TO BASK ACT. 677 How calla after suspension of bank are made and en- forced, i)2. Must be paid before voting, 23. Refusal by director afitr buspension of banli lo make, 92. Under Winding-up Act, 93. Such loss on calls to be mentioned In next return made by bank, 48. CaJIs on Shares, 31. Forfeiture of shares for non-payment of, 33. Recovery of, 32, 34. Sale and iianster of shares in' such cases, 33. Time of and notice, 31. Call of iiirectors as lo payment of shares, 31. Cancellation of subscrli)tions on shares, hi). Capital Siock and siiart's— UeUucUoii oi, i». Increase of, and requirements, 26. ()f baJik.s after being inuori>orai(xl to be not les.=! than 5500,000. Capital lost to be made up by calls ii[K)n shareholders to amount equivalent to loss, 48. Casting vole of president, presiding director, 21. Chairman at meeting of sharehoiuers has. In oa»e of the, 25. Certificate to be given by Treasury Beard, il. Chart :'rs— Form of, 4. Of bank coniinufd by Act lo 1st July. 1901. Charter— Application for torleiiure of a bank's, Chief office of Hunk of B. N. A.. 7. (;f Hank of IJrltish Columbia, 7. Chairman at meeting of shareho.ders has casting vote, 26. Clrcul.ition— Form of circulation redemption funo, ui. Penalties for exte-slve, 51. Circulation Redemption Fund lo bear interest, 54. Certlticate— Director, provisional dlrectoi', etc., issuing, etc., notes of bank, etc., before obtaining-, ahall be guilty anks, 64. To be returned upon isBue of certificate, 17. Deposits to the extent of $500, may be received from persons unable to contract, 84. Banli not bound to see to triist in relation to such, 84. Directors— Election of, 13, 19. (^ Qualiflcation of, 19. Powers of, 19. Majority of directors to be British subjects, 19. Meeting of, 21. Notice of election of, 19. Powers of ddreotors to make by-laws touching, (a) Management and disposal of stock from affairs and concerns of bank, 22. (6) Touching duties and conduct of officers, clerks, aaid servants employed by bank, and of such other matters as appertaJn to the business of bank, 22. Number of, to be not less than five, nor more than ten, 18. Notice to be given of paymenit of dividend by, 47. Cannot pass by-laws fixing date of aninuaJ meeting- of sihareholders for election of diirectors. Provisional, to be not less than five, nor more than ten, 11. ProvlsionjaJ, to hoad office until directors are elected by subscribers of stock. U. May appoint directors, etc., for carrying on busineiss of bark, 23. To bs elected by shareholders, 19. May appoint director or directors for any branch of bank, 23. Removal of, 24. Casting vote of president, presiding dUrector, 21. Electioji to take pla»^e at chief offleo of l..:'ik, in. Powers of directors to require cashieir, officer, to give bond, 23. Quorum of, not liess than t/hree, 18. May call special general meeting of shareholders, 24. Four weeks' notice to l>e given by directors of meetlne; of S'harehollder.tion of directors, 19. Tnepectlon of books by. 4fi. Persons to number authorized to be olected having greatost number of votes at fU'cMon sIim'I he, 1(1. Bhall declare quarterly or half-yeerly divlilcnds, 47. Mav make calls on shares. Hi. Provision in case of equa/llty of votes, 19. Election by ballot of president and vice-prf>s.ldent, 10. Vacancies' in Board of Directors to he filled in mantirr provided by by-law. 19. Elected at first meeting of Rul>scribeirs, shall hoUl office untU next annual general meetimg, 13. Issuing, ettc, no^es of l>ank, etc., 'before obtaining certi- ficate sihall be guillty of offence, 14. Provlsiom for filling vaicancies in Boairil of. 19. Provisioin in cawe of failure of election of. 20. In oa.sie of suspension continuing for three months aftei- the 90 days sihelfl make rails on shareholders, 92. L\/>t:X TO It.Wh Avr. j79 Refusing to make call under sec. 92, guilty of rai»d«- meanour, 92. LaablHty of directors not diminished, 95. Giving undue prefertnce guilty of misdemeanour, &T. Making false sitatement in return gul.ty of misdemea- nour, 09. l>;spo6al of aanount deposited with Minister of Unance, 17. Dispocs.ai of unclaimed moneys, 88. Discounts or loans made to directors or any one firm, person, siiarehioildfers or corjwrations, 18. DUidend— 17. Annual wlatement of dlviden'Js remaining unpaid, SS. Limited unless tliere is a certain reserve, -19. Not to impair capital, 48. t Dominion Notes— Supply of, 50. Pour i>er cent, of caish reserves to be held in, 50. Dominion Parliament— Powers of. Double liability eJause, 89. Ejection— Ballotting of llleigaJl vote* in fiiVDr of election of director does not per so annul his election, Of directors, 13, 111. Of president, vioe-presldent, etc.. Execution— Purchiasie of liandB under, 69. Kxt cutors not pt>rsonai'y Ii:il)lt'. 44 IC\ loni'f miiy be receivi'd as to transmJaslOin of shares other- wise than by transfer, :{it. • ' False statement in returns, 99. I'^om of Act of ln<'ori)oratiim, 9. f-'ovm of charters, 4. Forfeiture of shares for non-payment of calls, 33. Formation of Circu'.iaition. Redemption Fi.nd, 54. Fc.rm of stourity imtler stc, '14, V4. I rjo^Tds, Wajres and Merchiandlsie— Deflnltlon nf, 2. Goviemiment— Dominion Government cheques to be paid at par, 103. Incorporation- What »halJ l>e d«clared in Act of. 0. Form of Act of, !i. And orar.Tnlzatlon of banks, 0. | In-' ea.se of capital .s.tock, 2G. Requires approval of 'i"ro isiiry Hoard. 2<1. Intereat- Bank miay take any rate of Interest not ezoeedtns 7 per cent, per amium, 80. Bank may allow any rate of Interest whatever upon moneys depo^ite*! with it, SO. fi80 J\nh'.\ TO n.iXK ACT. Internal reeulations, l-i. Insolvency— Requirements as to outstanding notes in ciuso of, Si. Ot bank, S9. 91. Suspension for 90 days constitutes, 91. InAtrprt'iation ol' axeiit, 7> Is.iile ui notes, 51. Inspection of boolcs by directors, 46. Joint holders of shares, 25. Legislation as to reduction of civiital slock. 2S. Liability for penaKles in case of insolvency does not form a charge upon assets until all other liablities are paiJ, 5o. Of shareholders in case of insuniciLncy of as.sets, 89. Of sl.areholders who have transferred their stock wiihin uiJ days before commencement of suspension of payinent of bank, 96. LUnli to leauclioin of r.iMltiil si )ck, 28. Limitailion as lo time that bank ca-n hold real estate, TO. Lists of t^uIl^^f<■Is lo be kept, 3«. LoaoiiS to who esaile manufacturers, 74. To whole-vale purchasers or shdpi>ers, 74. M Bfajority of shareholdi rs t) detfrmine, 25. 1 ajority cf directors lo lie British s;ibjecLs, 19. Manager— Liability of tank for cheques fraudulently initialled as accepted by, Monthly returns lo Government to he signed by, 85. iDeclaratiion to be made ais to monthly return by, S5. Manufactures— Definition of, 2 Manufaeiurers — Loans to wholesale, 74. Mfjking I'alse sslatenient in returns, 99. Maitters lo be provided f^i' in special Aot, Merclhants Bank of P. E. I.— Provision us to, 8. M«tbod of tilling vacancy In the Board of Directors, V.K Minister of Finiance and Receiver-General may entor"; pay- ment of any sum due find i ayable by any bai.U u;; ler sec. ri, Mi»rtgagCB— Bank may take as additional security, 68. N Kote Issue— 51. At agency in Drllish poss-cigislrns other than Cano.da, 1. Redeimp'tion of not^s so issued, 2. Redemption of notes so Issued if agency la abolished, 3. Proviso 'as to isipue in Canada, 3. ' Total amounit of circulation of notes «o issued, 4. Of Bank of British Nonth America, 51. IXDHX TO BA\K ACT. 681 Nc*e*— Banks may Issue aiid re-Issue, 51. OouiiLeifelt, ^j2. Of beoik to be payable at par througrliout Canadia, S. Redemption of, 56. Issued by b^'jiks niiai.i not be less Khan $5.00, or for any sum not a mullijx'e of %t\, 51. Of bank payable at chief place of buslne.sg. uK. Total amount of, of bank at any t me not to exiwe* unimpaired paid-up capital, 51. Torn or defaced, 57. Penalties for excessive olrfculation of, 51. Pledging of, prohibited, 52. PeoMilty for pltdgln«r of, 52. Penalty for unauthorized fsssuc cf i otis lor c rculation, ML How and by whom to tie .si^cikiI, .'8. May be signed by mochiiu'iy. .'.i' ; One signature mu.-t be writ tin, .'0. Of banks .sus|>tnding ftiynuu. .o \jcar ini'.e eat until V9- deom<'d, 54. Of lanks su^pjnding paymtiit i!" i.t I reOejmpd to be p^iid out of Circulajtion Redemption Fund, 54. What shall be (lt«mee oa:if '^o shall re'ta''ii ."> per cent, of, 54. Xi.' ce of first, mecti IV- of subscribers, i:!. Of election of directors, 18. To be given by directors of jvayment of dividend, TO' be given by provisional (Mri tutors tf crtnlng of etock books, 12. To be given of spec'uil general meetings, 24. Of sale of debtor's shares. To be given b„- provisional directors of flr-t meeting of subscribers, 13. To be given l)efore sale of go«(l.-< under warehouse receipt, bi/Il cf ".adding, or s«'curity, 7S. Note Circulaition l-'und— Treaisuiy IJoajd may regulate man- ogemenit of. 54. Xitmber of (lite.-tors, 18. Offlcers— Appointment of, by directors, 23. Security must be given by. 23. Offence — Director, provisional dir«c'or, etc.. i.«su'ing, etc., noteii of bank, etc., be''>re cbtaining certificate nhall he guHty of, 14. One signature must be written, 59. Op>enlng of stock bonks, 12. Outstanding— Requirements in ca.se of insolvency as to notes. 88. 582 INDHX TO BASK ACT. Par— Notes of bank to be payable throughout Canada at, 56. Paymenta may be demanded iu Dominion. Noiis. '.7. Prom Note Circulation Fund to lie without reg-anl to amount contributed, 54. ParlLomenit— Powers »f Dominion, Paymejiit o; shores, ao. Penalty— For non-oompuian^e of part of re«(^r\e to be in l>om- itUon notes, 50. For pledging of no'to,s, 52. For unauthorized issue of noteis for circulation, 60. For defacemenit of AOtes, til. For making false sitaiterr.en.t in warehouse r'>ceipt, biU of lading or .security, 75. For alienatins- goods covered by warehouse receipt, bill of lading or security, 75. For conitTaveiitiion of in-ovisiions In sec. 61 to 78, 80. No, for usury, SO. For not making up momthly return in dut» time, 85. Ji\yr not mcklng speciail returns in due tl.Tie, 8osal of, 98. • For of 2r.c° against this Act, 101. For jmproptr l.sisue or lakinr of notes, 51!. For unauthorized issue of notes for circulation, 00. Pemalties for exceaaive oircu'.ation, 51. r-ersons having grcatesit number of votes al election shall be directors, 1!>. Powers of Dominion Parliament, Of shareholders, 18. Pledging of notes prohibited, 52. Power of directors, lit. Presidemit— In ctu-w, of equal diivisiou has casting vote, 21. Removal for malad minis trait ion or otiher Just cause of, 24. Monthly returns to lie siiRined by, 8!>. Declaration to be made by prcsidenit as to momthly re- firns, 85. And cashier. And director, removal of, 24. Pi-f on action for non-payment f cai'.O.S', Prewc.'lptinn in Statute of T»imilt:itIons, provision ais to, 90. Preference — ITndue, to any or-^ditlor a misdemeanor, 97. ProvlHlons of Act— Respecting I'.iink (>f liritish North AmerKa, 6 Respecting I?amk of Hritish Columbia, 6. Provlsltins in case of eiiuallty of votes. 19. Provisional Directors- To be not lesis than live, nor more than ten, 11. HoiJ office until diroc'.ors are is'.ectetl by subscribers to stock, 11. May Ckiui*e sitock boolisi (o be openetl, 12. May keep open stock books for such lime as they deem necessary, 12. INDEX TO BANK ACT. 5S3 May call first meeting of subscribers, 13. PunoUOTiK. of, cease upon election of dlreKStora by Bub- -' scrib^ps, 13. Issuiuig', etc., niottes of bank, etc., before obtaining certl- Hoaite shall be gulMy of offence, !•'. To gtlve notice of first meeting of eulworilbers, 13. Proxy— Shaireholder may vote by, 25. Mast be sihaireholder eligiijile to vx>te, 25. Must be renewed In writinig wlthlH' two years, 25. Purchase of land under execuitlon, 69. Pu chasers— Loans to wholesale, 74. Public Notices— To be gtlven by advertising in i:«wsi;apers and "Canada Gazette," 102. Qualification of directors— 19. Record to l)t' kept of proxies, etc., IS. Recovery of Culls. :Vi. By suit of non-payment of culls, 34. ^ diisposoil of penalties, 98. Reilt,i..;:)tlon of notes — 5fi. RetLl Katate — Bank may acquire for occui)ation, 67. Retluotion of capital stock not to affeol liatdllty of .**liareholders, 2H. Rt-moval oi" president, director, etc , 24. Remuneration of :>rcsident, vice-president, and ot)ier directors, RMnewoi of proxies, 25. Repeeli— Oommcinoement and reptal of Act, 104. Ree'irves— Part of reserves to be In Dominion notes, 50. Pent'.'ty for non-compliance, 50. Reiturns— Montiliily return to be made by ba^nk to Ooveim- merut, 85. To l>e made to Minister of Finance and Reoedver- Qenerti, 85. To be in 'orm s^et forth In Schednle D. S5. To be made up within first !.'> days of each monitli. 85. Shall exhihlt coiHlll.ion ef iwuik cm mhI Jtiriilletil day of month next precedliiK-, 8."). SbeJI be siiffmed by chief act»unitant and by -vrAsldenit or vlce-prcsldetvt, etc., 85. Penality for noit making: up monthly return In time, 85. Special rc'turns may l>e oaiMe*! for, Sfi. Penalty for noit making' .»*iKM'lal returns in due tlm*", W. Details of annutal sitajtemoTit of dividends rema'.nlnir un- pold, 88. F^alse statements In, 99. Rlffbit tc sell diebtor'e ooHiatierail specurltitfl may l>e waived, 86. 684 INDEX TO BANK ACT. S Sale of debtor's shares, 33. Of goods secured by ware'hoUvse receipt, bill of ladling or eecurity oa non-payment of debt, nuUce to be grtven tkefore sedHngr goods pledged, 78. By auction after notice, 78. SohediuJe— A, 3. B, 9. C, 74, D, 85. Becurlity— To be given by cashier, officer, clerk, or servant, 23. When, under i»ec. 73 and 74 may be acquired by l>ank, 75. Blank has prior claJm over unpaid vendor for security given, 77. Form of, to be given under sec. 74, 74. Shares— Joint holders of, 23. Of capital stock are personal estate, 29. Of capital stock assignable and transferable. 35. Paymenit of, 30. Transfer and transmission of, 35. Conditions of transfer and itrainsmdsisilon of, 35. Praotion of shares not tninsferable, 35. (Saie of shares for non-payment of caJ'.s, 33. Tiiajiisfereir of shares must be registered owner, 37. Sale of, under execution, 3S. Of capiitial sitock of bank hereinafter incorporated to h% divided inito shares of JIOO.OO each, 10. And transfers thoreof, 29. Transfers and tnanismissionis of, 35. Shareholders— (a) May nx date of aimuail meeting, 18. (5) To regulate record to lie kept of proxies and time with- in whlcih they must be prmluced, 18. (c) Number of directors and quorum thereof, 18.. (d) Qualiflcaitilon of directors, 18. (f) Method of filling vacancies in Board of Director.s when- ever sajme occur during year, and time r)f proceedings for electdon of dlrewtoTS in (uuse of failure of election on day apiKulnited, 18. (f) Remuneiiatioin of president, vice-pi trident, and direct- ors, 18. ((/) Amount of discount.s or loans which may be maxl« to directors, eitc, 18. Liability in case of Inisufflolcmcy of awserts', 80. Transmission 'to Minif*ter of Fiujance of certified lists of, 87. Lilabllltlesi of, wlio have tjanisferred their stock within 60 days before commencement v>f suspension of bank, 9«. Powers of, to make by-laws, 18. M«vjority of votes of, to dieitermlne, 25. May vote by proxy, 25. May authorize directors to establlsli guarantee and pon- trfon funds for officers of bank, 18. May all special geneiral meetings, 24. Sh>areho'.< f— Onie vote for nach shart- held by him, 25. Shirt II of Act. 1. Stock— I'loperty, affairs and ooncerns of bank shall bo mfc.ti- aged by directors, 19. INDEX TO BANK ACT. 585 Increase of capital. 26. Conditions of application for apiproval by Treaisury Board of Incre-tse of capita), 26. CapiUl, 2t). AJlotment of, 27. Reduction of capitaJ, 2S. Stock books— Openinr of, 12. 6ubsorip4dons for stock to be recorded in, 12. To be opened at chief office of bank and elsewhere, in discretioin of provisional directors. 12. May be kept open for such time as provisional! directors deem necessary, 12. Shippers— Ixians to, 74. Speoial returns — PeTiaJty for not making special return* in due time, 86. Staitement to be submitted to Treasury Board for reduction of capital stock, 28. To be laid before annua] meeting, 45. Subscribers— First meptlng of, 13. PMrst meeting- of, may be calletl as scon as $500,000 of capital sitock of bank )vds been Yona. fide subsoril^ed, and $250,000 thereof pajirt to Minister of Finance mul Receiver-General, 13. Provisional directors mc- oaJl flr«f meeting of, 13. First meeting of, to be held in place named 1 ■ Act fi«» chief place of but*lness, 13. At first meeting, shaJl determine day of annual geneml meeting, 13. Notice of first meeting of, to be given by provisional directors, 13. At firsit meeting, sliall eleot directore, not less than five, nor mors than ten, 13. Subecrlptlon— Books of, 29. Supply of Dominion notes, 50. SuBpens'on for 90 days to consitJtute insolvency, 91. Title to JanidSi ax:auired by bank in mortgaged property, Tl. Tern or defaced notes— No i>aynient shall l>c made in, 57. Transfer of shares oaxsule c.f .shar<'s I'drfflted for iion-paynient of calls. 