^ ^ *^*^, IMAGE EVALUATION TEST TARGET (MT-3) % 1.0 Kim 12.5 ■50 ■^" HMI^B ■ 19 - lis lio I.I U. 1.6 1.25 Photographic Sciences Corporalion 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^° ../^^ %0 CIHM/ICMH Microfiche Series. CIHIVI/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notaa/Notas tachniquaa at bibliographiquas Tha Inatituta haa attamptad to obtain tha baat original copy availabia for filming. Faaturaa of thia copy which may ba bibliographically uniqua, which may altar any of tha imagae in tha raproduction, or which may aignificantly changa tha uaual mathod of filming, ara chackad balow. D Colourad covara/ Couvartura da coulaur I — I Covars damagad/ n Couvartura andommagAa Covara raatorad and/or laminatad/ Couvartura raatauria at/ou pailiculAa I — I Covar titia miaaing/ La titra da couvartura manqua □ Colourad mapa/ Cartaa gtographiquaa an coulaur D Colourad ink (I. a. othar than blue or black)/ Encra da coulaur (i.a. autra qua blaue ou noira) □ Colourad plataa and/or illuatrationa/ Planchaa at/ou illuatrationa 9n coulaur □ Bound with othar matarial/ Rali* avac d'autraa documanta D D D Tight binding may cauaa ahadowa or diatortion along intarior margin/ La r9 liura aarrie paut cauaar da I'ombra ou da la diatortion la long da la marga intiriaura Blank laavaa addad during rastoratlon may appaar within tha taxt. Whanavar pcaaibia, thaaa hava baar omittad from filming/ II aa paut qua cartainaa pagaa bianchaa ajout^aa lora d'una raatauration apparaiaaant dana la taxta. maia, lo'aqua cala Atait poaaibia, caa pagaa n'ont paa AtA filmiaa. Additional commanta:/ Commantairaa aupplAmantairaa.- L'Inatitut a microfilm* la maillaur axamplaira qu'il lui a AtA poaaibia da aa procurar. Las details da cat axamplaira qui aoni paut-Atra uniquaa du point da vua bibliographique. qui pauvant modifier una imaga raproduita. ou qui pauvant axigar una modification dana la m^thoda normala de filmage aont indiqute ci-daaaous. I — I Colourad pagaa/ Pagaa da coulaur Pagaa damaged/ Pagaa andommagtea Pagaa restored and/oi Pages restaur^es et/ou pelllculAes Pages discoloured, stained or foxei Pages dicolor^es. tachetdes ou piqudes Pages detached/ Pages d6tach6es Showthroughy Tranaparance Quality of prir Quality in6gale de I'impression Includes supplementary materii Comprend du materiel suppl^mentaire Only edition available/ Seule MItion disponible I — I Pagaa damaged/ I — I Pages restored and/or laminated/ I — I Pages discoloured, stained or foxed/ I I Pages detached/ rr^ Showthrough/ rpn Quality of print varies/ I I Includes supplementary material/ I — I Only edition available/ D Pages wholly or partially obscured by errata slips, tissues, etc.. have been refilmed to ensure the best possible Image/ Lea pages totalement ou partiellement obscurcies par un feuillet d'errata, una peiure. etc.. ont 6t6 film6es d nouveau de fapon A obtenir la meilleure imaga possible. Thia item ia filmed at tha reduction ratio chackad below/ Ce document eat film* au taux da riduction indiquA ci-daaaoua. 10X 14X 18X 22X 26X 30X V 12X 16X 20X a4X 28X 32X Th« copy filmed h«r« hat b««n raproducad thank *« to tha ganarosity of: Univtriity of Toronto Library L'axamplaira film* f ut raproduit grica i la g^nAroaitA da: Univtrsity of Toronto Library Tha imagaa appaaring hara ara tha bast quality posaibia considaring tha condition and lagibility of tha original copy and in kaaping with tha filming contract spacif ications. Original copias in printad papar covars ara filmed beginning with the front cover and ending on the last page with a printad or illustrated impres- sion, or the back cover when appropriate. All other original copies ara filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol -^> (meaning "CON- TINUED"), or the symbol y (meaning "END"), whichever applies. Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning 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 images suivantes ont 4t4 raproduitea avac la plus grand soin, compta tenu de la condition at da la nattet* da I'exemplaira filmA, et en conform it A avac las conditions du contrat da filmage. Les exemplaires originaux dont la couverture en papier est imprimAe sont filmto en commen9ant par la premier plat et en terminant soit par la darnlAre page qui comporte une empreinte d'impression ou d'illustration, soit par la second plat, salon la cas. Tous les autres exemplaires originaux sont film6s en commengant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en terminant par la darnlAre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la darnlAre image de cheque microfiche, selon le cas: le symbole — ► signifie "A SUIVRE", le symbols V signifie "FIN". Les cartas, planches, tableaux, etc., peuvent Atre filmAs A des taux de reduction diffArents. Lorsque le document est trop grand pour Atre reproduit en un seul clich6, 11 est filmA A partir da I'angie supArieur gauche, de gauche h droite, et de haut en bas, en prenant le nombre d'imagM nicassaire. Les diagrammes suivants illustrant la mithode. 1 2 3 1 2 3 4 5 6 •ni 0. BU 0( THE CANADIAN LAWYEE A HANDY BOOK OF THE LAWS AND OP LEGAL INFOHMATION FOB THE USE OP BUSINESS MEN, FARMERS, MECHANICS AND OTHERS IN CANADA OONTAININQ PLAJN AND SIMPLE IN3TBUOTIONS TO Alili CZiASSBS IN TUANBACTINO BUSINESS ACCCXiBINQ TO IjAW, WITH LBOAL FOltMS FOR DItAWINO NECESSABT FAPBB8. COMPILED BY A BARRISTER-AT-LAW SECOND EDITION— ENLARGED, TORONTO; CARSWELL & CO., PUBLISHERS, 1887 Entered accordiAg to Act of Parliament of Canada, in the year one thou- sand eight hnndrod and eighty-seven, by OabbwbIiL & Co., in the offlce of the Minister of Agriculture. TKBXTKD BT IfooBB A Co., Law PanimM, 90 AoBLAiDB St. East, TOSOMTO le thou- In the PREFATORY. This little manual is believed to be the first of its kind to furnish to the public a compendium — simple and concise, as well as accurate, in its style and arrangement — of the most important provisions of the laws of all the Provinces of Canada in which the general principles of English 'iw prevail. It is printed as a ready reference guide for commercial men, farmers, mechanics and others, in the every day business transactions of life. It does not pretend IV THE OANADUH LAWTEA. to make its readers lawyers, or to enable them to dispense entirely with the advice of the legal profes- sion when matters of real difficulty arise. But it does pretend to f^rnish, upjmi the subjects of which it treats, information which will enable an ordinary business man to solve fiir himself a large proportion of the legal questions which are met with in his business, without the n^essity of his applying to a lawyer. A busy man has neither the time nor the money to refer to a solicitor every day for advice. Cases fre- quently %rise, also, in which he must, of necessity, make up his mind and act, before he can possibly have an opportunity to consult a: lawyer. A work like the present, ready at hand, easy of reference, will be found to save each year to its owner, ten times its cost. The success which attended the publication of the previous edition of this work, and the ready sale of that large edition, encouraged the publishers to lose no time in responding to the general demand for a second edition. In doing so, it was thought best to enlarge the work — many portions of which have* for the presenii edition, been entirely rewfitten— and to employ U10 beyt professional talent to make it what they desired, ▲ key to the lah^s. Of tho iiiimense val^ie of a wellrprepared manual of this naturei there can. be no question. Wrongs ore spltered and money losit every day because people generally are unacquevipted with their legal rightpy oTiiQ^ftiii; ofi redressr One half, of the law-suits PBEFATOBT. 9 i- it ry on bis 3 a ytO {re- alty, Bibly 'Work les its [)f the lale o! to lose 1 for a best to lave, iox ^and to J it -wbat [ manual \Vroiag8 J because lieir legal elavr-suits which oome before the Courts arn brought about because some person was ignorant of a simple fact of law which he should have known ; and it is und niable that an acquaintance with the eleme:itary principles of law would enable many a man to steer entirely clear of litigation. To preserve this work within the dimensions of a hand-book, and yet comprise in it a reference to all subjects of a useful nature, has required no little labour. f Throughout the book technical terms and expres- sions have been, as far as possible, eschewed, and plain and simple language employed. A glossary of law- terms is appended to explain words the use of which could not be avoided. In the present edition the law is brought down to the beginning of the present year. i r li THK GAKADIAM LAWYER. ll ADMINISTRATORS. An administrator (or, if a female, administratrix,) is a person appointed by a Surrogate Court, or other proper authority, to take charge ol the goods and estate of a person who has died without a will, to distribute it according to law. An administrator is sometimes appointed even where a will is left. II the will names no executor, an admin- istrator with the will annexed, must be appointed ; if a single executor die before the estate is wound up, or refuse