33. And transmiselon of eihares, 35. Books may l)e closed f(ir iioi more tlian llfteen days be- fore payment of dividend, 47. In oasr^ of sale of debtor's whares, 33. TOnanfifeTB— lilst of, 36. Of shares, 29. Transferrer of share? must be registered owner, 37. Transmission of share.s— Otherwise than by transfer, 39. By marrlege of female shareholder, 40. By decease, 41. Further provisions In case of transmission by decease, 44. 68G INDEX TO BANK ACT. TraAismdssioh of certified list of sharehoWei-s to Minteter ot Plnanoe, 87. Mode of, 87. Penality for neglect tc transmit such liists, 87. Treasury Board— Definition and oom'yoeiitlon of, 2. Increase of capital stock requires approval of, 26. Reduction of capital sitock requires appTOAial of, 28. Conditions of appMcation for approval by Treasury Board of increase of capitail stock, 26. May regulate managememt of Note Circulation Fund, 54. Certificate of, 14. TrtLStees not iversonalJy liab'.e, 44. Tnists — Bank not bound to .see K), 43. U Unclaimed Moneys— Disposal of, 88. Undue preference to any '?reditor a misdemeumour, 97. Usury— No penalty for, 80. No instrument to be void on account of, 81. Innocent liolders of instruments void o^n account of, 81. Vacancy— Non-nilinpr of vacancy oocurringr in Board of Di- rectors shall not vitiate acts of quorum of remaining directors, 19. Provision for vacancy occurring In office of president or vice-presldeiiit, 19. VacMncieH— How tille 1. 19. Votes— Equality of, 19. On shares, 25. Shareholder has one vote for each share held, 25. Of shareholders by ballot, 25. Voting— Calls must be paid before, 25. W Warehou-se Receipt— Bank may take warehouse receipts as collateral security, 73. Bank has prior claim over unpaid vendor for advanic !i made on, 77. May be exchanged for bill of lading and vice versa, 75; Penalty for makinpr false statement in, 75. PensUty for alienatlnpr prood.T covered by, 7.".. , Provision when previon.s holder of warehouse renelpt 's an ag-enit of the owner of goods, 73. Wliolesale— I^oans to wholesale manufacturers, 74. I/oans to wholesale puicha-siers, 74. Lrf>an8 to wholesale shippers, 74. Commissioners for taking Affidavits to be used in the various Provinces. ONTARIO. COM.MISSIOVKHS OUTSIDE OK TIfK PROVINCE FOIi TAKING AFFIDAVITS lO UK UHEl) IN ONTARIO. QUKBEC. Afonlreal.—A. W. Atwater, Q.C., M.P.; 0. B. Carter, Q.C.; .1. L. CoutUe, Kdward lloUon, James Kirby, (^.C; I>. Ma<>.Ma»t«r, Q.(;.; IIoii. Ftilix G. Mnn^liaml, U. D. Mciiibboii, Q.C.; Win. Jno. Wliitc. NOVA SCOTIA, Wu/i/Vix,— Tlioiii.is Uitcliie. !I. A. Henry. Yarmouth.— K. S. C'k-nK'iit.s. NKW IIKU>.SWIlK. at. .yi(A«,— Eiliiioml (i . Kaye. MANITOBA. Mvlitn. —JoUn Crerar. )ri)iH//)r'j/.— A, .Mi)iikiiiaii, .A.K. Itivliiird.><. NORTII-WKSr TKUItlTOUIKS. Ilattlcfoni.—W'. S. Scott. Calgary. — S. A. KtiiiicH. K 'mnnton.— W. Rlfeker. (^'Appi'lle.—E. !\I. .larviK. 7Min(/on.— Arthur L. .SIfton. /,eU Daniel. /'Hot .Utmiiil.—W. ••obertsoii. /'(trtiigti la I'rnirir. — ,lohn Boultbee. Ifegina.—A. (i. M. Spagge. CO.VI.VIISSIONRIIS OUTSIDE THE DOMINION FOII TAKING AFFIDAVITS TO UE USED IN ONTAUI'X K.N. Lima.'., 4 Great Wlnehet^ter St., E C; Edward F. Crons, IHi» .Mblon Knad, Stok«-New- Ington ; Alfreil Kitxalan II. Fagge, Arundol, St., Straml, W.C.; John ()ro«n- flold, ■^^ QuHon Victoria St., K.C; ,1. KandR, 1.^ OhI .fewry Chanil)i'rti ; Alfred Hea!e8{HealesiX:Son),40(;arter lane, Doctor'.s Common.^, E.C.; E. S. Moiiu" •ey, OrayV Inn ; A S. MiinnH, 8 Old Jewry ; A. J. Murray, 1 Clement's Inn, Strand. W. C; A. J. Nash, 14 Soulh Sij., Gray's Inn ; W. H. Nichols, 1 Lin- coln's Iiiti FlehLs ; II. Pollock, 14 St. Helen's Place ; John ProtHtt, oomnils- tioner for administrating oaths in the Supremo and ExohottWi«.— Alexander lU'U, 4.3 Danio St.; James H Cathrew, 16 Nassam St.; Norris Goddani 21) Kly Place ; Terence O'Keilly, 5 North Great Georg«'e St.; Wm. Fry, Jr., H Lower Mount St.; Wni. S. Hayes, 24 Nassau St. UNITKD STATES. fierleley, Cn/.— Walter Scott Williams. Jiuff,ilo, N. r.— Arthur C. Goo;l. Vhicayn, ///.— Simeon W. King, Koliert Gilray. lAminrille. — Joseph M. Chatterton. -V«;4H*i//)o/i)i.— Hector Buxler. New Ydrlc.— Win. T. Hardenbook, 38 Park Row. J'tttsbun/. —Harris Buchanan. Sun J-'raitfinco.—S. H. Peddar. AUhTllAt.IA. Bendiyo, r»(7('(ia.— Horatio S. \'. Bust. y'aW«.— Thomas Barclay, 17 Kue Pasquier (Madeleine). QUEBEC. COMMISSIONERS FOR RECEIVING AFFIDAVITS FOR THE SUPERIOR COURT. W. D. Aird, Geo. H. Ancrum, Appartenaire Arcii imb:uilt, Jos. Cyrille Auf>er, Amedee Ai-chambault, H. Lcmaitrt? Auge, Ant. M. Archambauit, W. Bruce, Fortuiiat Jiertiiiiid, (Mmiincl Barry, Jos. Bourbonniere, Lean Belanger, AVm. K. Bradshaw, Kmery P. Bertrand, K. A. Barton, O'Hara Baynes. Arthur Browning, LouKs P. Belalr, C. H. Branchaud, A. W. P. Buch- anan, E. B. Bustc^d, Ernest Brunei, Godfroy Bolleau, Chs. L. Buchanan, Wm. H. Burroughs, George H. Bourdon, Jos. A. Brunet, C. C. Edmund Bouihlllier, James Baxter, L. Philippe Brodeur, Miehei Benoit, Louis C. Bourgeois, All>ert J. Brown, Arthur Brossard, Franeois-Xavler Bilodeau, Mathleu A. Ber- nard, Joseph Barnabe, Phlllbert Baudouln. Ernest \V. Bush, George A. Bourdeau, Louis P. Bedard, Edward II. Baker, Kugene C. Bastlen, E. A. Bertrand, Char:, s A. Barnard. Ed- ward \V. Biinbam, (J. It. Hrlllon. Hictor K. Hlsaillon, L. Bedard, AV. M. Coupcr, Thos. II. Christmas, Chs. Gushing, COMMIfiSWXHKH FOIt TAKlMi AfFIl.AVITi^. 5s9 Arthur H. Chambers, H. N. Chauvin, Rorizo H. Clerk, Sel- 'klrk Cross, John D. Cameron, W. J. Common, \V. H. Cox, jw3. Cartier, Azarie Choquel, Jos. T. Charrette, Louis P. P. Cardin, Joseph Corbeil, Louis A. Caron, Joseph L. Coutlee, Louis H. Collard, Ludger Charpentier,, Alexantlre S. Chaput, Alphonse J. Chaput, Louis G. A. Cresse, Kobert J. Cooke, A. O. Challfoux, L. A. Her.ri Co.lard, Odllon Crepeau, Jos. L. N. Cherrier, Francois G. Crepeau, John A. Cameron, J. Dun- can Davidson, L. P. Dupre, Tretrlo Dubreuil, Jos. A. Drouin, J. A. Desrosiers, Edward Dough ty, L. A. Dufresne, R. G. Delorimier, Joseph Duclos, Anthime Dubreuil, L. A. Dumesnil, Joseph A. Desilets, Andrew Darllns, ilobert S. Deacon, Kol>ert A. Dunton, Pierre H. Dufresne, Jos. A. Descarrles, Joseph K. Dumesnil, Alexandre Desmarteau, Theodore Doucet, M. J. Areas Dorval, John M. M. Duff, Louis N. Dumouchel, \V. i). H. Dodds, J. A. Eleodore Dion, c;has. Desmarteau, Owen N. Evans, (Jeo. P. England, B. W. I':vans, Henry J. Elliott, Wil- liam H. Ksans, Henry Fry, Johi. A. Finlayson, David T. Fraser, Charles A. L. Fisher, John M. Fergus jii, Leon Forest, Jjhn Fair, James H. Fern , Albert F. de A. Fortin, Louis D. Gar- reau, Arthur Gagnlor, Thomas Gauthter, Loui^ A. Grenier, Arthur Oagnon, ICug. H. Godin, Jos. K. Gauth.er, Ul>al<:e Garand, lOdmond CJuerln, Kiiticrl A. E. Gri?uiishlelds, Cesaire E. Germain, Louis E. Germain, Jnhii AV. Giier, I.,omer Gouin, Chas. II. Crothe, Daniel (Jaliery, I^eon A. Gasiiuii, lA)Uis Calixte Goyette, John A. Hardlsty, l^'juls A. Hart, Frederl ■ Hague, Robert Holmes, Edward Holton, Richard T. Heneker, A. Rives Hall, R. Rennett Hutchison, Fred. W. Hibbaril, Matthew ilut- chlnsoii. ,l()hn Hamilton, John Hyde, Louis B. Houle, John McD. Haina, Kdwin Hanson. Horace A. Hutchlns. Ilarlow H. Hui- clilns. VlKirles Hebert, George Hyde, J. A. H. Hebert, Le >pol(l Houle, Charles Islen, John H. Isaacson, J. Wani 'nte Jocks, Samuel W. .Jacobs, Andre J. Jcbin, Hrrniisilas Jeaniinttc, Joseph Juneau, George H. Kernick, Ainbroisc L. Ivent. \Vm. Klssock, Geo. R. W. Kittson, George Ker, Geo. R. LlghthiU, Andre .v H. Lavi'rs, John Livingston, Nap. Lazeau. F. M. Irin. Jas. C. McCormick, Wm. Pierce McFeat, John A. MoOregor, G. Mncdoueall. T/achlan MacKeTar, Rol>t. Maefar^ne, Peter V. Mcr'-'ffrey. W. McT^ennan, Gordon W. Macdougall, Archi- bald Mf'T-ean, Victor Normandin, Georges Ncrmandin, Wm. W. Near. George** A. Normand'n, Josepih IT. Olivier, Joseph M. O'Br'o-, R G. Phan'-uf. 'Tous'JiInt Pi'-I^r, Edward W. r»^. Phllllpa. J. X. Pauze, Narclsse Perodeau, Camllle Piche, Joseph I 5 to COMMISfiWNEKS FOR TAKING AFFIDAVITS. Perrault, Hector Perrault, Jos. E. Parent, Thomas N. Proulx, Walter J. G. Proctor, Arthur H. PUmsoll, Jos. L. Perron, Antolne Phaneuf, Stub. Pepin, Alex. T. Patterson, W. J. Proulx, My. W. Prendergrast, Alphonse Re«d, Jas. G. Ross, John W. 'RosB, Wm. B. S. Ready, A. F. Ross, Alex. P. Riddell. John L. Reay, L. J. Arthur Richard, Henry J. Ross, Philip S. Ross, Henry Rees, Wm. P. Robinson, Wm. P. Sharswood, Philip Sheridan, A. McNaughton Stewart, Jas. L. Spier, W. P. Sharp, Beaumont Shepherd, Napoleon St. Amour, John S. Stanley, C. Alfred Sylyestre, Richard S. Smith, Archibald W. Steven- son, Frederick J. Sears, William D. Stephens, Bernard S. Shar- ing, David Seath, J. Ponsonby Sexton, Chas. H. Stephens, M. Alfred St. Cyr, A. J. H. St. Denis, W. B. St'ephen.s, GMhtrt Touchette, Nap. Theoret, Harry Y. Truell, Deblols Thibaudeau, Alphonsa Taillefer, Jean Tache, Henry (Tpton, J^•an H. Valltn, Charles A. Vallee. W. Sinii)son Walker, Richard J. Wynne, Henry Ward, Archibald AV'oods. Alfred M. Wovonden. Char'.t^s A. Wilson, Wm. J. White. Henry B. Wright, John R. Widdiip, Arthur Wade Wif.kes. OF THE SUPRKMK COURT AND EXCIlKm'Ktl f OUKT ciii. *'. U. Carter. W. H. S. Kcddy, W. S. Walker, T. P. Butler, O'llara Bayiios. Fr.' lerick W. Terrlll, .losppli Krl. gon, C. Cusliing. Cieo. U. Loi^kor, ('h;\». Kayi f'-<, F. S. liynian, Q.C.. Fredtric Hivguc, W. J. White, C. 'P. Christie, .(. Duiieaa Davison, E. Gucriu, Peers Davidson, A. D. .(ol)in, N.P. NOW SCOTIA. W. S. Walker, O'Hara Bayiies. (ieo. H I.neker, C. Cughiiig, F. S. I.ynian, Q.C, Frederic Hague, W. .». White, J. Duiuau Davigon, K. (iueriii, Peers Davidson. NKW HItlNSWICK. John M. M. Dnff, W. S. Walker, (ieo U. Loeker, 0"Hara Baynes, C. Cushing, F. .S. r.ymin, Q.C., Frederie Hague, W. ,1. White, P. S. Boss, J. (i. Ross, K. (juen.;. I'eer.s Davidson, .1. Duncan Dnvison. I'lMNCiS F.nwAKn ISLAND. W. S. Walker, (ieo. R. loeker, Frederic Hague, J. Duncan Davison. COMMISSIONERS FOR TAKING AFFIDAVll'8. 591 ONI-AHIO. F. T. Juduli, Q.(,'.. John H. IsiuicHon, W. H. Laiiibe, James Kirby, K. W. H. Phillips, Thi'O. I>oiict>t. Win. F. Li|{lithall, KilwsirtI Molton, John Casaie Hatton, Cha«. Cushli!|;, o'Ham Baynes. A. MetJoiin, J. L. Coiitlt^e, Arthur H. PlimsoU, J. M. M. DulT, J. S. Shearer. Win. Ilruw, N. PeroJeau, David Seath, W. S. Walker. <;. U. Carter. K. H. MrCiibbon, W. B. S. Keddy, T. P. Butler, F. S. layman. D. MaiMiiaster. Chas. liayneH, Freilerlck W. Terrill, Joseph Frigon, D. Torranee Fraser, A. C l.ynian, K. K. -Mac- plierson, Wni. Wainwright, Geo. Severi-, John Hyde, llonzo H. Clerk Frederic }Ia;;iie, A. W. Atwater. Geo. K. Am-runi. Jolin Mel). HaincK, K. S. Deacon, A, O. Brooke (Maxtou, V 8. Hcs: .1. . Torrance Fraser, F. S. r,yinan, y.C, W. J. While, A. CJ. Brooke Clax- ton, James O. Boss, K. (tueriii, Peerd Daviilsoii. NDRril M'KST TKItltlTOIllKS. Frederic Hague, James G. Buss, K. (iniTiii. STATE fiF NKW YOUK. Frederic JIague, W. J White, John M. M. Dulf. STATU OK OHIO. W. J. White. STATK OF Vi;l!M(lNr. C. F. OHallor.in, John M. M. Duir. STATE OF MASSArllfSKTT.S. Philip S. Hess, John M. M. liutt. STATE OF MAINF. John M. M. Dnft. John M. M. Duff. John M. M. Diitt'. John M. M. Dutr. STATE OF NKW II AMI'SIIIKK. STATK OK ILLINOIS. Sl'ATK OK MINNESOTA, NOVA SCOTIA. commissioners residing without the province for taking affidavits for use within the province, under sec. 29, chap. 107, r. s., bth series. England. Alfred Heales, 45 Carter's Lane, Doctors' Commons — London. Eustace Anderson, 17 Ironmonger's Lane " Edward Webb Thos. Sanford Rolpii, 9 Throgmorton Street " Alex. Gillespie, jr 51)2 COMMIi^HIOXERH FOR TAKIAfI AFFIDAVITS. Seaton F. Taylor, 5 Gray's Inn Square London. Wm. D. Treshfleld, 5 Bank Buildings John A. Matteson Austen, Treaisdo Wm. Law Gane, 54 1-2 Blshopgate Street within Henry F. Pollock, 4 Great Winchester Street John Hands, 6 Queen Victoria Street Frederick Parish.. Dudley Wm. Beresford, Leathtey, Ironflelds Thos. Wm. Blschoff, i Great Winchester Streft Robert Thomas Lattey, 16 Devonshire Square Wm. R. A. Kime, 49 Bedford Row Edward Harry Adcock James H. Dodgson Philip H. Coxe, 4 Great Winchester Street Edward Wesley Nunn, 27 Grasschurch Street Geo. E. Solomon, 2S Holhorn Square Alex. James Murray, 1 Clement Inn Strand John Howard, 143 Cameron Street, E.C George Kirk John \Voodbn Morrison, Peter Grouchy, Wm. R. Cutler, Wm. Brymer, W. E. Morriaon, George W. Kyte, St. Peters; D. R. Boyle, West Arichat; Dun- can Finlayspn, Arichat. Co. OF Shelburne.— R. G. Irwin, George A. Cox, Frank C. Blanchard, J. J. E. DeMolitor, John B. Lawrence, Edward A. Capstlck, John Bower, Edmund Siwvw, Thomas W. Waitson, Andrew C. Roibertson, Ed'ward Greenwood, Abram C. McLean, Joseph E. Lloyd and Jamies Rugglee, Lockeiporc; Arthur Hood, Shelburne; Elijah Nickerson, Wood's Harbor; E. M. Bill, Shelburne; John Hood, Shelburne; A. C. Newell, J. A. Kenny, Cape Sable Island; Wm. H. Matheson, Wood's Harbor. Co. OF Victoria.— Alex. Taylor, John L. Bethune, M.D., Alex. McDonald, David McDonald, John A. McDnnald. Murdoch G. McLeod, Daniel Livingstone, John J. McCabe, Alex. An- derson, D. F. McRae, M. E." McKay, Edward W. McCurdy, Baddeck; H. P. Blanchard, Baddeck; A. J. McDonald, Bati- deck; James McKlnnon, McKlnnon's Harbor. Co. of Yarmouth.— Rowley, Thomas B. Flint, George Jud- son Burrlll, Thos. B. Crosby, George Blngay, Bernard E. Rogers, Jos. A. Smith, Stephen B. Murray, Benj, Annis, Jas. Huntington, Geo. R. Smith, David C. Crosby, Port Maitland. Aryi/h—Enoa Gardner, Smith Harding, O. W. Slocumb, David L. Porter. COMMISSIONERS FOR TAKING AFFIDAVITS. 599 NEW BRUNSWICK. ii il Kl 11 COMMISSIONERS FOR TAKING AFFIDAVITS. In general all Attorneys of the Supreme Court are Commis- sioners for taking affidavits to be read in that Court. In addi- tion to Attorneys and others who are specially appointed com- missioners, the following persons may take oaths and aifidavits in the Province. 1. Any Justice of any Court in nrhich or before any judge of which the same is to be used. 2. Justices of the Peace may administer an oath or take an affirmation or declaration in any matter over which he has jurisdiction; may swear appraisers, petitioners on petitions to any public individual or body, or inventories or accounts ren- dered to the executor of an estate, insurance proofs., or the like. 3. Any person holding an enquiry by authority of an Act of Assembly, or of the Government may administer an oath, declaration or affirmation, if directed. 4. Judges of the Supreme and County Courts, and Commis- Bioners for taking affidavits to be read in the Supreme Court, may administer any oath, declaration or affirmation, or taka an affidavit to be used in any cause, matter or proceeding in any Court in this Province, or authorized to be administered or taken by any law in force in this Province. i PERSONS AUTHORIZED TO TAKE AFFIDAVITS OUT OF THE PROVINCE. 1 The Lieutenant-Oovemor in Council may by commission appoint so many persons a» he may think fit to take affidavits, in the United Kingdom nt Great Britain and Ireland oc any colony thereof, or In any foreign country, or in any Province of Canada. 2. Any Commissioner authorized by the Lord Chancellor to administer oaths in Chancery in England. 3. Any Notary Public certifled under Ms hand and official •eal. 4. The Mayor of any City, Borough, Municipality or Town Corporate and certified under the common or corporate seal of such City, Borough or Municipality, or the seal of such Mayor. B. Any Judge of th« Court of Queen's Bench in Great Britain, or Ireland, or Master in Chancery in England or Ireland, or any Judge or Lord of Session in Scotland, the handwriting of any such person being authenticated by a Notkiry Public. 6. Any Judge of any Court of Supreme Jurisdiction m any Colony belonging to the Crown of Great Britain and Ireland. 7. Any British Minister, ambassador, consul or vice-consul, acting consul, pro-consul or consular agent of Her Majesty exercising his functions in any foreign place, certifled under the hnnil and .^eal of such pertrons. 8. Any Governor of a State, certifled under his hand and seal. 600 COMMISSIONERS FOR TAKING AFFIDAVITS. PRINCE EDNA/ARD ISLAND. COMMISSION EKS FOR TA KIKO AFFIDAVITS IN THE SUPREME COtRT. Chahlottbtown— John Brecken, Mai. McLeod, F. D. St. C. Brecken, Louis H, Davies, Edward Bayfleld, H. J. Palmer, A. A. McLiean, W. A. O. Morson, George A. Harvie, F. Li. Haszard, A. B. Warburton, R.ch. Beddin, Arthur Peters, John S. McDonald, Stanislas Blanuhard, Hedley V. Palmer, George Tweedle, Wm. S. Stewart, Charles R. Smallwood, John A. Longworth, Wm, Arthur Weeks, Hector O. MacDonald, James H. Reddin, E. H. Haviland, J. T. Mellish, Aeneas A. Macdonald, John F. Whear, J. J. Johnston, A. Ernest Ings, John A. Mc- Donald, Geo. S. Inman, W. E. Bentley, W. H. F. Carvell. Queen's County— Bradalbane, John McLeod; Cavendish, A. M. McNeil, John C. Clark; Covehead, Cornelius Hlgglns; Crapaud, Donald W. Palmer; DeSable, William Enman; Eldon, Donald R. McDonald, James St. C. Moore, Alexander McMillan; BmeraJd, Albeirt OiiaJg; Hope River, Peter MoOulgan; Lot 67, Donald McLeod; Lot 67, Mai. Matheson; Mount Stewart, J as. Ross; Stanley Bridge, Roderick McNeill, M.D. ; Strathalbyn, Donald Cameron, Donald Nicholson; Tracadle Cross, Anthony J. Dougan; Vernon River, Lemuel C. Hayden. Prince County— Alberton, Richard B. Reld, Charles A. Woodman, John P. Brennan, Thos. B. Woodman; Bedeque, Augustus E. C. Holland; Bideford, Albert WiU'ams; Cape Traverse, Alex. Strang, Arthur Irving; Cjntreville, Major Wright; Coleman, Strang Hart; Hamilton, Wm. McN. Simpson; Kensington, D. Darrach, M.D., Reuben Tuplin, G. W. W. Bent- ley; Klnkora, Owen Huprhes; Lot 7, Peter Doyle; Ijot 8, Donald C. Ramsay; Lot 14, Donald J. McDougall; Lot 25, William Taylor; Malpeque, Peter McNutt; Miminegash, Lawrence Doyle; Northam, Thomas Campbell, M.D.; O'Leary, James Barclay, Peter N. Pate; Port Hill, John Yeo, Hugh A. Ramsay; Prince- town, BenJ. Beairsto; Richmond, Stephen E. Gallant; Searle- town, Dougald S. Wright; St. Eleanors, Alex. E. Holland; Summerslde, Wm. T. Hunt, Henry E. Wright, Hugh J. Massey, Henry Scales, Nell McQuarrte, Jaimes E. Wyatt, John H. Bell, Kenneth J. Martin, Geo. Godklii, Horace H. Beer; Tlgnlsh, Joseph E. Richard, Alex. J. McFadyen, Richard Dawson; Tryon, Saml. E. Rii ' Tyne Valley, John Forbes; Wright's Mllla, David Roger. T^ot 7, Alfred McWIIliams; Carleton, Lot 28, Donald Morrison; Cape Traverse, Ephralm A. Bell. KiNO'B County— Annandale, John Nicholas; Brudeneli, George Wlghtmun; Cardigan, Robert Mooney, William P. Lewis, George F. Owen; Dundas, Saml. McDonald, John R. Campbell; Fox River, Lot 42; Anthony McCormack; George- town, J. A. Mathieson, George A. Altken; Little Sands, Duncan Munn; Montarrue Bridge, Samuel Mutch, G. S. Inman, W. Leith Poole; Montague (Lower), Dun. Eraser; Morel), Robert N. Cox; Murray Harbor, Samuel Prowse, John Kielly; Murray River,' Robert Whiteway, sen.; North Lake (East Point), Dougald COMMISSIONERS FOR TAKING AFFIDAVITS. GOi Campbell; Peake's Station, Hugh Currle; Souris, Ronald Mc- Donald, John McLean, John G. Sterna, James A. Mclnnia, Arthur J. B. Mellish; St. Peter's Bay, Patrick Mclnnis, John A. McLean. COMMISSIONERS RESIDINO OUTSIDE THE PROVINCE FOR TAKING AFFIDAVITS IN THE SUPREME COURT FOR USE WITHIN TUE PROVINCE London, England— Alfred W. Heales, Solicitor, Doctor's Commons; James Hume Dodgson, Solicitor; Philip Henry Cox, Solicitor; Kdwrvrd Nunn, Henry Archd. Saunders, 3 and 4 Great Wlnohesiter Street. Liverpool, England— Thos. R. Pennington, Crosshill Street. Plymouth, England— Conyndon Matthews, Frankfort Street. Glasqow, Scotland— Wm. B. Patterson, 101 St. Vincent Street. Montreal, P.Q.— John Popham. John S. Hall, jr., J. U. Davidson, Philip S. Ross, George R. Locker, 64 Victoria St.; James G. Ross, 18 St. Alexis St.; Albert E. de Lorimier, William Alex. Caldwell, 114 St. James St.; CharlCo C. de Lorimier, 114 St. James St. Quebec, P.Q.— Edouard J. Angers, Francis Xavier Gosselln, 61 St. Peter Street. New York, N.Y.— Joseph B. Bradman, 115 Broadway; James Colin McEachen, 333 Broadway; Walter L. S. Langerman, 21 Park Row. Chicago, III.— Wm. S. Pettejrrew, 91 Dearborn St.; Philip A. Hoyne, 52 Custom House Building; Wm. H. F. Holmes. Boston, Mass.— Joseph A. Harris, Charles A. Shaw, 11 Cour'. Street; Chas. H. Adams, 5 Court Street. Phh.adblphia, Pa.— Thomas J. Hunt, 623 Walnut Street. St. John, N.B.— James Jack. COMMISSIONERS FOR TAKING AFFIDAVITS IN THE COUNTY COURTS. QUEEN'S gonNTT. Charlottetown— Frederick W. Huphes, G. A. Harvlc, Angus A. McLean, Donald McNeil, Henry Smith; Cavendish, John H. Robertson; Clifton, New liOndon, William McKay, Hugh B. McKay; Dunstaftnage, Henry M. McLeotl; Eldon, James St. C. Moore; Hampton, Lot 29, Robert Ince; Hope River, Michael McGuigan; Monaghan, James Wlsner; Mount Stewart, James Ross; New Glasgow, John Iliiins; Rustlco (South), Robert A. Crasswell; Valleylleld, AIpx. Martin; Victoria, Solomon J. B. Leard; Wood Islands, Duncan Taylor. PRINCE COUNTY. Summerslde- Wm. T. Hunt, H. J. Massey; Centrevllle, Alfred Schurman; Egmont Bay, Sylvanus B. Gallant; Albertc , Cherlea A. Woodman; Ivot 2fi, Peter Duffy; Port Hill. Wm. Hopgood, D. C. Ramsay; TIgnlsh, Joseph E. Richard, John McLellan. !! !i -, U| sj I II iM C02 CO^fMIHSIONERS FOR TAKING AFFIDAVITS. KINO'S COUNTY. Georgetown— G. A. Altken; Montague Bridge, CJeo. Wight- man, Geo. S. Inman; Murray River, Robert Whlteway; Cardi- gan, George F. Owen; Little River, Lot 56, John C. Underhay; Springfield, Clement McDonald; Inlet, Lot 46, Stephen Campbell; East Point, Alexander R. Beaton; Sourla, James Moynagh, Jr.; Souris West, James A. ?TcInnls. MANITOBA. LIST OP COMMISSTONERS RESIDING OUTSIDE OF PRO- VINCE FOR TAKING AFFIDAVITS FOR USE IN MANITOBA. Note.— It should be mentioned that there Is no way ot ascertaining which of the persons named In the following Hat have died or removed elsewhere since the dates of their re- epectlve appointments. England. /,o»(/o».— Eustace Anderson, Percival Blrkett, Thos. W. Bischoff, H. Pearson Brocklesby, J. Brend Batten, Geo. Blrchall, Samuel Verschoyle Blakt>, Phillip Henry Coxe, Joseph Grose Colmar, Raymond Crane, Leonard W. Crouch, James H. Dodg- son, Albert Fagge, A. M. M. Forbes, John P. Godfrey, John Greenfield, Alfred Heales, William K. Henderson, George March Hill, Henry S. Holts, Geo. Anthony King, No. 66 Cannon St., John Locke Jeans, Charles A. Kingston, Geo. Kirk, Dudley W. B. Leathley, G. F. Legg, K. N. MacFee St. George's Club; Edward West ley Nunn, Frederick Parish, A. Polland, Sydney H. Peddar. E. T. Ratcliff, fi Gray's Inn; Seaton P. Taylor, Edward Webb, John Woodlands Watkln, Geo. E. Solomon, 28 Holford square; John Proffitt, 32 St. George st. lira (I font. —John Thomas Last. //rt/iYflj-.— Christopher T. Rhodes. Limpool.—J. H. S. Dyke, George T. Halgh, B'rank John Leslie, T. R. Pennington. Prnffr, Surrep Co.— Edward H. Alcock. Plymomh.—C. Mathews. Scotland. /)((fidrr.— T. Littlejohn. f;f'i«flioir.— Archibald Cunningham, James Mulrhead, Wm. B. Patterson. Krf/nfii/rf/^r— Horatlus Bonar, Duncan F. Dallas, Arthur Leahy, Hamilton Maxwell, William McLaren, Thomas McLaren, An- drew Newland, James McCaul. /nwrwMs.— Hector Rose Mackenzie. A(Mi//*.— William H. Whyte. COMMISSIOXERS FOR TAKING AFFIDAVITS. 603 Ireland. /)M6Hn.— Alexander Bell, Lelnster Chambers, 43 Dame »t.; J. M. Cathrew. British Columbia. Vancouver.— Edgar H. Gouldlngr, H. A. Mellon, Charles A. Worsnop. Tictoria.—H. D. Helmcken, Johnson M. Leet. North West Territories. AiVdhasca.—J&mes McDougall. raJyary.— Edward A. Baynes. Edmonton.— T>a,nie\ Maloney, Stewart D. Mulkins. Fieminy.— Benjamin B. Gilbart. Fort Cumberland. — Pierre Deschambault. Moose Jaic— William Grayson, James P. Mitchell. J/oLeod.— Charles C. McCaul. Mackenzie Rivcr.—Blahop Glrouard. Prince 4 Jber(.— William R. Gunn, Alexander Sproat, Fita- geraJd Cochran, Georg-e A. Watson. Qa'lppcWf.— Leslie Gordon, Dixie Watson. Riding i/oun(atn.— Raymond E. Vidal. 8t. Albert.— Ha.yter Reed. St. Louis de Langev in. —Arthur O. Garnot. Wood Mountain.— Kdward W. Jarvis. Ontario. Alcojandria.— Edward H. Tiffany. Brantford.—AUred J. Wilkes. Urockville.—W. H. Jones. Clinton.— Alonzo H. Manning. Elora.— John Jacob. Galt.—Q. W. H. Ball. Ooderlcft.— Isaac Thomas. //am««o».— Aemilius Irving, Q.C., W. Churchill Livingston, Stuart Livingston. Ingersoll. Peter J. Brown, Thomas Wells. London.— W. H. Barlram. Ottawa.— John Joseph McGee, Henry James Morgan, Frank M. Macdougall, Nicholas S. Garland, L. O. Armstrong. Peterboro.—R. W. Errett. S-aforth.— James H. Benson, John Beattie. »S7. Catharines.— Henry Yale. Stratford.— O. W. Lawrence. TocoHfo.— Walter Barwlck, Wm. H. Best, Henry Barber, E. R. C. Clarkson, James Cover, Ja. ■a 3 .S o o 60 feK>SS>iM0K'^ :s i^iJ sa 00 O c5 BANKS AND THEIR AGENCIES. COT CO ho a^ CO CO O508CO O' O" O ■ a e o *> « 60 Ml _ ^ O O q - ce u 2 ■a o o o o s- o- s e .5 >5 a5 .2 0? «3 oooo oo o •J o 5 ce a c« 3° ••«1 -? . CS ■oeO ^ ■P=. ?5 g/:-; P5 5 ^x S '^ o o =s •j! o o 2 a Sj •*•* W CO pec ««-- o '/J - {• SI;; g| •^ s :2£ asss a xo gcp rJKW ,>< 5 S = . >: S -gsSiS 'rts fa s - c St; oe— 3 -> e5|S^ ^1 . 5S * m'3 ee es t*!2SS ^^ ^ 5'«'3S °; .1- fl o ou •^•M ^■sS^i^.-^^^-^ ^J _ W 'J .2 H a s C! ^ c; H S C3 ^ \i b s «<1 5 ^ tt a *A B £3:01 j* J" "« S2£a -/^Vfc-o«>i>=Ot>^-^ rag — -3 "-' _ ^ 2 I; s " - 39 « O O i SSfiSXSPS GIO BANKS AND THEIR AGENCIES. a < o %^ I « K CIS Oil a o : a : SS : pa '. O o aa -. .2 2 « o «o P 0Q la c - -• >- - Oji! 01 9 01 O n o "CO C S ■SoSS« s 2 * •S « 13 S ii C o ® e '°2o'S§.2ggKS's5§^ 'A a > o be: Oq O « :a 5<2 0)3 c« P-Psi SS W-S ^p- V- «rf ■ e fi " =« — -4 ■^ 2 ' B o »; fflcS on «>s; c8oS » a tu .2 33,. ®mX * o w l: 3 I. o *" .3 a « c 3 « — , .. t* B •^:h o aaSP 0-; - ^•5 a a laaSM .2 "go's S c. a s a * * ss OpacQpq 9jtH O" t«. O* g >r,^' .>'< -?? oo o o«goi«. o o aow ^11 H5S w bd U! ^ ^^r". 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OS c aa-j o saav. ai c^ w'Sa ?;tJaa o 00 oaaao o i a or; , • a/ *j O — 33 • J • ^ <-» • < u • V o • i a a o c2 j^ ^::: * si! S aa|«x c .2 - o o t- ^ ^ a, J :(2 M a a? .-5 o aa^H i a ■ 1 ^ u: 5 ^ -^ y. •'la '1 -*. is ^^ " ^ r 5I L> -^ * o 3 * • •s :s ai K J !? aa u G12 BANKS AND THEIR AGENCIES. 0?O!» BANKS AND THEIR AGENCIES. 613 o-osooro^wo o c 4 B O < 'A C C — — **^ tn o a: s fis 5 "> ai RS O • to n (A c =a s s ■'Jj >< es o j> •< "C S H -2 ? -93 O 5 §■« fa ^ 03 ; a ■X ■■ . o ■ _ '^ ■ cacaw M n (M tn := B c S . §2^1 21 o : -S o c o B '• M CO 5 X My. S5 o < •J H -I S ? J* as a § B &5 » « tl « p pa ^ • • « .J : E « o • * * 1-3 .».--. ^, Sj< o B3 muA O n M H >^ •«: 93 oX CD S 9 O s H2 I -^ k 1 •So 2i,>-5 o w B— ■ le m O _ « Ij (—1 !«; 2 j« o « i o ;:S^1g?§i n N 3; Soa^ea KitZ 1) .r p o o^i a-S-M Ml :£ :a i2 I ^ to- 6- • >" ,® -a : o « u H : u : : P E ^ « = ■5 a •;* 2 ? = - ^ ^ - - ^ E ^" .^ «< i: -^ = /. i^' /< Xi -z (n ". %: < < a = O o ... &]« 07? C ^ ^ -J rfie^«j3tt f 2 ffl '^ aa w ■5>«. X. /i / /, i; /, Jf. y,x^ •<; "fl o M M ^ a a a £2 «:2' c'bocSob« o o o o-^H^ncfiApa eanxcQuo u ;ji u u u 614 BANKS AND THEIR AGENCIES. I tt o u m s A P "a S - 5 « CO U -s W <« « £5 W fer P S S O ^ S m >J 3 o ■ . •*l . • : '■"A ■ • ; ; • • M • S • •' R = :^ : ■ -C . : ■• * • h OX .. h Ame ON ... EAL.. 3§|W : . $".' < 2 o : H?HS 6" M a U M .O ij EJ Tl 9 = /. w ET >5 P air £ S ^ I q 2 H s K :*j a '*' a fe a h ^ S S-g>2 ^M ^ u^^ u s n m n i£i c^ O CO o cd o. ^ CO -^ ^ 5 «d^ g e^ '^. !^i u f= ^ O « K HO. H M « -5) jz; » CO Sij fis 9f" 04 ty: ^^ be « - I— I CJ) « s <« 'A H^ tf <«) So d o"^ 2 ^ CO 2 •"Safins « i^ •< o CL, CANADIAN TARIFF OF CUSTOMS. (For amcndmeut to Customs TariflF of 11th August, 1699, see page 635.) (An Act. to amend the Customs Tariff, 1897. Passed 13/A June, 1898.) Her Majesty, by and with the advice and consent of the Senate and House of Commons of Can- ada, enacts as follows : '..•Section 6 of The Customs Tarif, 1397, is lureby repealed, and the following is substituted t herefor : — " 6. The importation into Canada of any goods enumerated, describ«'d or referred to in Schedule G to this Act is p'ohibited ; and any such goods imported shall thereby become forfeited to the Crown and shall be destroyed or otherwise dealt with as the Minister of Customs directs ; and any person importing any such prohibited goods, or causing or permitting them to be imported, shall for each offence incur a penalty not exceeding two hundred dollars." 2. On and after the first day of August, one thousand eight hundred and ninety eight, section 17 of the said Act shall be repealed and the following shall be substituted therefor: — " 17. Articles whici' aie the growth, produce or manufacture of any of I he following countries may, when imported direct into Can«da fro n any of such countries, be entered for duty or taken out of warehouse for consiunption in Canada at the reduced rate of duty provided in the Hrilish preferential tariff set forth in Schedule D to this Act:— (a) The United Kingdom ; (b) The British colony of Bermuda; (c) The British colonies commonly called the British West Indies, ii.cluding thy fullowiug : — The Bahamas; Jamaica ; Turks and Caicos Islands ; The Leeward Islands (Antigua, St. Chris- topher-Nevis, Dominicii, .Moutaerrat, and the Virgin Isla 'ds) ; The Windward Mands (Grenada, St. Vin- cent and St. Lucia) ; Barbados ; Trinidad and Tobago ; (d) Britii^h Guiana ; (fl) Any other British colony or posfefision the Customs Tariff of which i.s, on the whole, m favourable to Canada as the British preloroiUial tariff herein referred to is to such colony or possession. Provided, however, that manufaetiired nrticles to be admitted under siuh prelerential tariff shall be bona jide the manufaciures of a country oi countries entitled to the benefits of such tariff, and that such benefits shall not extend to the importation of articles into the produ'tion of which there has not entered a substantial portion of the labour of such countries. Any question arising as to any article beintr entitled to such benefits shall be decided by the Minister of Cus- toms, whose decision shall be final "2. Raw sugar, includnig all sugar descriled n item 430 of Schedule A, may, when imported direct from any British colony or possession, be entered for duty or taken out of warehouse for consumption in Canada at the reduced rate o duty provided in the British preferential tariff " 3. The Minister of Customs, with the approval of the Governor in Council, shall determine what British colonies or possession or possessions shall be entitled to the benefits of the preferential tariflT under paragraph (e) of sub-section 1 of thi» section. ''The Minister of Customs may, with the approval of the Governor ' Council, make sucU regulations liS are deemed necessary for carrying out the intention of this section." 3. Item 221 in Schedule A to the said Act is hereby repealed, and the following substituted therefor: — ''221. India rubber boots and shoes; rubber belting, rubber cement and all manufactures, of India rubber and gutta percha, N.O.P.^ tweniytive per cent, ad valorem 25 p.c." 4. Items 435 and 4:^6 in Schedule A to the said Act are hereby repealed and the follow. ng are substituted therefor : — " 435. All sugar above number sixteen Dutch standard in colour, and all refined sugars of whatever kmds, grades or standa'-ds, test- ing not more than eighty-eight v. jrees by the pulariscope, one dollar and eight cent» per one liundred pounds, and for each addi- tional degree one and one-half cent per one hundied pounds. F'raclions of five-tenths of a degree or less not to be subject to duty, and fractions of more than Kve-tenths to bo- dutiable as a deirree. "Supar N K S, not above nimiber sixleet> Dutch standard in colour, fiugar drainings or pumpiugs drained in transit, melado or con- centrated mehido, tank bottoms or sugar eoucrele, te:.tiug not more thiin seventy-five degrees by the polariscope, forty cents jier one hundrrd |)(>uii(ls, anil fur each additional degree one and oiie-hall cent per one hundreC lioiinds. Fractions ol live-tenths of a degree or less not to be subject to duty, and fiac- lioiis of more than five-tenths to be dutiable as a denrce. The usual packages in which inijiorted to be free." 5. On and after the first day of July, one tlijtisaiid eight lumdred and ninety-eight, items 445 and 410 iii Schedule A to the said Act shall be repealed. ti. On and after the said firit day of July, the (ollowiiig item shall be inserted in Schedule B to the i^aid At t instead of item (JltJ : — "CIO. Ttbacco, unmanufactured, for excise purposes under conditions of the Inland ilevenuo Act." 7. On and after the first day of August, one ihouband eight hundred and ninety-eight, Schc- 'I I I, ill n 11 616 Canadian Tariff of Giistoma. dule D to the said Act shall be repealed and the following substituted therefor: "SCHEDULE D " British Prefbrential Tariff. "On articles entitled to the benefits of this preferential tariff under sectiot. seventeen, the duties mentioned in Schedule A shall be reduced as follows : The reduction shall be one-fourth of the duty mentioned in Schedule A, and the duty to be levied, collected and paid shall be three- fourths of the duty mentioned in Schedule A. Provided, however, that this reduciion shall not Koply to any of the following articles and that such articles shall in all cases be subject to the duties mentioned in Schedule A, viz : wines, malt liquors, spirits, spirituous liquors, liquid medicines and articles containing alcohol ; tobacco, cigars and cigarettes. Provided further, that the reduction shall only apply to refineil sugar, when evidence satisfac- tory 10 the Minister of Customs is furnished that such rehned sugar has been manufactured wholly from -aw sugar produced in tlie British colonies or possessions." 