to act, an administrator of the goods not adminis- tered may be appointed. Also, if a single administrator die, an administrator of the goods not administered must act. Where administration is sought by diflFer'»n* persons, the laws of the various Provinces will bf lound to estab- lish the order of preference between them. Adminis- tration will not be granted to those subsequent in priority until those prior have been cited before the Court and disclaimed, or waived their rights. Usually a husband has the first right to administer to the estate of his deceased wife, and a widow to that of her deceased husband ; after these, the next of kin have the prior right to Letters of Administration ; but a creditor 2 THE CANADIAN LAWYER. of deceased may obtain them if they all disclaim, or any other proper person in the discret.on of the Court. Before Letters of Administration are granted, proof must be filed in the Surrogate or other Court granting them verifying the death, that search has been made for a will and none found, and that none is believed to exist ; that the deceased has personal property within the jurisdiction of the Court ; and that the applicant has a right to demand the administration. In must jurisdictions an inventory of the personal property must also be filed, with a computation of its sworn value. This is partly for the purpose of fixing the amount of the bond which the administrator and his sureties (usually two) are required to execute and file in the Court, before the Letters issue. After the Letters have issued, the first duty of the administrator is to take into his custody the personal property, books and papers of the deceased, and ascer- tain fully what are the assets of the deceased in the shape of goods, moneys and securities for money on hand, and book debts. A careful appraised inventory of these should be made, the debts realized upon, and other assets converted into cash if necessary to pay debts. An inventory of the liabilities of the estate should also be made out, and, if it be suspected that other liabilities which do not appear on the books, or of which the administrator is ignorant, exist, these should be advertised for by the administrator, to pro- tect himself. For the first duty of an administrator is to pay the debts, and he has no right to distribute any property among the next of kin until the debts are paid. If sufficient assets exist, the debts are paid in full ; if not, rateably. In Ontario and some other Provinces, V ^ ADMINISTRATORS. 8 an administrator who advertises for debts, may dis- tribute, after a reasonable time, having ; ference only to claims of which he has notice. Should cither claims be sent in after his distribution, he cannot be sued for them. Th: iebts being paid, together with the funeral ex- penses and expenses of administration (which form a first charge upon the assets), tne estate may then be divided among the widow and next of kin. The admin- istrator may then pass his accounts before the Court which appointed him. The authority of the administrator does not extend beyond' the jurisdiction of the Court which appoints him. If assets exist beyond such jurisdiction, he, or some other person, may apply for administration there, in order to reach them. The chief administration should be in the jurisdiction where the deceased had his domicile at the time of his death. The other administrations are called ancillary. In Ontario, by " The Devolution of Estates Act, 1886," the following statutory provisions apply to the estates of persons dying on or after the ist July, 1886. Upon the death of such persons, their estates in fee simple, or chattels real, notwithstanding any disposition by will, devolve upon and become vested in their legal personal represent ati'' e, subject to the payment of their debts ; and, so far as not disposed of by deed, will, or contract, are to be aistributed as personal property, subject to the provisions of the Act. Under this statute, where a general administration is applied for, the application, or petition, and the affidavit in support of it, must show the particula ' of the real estate of the deceased, and its value, or probable value ; and the 4 THE CANADIAN LAWYER. amount of the security to be given must have reference to such value in addition to the value of the rest of the estate of the deceased. The administrator, or other legal personal representative, has power to dispose of, and otherwise deal with, all real property vested in him by the Act, as though the same were personal property. In Manitoba, lands are now to be treated, as regards descent, as chattels real ; and they pass to the executor or administrator of the person dying seized, as personal estate. The forms appended are those in common use in Ontario. Usually, printed forms of all necessary admin- istration papers may be obtained of the Court to which application for the Letters is made. FORMS. Petition for Letters of Administration. Unto the Surrogate Court of the County of The petition of of the of in the County of , humbly sheweth : 1. Th&t {name of intestate) laXe of the of in the County of , deceased, died on or about the day of in the year of our Lord one thousand eight hundred and at in the County of , and that the said deceased at the time of bis death had his fixed place of abode at the said in the said County of 2. That the said deceased died without having left any Will, Codicil or Testr.mentary Paper whatever, and your Petitioner is (Am widow, or next of kin, etc.) ^mmm ADMINISTBATOBS. 5 3. That the Personal Estate and Effects of the said deceased which he in any way died possessed of, or entitled to, and for and in respect to which Letters of Administration are requested to be granted, are of or about the value of dollars, to the best of your Petitioner's knowledge, information and belief. Wherefore, your Petitioner prays that administration of the Personal Estate and Effects of the said deceased may be granted and committed to him by this honourable Court. Dated this day of iS . Adimiiistration Bond. Know all men by these presents, that \vc (names and additions of administrator and his sureties) are jointly and severally bound unto {name of Surrogate Judge), the Judge of the Surrogate Court of the County of , in the sum of Dollars, to be paid to the said [name of Surrogate Judge) or the Judge of the said Court for the time being ; for which payment well and truly to be made we bind ourselves and each of us for the whole, our heirs, executors and administrators, firmly by these presents. Sealed with our Seals, dated the day of in the year of our Lord one thousand eight hundred and The condition of this obligation is such that if the above named {name of administrator) the administrator of all the personal estate and effects, rights and credits of {name of intestate) late of the of in tho Coun,ty of , deceased, (who died on the day of , in the year of our Lord one thousand eight hundred and eighty ) do, when lawfully called on in that behalf, make or cause to be made a true and perfect Inventory of all and singular the persoiiv.1 estate and effects, rights and credits 'of the said deceased which have or shall come into the hands, poss- ession or knowledge of the said (administrator) or into the hands and possession of any other person or persons for him, and the same so made do exhibit or cause to be exhibited unto the Registrar of the Surrogate Court of tho County of whenever required by 6 THE CANADIAN LAWYER. law so to do ; And the same personal estate and effects, rights and credits, and all other the personal estate and effects, rights and creuits of the said deceased at the time of his death, which at any time after shall come into the hands cr pos'session of the said (administrator) or into the hands or possession of any other person or persons for him, do well and truly administer according to law; and shall well and truly pay over and account for to the person or '^.arsons entitled to the same, all moneys and assets to be received by him for or in consequence of the exercise by him of any power over real estate created by the Will, etc., {if any), or by any statute, and which may be exercised by him ; that is to say, do pay the debts which the said deceased did owe at his decease, and further, do make or cause to be made a true and just account of his said administration whenever required by law so to do, and all the rest and residue of the said estate and effects, rights and credits, do deliver and pay unto such person or persons, respectively, as shall be entitled thereto under the provisions of any Act of Parlia- ment now in force, or that may hereinafter be in force in Ontario ; And if it shall hereafter appear that any last Will or Testament was made by the deceased, and the executor or executors therein named do exhibit the same unto the said Court, making request to have it allowed and approved accordingly, if the said (administrator) being thereunto required do render and deliver the said Letters of Administration (approbation of such Testament being first had and made) in the said Court, then this