8. Except as herein otherwise provided, this Act shall be held to have conic into force on the sixtli day of April, in the present year, one thou- sand eight hundred and ninf ly-eight. (.4n Act to consolidate and amend the Acts respecting the Duties of Customs.) Assented to 29th June, 1897. Hkk Majesty, by and with the advice and con- sent of the Senate and House of Commons of Canada, enacts as follows : — 1. This A( • lay be cited as The Customs Tarif, 1897. 2. In \his Act, and in any other Act relating to customs, unless the context otherwise requires, — (a) The initials "N. E. S." represent and have the meaning of the ..ords " not elsewhere speci- fied " ; (i) The initials " N. 0. P.'' represent it.;; have the n..aning of the woris " not otherwise pro- vided for " i (c) The expression "gallon" means an im- perial gallon : (d) The expression " ton " means two thou- sand pounds avoirdupois ; {«) The expression ' proof " or " proof spirits," when applied to wines or spirits of any kind, means spirits of a strength equal to i hat of pure ethvl alcohol compounded with distilled water in sucii proportions that the resultant mixture shull at a temperature of sixty decrees Fahrenheit have a specific gravity of O.li 98 as compared with that of distilled water at the s;ime tenipern- ture ; (/) The expression "gauge," when applied to metal sheets or plates or to wire, means the thick, ness as determined by Stubb's standard guage ; (^.)The expression " in diameter," when applied to tubing, means the actual inside diainetir : (A) The expression " sheet," when apjilied to metals, means a sheet or plate not exceeding ^hree-sixteenihs of an inch in thickness. (i) The expression "plate," when applied to metals, means a plate or sheet more than three- sixteenths of an inch in thickness, r 3. The expressions mentioned in section two of The Customs Ac/, as amended by section two of The Customs Amenl lu.'.y 3e imjiorted free of dt 'y is not hereby al(rogated or impaired. 4. Subject to the provi^^ions of this Act and to the requirements of The Cmtoins Act, chapter 32 of the Revised Statutes, as amended, there shall be levied, collected and paid upon all goods en- umerated, referred to as not enumerated, in Sche dule A to this Act, the several rates of duties of customs set forth and described in the said Sche- dule and set opposite to each item respectively or charged thereon as not enumerated, when such goods are imported into Canada or taken out of warehouse for consumption therein. 5. Subject to the same provisions and to the further conditions contained in Schedule B to this Act, all goods enumerated in the said Schedule B may be imported into Canadp or maybe taken out of warehouse for consumption in Canada without the payment of any duties of customs thereon. B. The importation into Canada of any goods enumerated, described or referred to in Schedule C to this Act, is prohibitea ; and any such goods imported shall thereby become forfeited to the Crown and shall be destroyed, and any person importing any such prohibited goods, or causing or permitting them to be imported, shall fui- each offence incur a penalty of two hundred dol- lars. 7. The whole or part g-ihe.ids, pi[)es, barrels, and all other vessels or packages, manufactured of tin, iron, lead, zinc, glass or an}' other material capable of holding liquids, and all packages m which goods are commonly placed for home consump- tion, including cases, not otherwise provided for, in which bottled spirits, wines or mall liquors or other liquids are contained, and every package being the first receptacle or covering inclosing goods tor the purpose of sale, shall in all cases not otherwise provided for, in which they con- tain goods subject to an at valorem duty, or a specific and ad valorem duty, be charged with the same rate of ad valorem duty as is to be levied and collected on the goods they contain, and the value of the packages muy be included in' the vnlue of such goods; (.6) All such packages as aforesaid containing goods subject to a specific duty only, and not otherwise provided tor, shall be charged with a duty of twenty per cent ud valorem (c) Packages not hereinbefore specified, and not herein specially charged with or declared liable to duty, and being the usual and ordinary pack- ages in which goods are ])acked for exportation) according to the general usage and cu=toni of trade, shall be free of duty ; {d) All such special packages or coverings as are of any use, or apf)arently liesigned for use other than in the im(>ortation of the goods they contain, shall be subject to the same rate of duty as would thereon be levied if imporfd empty or sei)arate from their contents ; [e) Packages (inside or outside) containing free gO')ds shall be exempt from duty when ti e pack- ages are of such a n^iture that their destruction is neces-ary in order to release the gooils. 14. Any person who, without lawful excuse, the proof of which shall be on the person accused, sends or brings into Canada, oV who, oeing in Canada, has in his possession, any bill-lioading or other paper appearinir to be a heading or blank capable of being filled up and use 1 as a.i invoice, and bearing any certificate purporting to show, or which may be used to show, that the invoice which mav be made from such billhead, ing or blank is curiect or authentic, is guilty ot an indictable oHence and liable to a penalty of five hundred dollars, and to imprisonment (or a term not exceeding twelve months, in the discre '.ion of the court, and the goods entered under any invoice made from any such bill-heading or blank slmll he forfeited. 13. With respect to goods imiiortcd for manu- facturing i)urpo3es that are admissible under this Act for any specific purposes at a lower rate of duty than would otherwise be chargeable, or ex- empt from duty, the importeclaiming such ex- emption from duty, or i>roportionate e.tomplion from duty, shall make and subscrib; to the fol- lowing affidavit or atTirniation before the (H)llec tor of customs at the pott of entry, or before a notary public or a commissioner for taking affi- davits: — I {name of importer), the undersigned, imi»orter of the {n'imes of the i/diuU or articles) inentioned in this entry, do solemnly (.t«"rt- i>r p doz. Containing one-half pinteach or less 82c i> doz Bottles containing more than on^ quart eacli shall pny in addition to $3.30 per doz-'u bottles, at the rate of $1.65 p gall on tlie quantity in excess of one quart per bottle, the quarts and pints in each cnse being old wine measure; in addition to the Jibove specific duty there shall be an ad vnlorem duty of 30 But any liquors imported under the name of winej and containing more than tor y per cent, of spirits of theotrength of proof shall be rated lor duty a" unenumerated spirits. Animals and Agricultural, Animal and Dairy Products. Animals, living, N K S 20 Live hogs Ijc p lb Meats, N E S, (when in barrel, the barrel to be free) 2c p lb Meats, fresh, N E S 3c p Ut Canned meats, and canned poultry and game, extracts of meats and fluid beef not medicated, and soups Mutton and Iamb, fresh Poultry and game, NOP Lard, lard compound and similar substances, cottolene and animal stearine of all kind.-<, N E S 2c p lb Tallow and stearic acid Beeswax Candles, N ES ParafSne wax candles Soap, common or laundry Ic p lb Castile soap, mottled or white 2c p lb Soap, NES Pearline, and othrr soap powders Glue, liquid, powdered or sheet, and muci- lage, gelatine, and isinglass Feathers, undressed Peathers,NE S Eggs 3c p doz Butter 4c p lb Cheese 3c p H) Condensed milk (weight of the package to be included in the wight for dut.v).31cpli> Condensed coffee with milk, milk food.s and all bi.Tiilrtr preprtrations Apples, including the duty on the bar- rel 40c p bit Beans 15c p bush Buckwheat lOcpbnsli Pease, NES 10c p bush Potatoes, N E S 15c p bush Rye 10c p bush Rye flour, including the u ty on the b.u- rel 50c p bi I Hay $2ploii Vegetables, N O P Barley Dutiable breadstutfs, grain and Hour aniish Oats lOcp bush Oatmeal Rica, uncleaned, unlmlled or padily...ic p lb Rice, cleaned Ucp M) llicc and sago flour and sa>;o and tupiocn... Rice, when iniporied tjy makers of rice starch fur use in their factories in making starch ^c p H) Wheat 12c p bii>li Wheat flour, including the duty on the bHr- rel 6(jc p brl ISiscuits, nut sweetened Biscuits, sweetened Macaroni and vermicelli Starch, including farina, corn starch or flour p. c 2» 35 20 20 10 25 30 35 30 25 20 30 30 25 30 20 20 25 25 (H €20 Canadian Tariff of Customs. p. c. and all preparations havini; the qualities of starch, the weight of the packaf^e to be ill nil cases included in liie weight fi)r duly.. IJcplb Seeds, viz : — gHrden, field and other seeds for a(;ricuitural or other purposes, N O F, sunflower, canar)', hemp and millet seed, when in bulk or in large parcels 10 When put up in small papers or pHicels 25 Mustard, ground 25 Musiard cake 15 Sweet potaioes and yams 10c p bush Tomatoes, (resh .' 20c p bush and 10 Tomatoes and other vegetables, including corn and baked beans, in cans or other packages, N K S, the weight of the cans or other jiHckagei to be included in the weight for duly Uc p lb Pickles, sauces and catsup!", including soy .. 35 Malt, upon entry for warenouse subject to fx- t se regulations 15c p bush Extract of mali (non-alcoholic), for medicinal and baking purposes 25 Hops 6c p lb Compressed yeast, in bulk or mass of not less ilian lifiy ])ounds 3c p lb In packiiges weighing Iciss than fifty pounds, the weight of the package in the latter c^se to te included in the weight for duty Gc p lb Yeast, cakes and baking powder, the weight oi ihe packages to be included in the weight for duty 6c p lb Trees, viz :— apple, cherry, peach, pear, plum and quince, of all kinds, and small peach trees known as June buds 3c each iirape vines, gooseberry, raspberry, currant and rose bushes ; fruit plants, N E S, and shade, lawn and ornamental trees, shrubs and plants, N ES 20 Blackberries, gooseberries, rasjiberries, stiawberri' s, cherries and currants, N E S, the weight of the package to be iiu^luded in the weight for duly 2c p lb Cranberries, plums a'.id quinces 25 Prune!5, including raisins, dried currants and Ciililornia or silver prunes Ic p lb Apples, dried, desiccate'l or evaporated ; dates, figs, and other dried, desicacted or evaporated fruits, NE S 25 Grapes 2c p lb Oranges, lemons and limes, in boxes of ca[)a- city not exceeding two and one-half cubic feet 25c p box In one-half boxes, capacity not exceed- ing one and one-fourth cubic toot 13i! p ^ box In cases and all other packages" per cubic loot holding capacity. 10c p cub ft In bulk, per one thousand orange:=, lemons or limes $1.50 p JI Inbarrels, not exceeding in capuciiy ihpi of the one hundred and linety-six pounds flour barrel 5c p brl Peaches, NOP, the weight of the package to be included in the weight for duty Ic p lb Fruits in air-tight cans or other packages, the weight of the cans or o'her packages p. c. to be included in the weight for duty 2^0 p lb Fruits preserved in brandy, or preserved in other spirits $2 p gall Preserved ginger... 30 Jellies, jams and preserves, >f B S...3Jc p lb Honey, in the comb or otherwise, and imita- tions thereof 3c p lb Tea and green coffee, N 10 S 10 Coffee, roasted or ground, when not import- ed direct from the country of growth and production. 2c p lb ana Coffee, roasted or ground, and all imitations thereof and subsiitutes therelbr, including acorn nuts, N (J P 2c p !b Extract of coffee, N E y, or substitutes there- for of all kinds 3c p lb Chicory, raw or preen 3c p lb Chicory, kil'i-dried, roasted or ground. 4c p lb Cocoa shells and nibs, chocolate, and other preparations of cocoa, N E S 20 Cocoa paste, chocolate paste, cocoas and cocoa butter. N P 4c p lb Nuts, shelled, N E S 5c p lb Almonds, walnuts, Brazil nuts, pecans and shelled peanuts, N ES 3c p lb And nuts of all kinds, NO P 2c ji lb Cocoanuts, N ES $1 p 100 Cocoanuts. when imported from the place of growth, direct toa Canadian port. 50c p 100 Cocoannt, desiccated, sweetened or not.5c p lb Nutmegs and miice 25 Spices, viz :— ginger and spices of all kinds, unground, N E S 12.^ Ground 2.') Fine salt in bulk, and coarse salt, N ES 5c p 100 lbs Salt, .V E S, in bags, barrels and other pack- ages, — the bags, barrels or other packages being the first coverings or inside pack- ages, to bear ihe same duty as if such packages or first coverings were importeil empty T^c p 100 lbs fish and Products of the Fisheries. Mackerel Ic p lb Herrings, pickled or salted Ac p lb Salmon, fresh ^c p lb Salmon, [tickled or salted ic p lb All other fish, pickled or salted, in barrels lop lb Foreign-caught fish, imported otherwise than in barrels or half-barrels, whether fresh, dried, salted or juckled, not spe- cially enumerated or provided forby this Act 50c p 100 lbs Fish, smoked and boneless Ic p lb Ancliovies and sardines, packed in oil or otherwise, in tin boxes inpasuring not more than live inches long, four inches wide and three and a half inches deep, per whole bov 5c p box (b.) In linlf boxes measuring not more than five inches long, four inches v. ide, and cne and five-eighths deep j'er halt box 2^c pi box (c) In quarter boxes, measuring not more than ti ur inches and ihree-qnarters Canadian Tariff of Customs. 621 30 10 20 •15 2r) p. c. long, three and a half inches wide ani*. one and a quarter deep 2c p \ box Anchovies and sardines, when imported in any other form 30 Fish preserved in oil, except anchovies and sardines 30 Fresh or dried fish, N E S, imported in barrels, or half-barrels Ic p lb Ualruon and all other fish prepared or pre- served, including oysters, not specially enumerated or provided for in this Act 25 Oysters, shelled, in bulk 10c p gall. Oysters, shelled in cans not over one pint, including tlie cans 3c p can Oysters, shelled, in cans over one pint and not over one quart, including the cans 5c p can. Oysters, shelled, in cans exceeding one quart in capacity, an additional duty of five c-nts for each quart or a fraction of a qunrt of capacity over a quart, including the cans 5c p quart Oysters, in the shell 25 Packages containing oysters or other fish, NO I' 25 Oils, spermaceti, whalu and other fisli oils, and all other articles the produce of tlie fisheries nut specially provided for 20 Books and Paper. Albumenizftd and other papers and films ciiem- ii-ally prepared for photographers' use 30 Books, viz:— Novels or works of fiction, or literature of a similnr character, iinbi)und or paper-bound or in sheets, including ♦reiglit ralHs f.)r railways and telegrapli rates, bound in !)ook or i)am|>hlet form, but not to include (7 liristmas annuals or publi- cations commonly known as juvenile aud toy books 20 Books, printed, periodicals and pamplileis, or parts thereof, N E S, — not to incltuie blank account books, copy books, or books to be written or drawn upon 10 Advertising and i)rinted matter, viz, : — Ad- vertising pamphlets, advertising pictorial show canis, illustrated advertising perioil. icals ; illustrated price books, c.Ualogucs and price lists, advertising almanacs and calendars; patent medicine or other adver- tising circulars, fly sheets or pani|p|il('ts; advertising cliromos, clironiotyix's, dleo graphs or like work produced by any pro- cess otiicr than hand painting or drawing, and hnvijig any advertisement or advertis- ing matter printed, liiliograplied orstarnjied thereon, or attached thereto, including ad- vertising bills, folders and posters, or other similar artistic work, lithographed, printed or si.Hni|)ed on paper or cardboard for busi- ness or adveitisement purjioses, N O I-*, 15c p lb. Labels for cigar boxes, fruits, vegetables, meats, iish, confectionery or other goods or wares ; shipping, price or other lags, tic lets or labels, ami railroad or other tickets, whether lithoirraphed or printed, partly printed, N E S 35 p. c. Bank notes, bonds, bills of exchange, cheques, promissory notes, drafts and all similar work, unsigned, and cards or other com- mercial blank forms printed or lithograph- ed, or printed from steel or cofiper or other plates, and other printed matter, N E S 35 Printed music, bound or in sheets 10 Photographs, chromos, chromotypes, arto- types, oleographs, paintings, drawings, pictures, engravings or prmts, or proofs therefrom, and similar works of art, NOP; blue prints, building plans, maps and charts, NES 20 Newspapers or supplemental editions or parts thereof, partly printed and intended to be completed and published in Canada.. 25 Union collar cloth paper in rolls or sheets, not glossed or finished 15 Union collar cloth paper '.n rolls or sheeis, glossed or finished 20 Mill-board, not straw board 10 Straw board, in sheets or rolls ; tarred paper, felt or straw board ; sandpaper, glass «)r flint paper, and emery paper or emery cloth 25 Paper sacks or bags of all kinds, printed or not 25 Plaj'ing cards 6c j) pack. Paper han^'ings or wall papers, borders or bordering, and window blinds of paper of allkinds 35 Printing paper and paper of all kinds, NES. 25 Ruled and bor ler and coated papers, pape- teries, boxed papers, pads not printed, papier-mach<^ ware, NOP; envelopes, ami all manufactures of paper, N E S 33 Chemicals and Drugs. Acids, acetic aeid and pyroligneou.«, NES, and vinegar, a specific duty of fifteen cents for each gallon of any strength not exceeding the strength of proof, and for each degree of strength in excess of the strength of proof an additional duty of two cents 2c p deg. The strength of proof shall be held to be equal to six per cent, of absolute acid, and in all cases the strength shall be deter- mined in such manner as is established by the (Jovernnr in (Council. Acid, acetic acid crude, and pyroligneous crude, of any strength not exceeding thirty l)er cent — 25 Acid, muriatic and nitric, and all mixed or other acids, NES 20 Acid, sulpliuric 25 Acid, pho.sphate. NO I' 25 Suli)liuric ether, chloroform, anl pib Opium, powdered .$1.35 j) lb. Opium, prepared for smoking $5 p lb. Colours, Paints, Oils, Varnishes, etc. Dry white and red lead, orange mineral and zinc white 5 Ochres, ochrey earths, raw siennas, and colors, dry, NES 20 Oxides, umbers, burnt siennas, and fire proofs, N K IS ; laundry blueing of all kinds, rough stutf and dry and liquid fillers, anti-corro- sive and anti-fouling paints commonly used for sliip.'^' hulls, and ground and liquid paints, N ES 25 Paints and colours, ground in spirits, and all spirit varnishes and lacquers..$l.r2] p gall Paris green, dry 10 Ink for writing 20 Blacking, shoe, and shoemakers' ink ; shoe, harness and leather dressing, harness soiip, and knife or other polish or compo- sition, N O P 25 Putty, ot all kinds 20 Turpentine, spirits of 5 British gum. dextrine, sizing cream and enamel sizing 10 Varnishes, lacquers, japans, japan driers, liquid driers, and oil Hnish, N B 8. ...20c p gall and 20 Linseed or flaxseed oil, raw or boiled, l-ird oil, neat's-foot oil, and sesame seed oil 25 Illuminating oils composed wholly or in part of the products of petroleum, coal, shale or lignite, costing more than thirty cents per gallon 25 Lubricating oils, composed wholly or in part of petroleum, costing less than twenly- flve cents per gallon 5c p gall Crude petroleum, fuel and gas oils (other p. c. than na|)htha, benzine or gasoline) when imported by manufacturers (other than oil refaners) for use in their own factories for fuel purposes or for the manufacture of gas. 2jcpgall U.ls, coal and kerosene distilled, purifled or refined, naphtha and petroleum, and pro- ducts of petroleum, .V E S., ........ 5c p gall Barrel.s containing petroleum or its products, or any mixture of which petroleum forms a part, when such contents are chargeable with a specific duty 20c each Lubricating oils, N E S, and axle grease 25 Olive oil, N E S -20 Essential oils 10 Vaseline, and all similar preparations of petro- leum for toilet, nzedicinal or other purposes. 35 Coal. Coal, bituminous, per ton of 2,000 lbs 53c p ton Coal dust, N E S 20 Earthenware, Cements, Slate and Stoneware. Building brick, paving brick, stove linings, and tire brick, N E S, and manufactures of clay or c. ment, N O P 20 Earthenware and stoneware, viz. : demijohns, churns or crocks 30 Drain tiles, not glazed 20 Drain pipes, sewer pipe?, chimney linings or vents, chimney tops and inver' blocks^ glazed or unglazed, and earthe i tiles. 3j China and porcelain ware, also ware and stoneware, brown or coiumed and Rockingham ware, white granite or iron stoneware, " c. c." or cream colouied ware, decorated, printed or sponged, and all earthenware, N ES 30 Baths, tubs and wash-sJands of earthenware, stone, cement or clay, or of other material, NO P 30 Cement, Portland and hydraulic or water lime, in bags, barrels or casks, the weight of the package to be included in the weight for duty 12ic per one hundred pounds Plaster of Paris, or gypsum, ground, not calcined Ij Plaster of Paris, or gypsum, calcined or manufactured, the weight of the package to be included in the weight for duty. I'iic. per one hundred pounds Lithograi)hic stones, not engraved 20 Grindstones, not mounted, and not less than thirty-six inches in diameter 15 Grindstones, N ES 25 Flagstone, sandstone and all building stone, not hammered or chiselled ; and marble and granite rough, not hammered or chiselled. 15 Marble and granite, sawn onlv; flagstone and all other building stone, dressed; anl paving blocks of stone 20 Marble and granite, NES, and all manufac- tures of marble or granite, N P 35 Manufactures of stone, NO P ao Roofing slate, provided that the duty sliall not exceed seventy-five cents per square 25 Slate mantels and other manufactures of slate, N E S 30 Canadian Tariff of Cmtoms. 623 p. c- Slate pencils and school writing slates 25 Mosaic flooring of anjr material 30 Glass and Glassware. Conamon and colourless window glass, and plain coloured, opaque, stained or tinted, or muffled glass, in sheets 20 Ornamental, figured, and enamelled coloured glass, vitrified or painted, chipped, figured, enamelled and obscured white glass ; stained glass windows, and memorial or ornamental window glass, NOP, and rough rolled plate glass 30 Plate gla'is, not bevelled, in sheets or panes, not exceeding twenty-five square feet each, N O P 25 Plate glass, not bevelled, in sheets or panes NK S 35 Plate glass, bevelled, in sheets or panes, N O P 35 Silvered glass, bevelled or not and framed or not 35 German looking glass plate (thin plate), un- silvered or for silveri.^g 20 Glass demijohns or carboys, empty or filled, bottles, decanters, Hask^, phials, glass jars and glass balls, lamp chimneys, glass shades or plobes, cut, pressed or moulded crystal or glass tableware, decorated or not, and blown glass tableware 30 Bent plate or other sheet glass, and all other glass, and manufactures of glass, N P -iQ Specacles and eyeglasses 30 Spectacles and eyeglass frames, and metal parts thereof 20 Leather, Rubber and Manufactures of. Dongola, cordovan, calf, sheep, lamb, kid or goat, kangaroo, alligator, or other upper leather, and all leather dressed, waxed, glazed or further finished than tanned, N K S, harness leather, and chamois skin.. 17^ Skins for morocco leather, tanned but not further manufactured; sole leather, and belting leather, of all kinds ; tanners' scrap leather; and leather and skin.^, N P 15 Glove leatliers, tanned or dressed, coloured or uncoloured, when imported by glove manufacturers for use in their own factories in the manufacture of gloves 10 Japanned, patent or enamelled leather, and morocco leather 25 Leather-board, leatheroid, and manufac- tures thereof, N P 23 Whips of all kinds, including thongs and lashes 33 Belting, of leather or other material, N E S.. 20 Boots and shoes, and slippers, of any material, NE S 25 Manufactures of raw hide, and all manufac- tures of leather, X O P 25 India-rubber boots and shocs ; and all manu- factures of india-r'-;bber and gutta perclia, NO P 25 India-rubber clothing and clotbmg made waterproof with india-rubber or gutta per- cha hose, and cotton or linen hose lined with rubber, rubber mats or matting, and rubber packing 35 Metals -..tu idanujactures of. Iron or steel scrap, wroiijtht, being waste or refuse, Including nunchings, cuttings or clippings of iron or steel plates or .-iheetd having tieen in actual use; crop ends of tin jilate bars, or of blooms, or of rails, the same not having been in actual use i?l p ton Nothing shall be deemed sciaji iron or scrap steel except waste or refuse ir.iu or steel fit only to be re-manufactured in rolling mills. Iron in pigs, iron kei: (ledge, and cast scrap iron $2.50 p ton Ferro-silicon, ferro-m?inganese, and spiege- leisen 5 Iron or steel ingots, cogged ingots, blooms, slabs, t)illets, nuddled bars and loops or other forms, N P, less finished than iron or steel bars but more advanced than pig iron, except castings $2 p ton Rolled iron or steel angles, tees, beams, channels, girders and other rolled shapes or sections, weighing less than thirty-five pounds per lineal yard, not punched, drilled or further manufactured than rolled, N V %1 p ton Rolled iron or steel angles, tees, beam.s, chan- nels, joists, gi'.dcrs, zees, stars or other rolled shapes, or trough, bridge, Ijuilding or structural rolled sections or shapes, not l)unched, drilled or further manufactured than rolled, N E S, and flat eye-bar blanits not punched or drilled 10 Bar iron or steel, rolled, wlietiier in coils, rods, bars or bundles, comprising rounds, ovals and squares, and flats; an I rolled shapes, NOP; and rolled iron or steel hoop, band, scroll or strip, eight inches or less in width, number eighteen gauge and thicker, N E S $7 p ton Universal mill or rolled edge bridge plates of steel when imported by mauufacturers of bridges 10 Rolled iron or steel plates not less than thirty inches in width, and not less than one quarter of an inch in thickness, NOP 10 Rolled iron or steel sheets or plates, sheared or unsheared, andskelp iron or steel, shear- ed or rolled in grooves, M E S $7 p ton Skelp iron or steel, sheared or rolled in grooves, when imported by manufacturers of wrought iron or steel pipe for use only in theniiinufactiire of wrought iron or steel pipe in their own factories 5 Rolled iron or steel sheets number seventeen gauge, and thinner, NOP; Canada plates ; Ttussia iron ; Hat galvanized iron or steel sheets, terne plate, and rolled sheets of iron or steel coated with zinc, spelter or other metal, of all widths or thickness, NOP, and rolled iron or steel hoop, band, scroll or strip, thinner than number eigh- teen gauge, N E S ,5 Chrome ateel, 15 Steel, in bars, bands, hoops, scroll or strips, sheets or plates, of any size, thickness or width, when of greater value than two and one-half cents per pound, N P 5 i: i i 624 Canadiaji Tariff of Cue*om8. p. c. Swedish rolled iron and Swedish rolled steol nail rods under half an inch in diameter for the manufacture of horse-shoe nails 15 ron and steel railway bars or nails of any form, punched or not, N E S, for railways, which term for the purposes of this item shall include all kinds of railways, street railways and tramways, even although they are used for private purposes only, and' even althou(;h ttey are not used or in- tended to be used in connection with the business of common carrying of goods or passenfirers 30 Railway fish plates and ti" plates $8 p ton Switches, 'roj^s, crossings and intersections for railways , oO Locomotives for railways, NE S 35 Iron or steel bridges, or parts thereof; iron or steel structural work, columns, shapes or sections, drilled, punched or in any further stage of manufacture that as rolled or cnst, N ES 35 Forgings of iron or steel of whatever shape or size or in whatever stage of manufacture, NESjand steel slv.fimg, turned, com- pressed, or polished ; and hammered iron or steel bars or shapes, N O P 30 Iron or steel castings,'in the rough, N E S 25 Stove plates, stores of all kinds, for oil, gas, coal or wood, or parts thereof, and sad or smoothing, hatters' and tailors' irons, platc^ wholly or in part, or not 25 Sjirings, axles, axle bars, N E S, and axle blanks, and ]iarts thereof, of iron or steel, for railway, or tramway or other vehicles.. 35 Cnrt or WHgon skeins or boxes 30 Cast iron pipe of every description. ..$8 p ton Wrought iron or stee! boiler tubes, N E S, including flues and coriugaled tubes for marine boilers 5 Vubes of rolled steel, seamless, not joined or welded, not more than one and oneiialf inch in diameter; and seamless steel tubes for bicycles 10 Wrougli'. iron or steel tubing, plain or gHl- vanized, threaded find coupled or not, over two inches in diameter, N E S 15 Wrought iron or 'l, N O P 25 30 30 Lead, old, scrap, pig and block 15 (icad, ill bhrs, and in sheets 25 Lead pipe, ioad shot and lead bullets 35 Lead, maufactures of, N O P 30 Brass and cofper nails, tacks, rivets and burrs or washers ; bells and gon>rs, N E S, and all manufactures of brass or copper, NOP.. .JO Zinc, manufactiires of, N P 25 Nickel anodes...* 10 Iron or steel nuts, washers, rivets, and bolts, with or witliout threads, and nut, bolt, and hinge blanks, aud T and strap hinges of all kinds, N E S J e p lb and 25 Builders', cabinet-makers', upholstereis", harness-makers', saddlers', and -arringe hardware, including butt-hinges, locks, curry combs or curry cards, horse-bonts, harness and saddlery, N E S :!0 Skates of all kinds, roller or other, and parts thereof :i5 Giis tneiers 35 Safes, doors for safes and vaults ; scili balances, weighing beams, and strength testing machines of all kinds Car.'ers, knives and forks of steel, butcher and tabl'j steels, oyiter, bread, kitchen, cooks', butcher, shoe, farrier, Jintly, liacking and glaziers' knives •, cigar knives, spatulas nr palette knives, razors, erasers or ollice knives, peOj pccket, pruning, sportsmen's or hunters' Knives, manicure liles, scissovs, tr'ninier-i ; barbers', tailo "s, and lamp shears, horse and toilet clippers, and i.ll liKe cutlery, plated or not, N P,— when any of the above uiiicles aru imiioited in cases or cabinets, the cases or cabineis shall be dutiable at the same rate as their contents 30 Knife blades or blanks, and table forks of iron or steel in the rough, not handled, filed, ground or otherwise nianiifactiired.. 10 C'-l'iiiioid, moulded in^o sizes I'.jr handles of knives and forks, not bored nor otherwise 30 Canadian Tarlf of Cuatoms. 625 manufactured ; also, moulded celluloid balls and c>Iinder8, coated with tin-foil or not, but not tiiiisiied or further matiu- factured, nnd celluloid lamp shade blanks Bird, fiarrot, squirrel and rat cajj^es, of wire, and metal f)art3 thereof Files and rasps, N KS Adzea, cleavers, hatchets, saws, wedges, sledgep, hammer--, crow-hars, cant-dogs and track tools; picks, mattocks, and eyes or poles for the same; anvils, vices ; and tools, of all kinds, for hand or for machine use, including shoemakers' and tinsmiths' tools or bench machines, NOP Axes, scythes, sivkles or reaping hooks, hay or straw knives, edging knives, hoes, rnkes, l)ronged f rks, snatbs, farm, road or field rollers, post hole diggers, and other agri- cidtural implements, N ES Shovels and spades, iron or steel, N i'^ S ; shovel and spade blanks, and ir<,ii or steel cut to yhape for the same; and lawn mowers IJritaiinia metal, nickel silver, Nevada and Gern)an silver, manufactures of. not pla'ed, and manufactures of •i,!,miiniiu), N P Sterling or other silverware, nick el- plated ware, gilt or elecfro-plated ware, wholly or in part, of all kind.^, N E .S Tele]ihone and telegraj>h instruments, elec- tric and galvanic liatteries, electric motors, dynamos, generators, sockets, insulators of iiU kinds: and elccfric aii|>anitiis, N L .>... Electric light carhons and caibou points, of all kind.s, N KS Carbons over six inches in circunifereuce LamjJS, .'^ide-Iight.-j and head-lights, lanterns, chandeliers, ^as, coul or other oil lixiures and electric liglt fixtures, or metal piirts thereof, inclufliiig lava or other tip^, burners, collars, galleries, shades and :hade holders Lamp springs, and glass bulbs for electric lights Babbit melal, type metal, jdiosphor tin and l)hosplior bronze in blocks, bars, jilates, sheets and wire.. Type for printing, including chases, quoins and slugs, of all kinds Plates engraved on wood, steel, or other metal, and trnnsi' r,'^ taken from the same, including engravers' plates of steel, pidi.sji- ed, engraved or for engna'iiig tliereiiiion... Stereotypes, electrotypes, anti cclliiioids for almanacs, calendars, illustrated pamphlets, newspapers iidvcrtiseuieuts or engravings, and all other like work lor couitnercial, tradf? or other purposes, N K S, and ma- trices or copper shells lor the same l^cpsqin Stereotypes, electrotvpes and celluloids of newspaper columns, and bases for the same composed wholly or partially of metal or (lelluloid .|c p sq in And matrices or copper shells for the same... li]c p s() in Clothes wringers for domestic use, and parts thereof Buckles ol iron, steel, brass or co] i>er, of all kinds, N P (not being jewellery) 10 35 30 25 ;.o 35 15 30 10 10 20 20 35 30 40 p. c. Gnus, rifles, including air guns and air rifles not being toys, muskots, cannons, pistols, revolvers, or other firearms ; cartridge cases, cartridges, primer.-', percussion caps, wads, or other auimunition, N P; bay- onets, swords, fencing foils and masks ; gun or pistol covers or cases, game ba<;s, loading tools and cartridge belts of any materii'l 30 ■ARate, granite or enamelled iroa or steel hollow-ware 35 Enamelled iron or steel ware, N E S ; iron or steel hollow-ware, plain black, tinned or coated; and nickel and alum'uum kitch*!) or household hollow-ware, N E S 30 Tinware, plain, jivjiauned or lithog aphe>l. and all manulactures of tin, N K S, aud manufactures of giilvanii'.ed sheet iron lU- of galvanized sheet steel, N U P ..