obligation to be void and of no effect, or else to remain in full force and virtue. Signed, Sealed and Delivered,<^ in the presence of A. B. :L.S. C. D. : L.S. E. F. :L.S. Notice to Creditors. All persons having claims against the estate of T. B., late of the City of Toronto, in the County of York, engineer, who died on or about the tenth day of May, 1886. intestate, are requested on or ADBflNISTRATORS. » before the loth day of July, 1886, to send in to the unde signed by letter, a statement of the nature and amount of their claims and the securities, if any, held by them ; together with their full names and addresses. After the said day the estate v?ill be distributed, regard being had for such claims only as the undersigned may have then notice of. Dated at Toronto this loth day of June, 1886. JOHN WATSON. Administrator. ) 8 THB OANADIAM LAWYSB. AFFIDAVITS AND DECLARATIONS. An affidavit is a sworn, written statement of facts made or taken in a judicial proceeding, or under some Provincial or Dominion Act. Statutes in Ontario and other Provinces, permit Menonites,Tunkers, Moravians, Quakers, and others entertaining religious scruples against taking an oath to make affirmation. The only difference between an affidavit and an affirmation is this, that the one is sworn to be true, the other is affirmed. The penalties for making a false affidavit, or a false affirmation or declaration, are identical. To suppress what was considered an illegal practice which generally prevailed of administering oaths and affidavits voluntarily taken and made in matters not the subject of judicial enquiry, nor required or author- ized by law, a statute of the Dominion of Canada was passed in the year 1874, whereby it was enacted that no Justice of the Peaco, or other person, should admin- ister or receive, or allow to be administered or received, any oath or solemn affirmation, with regard to any matter of which such Justice or person had not juris- diction or cognizance by any law of the Dominion, or of the Province in which such oath or affirmation is administered, or of any foreign country wherein such instrument is designed to be used, save in the form given in the Act. This statute should be carefully observed by Justices and others called upon to admin- ister oaths, as its infraction is made a misdemeanour, punishable by fine and imprisonment. AlfFtDAVITS AKD DECLARATIONS. 9 All affidavits, affirmations and declarations, should be written in words at length, and in narrative form, and expressed in the first person. Figures should not be employed in the body of the instrument, although they may be used in the jurat. If any interlineations or erasures are made, the initials of the person before whom the affidavit, etc., is sworn, should be written in the margm opposite such interlineation or erasure. Where it may be necessary to erase any words in the body of the instrument, such should be erased by drawing the pen through them, and not by scraping with a knife. The statements contained in these instruments should be written in paragraphs, each paragraph being num- bered, and dealing, as far as possible, with a distinct portion of the subject. This is the practice in all the Courts, and is useful to follow in every case. Where drawn for use in a suit or action in any of the Courts of Law, they require, as a general rule, to be taken before a Commissioner of the Court in which they are intended to be used. Sometimes, however, they may be taken before a Justice of the Peace or Notary Public. The latter functionary is generally the proper officer where the instrument is sworn outside of the Province where it is to be used, and his seal should be affixed beside his signature. Statutory declarations will be found useful where it is required, in matters of title to lands, to preserve evidence of certain facts, such as relate to questions of dower, possession, intestacy, etc. ; and, in other trans- actions, allegations as to proof of accounts or other facts of which it is deemed advisable to preserve evi- dence. 10 THE CANADIAN LAWYER. It is a duty incumbent upon any officer administering an oath, affirmation or declaration, to satisfy himself that the party to be sworn, etc., is the person who actually signed the instrument, and that he or she has heard the same carefully read over, or has read it per- sonally, so as to fully understand its entire contents. Where the circumstances appear to require it, the officer should not hesitate to explain the wording of the instrument carefully to the deponent and make ce. cain that he properly understands the terms emplojed. An oath should not be lightly administered, but with a decorum befitting the solemnity of the act. The parties should stand, uncovered ; but a Hebrew is sworn with his hat on. An oath is administered to a Christian by tendering him the volume of the New Testament to kiss. A Hebrew is similarly sworn upon the Old Tes- tament. A party entitled to affirm may hold up his right hand. The signature of the dep^^nent should be written by him at the foot of the affidavit, etc., but if unable to write, he should make a mark beside his name, which is written for him, thus : — The mark of X A B. or, his A. XB. mark. And the fact that the deponent is a marksman (or person unable to sign his name) should be noticed in the jurat. 4 ATFIDAYITS AMD DE0LAIUT10N8. 11 FORMS. General Form of Affidavit, Province of \ I, John Simons, of the of County of \ in the County of and Province oi To Wit: i Yeoman, (or proper designation) make oath and say : 1. That {here state the facts to be sworn to plainly and accurately, in unambiguous language). 2. That, etc. {commencing each separate paragraph upon a new line.) Sworn before me, at the \ of m the County of this day of A.D. i8 . ) John Simons. A Commissioner {or J. P., for the said County, etc.) aeneral Form of Affirmation, Province of \ I, James Brown, of in the County of j- County of , Merchant {or other proper To Wit : / designaiion). do solemnly and sincerely affirm and declare as follows : , I. That, etc. 2. That, etc, 3. That, etc. Affirmed before me at \ in the County of this day of " - t 1-. . _, „ Jambs Brown. A.D. 18 . ■' J. P. (0/ a Commissioner, etc.) 12 THE CANADIAN LAWYliR. • Form of Statutory Declaration. Province of \ I. Edward Barry, of in the County County of of Teamster, do solemnly declare To Wit: / that, etc. {as be/ore.) And I make this solemn declaration conscientiously believing the same to be true, and by virtue of an Act passed in the thirty-seventh year of Her Majesty's rei^n intituled *• An Act for the Suppression of Volun- tary and Extra-judicial Oaths." Declared before me, at of in the County of this day A.D.. i8 Edward Bahry. J. P. Form of Certificate of y.P., or Commissioner, where Affidavit made by two or more. The abovenamed James Brown and Isaac ) James Brown. Thompson, were severally sworn before me, etc. ) Isaac Thompson. Form of Certificate where Marksman Deponent. Sworn before me, at in the County of after being first read over and explained by me to the said Patrick Hanna, who appeared perfectly to un- derstand the same and made bis mark thereto in my presence. His Patrick X Hanna mark. A Commissioner, etc. AFFIDAVITS AND DE0LABATIOM8. 18 Form of Oath. You swear that this affidavit by you subscribed is true. So help you God. Affirmation. You do solemnly and sincerely declare and affirm, as you shall answer to Almighty God at the Great Day of Judgment, that this declaration by you subscribed is true. Declaration, You do solemnly declare that this declaration, by you subscribed, is true. 14 THE CANADIAN LAWIEB. AGREEMENTS OR CONTRACTS. An agreement is a bargain entered into between two or more persons, upon sufficient consideration, to do, or not to do, a particular thing. If reduced to writing and signed under seal, it is called a specialty ; if not under seal, whether verbal or written, it is called a parol agreement. It is advisable, in contracts of importance, to add a seal. Care should be taken to express, in the writing, the full terms of the bargain in plain language. A consideration is essential in every contract. By consideration is meant an equivalent given by the one party and accepted by the other. A simple or parol contract, unsupported by a consideration, cannot be enforced. Thus, if a man should promise to give me $1,000 without any consideration or equivalent on my part, he is not bound to perform his promise, and I am without remedy if he should break his word. In all contracts by specialty consideration is presumed. Considerations are of two kinds, good and valuable. A good consideration is that of blood or the natural love which a person has to his wife or children, or any of his near relatives. A valuable consideration is such as money, marriage, or the like. A specialty contract is of necessity a written one ; but a simple contract may be either written or verbal. There are, however, some simple contracts which the law requ?res to be in writing in compliance with the AGREEMENTS OR OO'ITRACTS. i 16 provisions of several statutes which we will proceed briefly to notice. The first of these is the Statute of Frauds, passed in 1676, in the reign of Charles II, (29 Car. II, cap. 3) which enacts, (section 4) that in the five following cases no verbal promise shall be sufficient to ground an action upon, but that the agreement, or at the least some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. 