\ 25 Signs, of any nuiterial, framed or not ; and letters of any uuitcrial for S'gn;' or similur use 30 Fire etigines and fiie extinguishing machines, incliuling sprinklers t'or lire protection 35 Brass pumps of all kinds, and garden i r lawn sprinklers 30 Printing presses, i riuting machne.<, litliogni- jdiic presses and type-making accessories therefor; folding nuichines, book-bindei-s' book-binding, ruling, embo-sing and pai)cr cutting nuichines, and parts thereof 10 Sewinir m ichines, and parts thereof 30 Steam engines, boilers, ore crushers aud rock crushers, st.imp mills, ('ornisii and b.ltid rolls, rock drills, air compressors, cranes, uerricks, percussion coal cutters, pump-, N E S, windmills, horse-powi-rs, portable engines, threshers, separators, fodder or feed cutters, potato diggers, grain crtishcrs, fanning mills, hay tedders, farm wagon-i. slot nuichines and tyi e-writers, and all machinery comi)osed whofly or in part of irouorsteel, NOP 25 Machine card clothing 25 Moidd boards or shares, or plough plates, laiul sides, aud other plates for agricul- tural implements, when cut to shape from rolled plates of steel but not moulded, punched, polished or otherwise manufac- liivd 5 Mowing machines, harvesleis iielt'-binding or without binders, l/iuding attachments, reapers, cidtiviitors, ploughs, harrows, hor;e-rak<'S, seed diills, manure apreadersi, weeders, and uuilleable sprocket or link belting chain l'< r blitders iO Tr.iwls, trawling spoons, 'ly hooks, sinki'rs, swivels, and spot t>meti*s'fi;^hing bait, and fish hooks, .\ ES 30 Patterns of brass iron, steel or other metal (not being niixleU) go .Manufactuies, articles or wares not specially enumerated or provided for, composell wholly or in part of iron or steel, and whether wholly or partly manufactured 30 Vi' hides. Freight wagons, drays, sleigha and similar vehicles -j-) Buggies, carriages, pleasure carts and similar 626 Canadian Tariff of Customs. p. c vehicles, N E S, including cutters, child- ren's carriages and sleds, anl finished jmrts thereof, N P 35 Railway cars (or other ears), v eelbarrows, trucks, road or railway scrapirs and hand carls .'. 30 Bicycles and tricycles 30 Manufactures of Wood, Cane, Cork. Cane, reed or rattan, split or otherwise manufacture'!, N ?. 15 Corks, and other manufactures of cork wood or cork bark, N O P 20 Sawed boards, planks and deals planed or dressed on one or both side-*, when the edges thereof are jointed or tongued and grooved 25 Lumber and timber, manufactured, N E S.... 20 i'nils and tubs of wood ; churns, brooms and whisks, wash-boards, pounders and rolling pins. 30 30 20 Veneers of wood, not over three thirty siconds of an inch in thickness 7J Mouldings of wood, plain, gilded or other- wise further manutactured 25 Wood pulp 25 Mnnufactures of wood, N P 25 FisiJiing rods, walking siicks and walking canes, of all kinds, N E B Picture frames and photograph frames, of any material Umbrella, parasol and sunshade stcks or handles, N E S i 20 CuHius and caskets, and metal parts thereof. 25 Sliow-cases, of all kinds, and metal parts thereof 35 Billiurd tables, with or without pockets, and bagatelle tables or boards, cues, balls, cue racks, and cue-tips 35 Vulcanized fibre, kartavert, indurated fibre, antl like material, and manufactures of, NK S 25 Blintls of wood, metal or other material, not textile or ,)a[ier House, office, cabinet or store furniture of wood, iron, or other material, in parts or finished ; wire, screens, wire doors and wire wiiulows ; cash registers ; wiiiddW cornices jind cornice |)oles of all kinds; liair, sjiring and other mattresses, bolsters and pillows, including furniture springs and carpet sweepers Window shade or lilind rollers 30 30 35 Jewellery and Material therefor, etc. Watch cases 30 Clocks, watches, watch glasses, clock and watch keys, and clock movements 25 Watch actions and movements 10 Precious etones, N E S, polished, but not set. pierced or otherwise manufactured, ana imitations thereof 10 Composition metal for the manufacture of jewellery and filled gold watch cases 10 Jcwt Uery, for the adornment of the person, including hat ^lins, hair pins, belt or other buckles, and stmilar personal ornamental Hvticles commercially known a? jewellery, p. c. NOP, and all manufactures of gold and silver, N E S 30 Fancy writing desks, fancy cases for jewel- lery, watches, silverware, plated ware and cutlery ; glove, handkerchief and collar boxes or cases, brush or toilet cases, and all fancy cases for similar fancy articles, of any material ; fans, dolls and toys of all kinds; ornaments of alabaster, spar, amber, terra colta or composition ; statu- ettes and bead ornaments, N E S 3.5 Gold, silver and aluminum leaf, Dutch or schhig metal leaf; brocade and bronze powders, and gold liquid paint 25 Minerals. Asbestos in any form other than crude, and all manufactures thereof 25 Plumbago, not grounder otherwise manufac- tured 10 Plumbago, ground, and manufactures of, N E S, and foundry facings of all kinds 25 Musical Instruments. Pianofortes, organs and musi al instruments of all kinds no Brass band instruments, parts of pianofortes and pHrts of organs 2") Provided that musical instrument cases shall be dutiable at the same rateas their contents when imported containing the instruments. Textiles, Hats, Furs, etc. Cotton batts, batting and sheit wadding, cotton warps and cotton yarns, dyed or not, N E S Cotton fabrics, while or gray, bleached or unbleached, NO P Cotton fabrics, printed, dyed or coloured, N O P Damask of linen, stair linen, diaper, napkins, doylies, table and tray clotiis, sheets, quilts, towelsj and like articles of linen or cotton, or of linen and cotton combined, made up or not, WOP L'O 25 ;j5 Embroideries, N E S, laces, braids, fringes, cords, elastic, round or flat , garter elastic, tassels and bracelets, N P, braids, chains, corda, or other manufactures of hair, N E S ; handkerchiefs of all kinds ; lace collars and all similar h'co goods J lace nets and net- tings of cotton, linen, silk or other mater- ial ; shams, curtains, when made up, trim- med or untrimmed ; regalia, badges and belts of all kinds, NOP; linen, silk and cotton clothing, and all other articles made up by the seamstress from linen or cotton fabrics, NOP; !'c>^ets of all kinds, corset clnsps, busks, Dianks and steels, and covered corset wires, cut to Isngths, tipped or untipped White cotton embroideries Jeans, sateens and coutils, when imported by corset and dress stay makers for use in the manufacture of such articles in their own factories Collars and cufi^, of cotton, linen, xylonite, xyolite or celluloid 20 3') Canadian Tariff of Customs. ()27 ;^o 35 25 25 10 25 no 35 25 20 35 p. 0. Shirtsof any material, and ladies' or mis'.es' blouses and shirt waists 35 Cwpes, black 20 Velvets, velveteens, silk velvets, plush and silkfabrics 30 Ribbons of all kinds and materials, and manu- factures of silk or of which silk is the cora- (lonent part of chief value, N E S 35 Cotton sewiug thread in hanks, three and six Cord 15 Cotton sewing thread and crochet cotton, on sjiools or tubes or in balls, and all otlier cot ten thread, N K S 25 ij Silk in the gum, or Ljun, not more advanced than singles, tram and thrown organzine, uot coloured. 15 Sewing and embroidery silk, and silk twist... 25 Jute cloth, uncoloured, not otherwise tinish- I'li than bleached or calendered 10 Horse clothing of jute, shaped or otherwise nmnufactured 30 All manufactures ofhemp, flaxor jite, N E S, orotflax, hemp a':d jute combined 25 Ba^js or sacks of hemp, linen or jute, and cot- ton seamless bags , 20 Felt, pressed, of all kinds, not filled or cover- ed by or with any woven fabric 20 Hair-cloth of all kinds 30 Sails for boats and ships 25 Cloths, not rubbered or made water-proof, whether of wool, cotton, unions, silk or ramie, sixty inches or over in width and weighing not more than seven ounces to the square yard, when imported exclusively for the iiianutacture of mackintosh cloth- ing, under regulations to be adopted by the (lovernor in Council 15 Feiitberbone, plain or covered, in coils 20 iStcickinettes tor the raanufactiu-e of rubber t)oots and shoes, when imported by maun tivcturers of rubber boots and shoes, for U:>i3 exclusively in the manufacture thereof in their own factories 15 Cotton duck, gray or white, N K S 22 J tlilod silk iinii oileil cloth, and tape or other lexiili" india rubbered, Hocked or coated, NO P 30 Wumen's and children's dress goods, coat lin- ings, Italian cloths, aljiaeas, Orleans, cash lu.M'cs, henriettaj, serges, buntings, nun' cloth, beugalines, whipcords, twills, plains or jacqiuvrds of similar fabrics, composed wholly or in part of wool, worsted, tiio hair of the camel, alpaca, goat, or like animal, not e.Kceeding in weij^lit six ounces to the square vanl, when im|>ortcd in the gray or unfinished state for the purpose of being dyed or finished in Uaiuida, uniler such regulatu)ii3 as are establisued by theGov- iMiior in Council 2.') Suck and stockings of all kinds as Knitted goods, N E S, undershirts and draw- ers, and hosiery of all kinds, N E S 35 Shawls of all kinds ; railway or travelling rugs and lap diuters of all liinds 30 Wuol, viz. : Leicester, Cotswold, Lincoln- siiirc. Southdown combing wools, or wools known as lustre wools and other like comb- ing wools, such as are grown in Canada.... 3c per lb. p. c. Worsted tops made trom such wools as are mentioned in the next preceding item 15 Yarns, woollen and worsted, N E S 30 Yarns, composed wholly or in part of wool, worsted, the hair of the alpaca, goat or like animal, costing thirty cents per pound and over, when imported on the cop or tube or in the hank by manufacturers of woollen goods for use in their products 20 Fabrics, manufactures, wearing apparel and icady-raade clothing, composed wholly or in part of wool, worsted, the hair of the al paca, eroat or other like animal, N E S blankets, bed-comforters, or counterpanes: flannels, cloths, doe-skins, cassimeres, tweeds, coatings, overcoatings and felt, cloth, N E S 35 Mats, door or carriage, N E S 35 Carpeting, rugs, mats and matting of cocoa, straw, hemp or jute ; carpet linings and stair pads 25 Turkish or imita'ion Turkish or other ruga or carpets ; and carpets, N E S 35 Enamelled carriage, Hoor, shelf, and table oil- cloth, linoleum, and cork matting or car- pets , 30 Window shades in the piece or cut and hem- med or mounted on rollers, N E S 35 Webbing, elastic and non-elastic 20 Umbrellas, parasols and sunshades of all kinds and materials 35 Gloves and mitts, of all kinds 35 Hats, caps and bonnets, N E S, and hat, cap and bonnet shapes 30 Braces or suspenders, and metal parts thereof. 35 Hoot, shoe and stay laces of any material 3f) Fur skins, wholly or partially dressed 15 Caps, hats, muffs, tippets, capes, coata, cloaks and other manufactures of fur, >f U P 30 Church vestments of any material. 20 Sundries. Ships and other vessels, built in any foreign country, whether steam or sailing vessels, on application for ('anadian register, on the fair market value of the hull, rigging, ma- chinery andallaiijuirtenances; on the hull, rigging and all appurtenances, except ma- ciiinery jq On the boilers, steam engines and other ma- chinery 25 Canoes, skill's, or open pleasuie sail-boats, of any material 25 Cauva«, and sail twine of hemp and flax, when to lie used for boats' and ships' sails.. 5 Blasting and mining powder 2c per lb. Cannon, musket, rifle, gun and snorting powder and canister powder 3e p. lb. Nitro-glycerine, giant powder, nitro and other explosives 3c p. lb. Glycerine, when imported by maniifacturerg of explosive?, for use in the manufacture thereof in their own factories 10 Torpedoes, firecrackers, and fireworks of all kinds 25 Fertilizers, compounded or manufactured,!'. 10 Lamp wicks 25 Photographic dry (dates ....... 30 Emery wLcelt, and manufactures of emery.. 25 628 Canadian Tariff of Customs. p. c. Lead-pencils, pens, pcnliolders and rulers of all kinds 25 Magic lanterns and slidef therefor, philoso- pTiical, photograjiliic, inathematical and optical iristnimcnts, N E S, cyclometers and pedometers, and t'lpe lines of any material 25 Tobacco pipes of all kinds, pipe mounts, cijiar and cigaretie cases, ci^rar and cigarette holders, and cases for the same, smotcrs' sets and cases therefor, and tobacco pouches 35 Trunks, valises, hat boxes, carpet bags, tool bags or basiiets, satchels, reticules, musi- cal instrument cases, pi rses, portmanteaux) pocket-books, fly-books, and parts thereof, NO P, and baskets of all kinds 30 Frames, clasps and fasteners for purses and chatelaine bags or reticules not more than sever, inches in widtl), when imported by manufacturers of purses and chatelaine bags or reticules, for use in the manufac- ture thereof in their own factories 20 Buttons, viz.:-- Pantaloon buttons wholly of metal, and shoe button^, N K S 25 Buti')ns of all kinds covered or not, NO P, including recognition buttons, and culf or collar buttons (not being jewellery) ?5 Uombs for dress and toilet, including mane combs, of all kinds 35 Brushes, of all kinds 25 Hair, curled or dyed 20 Artificial flowers 25 Twine and cordage of all kinds, N E S 25 Rove, when imported for the manufacture of twine for harvest biniJers 5 Binders' twine or twine for harvest binders of hem[), jute, manilla or sisal, and of manilla and sisal mixed free Hammocks, lawn tennis nets, sportsmen's fish nets, and other articles manufactured oftwine, NOP 30 Sugar, Syrups and Molasses- All sugar above number sixteen Dutch stan- dard ill colour, and all rilined sugars of whatever kinds, grades or standards. Ic p iD SuDtar, N E S, not above number sixtien Dutch standard in colour, sugar draiiiings, or puiiipings drained in Intnsit, nielado or concentrated nielado, tank bottoms and sugar concrete ; the usual packages in which imported to be free .Ac p lb Glucose or grape sugar, glucose .syrup and corn syruii, or any syrups containing any ftdtuixtiire thereof |e plb Sugar candy, brown or white, and coiifoc- tionery, including sweetened gums, can- died peel and popcorn ic p lb and 35 Maple sugar, and maple svrup 20 Syrups and molasses of alt kinds, N P, the product of the sugar cane or beet, N E H, and all imitations thereof or substitutes therefor ijc p lb Molasses produced in the process of the manufacture of cane sugar from the juice of the cano without any admixture with any oilier ingredient, when imported in the original package in which it was placed at p. c. the point of production and not afterwards subjected to any process of treating or mix- ing, the package in which imported, when of wood, to be free, — (a.) Testing by polariscope forty degrees or over , He p gall (6.) When testing by polariscope less than forty degrees and not le?s than tbirty-five degrees, Ijjc p gall, and in addition thereto for each degree or fraction of a degree less than forty degrees Ic additional p degree Tobacco, and Maimjacturers-of Cigars and cigareites, the weiijht of the cigarettes to include the weigiit of tlie papei covering $3 plb and 25 Gut tobacco 55c Manufactured tobacco, X E S, and snuff ... .Wc p lb Foreign leaf raw tobacco, unstemnied, iin- niaiiufactured for excise purposes, under conditions of the Inland Ilevenu,'> Act, after 30tli Juno, 1897, to be computed on the weight when ex-warehoused ..Idc plb Foreign raw leaf tobacco, stemmed, un- manufactured, for excise ])iirpose3, under conditions of tlie Iiilaml lleveiiue Act, after liOtli June, 1897, to be computed on the weight when ex-warehoused 1 tcp lb Uncnumeraied Goods. All goods not enumerated in this Act as sub- ject to any other rate of duty, nor declared free of duty by this Act, and not being goods the importation wiieieof is by this Act or any other Act prohibited, shall be subject to a duty of 20 SCHEDULE B. I'llKi; GOODS. Articles for the use of the Governor-tleneral. Articles when impiiled by and for the use of the Army and Navy, viz.: AruH, military or naval clothing, musical instruments for hands, mili- tary stores und munitions of war ; also articles cousij;ned direct to officers and men on board vessels of Her .Majesty's navy, for their own licrsonal use or consumption. Articles imported by or for the use of the Domin- ion Government, or of any of llr' Departments thereof, or by und for the Senate or Hou.se of Commons, including the following articles when imported by tl-a .said (lovernment or through any nf the Departments thereof for the use of tlic Canadiiin militia : .Military clothing, musical instruments tor military bands, mili- tary stores and munitions of war. Articles for the personal or oflicial u.se of Consuls General who are natives or citizens of the country they represent and who are not en- gaged in any other business or profession. Travellers' baggnge, under regulations prescribed by the Controller of Customs. Carriages for travellers and carriages laden with raercuandiso, and not to incluile c reus troupe Canadian Tariff of Customs. 