1. Where an executor or administrator promises to answer damages out of his own estate. 2. Where a man undertakes to answer for the debt, default or miscarriage of another person. 3. Where an agreement is made upon consideration of marriage. 4. Where any contract is made of lands, tenements or hereditaments, or any interest therein. 5. And lastly, where there is any agreement that is not to be performed within a year from the making thereof. This statute does not give to writing any validity which it did not possess before. A written promise made since this statute, without any consideration, is quite as void as it would have been before. The statute merely adds a further requisite to the validity of certain contracts, namely, that they shall, besides being good in other respects, be put into writing, otherwise they cannot be enforced. The phrase in the statute '* to answer for the debt, default or miscarriage of another person," means to answer for a debt, default or mis- carriage for which that other remains liable. The 16 THE CANADIAN LAWYER. words, "any agreement that is not to be performed within the space of one year from the making thereof," refer to contracts, the complete performance of wliich is of necessity extended beyond the space of a year. In order to bring an agreement within this clause of the statute so as to render writing necessary, both parts of the agreement must be such as are not to be performed within a year. If one may be performed it is good without writing. The clause requiring the " agreement or some memorandum or note (hereof to be signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized," has been liber- ally construed, and any insertion by the party of his name in any part of the agreement, either at the beginning or in the body of the document, for the pur- pose of authenticating it, will be equally valid with a signature at the foot ; and it is not necessary that both parties should sign the agreement, for the statute only requires that it should be signed ** by the party to be charged therewith." The whole of the agreement must be contained in the writing, either expressly or by reference to some other document. And as a *• memor- andum or note " of the agreement is allowed, a writing sufficient to satisfy the statute may often be made out from letters written by the party, or from a written offer accepted without any variation before the party ofiFering has exercised his right of retracting ; and when correspondence is carried on by means of the post, an oflFer is held to be accepted from the moment that a letter accepting the oflFer is put into the post, although it may never reach its destination. With reference to contracts for the sale of goods, it is to be observed that the ncctssary requisites depend 40REEMBNTS OB CONTRAOTS. 17 partly upon the value of the goods. As to goods under the value of $40, there can be no sale without a tender or part payment of the money, or a tender or part delivery of the goods, unless the contract is to be com- pleted at a future time. Thus, if A. should agree to pay so much for the goods, and B., the owner, should agree to take it, and the parties should then separate without anything further passing, this is no sale. But if A. should tender the money, or pay but a cent of it to B., or B. should tender the goods, or should deliver any, even the smallest, portion of them to A., or if the payment or delivery, or both, should be postponed by agreement till a future da)', the sale will be valid, and the property in the goods will pass from the seller to the purchaser. If, however, any act should remain to be done on the part of the seller previously to the delivery of the goods, the property will not pass to the pur- chaser until such act shall have been done. Thus, if goods, the weight of which is unknown, are sold by weight ; or, if a given weight or measure is sold out of a larger quantity, the property will not pass to the pur- chaser until the price shall have been ascertained by weighing the goods in the one case, or the goods sold shall have been separated by weight or measure, in the other. So, if an article be ordered to be manufactured, the property in it will not vest in the person who gave the order until it shall, with his consent, have been set apart for his benefit. With regard to goods of the value of $40 or upwards, additional requisites have been enacted by the seven- teenth section of the Statute of Frauds, which provides " that no contract for the sale of any goods, wares and merchandise for the price of ;^io sterling or upwards, 2 18 the: CANADIAN LAWYER. shall be allowed to be good except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part paj'ment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such con- tract, or their agents thereunto lawfully authorized." And, in Ontario, by a more recent Act (R. S. O. cap. 117, sec. 11), tlis enactment "shall extend to all contracts for the sale of goods of the value of $40 and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, procured or provided, or fit or ready for delivery, or although some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." The same law is in force in New Brunswick and Manitoba. In Prince Edward Island, the Statute of Frauds is extended in the words of the last section to goods of the value of thirty dollars. If an agreement for sale of goods is not to be per- formed T^ithin the space of one year from the making thereof, then, however small be the value of the goods, no action can be brought upon it, unless the agreement, or some memorandum or note thereof shall be in writ- ing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. It is convenient, though not necessary, that agree- ments should be signed by all the patties thereto ; and where something is to be done on both sides, it is very useful to have them written in duplicate so that each P AGREEMENTS Oil CONTRACTS. 10 and parly may possess one copy. They do not require a seal in all cases. The forms given will in general indicate when a seal is necessary, and when not. The writing may be in lead-pencil, or ink, and so may the signatures, though it is of course best to write in ink. If a party cannot sign his name in writing, he may make his mark, in place of the signature, in the presence of a witness who will attest it. Fraud destroys all agreements. If one party is in- duced to enter into the contract by misrepresentations of important facts made to him by the other, the party so misled may, on discovery of the fraud, disaffirm the bargain, and cannot be held to it. After the writing is signed, it must uot be altered by one party without the other's express consent. Minors, or persons under twenty-one years, insane persons, idiots, and those grossly intoxicated cannot make a binding contract. Agreements to do unlawful acts are void at law, and cannot be enforced. FORMS. Agreement for the Sale of Freeholds, Articles of agreement made and entered into this day of i8 , Between A. B. of &c. {vendor), of the one part, and CD., of, &c., {purchaser) of the other part. The said A. B, and C. D. do hereby respectively for themselves, their respective heirs, executors and administrators agree with each other. That the said A.B. shall sell to the said C. D., and that the said f!. D. shall purchase, All That, &c., {here describe the premises) with their appurtenances, and the freehold and inherit- ance thereof in fee simple in possession free from all incumbrances, 20 tun CANADIAN LAWYER. at or for the price or sum of $ being the residue of the said purchase money on the day of next, at which time the purchase is to be completed, and the said C. D. shall, on and from that day, have actual pos-cssion of the said premises, all out- goings up to that time being discharged by the said A. B. That the production and inspection of any deeds or other documents not in the possession of the said A. B., and the procuring and making of all certificates, attested, office or other copies of or extracts from any deeds, wills or other documents, and cf all declarations or other evidences whatsoever, not in his possession, which maybe required, shall be at the expense of the said C. D. That on pay- ment of the said sums of $ and 9 at the respective times specified for the payment thereof as aforesaid, the said A.B., and all ether necessary parties (if any) shall execute a proper con- veyance of the said premises with their appurtenances, and the freehold and inheritance thereof in fee simple in possession, free from all incumbrances unto the said C. D., his heirs and assigns, or as he or they shall direct. That if from any cause whatever the said purchase shall not be completed on the said day of next, the said C. D. shall pay interest at the rate of per cent, on the said residue ot the purchase money from that day till the completion of the purchase. In witness whereof the parties hereto have hereunto set their hands. Signed by the said A.B. and C. D.,) A. B. ui the presence of E. F. J CD. Agreement for Lease with a Right to Purchase at a definite sum. Articles of Agreement made and entered into this day of ,18 , Between A. B. of, etc. (lessor), of the one part, and C. D., of, etc. {lesse/j, of the other part as follows, namely : The said A. B. hereby agrees to let, and the said C. D. hereby agrees to take. All, etc. (here describe the premises), for the term of j-ears to be computed from the day of next, at the yearly rent of 9 payable quarterly, on the day of , the day of the day of and AGREEMENTS OR CONTRACTS. 