629 p. c. 20 or hawkers, under regulatioDS prescribed by the Controller oi Customs. Apparel, wearing and other personal and house- nold effects, nor merchandise, of British sub- jects dying abroad, but domiciled in '^"anada ; book^, pictures, family plate or furniture, per- sonal ett'ects and heirlooms left by bequpst. iSettlers' effi'cis, vi/, ; Wearing apparel, household furniture, books, implements nndioolsot trade, occu])ation or employment, guns, musical in- struments, domestic sewing macliines, lyt'e- writers, live stuck, bicycles, carts and other vehicles and agricultural implements in uss by the settler tor at least six months before his re- moval to Canada, not to include machinery, or articles imported for use in anj' m;inutaciuring establishment, or for sale ; provided that any dutiable article entered as settlers' effects may not be so entered unless brought with the settler on his first arrival, and shall not be sold or otherwi!;e disposed of without payment of duty, until alter twelve mouths' actual use in Canada ; provided also, that under r''gulations made by the Controller of Customs, live stock, when impoited into Manitoba or the North- west I'errilories by intending settlers, shall be free until otherwise ordered by the Governor in Council. Inimals and articles brought into Canada tem- porarily and for a period not exceeding three montlis for the piirpo>e of exhibition or of com- pptiiion for priz..s offered fiy any agricultural or other association ; (but a bond shall be first given in accordance with regulations prescribed by the Controller of Customs, with the condi- tion that the full duly to which su''h animals or articles would otherwise be liable shall bo pai'l incase of their sale in Cantda, or if not re-exported within the time specified in such bond.) Horses, cattle, sheep, swine and dugs, for the im- provement of stock, under regulations made by the Treasury Board and approved by the Gov- ernor in Council Menageries, horses, cattle, carriagi's and harness of, under regulations prescribed by the Con- troller of Customs. Admiralty charts. Typewriters, tablets with moveable fixtures, and musical Insirunienis, when imported hv and for the use of schools for the blind, and being and remaining the sole j)roj>erty of the govern- inc bodies of the said schools and not of private individuals, the above particulars to be veri- fied by special affidavit on each entry when presented. Globes, geographical, topographical and astrono- mical ; maps and charts for the use of schools for the blind ; pictorial illustiatioi.s of insects or similar studies, when imported for the use o^" colleges, schools and scientific and literary so- cieties; manuscri|)ts and insurance maps, and album insides of paper. Philosophical instruments and apparatus— that is to say such as arc nut manufactured in Canada, when imported for use in universities, colleges, school;), scientific societies and public hospitals Botanical and entomological specimens ; mincra- ogical specimens ; skins of oii-Js, and skins of animals not natives of Canada, for taxidormic purposes, not lu'ther manufactured than pre- pared for preservation ; fish skius and ana- tomical preparations and skeletons or part- thereof; and siiecimeiis, models and wall dia- grams for illustration of natural history for univeisiti' s and public m.iseiim?. Books, viz.: Books on the apiilication of science toindustties of all kinds, including books on agriculture. Horticulture, fo cstry, fiih and fishing, mining, metallurgy, arciiiiectiire, elec- tric and other engineering, carpentry, ship- building, mechanism, dyeing, bleaching, tan- ning, weaving and other mechanic ar;s, and similar iiidnstri^il books ; also books jtrinted in any language other than the English and French languages, or in any two langiagei not being English and French, or in any three or more languages ; and bibles, i-rayer-books, psalm and hymn-books, religious tracts, and Sunday school lesson pictures. Books, embossed, tor the blind, and books for the in-truction of the deaf and dumb and blind. Books printed by any government or by any association for the promotion of science or letters, and official annual reports of leligioiis or benevident associaiiou-', and issi jd in the course of the [u-ocee'lings of the said associa- tions, to their members, and not for the pur- pose of sale or trade. Books, not iirinted or reprinted in Canada, which are included and used as text books in the cur- riculum of any ui.ive.sity, incorporated college or normal school in Canada; bo'ks speeially imi>orted for the bonafde use of incorporated mechanics' institutes, [lublie libraries, libraries of universities, colleges and schools, or for the library of any incorporated medical, law, literary, scientific or art association or society, and being the proppity of the organiz"; lava, un- manufactured; manganese, oxide of; j)hos- phorus ; litharge ; saffron, satlron cake, safllower, and extract of; sulphate of iron (copperas); ' iiljihate of copper (blue vitriol); sulphur and brimstone, crude, or in roll or tt'iur; tartar emetic and gray tartar; cream of tartar in crystals and argal or argols ; verdi- gris, or sub-acetate of copper, dry ; zinc, salts of, and tartaric acid crystals. Chronometers and compasses for ships. Citron, lemon ana orange rinds in brine. Clays, including China clny, fire clay and pipe clay ; gannisier and sand. Coal, anthracite and anthracite coal du't; coke. Colli and pine pitc'., and comI and [lin^ lar in packages ot not less than 15 gallons. Coir and coir yarn ; raw cotton or cotton wool ; and cotton waste, not dyed, cU ined, bleached or otherwise manufactured; c ton _\arns, num- ber Ibrty and finer; and n o' a yarns. Communion plate, when imported for the use of churches. Crucible.*, clay or plumbago. Curling stones. Cups, brass, being rough bltuiUs, for the manu- facture of paper shells or cartridges, when im- ported by maiiufactiirers of brass and japer shells and cartridges, for use in the manufac- ture of such articles ill their own factories. Diamonds, unset, diamond dust or bort and black, for borers ; and diamond drills lor prospecting for niineraUs, not to include motive jiower. Domestic fowls, purebred, for the improvement of stock, homing or messenger pigeons and pheasants and nuails. Drugs, crude, such as barks, fiowers, roots, beans, berries, balsams, bulbs, fruits, insects, grains, gums and gum resins, herbs, leaves, nuts, fruit and stem seeds — which are not edible and which are in a crude state and not advanced in value by refining or grinding or any other process of manufacture and not otherwise pro- Canadian Tariff of Customs. roj uoi vided I'or ; egg yolk ; fuller's earth, ia bulk only, not prepared for toilet or other purposes ; lead, nitrate and acetate of, not ground ; litmus and all lichens, prepared or not prepared; musk, in pods or in grain ; roots, medicinal, \\z.: — alkanet, crude, crushed or ground, aconite, calumba, folia digitalis, gentian, ginseng, jalap, ipecacuanha, iris, orris root, liquorice, sarsaparilla, squills, taraxacum, rhu- barb and valerian, un£;round ; vaccine and ivory vaccine points ; gum chicle or sappato gum, crude; platinum and bkck oxide of copper, for use m the manufacture of chlorate; potash, chlorate of, not further prepared than ground, and free from admixture with any other substance ; and bacteriological products or serum for subcutaneous injection. Duck for belting and hose, when imported by manufacturers of such articles for use in the manufacture thereof in their own factories ; and canvas or fabric, not frictionized, for the msmufucture of bicycle tires when imported by the manufacturers of bicycle tires for use ex- clusively in the manufacture of bicycle lires in their own factories. Dyeing or tanning articles, in a crude state, u-:ed in dyeing or tanning, N^.E S. ; berries for dyeing or used for composing oyes ; turmeric, nut galls and extracts thereof ; lac, crude, seed, button, stick and shell ; iniigo, indigo paste and ex- tract of, and indigo auxiliary or zinc dust ; persis, or extract of archill and cudbear ; terra japonica, gambler or cutch, extract of logwood, fustic, oak und oak bark and quebracho ; cam- wood and sumac and extract thereof, tanner's bark, hemlock bark and oak bark; ground logwood, ground f.istic, patent prepared dyes, and ground oak hark ; iron liquor, solutions of acetate or nitrate ot iron for dyeing and calico printing ; madder and munjeet, or Indian madder, ground or prepared, n^A. all extracts of ; red liquor, a crude acetate oi aluminum prepared from pyroligiieous acid, for dyeing and calico printing. Emery in bulk, crushed or ground. Fel', adhesive for sheathing vessels. Fertilizers, tiiicompoumled or unmanufactured, including phosphate rock kainlle or German potasti salts, German mineral pota.sh, bone- dust, bone black or charred bone and bono ash, fish oHiil or refuse, guano and other animal or vegetable manures Fibre, Mexican, natural, and tampico or istle and vegetable tibres ; fibrilla, flax fibre and fiax tow ; grass, Manilla, Ksparto or Spanish, and other grasses, and pulp of, including fancy grasses, dried but not colored or otherwise manufaei.ired ; moss, Iceland, and other mosses, seagrassand seaweed, crude or in their natural state, or cleaned only ; and kelp. Fire bricks, for use in i)rocesses of manufacture, or for manufacturing purposes. Fillets of cotton and rubber not exceeding seven inches wide, when imported by and for the use of manufacturers of card clothing in their own factories. Fish hooks, for deap sea or lake fisliing, not smaller in size than number 2-0 ; bank, cod, pollack and mackerel i'sh lines ; and mackerel, herring, salmon, seal, seine, mullet, net and trawl twine in hanks or coil, barked or not, — in variety of sizes and threads, — including gilling thread in balls, and head ropes, birked marline, and net morsels of cotton, hemp or flax, and deep sea fishing nets or seines, wliea used exclusively for the fisheries, and not to in- clude hooks, lines or nets commonly used tor sportsmen s purposes Flint, flints and ground flint stones ; felspar, cliff, chalk, China or Cornwall stone, ground or unground; gravels; precious stones in the rough. Florist stock, viz : — Palms, bulbs, corns, tubers, rhizomes, arancarin, spirtea and lilies of the valley; seedling stock for grafting, viz : — plum, pear, peach and other fruit trees ; seeds, viz. : annatto, beet, carrot, flax, turnip, man- gold, mustard, sowing rapesecd and mushroom spawn ; aromatic seeds which are not edible and are in a crude state, and not advanced in value or condition by grinding or refining or by any other process of manufacture, viz. : anise, anise star, carawny, cardamom, coriao- der, cumin, fennel and fenugreek ; seed pease and .seed beans from Britain ; beans, viz. : tonquin, vanilla and nux vomica, crude only, locust beans and locust bean meal, and cocoa beans, not roasted, crushed or ground ; friiit.«, viz. : bananas, plantains, pineapples, pome- granates, guavas, mangoes andshaddockg; wild blueberries, wild strawberries and wild rasp- berries ; and trees, N E S. and Fossils, shells, tortoise and mother-of-pearl, other shells unmanufactured. Foot-prease, being the refuse of cotton seed after the oil has been pressed out, but not when treated with alkalies; and grease, rough, the refuse of animal fat for the manufacture of soap and oils only. Fur skins of all kinds not dres>ed in any manner. Goldbeaters' moulds and goldbeaters' skins. Gums, viz. : — Amber, Arabic, Australian, copal- dammar, demy, kaurie, mastic, sandarac, Sene tral, shellac ; and white shellac in gum or flake for manufacturing purposes; and gum traga- canth, gum gedda and gum barbery. Hair, cleaned and uncleaneil, but not curled, djed or otherwise manufactured ; and horse-hair not further mauiitaetured than simply cleaned and dipped or dyed, imported bj- manufacturers of hair cloth for use in the manufacture of such article in their own factories. Hatters' furs, not on the skin, and hatters' plush of silk or cotton ; and hailers' bands (not cords), bindings, tips and sides, hut sweats und liuiuga both tips and sides, when imported by hat and cap manufacturers for use in tne maunfai'ture of these articles only in their own factories. Hemp, undressed. Hemp jjajwr, made on four cylinder machines ard calendered to between .Ooij and OOS inch thick- ness for tlie manufacture of shot shells ; primera for shot shells and cartriiiges, and felt hoard sized and hydraulic pressed, and covered with paper or uncovered, for the mauufiicture ofgua wads, when such articles are imported by manu- facturers of shot shells, cartridges and gun wads, to be used for these purposes only in their own factories, until such time as the said articles are manufactured in Canada ; pruvi- 632 Canadian Tariff of Customs. ded always tliat the said articlro, when ijo- porled, sliall be entered only at such port or ports as are named by the Controller of Cus- toms, and at no other place ; samples of such articles to be furnished to the collector of the th'' said port or ports by the Customs Depart- ment for the guidance of the officers when accejiting free entries of such materials. Hides and skins, raw, whether dry, salted or pickled, and raw pelts. Hoots, liorn strijis, horn and horn tijis, in the rough, not jiolished or otherwise manufactured than cleaned. Hoop iron not exceeding J inch in width and being 25 gauge and thinner, used for the manu- facture of tubidar rivets. Ice. Indian corn, not for purposes of distillation and under Customs regulations. Ingot moulds ; iron sand or globules or iron shot and dry putty for polishing glass or granite. Iron or steel masts, or parts thereof, and iron or -steel beams, angles, sheets, plates, knees and cable chain for wooden, iron, steel or compo- site sliips aud ves^ 'Is ; and iron, steel or brass manufactures which lU the time ot their impor- tation are ot n class or kind not manufactured in Ciinada, when imported for use in the con- struction or equipment of ships or vessels. Ivory and ivory nuts, piano key ivories and veneers of ivory unmanulactured. Junk, old. Jute and jute butts ; and jute cloth, as taken from the loom, not coloured, cropped, mangled, pressed, calendered nor tinished in any way. ^ute, flux or hemp yarn, plain, dyed or colour- ed, jute canvas, not pressed or calenderrd, when imported by the mnrnifacturers of carpets, rugs and mats, juto webbing or jute ioth, Immmocks, twines aud floor oil cloth, for use in the manufacture of any of these articles , only, in their own factories. Lamp black and ivory black. Lastings, mohair cloth, or other manuracfures of cloth, when imported by manufacturers of buttons for use in their own f«ctories, and woven or made in patterns of such size, shape or form, or cut in such manner as to be lit for coveritig button*, exclusively. These condi- tions to be ascertained by special examination by the pro|ier oHicer of customs, and so C'?rtified on the face of each entry. Leeches. Lime juice, crude only. Locomotive and car wheel tires of steel in the rough. Meerscl.aum, crude or raw. Metal glove fasteners ; iiapier-niachd shoe but- tons, shoe eyelets, shoe eyelet hooks, shoe lace wire fasteners, aud sewing machine attach- ments. Mineral waters, natur.il, not in bottle, under regu- lations prefcribed by the Controller of Cus- toms. Machinery imported exclusively for mining, smelt- 'ingand reducing, viz ;— Coal cutting machines except percussion coal cutters, coal heading machines, coal augers and rotary coal drills, core drills, miners' safety lamps, coal washing machinery, coke-inaking machinery, ore drying machinery, ore roasting machinery, electric or magnetic machines for separating or concen- trating iron ores blast furnace water jiicketS) converters for metallurgical processes in iron or copper, briquette making machines, ball and rock emery grinding machines, copper plates, plated or not, machinery for extraction ot pre cious metals by the chlorination or cyanide pro- cesses, monitors, giants and elevators for hy- draulic mining, amalgam safes, automatic ore samiders, automatic feeders, jig-=, lassitiers, separators, retorts, buddies, vanners, mercury pumps, fiyrotnetere. bullion furnaces, amalgam cleaners, gold mining slime tables, blast fur- nnce blowing engines, wrought iron tubing, butt or lap welded, threaded or coupled or not, not less than 2^ inches diameter, when imported lor use exclusively in mining, smelting, re- ducing or refining. Nickel ; and ores of metal of all kinds ; and silex or crystallized quartz. Cakum. Oils, viz.:— Cocoanut and y)alm, in their natural state ; and car'tolic or heavy oil ; oil of roses and ottar or attar of roses, and olive oil for manufacturing soap or tobacco, or lor canning fish. Oil cake and oil cake meal, cotton seed cake and cotton seed meal, and palm nut cake and meal. Oysters, seed and breeding, imported for the pur- pose ot being pl>inteil in Canadian waters. Oleo-stearine and degras Palm leaf, unmanufactured. Plaits, plain, not to include braid or fancy trim- mings, composed of chip, manilla, cotton, mohair, straw, Tuscan and grass. Plitinum wire and platinum in bars, strips, slieets or plates ; platinum retortS; jians, con- densers, tubing and pipe, when imported by manufacturers of sulphuric ac'd for use in their works in the manufacture or concentration of sulphuric acid. Potash, muriate and bichromate of, crude, caustic potash, and red and yellow prnssiate of potash ; also jiot and pearl ash, in packages of not less than twenty-five pounds weight. Prunella. Pumice and pumice stone, ground or unground. Quicksilver. Quilis in their natural state or nnplumed. Rags of cotton, linen, jute, hemp and woollen, paper waste clippings, and waste of any kind except mineral. Rennet, raw and prepared. Ribs of brass, iron or steel, runners, rings, caps, notches, lerrules, mounts and sticks or canes in the rough, or n'^t further manufactured than cut into lengths suitable for umbrella, parasol or sunsliHdo or walking sticks, when imported by manufacturers of umbrellas, parasols and sunshades for use in their factories in the manufacture of umbrellas, parasols, sunshades or walking sticks. Rubber and gutta percha, crude caoutchouc or india-rubber, unmanufactured i powdered rub- ber and rubber waste; hard rubber in sheets, but not further man'tfactuied, and recovered rubber and rubber substitute. Rolled round wire rods in tne coil, of iron or steel, not over three-eighths of na inch in Canadian Tariff of Customs. 