21 I ir the day of , in every year, the first of such payments to be made on the day of next. The said A.B., his heirs or a.-signs will, at the request of the said C.D. his executors, administrators, or assigns, execute a lease of the said premises to the said CD., his executors, administrators or assigns, for the term and at the rent aforesaid, to be payable as afotesdid. In the said lease to be granted as aforesaid, shall be contained covenants on the part of the said C. D., his executors, administra- tors and assigns, to pay the said yearly rent as the same shall become due, and also all present and future taxes, rates, assessments, and other outgoings whatsoever in respect of the said premises. And also to repair and keep in repair at bis and their own expense, during the whole of the said term, the said premises so agreed to be demised. And also at the like expense to insure the said premises against loss or damage by fire in the name or names of the said A.B., his heirs or assigns, in some public office to be approved of by tlie said A.B., in the sum of $ at least, and to keep the same so insured during the continuance of the said term, and at all times when required, to produce the policy or policies of insur- ance and the receipt for the premiums in respect of the same to the said A. B., his heirs or assigns. And also, not to assign, sub-let, or part with the possession of the said premises, or any of them, duiing the said term of years, without the consent of the said A. B. And in the said lease to be so granted as aforesaid, shall be contained a condition authorizing the re-entry of the said A. B., his htirs or assigns, into the said premises on non-payment of the said yearly rent, or any part thereof, for the space of twenty- one days, or in case the said C. D., his executors or adminintrators shall become bankrupt or insolvent, or shall permit the said lease to be taken in execution, or on breach of all or any of the covenants so to be contained on the part of the said C. D., his executors, administrators and assigns in the said lease agreed to be granted as aforesaid. And in the said lease shall also be contained a covenant on the part of the said A. B., that in case the said C. D., his execu- tors or administrators shall, on or before the determination of the said term of years, be desirous of purchasing the interest of the said A. B., or his heirs in the said premises so agreed to be demised, then he, the said A.B., his heirs or assigns, shall and will take for the purchase thereof the sum of ^ , and shall and 22 THE CANADIAN LAWYER. will, upon payment of the same sum, at the costs and charges of the person or persons requiring the same, convey and assure the freehold and inheritance in fee simple in possession or expectant rn the determination of the said term of years (as the case may be), in the same premises unto the person or persons so paying the said sum of § and his, her or their heirs and assigns, or as he, she or they shall direct. And it is moreover agreed that a counterpart of the said lease shall be executed by the said C. D., his executors or administrators, at his or their own expense, and delivered to the said A. B., his heirs or assigns; and that until such lease or counterpart shall be executed, the rents, covenants and conditions agreed to be thereby respectively reserved and contained, shall, as nearly as circumstances will permit, be paid, observed and performed as if the same had been actually executed. In witness whereof, the parties hereto have hereunto set their hands. Signed in the presence of A. B. E. F. C. D. Agreement for Sale by way of Lease, reserving Purchase Money as Rent. This agreement, made the day of , one thousand eight hundred and , Between A. B., of, etc., of the first part, and CD., of, etc., of the second part. Whereas, the said party of the second part hath contracted with the said party of the first part for the purchase, in fee simple, of all and smgular the lands, tenements, hereditaments, and premises hereinafter mentioned to be hereby demised, for the sum of $ lawful money of Canada, to be paid on the days and times and in manner hereinafter mentioned. And whereas, the said parties are willing and desirous that the said party of the second part shall go into immediate possession and occupation of the said lands, tene- ments, hereditaments and premises, and receive a conveyance of the fee siniplei and inheritance thereof, so soon as the principal sum shall be fully and faithfully paid on the days and times and m AGREEMENTS OB CONTBAOTS. 28 manner after mentioned (all and singular other the covenants and pgreements hereinafter contained, and which on the part and behalf of the said party of the second part, his executors, administrators, and assigns, are to be paid, fulfilled, performed and kept, having been well and truly paid, performed, fulfilled and kept, according to the true intent and meaning ot these presents), and that in the meantime the interest on the said principal sum should be reserved and paid as rent issuing out of the said lands, tenements, heredita- ments, and premises hereby demised. Now, therefore, this agree- ment witnesseth, that in consideration of the premises and of the rents, covenants, and agreements hereinafter reserved and contained, and which on the part and behalf of the said party of the second part, his executors, administrators, and assigns, are to be paid, done and performed. He, the said party of the first part, Hath de- mised, leased, set, and to farm let, and by these presents Doth demise, lease, set, and to farm let, unto the said party of the second part, his executors, administrators and assigns, All those lands, tene- ments, hereditaments, and premises, situate, lying and being in the in the County of in the Province aforesaid Ihere describe the premises], together with all outhouses, waters, and water- courses thereon erected, lying or being, and all and singular other the rights, members and appurtenances thereunto belonging, or in any wise appertaining. To have and to hold the said lands, tene- ments, hereditaments, and premises hereby demised, or intended so to be, with the appurtenances thereunto belonging, unto the said party of the second part, his executors, administrators and assigns, from the day of , one thousand eight hundred and , for and during, and unto the full end and term of years from thence next ensuing, and fully to be completed and ended. Subject nevertheless to the reservations, limitations, pro- visoes, and conditions expressed in the original grant thereof from the Crown. Yielding and paying therefor, yearly and every year during the said term hereby demised, unto the said party of the first part, his heirs, executors, administrators and assigns, the yearly rent or sum of # of lawful money of Canada, in even and equal half yearly payments on the day of and day of in each and every year during the said term, without any deduction, defalcation, or abatement thereof, or out of any part thereof, for or in respect of any taxes, rates, levies, charges, rents. 