633 or in diameter, when imported by wire minufac- tur«r3 for use iu making wire in the coil, in their own factories. Rubber thread, elastic. Reed-s, square or round, and raw hide centres, textile leather or rubber heads, thumbs and tips, and steel, iron or nickel caps for whip ends, when imported by whip manufacturers, for use in the manufacture of whips in their own fac- tories. Rollers, copper, for use in calico printing, when imported by calico printers for use in their fac- tories in the printing of calicos and for no other purpose (such rollers not being manufactured \ in Canada). Astrakaa or Russian hare skins and China goat plates or rug-, wholly or partially dressed, but not dyed. Salt, imported from the United Kingdom or any British possession, or imported for the use of the sen or gulf fisheries. Sausage skins or casings, not cleaned. Scrap iron and scrap steel, old and fit only to be remanufactured, being part of or recovered from any vessel wrecked in waters subject to the jurisdiction of Canada. Silk, raw, or as reeled from the cocoon, not being doubled, twisted or advanced in manufacture ill any way : silk cocoons and silk waste. SilK in the glim or spun, when imported by manu- fi.c Mirers of silk underwear to be used for such raa.iufacture in their own factories. Silver, nickel and German, in ingots, blocks, bars, strips, sheets or plates unmanufactured. Steel rails weighing not les= than 45 pounds per lineal yard for use only in the tracks of a rail- way which is employed in the common carry- ing of goods and passengers and is operated by steam motive power only ; provided that this item shall not extend to nils for tracks of a railway which is used for private purposes only, nor shall this item extend to rails for use in the tracks of any electric railway, street railway, or tramway. Soda, sulphate of, crude, known as salt cake, barilla or soda ash, caustic soda; silicate of soda in crystals or in solution ; bichromate of soda, nitrate of soda or cubic nitre, sal soda, sulphide of soitium, nitrate of soda, arseniate, binarseniate, chloride, chlorate, bisulphite and stannate of soda. Spurs and stilts, used in the manufacture of earthenware. Steel bowls for cream separators, and cream separators. Steel saws and straw cutters cut to shape, but not further manufactured. Crucible sheet steel, eleven to sixteen guage, two and one-half to eighteen inches wide for the manufacture of mower and reaper knives, when imported by the manufacturers thereof for use for such purpose in their own favjtories Steel of number twenty gauge and thinner, but not thinner than numbiT thirty gauge, for the manufacture of corset steel, clock springs and shoe shanks, when imported by the manufac- turers of such articles for exclusive use in the manufacture thereof in their own factories. Flat steel wire, of number sixteen gtiage or thinner, when imported by the manufacturers of crinoline or corset wire and dress stiys, for use in the manufacture of such articles in their own factories. Steel valued at two and one half cents per pound aa i upwards, when imported by the manufac- turers of skates, for use exclusively in the manufacture thereof in their own factories. Steel under one-half inch in diameter, or under one-half inch square, when imported by the manufacturers of cutlery, or of knob*, or of locks, for use exclusively in the manufaclure of such articles in their own factories. Steel of number twelve guage and thinner, but not thinner than numlk-r thirty giuge, for the manufaclure of buckle clasps, bed fasts, furni- ture casters and ice creepers, when impi'irted by the manufacturers of suoh articles, for use exclusively in the manufacture thereof in their own factories. Steel of number twenty-fourand soventeen gauge, in sheets sixty-three inches long, and from eighteen inches to thirly-two inches wide, when imported by the manuhicturers of tubular bow sockets for use in the manufacture of such articles in tiieir own factories. Steel for the manufacture of bicycle chain, when imported by the manufacturers of bicycle chain for iLse in the manufacture thereof in their own factories. Steel lor the maiMifacture of files, augers, auger bits, hammers, axes, hatchets, scythes, reaping hooks, hoes, hand-rakes, hay or straw knives, wind mills and agricultural or lurvesting forks when imported by the mtnufacturers of such or any of such articles for use exclusively in the manufictnre thereof in their own factories Steel springs tor the manufacture of surgical trusses, when .mportcd by the manufacturers fu' use excli'.sively in the manufacture thereof in their own factories. Flat spring steel, steel billets and steel axle bars, when imported by manufacturers of carriage springs and carriage axles for ase exclusively in the manufacture of springs and axles for carriages or vehicles other than railway or tramway, in their own factories. Spiral spring steel for spiral springs for railways, when imported by the manufacturers of railway springs for use exclusively in the manufacture of railway spiral springs in their own factories. Steel strip a'ld flat steel wire when imported into Canada by manufacturers of buckthorn and plain strip fencing, for use in the manufacture of such articles in their own factories ; and barbed fencing wire of iron or steel after January 1st, 1^38. Galvanized iron or steel wire number nine, twelve and thiileen gauge, after January 1st, 1898. Stereotypes, electrotypes and celluloids of news- paper columns in any language other than French and English, and of books, and bases and matrices and copper .'hells for the same, whether composed wholly or in part of metal or celluloid. Surgical and dental instruments (not being furni- ture) and surgical needles, after January 1st, 1898. Tagging metal, plain, jxpanned or coated, in coils not over one and a half inch In width, 634 Canadian TaHf of Customs. when imported by manufacturers of shoe and corset laces for use in their factories. Tails, undressed. Tea and green coffee imported direct from the country of growth and production, and tea and green coffee purchased in bond in the United Kingdom, provided there is SHtisfactdry proof that the tea or coffee so (lurcliased in bond is such as might be entered for home consumption in tlie United Kingdom. Teasels. Tin, in blocks, pigs, bars and sheets, tin plates, tin crystals, lin strip waste, and tin foil, tea lead. Timber or lumber or wood, viz. : lumber and timber planks and boards of amaranth, coco- boral, boxwood, cherry, ches'nut, walnut, guniwood, mahogany, jiitch pine, rosewood, sandal-wood, sycamore, Spanish cedar, oak, hickory, whitewood, African teak, black-heart ebony, lignum vitjp, red cedar, redwood, satin- wood and wl)ite ash. when not otherwise manufactured than rough-sawn or split or creosoted, vulcanized or treated by any other I'reserving process; sawed or split boards, planks, deals and other lumber when not further manufactured than dressed on one side only or creosoted, vulcanized or treated by any preserving process; pine and spruce 'clap- boards; timber or lumber hewn or sawed, squared or sided or creosoted ; laths, p'ckets and palings; slaves not listed or jointed of wood of all kinds ; firewood, handle, heading, .stave, and shingle bolts, hop poles, fence posts, railroad ties ; hubs for wheels, posts, last blocks, wagon, oar, gun, heading and all like blocks or sticks rough hewn, or sawed only; felloes of hickory wood, rough sawn to shape only, or rough sawn and bent to sliape, not planed, smoothed or otherwise manufactured ; hickory billets and hickory lumber, sawn to shape for spokes of wheels, but not further manufactured ; hickory spokes, rough turned, not tenoned, mitred, throated, faced, sized, cut to length, round tenoned or polished ; shingles of wood ; the wood of the persimmon and dog- wood trees ; and lops and round unmanufac- tured timber, ship timber or ship planidng, not specially enumerated or provided for in this Act. D shovel handles, wholly of wood, and Mexican saddle trees and stirrups of wo.ul. Corkwood, or cork bark, unmanufactured. Saw-dust of llie following woods : Amaranth, cocoboral, boxwood, cherry, chestnut, walnut, gumwood, mahogany, pitch i)ine rosewood, sandal-wood, sycan.ore, Spanish cedar, oak, hickory, whitewood, African teak, black-heart ebony, lipnum vitse, red cedar, redwood, satin- wood, white ash, persimmon and dogwood. Treenails. Tobacco, unmanufactured, for excise purposes, under conditions of the Inland Revenue Act, until Julv 1st, 1897. Tubes, rolled iron not welded or joined, under one and one half inch in diameter, angle iron, nine and ten gauge, not over one and one-half inch wide, iron tubing lacquered or brass covered, not over one and one-half inch in diameter, all of which are to be cut to lengths for the manufacture of bedsteads, and to be used for no other purpose, and brass trimmings for bedsteads, when imported by or for manu- facturers of iron or brass bedsteads to be used for such purposes only in their own factories, until such time as any of the ^aid articles are manufactured in Canada. Turpentine, raw or crude. Turtles. After Ist January, 1898, binders' twine, or twine for harvest binders, of hemp, jute, manilla or sisal, and of manilla and sisal mixed, and all articles upon which duties are levied wliich enter into the cost of the manufacture of such twine, under regulations to be made by the Controller of Customs. Ultramarine blue, dry or in pulp. Varnish, black and bright, for ships' purposes. Whalebone, unmanufactured. Whiting or whitening, Paris white and gilders' whiting, bluiic fixe and satin white. Wire, crucible cast steel. Wire rigging for ships and vessels. Wire, of brass, zinc, iron or steel, screwed or twisted, or flattened or corrugated, for use in connection with nailing m.nchines for the manufacture of boots and shoes, when im- ported by manufacturers of boots and shoes, to lie used for such purposes only in their own factories. Steel wire, Bessemer soft drawn spring, of num- bers ten, twelve and thirteen gauge, respec- tively, and homo steel spring wire of numbers eleven and twelve gauge, respectively, when imported by manufacturers of wire mattresses, to be used in their own factories in the manu- facture of such articles. Wool and the hair of the camel, alpaca, goat, and other like anJnials, not further prepired than washed, \ E S ; noils, being the short wool which falls from the combs in worsted factories ; and worsted tops, N V.S. Tool or worsted yarns, when genapped, dyed or finislied and imported by manufacturers of braids, cords, tassels and fringes to be used in the manufacture cf such articles only in their own factories. Yarn spun from the hair of the alpaca or of the angora goat, when imported by manufacturers of ((raids tor use exclusively in their factories in the manufacture of such braids only, under such regulations as are adopted by the Con- troller of Customs. Yellow metal, in bolts, bars and for sheathing. Zinc spelter and zinc in blocks, pigs, sheets and plates ; and seamless drawn tubing. Molasses, second process, or molasses derived from the manufacture of " molasses sugar," testing by jiolariscope less tlian 35 degrees, when imported by manufacturers of blacking, for use in their own factories, in the manufac- ture of blacking,— conditional that the im- porters shall, in addition to making oath at the time of entry that such molasses is imported for such use and will not be used for any other pur- pose, cause such molasses to be at once mi.xed m a proper tank made for the purpose with at least one-fifth of the quantity thereof of cod or other oil, whereby such molasses may be ren- i dered unfit for any other use, such mixing to Canadian Tariff of Customs. 635 be done in the credence of a Customs officer at the expense of the importer, and under such further regilations as are from time to time considered necessary in the interest and for the protection of the revenue, and that until sueli mixing is done and duly certlKed on ihe face of the entry thereof by such Customs officer the entry shall be held to be incomplete and the molasses subject to the usual rate of duty as when imported tor any other purpose. Bags, barrels, boxes, casks and other vessels exported filled with U)Mia;'orlc t "You not I only get Kood -work at l,ovell's,but you Ket It '%vUeu you ■want It." 8/»TO\fl 'ii ill' TfB<=i foe.Q,t \\/oocl for Woo3 TT^ov/ni'eol R.r2cl i\i(^ foest rmcital? i!!<' for T72etaf-T y?oVT2teH efcctros. THe PRICe IS RICSHT «. OU CAN get perfect electros if you see the right people. Thb MoNTREA^ Ei^KCTROTYP^ Foundry have a reputation to sustain. You will not get poor work there. Fine machinery, skilled workmen, and the best material are at your service. Why not get an estimate for your next work ? Ovr prices are low enough for everybody. Our work good enough for anybody. c ^ The Montreal E!,leGtrotype Foundry h ^ ^JOS. B. L.OVBLL<- 25 ST. N'cHoLas street. -^ Jif oniTeal. Durability, Beauty and Artistic Finisli These are qualities which purchasers of Monuments* Headstones and Cemetery Work in General should Demand. Concord, Quincy, Ryegale Scotch, New Brunswick and various other imported granites we can furnish at the lowest rate". We can furnish all kinds of marbles cheaper than ever they were vSold1)eforein Canada. When the quality of our work is considered, our prices will be found lower than those of any other dealers in Canada. \'.M?' Having unexcelled facilities, as well as long experience in the business, we are enabled togua rantee these qualities. We own and operate one of the Largest Granite Quarries at Barre, Vermont, the Granite mostly used of any Granite in America at the present time for Cemetery Work. The Barre Granite possesses the qualities necessary for Cemetery Work in the highest degree. It is a handsome grey stoue, taking an exquisite polish which years of exposure in the severest climate fails to injure in the least. Geologists unite in proncuc cing it the most suitable stone for our purposes in Ame- rica. See our Original Designs and Prices before placing order elsewhere. The Smith Bros. Granite Co. 200 BLEURY 8T.y Bolow Sherbrooke St., MONTREAL, pp The All Canadian Sloufe! A standard of Excellence has been established by years of careful consideration of tiie Requirements of the Public. 0^^^Sg> € ' 6CC6C6CC ' a DZo Other Stotite in Jtmerica —PRESENTS TO— Tourists, Sportsmen and Invalids so many unrivalled attractions. TEE mTEEm i on iit hie And Direct Route between all points in New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and West India Islands. . . 3'a8t Sxpress Drains . . Lighted by Electricity, between Montreal, Quebec, St. John, Halifiix and Cape Breton. Making connections for Points in Prince Edward Island and Newfoundland. COLLINGWOOD SCHREIRER, C.M.G., Deputy MlniBtor and Chief Knglneni of K vilwayn and CanaiM, Ottawn. D. POTTINCER, Uciierul Manager, NIoncton, N.B. J. J. WALLACE, JHO. M. LYONS, Uenoriil Freight Ajjont, Genera! Piwuenger Agont, Moncton, N.B. Monoton, N.B.