24 THE CANADIAN LAWYEIl. i h X K'0 j>'.». assessments, statute labour, or other imposition of what nature or kind soever, either already taxed, rated, levied, charged, assessed or imposed, or hereafter to be taxed, rated, levied, charged, assessed or imposed, whether the same be now due, or shall hereafter become due, on the said demised premises or any part thereof, or on the said rent or any part thereof, or on either of the said parties to these presents, their or either of their heirs, executors, administra- tors, or assigns, or any of them in respect thereof, or any part thereof, by authority of Parliament or otherwise howsoever, the first payment of the said rent hereby reserved to be made on the day of , in the year of our Lord one thousand eight hundred and . Provided always, nevertheless, that on pay- ment of any instalment or instalments of the principal sum herein- after specified according to the covenant hereinafter contained, for payment thereof, and the true intent and meaning of these presents, the said rent hereby reserved shall from thenceforth be proportion- ably reduced, so as at no time to exceed the annual interest on such ijart of the said principal sum as shall from time to time remain due and owing after the payment of such instalment or instalments respectively ; And provided, also, that if the said yearly rent or any part thereof, or the said principal sum or any part thereof, shall at any time or times hereafter be behind and unpaid by the space of thirty days next after any or either of the days on which the same or any part thereof ought to be paid, as herein or hereby provided, according to the true intent and meaning of these presents; Or, if the said party of the second part, his executors, administrators, or assigns, or any of them, shall at any time assign, or set over, or demise, or underlease the said demised premises, or any part thereof, or in any other manner, part with the possession of the samr, to any person or persons whomsoever, for all or any part of the said demised terra, without the special license or con- sent of the said party of the first part, his heirs or assigns, first had in writing ; Or if the party of the second part, or any one acting under or claiming from him, shall at any time during the continu- ance of these presents commit or suffer to be committed any waste or destruction to any of the timber upon the said land, for any other purpose whatsoever than bringing the land into cultivation ; Then, and in any and every of the said cas.'s, it shall and may be lawful for the said party of the first part, his heirs or assigns, into the said AGREEMENTS OR CONTRACTS. 25 demised premises or any part thereof, in the name of the whole, to re-enter, and out of the same to eject, expel, amove and put the said party of the second part, his executors, administrators and assigns, and the same to have again, re-possess and enjoy, as in his and their first and former estate ; and from the time of any such re-entry by the said party of the first part, his heirs or assigns, the said term hereby demised, or so much thereof as shall be then un- expired, and these presents, and every clause, matter and thing therein contained, shall cease and determine, and forever there- after be null and void to all intents and purposes whatsoever, any- thing herein cc-r.tained to the contrary thereof in any wise notwith- standing. And the said party of the second part doth hereby for himself, his heirs, executors, administrators and assigns, covenant, promise and agree, to and with the !>aid party of the first part, his heirs and assigns, in manner following, that is to say ; That he the said party of the second part, his heirs, executors, administrators, and assigns, or some of them, shall and will well and truly pay or cause to be paid unto the said party of the first part, his heirs, executors, administrators, and assigns, the said yearly rent on the days ahd times and in manner hereinbefore mentioned, for payment thereof, according to the true intent and meaning of these presents. And also that he the said party of the second part, his heirs, execu- tors, administrators, or assigns, or some of them, shall and will, during the said term hereby demised, pay, do, and perform all taxes, rates, levies, charges, rents, assessments, statute labour, or other imposition above mentioned, lawfully charged or to be charged, whether the same be now due, or shall hereafter become due, on the said demised premises, on the said rent, or on any part thereof, or on any person or persons in respect thereof, or any part thereof, as aforesaid ; And also that he the said party of the second part, his executors, administrators, or assigns, or any of them, shall not nor will at any time or times during the said term hereby demised, assign or set over, un.'erlet or underlease, the said demised premises, or any part thereof, or in any other manner part with the possession of the same or any part thereof during any part of the said demised term, without such special license and consent as is hereinbefore specified, as aforesaid ; And also that he the said party of the second part, or any one acting under or claiming from him, shall not at any time, during the continuance of these presents, commit, or suffer 26 THE CANADIAN LAWYER. to be committed, any waste or destruction to any of the timber upon the same land, fc r any other purpose than bringing the land into cultivation : And ?ilso that he the said party of the second part, his heirs, executors, administrators or assigns, or some of them, shall and will well r^nd truly pay or cause to be paid, unto the said party of the first part, his heirs, executors, administrators or assigns, the full and just sum of 9 of lawful money of Canada, on the days and times and in manner following, that is to say [here set forth the terms and manner in ivhich the purchase money is to be paid] . And the said party of the first part, doih hereby for himself, his heirs, executors, administrators, and assigns, covenant, promise, and agree, to and with the said party of the second part, his execu- tors, administrators, and assigns, in manner following, that is to say. That upon the due and faithful payment, performance, and fulfilment by the said party of the second part, his executors, administrators, or assigns, of all and singular the covenants and agreements herein contained, and which on the part and behalf of the said party of the second part, his executors, administrators, and assigns, are to be paid, done, and performed, he the said party of the first part, his heir?, or assigns, shall and will, at the expiration or other sooner determination of the said term hereby demised, upon the request of the said party of the second part, his executors, administrators, or assigns, made to him the said party of the first part, his heirs, executors, administrators, or assigns, or any of them, but at the proper costs and charges in the law of the said party of the second part, his executors, administrators or assigns, well and sufficiently convey and assure, or cause to be well and sufficiently conveyed and assured, unto the said party of the second part, and his heirs, in fee simple absolute, or to such person or persons and his, her, or their heirs, in fee simple absolute, as the said party of the second part, his executors, administrators, or assigns, shall nominate and appoint, and to such uses as he or they shall direct, all and singular the said lands, tenements, hereditaments, and premises hereby demised by such conveyances and assurances in the law, as by the said party of the second part, his executors, administrators or assigns or his or their counsel learned in the law, shall or may be reasonably devised, advised, or required, freed, and discharged of and from all incumbrances whatsoever : but subject nevertheless to the reservations, limitations, provisoes, and condi- tio ag til sV si 81 C| AGREEMENTS OR CONTRACTS. 27 tions expressed in the original grant thereof from the Crown: with usual and proper covenants. And it is hereby further expressly agreed upon by and between the said parties, that in case at any time any of the rent or interest aforesaid, or of the purchase money shall remain unpaid by the space of months after the same shall have fallen due, the party of the first part, his heirs or assigns, shall have full power to re-sell the said land at the best price which can be reasonably got for the same, and thereby utterly extinguish and bar all claim, interest, and title of the party of the second part, and all claiming under or ify him in the same land — such re-sale to be either for cash or upon credit as the party of the first part, his heirs or assigns, may determine. And that the party of the first part, his heirs or assigns, may in the first place pay himself the expenses of such re-sale, and the whole of the claim due, or to become due, by the party of the second part, or any one claiming by or under Jiim, out of the proceeds of such re-sale, and pay the balance (if any there be) when collected, over to the party of the second part, or the person entitled thereto ; And that the party of the second part, or those claiming by or under him, shall be answer- able to the party of the first part, his heirs or assigns, for any deficiency which may happen to be produced by the re-sale between the sum then due and to become due, under these presents, to the party of the first part, his heirs, or assigns, and the proceeds of such re-sale. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered in the presence of A. B. [L.a.] E. F. C. D. [L.S.] [Note.— The above instrument being a contract or agreement by specialty requires to be sealed as well as signed.] Agreement to build a House, etc., the Materials to be provided by the Builder, Articles of agreement made and entered into the day of , i8 , Between A. B. {builder), of, etc., of the one part, and C. D.. (proprietor), of, etc., of the other part. 28 THE CANADIAN LAWTER. The said A. B., [builder], doth herehy for himself, his exftcntors and administrators, covenant, promise and agree to and with the said C. D. [proprietor], his executors, administrators, and assigns, that he the said A. B. [builder], his executors or administra- tors, shall and will for the consideration hereinafter mentioned, within the space or time of {six calendar moitth.) from the date of these presents, erect, build and completely cover in and finish ui}on the premises, of the said C. D. [proprielor] , at aforesaid, a dwelling house and buildings accordingJo the plan and elevation set forth in the schedule hereunder written. And also do, perform, and execute, or cause and procure to be done, performed and executed, all and singular other the works mentioned in the schedule here- under written, according to the plan and elevation therein men- tioned or contained, the same to be done within the time aforesaid, and in a good workmanlike and substantial manner to the satisfac- tion of E. F. {surveyor or architect), of, etc., {insert name and resi- dence of architect or surveyor) or any other surveyor or architect whom the said A. B. [builder] , and C. D. [proprietor] shall for that purpose by some writing under their hands appoint : such satis- faction to be testified by a writing or certificate under the hand of the said E. F. [surveyor or architect], or such other surveyor or architect as afores.aid. And also shall and will find and provide such good, proper and sufficient materials of all kinds whatsoever as, together with and in addition to the materials now lying on the said premises, shall be proper and sufficient for erecting the said dwelling bouse and buildings, and completely finishing the said works. And it is further agreed by and between the said parties that if the said A. B. [builder] , his executors or administrators shall in any manner neglect or be guilty of any delay whatsoever, in building and completely finishing the said dwelling house, buildings and works as aforesaid, and the .said E. F. [surveyor or architect] or such other surveyor or architect as aforesaid shall certify the same by writing under his hand, and the said C. D. [proprietor], shall give or leave notice in writing of sv.ch neglect or delay at the place of abode of him the said A. B. [builder] , his executors or administrators, and the said A. B. [builder] , his executors or admini- strators, shall not according to the direction of the said E. F. [sur- veyor or architect] or such other surveyor or architect as aforesaid. proceed to complete the said buildings and works within the space AOBEEMENTS OR CONTRACtS. of (seven) days after such notice given or left as aforesaid : then and in any such case it shall be lawful for the said C. D. [froprie- tor} , his executors or administrators to purchase proper and sufiB- cient materials, and also to employ a sufficient number of work- men to finish and complete the said dwelling house, buildings and works, and also that the said C. D. [proprietor], his executors, administrators or assigns, shall and may deduct and retain to him- self and themselves the costs of such materials, and all such sums of money as he or they shall pay to such workmen for the comple- tion of such dwelling house, building and works out of the money which shall be due to the said A. B. [builder], his executors,, or administrators under this agreement ; and also that the said A. B. [builder] , his executors or administrators, shall not nor will in any manner do, or cause or procure to be done, any act, matter or thing whatsoever to prevent, hinder or molest the said C. D. [proprietor] , his executors, administrators or assigns, or any person or persons employed by him or them, from completing and finishing the said dwelling house, buildings and works in manner aforesaid, or in using the materials which shall be on the said premises, and provided by either of the said parties for the doing thereof. And the said C, D. [proprietor] , doth hereby for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said A. B. [builder], his executors and administrators, that he the said C. D. [proprietor] , his executors or administrators, shall and will well and truly pay or cause to be paid unto the said A. B. [builder] , his executors, administrators or assigns, the sum of 9 of lawful money of Canada, in manner following, that is to say, the sum of per cent, on the amount of the materials used in the said buildings and works as they shall proceed, to be ascertained by the surveyor (or architect) for the time being, and his certificate under his hand to be conclusive between the said parties ; and also that the said C. D. [proprietor] , his executors or administrators, shall and will every week during the progress of the said buildings and works, pay and supply the said A. B. [builder] his executors or administrators, with such sums of money as shall b& sufficient for paying and discharging the wages and labour of the workmen and labourers v.'ho shall from time to time be employed in or about the said buildings and works, the amount whereof shall be ascertained by the surveyor (or architect) for the time being by a ao THE GAHADUN LAWYlStt. 1^ certificate nnder his hand ; and the rentainder of the said sum of I , within days {or months) next after the said dwelling house, buildings and premises shall be comp.etely built, done and finished to the satisfaction of the said £. F. [surveyor or architect] , or such other surveyor or architect as aforesaid, the same to be tes- tified in writing under his hand. And it is hereby declared and agreed by and between the said parties hereto, that in case the said C. D. [proprietor], his executors, administrators or assigns, shall direct any more work to be done in or about the said dwelling house, buildings and works than is contained in the schedule here- under written, then, and in such case the said C. D. [proprietor] , his executors or administrators, shall pay or cause to be paid unto the said A. B. [builder] , his executors or administrators, so much money as such extra work and the materials used therein shall cost 01- amount unto, anything hereinbefore contained to the contrary notwithstanding ; and that if it shall be thought proper by the said C. D. [proprietor], his executors, administrators or assigns, to di- minish or omit any part of the work specified in the said schedule hereunder written, then and in such case the said A. B. [builder], his executors or administrators shall deduct and allow out of the said sum of 9 so much money as th.n work so to be diminished or omitted shall amount unto, upon a rsi.'sonable valuation, any- thing hereinbefore contained to the contrp.ry notwithstanding; ard all allowances or deductions for sue): extra or omitted works res- pectively shall be ascertained and settled by the said £. F. [surveyor or architect] , or such other surveyor or architect to be appointed as aforesaid. And it is hereby covenanted and agreed by and between the said parties hereto that if any dispute or difierence shall happen or arise between them, their or either of their executots, adminis- trators or assigns, or between either of them, and the said E. F. [surveyor or architect], or such other surveyor or architect to be appointed as aforesaid, touching or concerning the said dwelling house, buildings and works hereby contracted to be made and done as aforesaid, or touching or concerning any other matter or thing whatsoever relating thereto, or to the additional or extra work as aforesaid, then such dispute or difference shall be left to the deter- mination and award of three indififerent persons, one to be named by the said A. B. [builder] , his executors or administrators, and another by the said C. D. [proprietor], his executors, administrators or AGREEMENTS OR CONTRAOTH. 31 assigns, and the third by the said two persons so named by each of them the s?id parties or his executors, administrators or assign?). And each of them the said parties hereto doth hereby for himself, his heirs, executors and administrators, covenant and agree with the other of them, his executors and administrators that they the said parties respectively and their respective executors and admin- istrators shall and will severally stand to, abide by, perform and keep the award and determination of the said three persons so to be chosen, or of any two of them, touching the said several matters of dispute or difiference as aforesaid, so as the same award and deter- mination be made in writing under the hands and seals of the said arbitrators or some of them, within two calendar months next after such dispute or difference shall arise. And it is further agreed by and between the said parties, that the submission hereby made, shall, at the option and expense of either of the said parties requir- ing the same, be made a rule of {name the Superior or Supreme Court of the Province) ; and that the costs and charges attend- ing any reference or arbitration as aforesaid shall be in the discre- tion of the said arbitrators, or any two of them, and shall be paid and satisfied pursuant to their award. In witness whereof, the said parties to tliese presents have here- unto set their hands and seals the day au emor-in-Council to exercise the powers conferred by the Act, and 46 THE OAMADlAN LAWYER. having the care and charge of a minor, the minor being a male not under the age of fourteen years, may, with the consent of the minor, put and bind him as an apprentice, by indenture, to any respectable and trustworthy waster-mechanic, farmer, or other person carrying on a trade or calling, until such minor attains twenty-one. Or. in case of a female not under the age of twelve years, she may. with her consent, be bound to such person, or to domestic service until she attains eighteen. When the father of an infant child abandons and leaves the child with the mother, the mother, with the approbation of two Justices of tne Peace, may bind the child as an apprentice until the child attains twenty-one if a male, or tighteen if a female. The mother and the Justices must sign the indenture. No child fourteen years old or upwards is to be so apprenticed without his or her consent. The Mayor, Judge of the County Court, or Police Magistrate of any city or town, and in a county, the Judge of the County Court, may apprentice orphan children and children who have been deserted by their parents, or whose parents have been committed to gaol. A Judge of the County Court, or Police Magistrate, may alter the mode of payment of wages, and may annul the indenture of apprenticeship. If the master of an apprentice dies, the apprentice, if a male, by operation of law. and without any new writings, becomes trans- ferred to the person (if any) who continues the master's business. A master may transfer his apprentice, with the consent of the latter, to any person who is competent to receive or take an apprentice, and who carries on the same kind of business. Every master must provide to his apprentice suitable board, lodging and clothing, or such equivalent therefor as is mentioned in the indenture, and must also properly teach and instruct him, or cause him to be taught and instructed, in his trade or calling. Every apprentice must faithfully serve hU, master, obey all his lawful comman Is, and not absent himself from his service, day or night, without consent. A master convicted before any Justice, Mayor or Police Magis- trate, on the complaint of the apprentice, of any ill usage, cruelty pr refu8.il of necessary provisions, is liable to a fine not exceeding twenty dollars and costs, and to imprisonment in default for a term not exceeding one month. APPIIENTIGES. 47 An apprentice convicted of refusal to obey lawful commands, or of waste or damage to property, or of any other improper conduct, may be imprisoned for a term not exceeding one month. An apprentice absenting himself before the time of service expires, may be compelled to make good the loss by longer service or pecu- niary satisf^iction ; and if he refuses or neglects to do so, may be commits . .0 gaol for a term not exceeding three months ; but the •aster musi proceed to enforce such service or satisfaction within three years after the expiration of the term for which the appren- tice contracted to serve. Persons harbouring or employing an absconding apprentice, are liable to pay the full value of the apprentice's labour. The apprenticeship indenture may be cancelled if the apprentice becomes insane, or is convicted of felony, or is sentenced to the Provincial Reformatory or Penitentiary, or absconds. The master must, within one month, give notice in writing to the* other parties to the indenture of his intention to cancel the indenture, which notice must be served on the parties, or published in The Gaxette, or in a local county or city newspaper. Masters or apprentices may appeal to the General Sessions against any Magistrate's decision, and the General Sessions may make any order under the Act which the County Judge could make. NOVA SCOTIA. The same general principles obtain as in Ontario. By the Revised Statutes, cap. 98, all children under fourteen years may be bound as apprentices or servants until that age ; above that age, male children may be indentured until twenty-one ; and female until eighteen or marriage. Where a minor above fourteen years is bound apprentice by his or her parent or guardian, the consent of the minor must be obtained and signified in the written indenture, which is made out in dupli- cate and executed by the minor, as well as by the other parties. The minor is entitled to the full amount of 48 THE CANADIAN LAWYER. money, or other return, given for his services. The statute imposes a duty on the parties binding minors as apprentices to see that they are properly Jreated. Complaints are heard before two Justices, subject to appeal to the Supreme Court of the Province. Appren- tices guilty of misconduct may be punished by impri- sonment, upon an order of a Justice, NEW BRUNSWICK. The following is a summary of the statute law : Children under fourteen years may be bound apprentice until that age by their father, or, in case of his death or incompetency, by their mother or other legal guardian : if they have no parent competent to act, and no guardian, they may bind themselves, with the assent of two Justices. Minors above fourteen not having parents or guardians competent to act, may be bound in the same manner, with their consent, to be expressed in the indenture, and testified by their signing the same ; females to the age of eighteen or marriage, and males to twenty one years. The Indenture of Apprenticeship must be in two parts— one part to be kept by the parent or guardian (if any), or to be deposited with the Town Clerx for the use of the minor. No indenture is binding on the minor after the death of his mas- ter ; nor shall any indenture be assignable ; nor shall any minor be taken out of the Province, unless with his consent t j* l>c declared in the presence o€ a Justice, and certified by him in writing. Provision shall be made in every Indenture of Apprenticeship for teaching the indentured child or children to read and write, and to cypher as far as the rule of three, and for religious and other instruction ; and such other benefit or allowance to the minor as may be agreed upon ; and, in case of sickness, for medical attend- ance, board and care. Before any indenture is executed, the parties shall go before a Justice of the Peace, who shall examine whether the apprentice has any just objection thereto, and shall certify thereon accordingly ; and no indenture shall be deemed executed without nuch certificate. APPRENTICES. id 'he as ed. to !n- ►ri- All considerations of money, etc., shall be paid or socured to the sole use of the apprentice. Complaints, etc., shall be heard before one Justice. No person shall sell upon credit to any apprentice. Harbouring an absconded apprentice is punishable by a fine of 920 ; and if by a master of a vessel, $40. PRINCE EDWARD ISLAND. The more specific provisions of the law of this Prov- ince upon this subject, enacted bj' the Statute, 8 Vict., cap. 14, may be summarized as follows : Any parent, or parents, guardian or guardians, may bind out as an apprentice, any child of any age as an indented servant to any tradesman, artisan or farmer, for a period not exceeding the time when such child shall attain the age of twenty-one years. Any infant of twelve years of age may be lawfully indented to any tradesman, farmer, or other, by his or her own consent, if such infant have no parent or guardian within the Island, until such in- fant attain twenty-one years, or for a shorter period, as may be agreed. Such indenture must be entered into in the presence and with the consent of two Justices of the Peace, each of whom shall sign such indenture. All infants of sixteen years and upwards, having no parents or guardians in the Island, may indent themselves to service to any tradesman, farmer, or other, until twenty-one years, by indenture under seal. Every Indenture of Apprenticeship must contain a stipulation to cause the indented child to be taught reading, writing and the com- mon rules of arithmetic. Any two Justices of the Peace may bind mendicant chilJren, abandoned by their parents. If an apprentice desert his employ- ment, one Justice may issue a warrant to arrest him, and may com- mit him to gaol. The harbouring of deserting apprentices is pun- ishable. Complaints in such matters, and as to ill-treatment, wages, etc., are disposed of before three Justices of the Peace. 4 / 50 THE CANADIAN LAWYER. MANITOBA. The law in Manitoba may be said to be nearly identical with that in Ontario, the statute, cap. 40, R. S. M., being in large part a copy of the Ontario Statute. FORMS. Apprenticeship Indenture. This Indenture, made the fourth day of June. 1885, Between William Jones, of Chatham, in the County of Kent, Jeweller, of the first part, Henry Jones, his son, now of the age of seventeen years, of the second part, and Thomas Mason, of the same place, printer, of the third part, Witnesseth, That the said William Jones, with the consent of his said son. Henry Jones, testified by his being a party to and executing these presents, doth hereby put, place, bind and indent him, the said Henry Jones, to the said Thomas Mason to learn the art and trade of a printer, and with him, the said Thomas Mason, his executors, administrators and assigns, after the manner of an apprentice to dwell and serve from the date hereof until the fourth day of June, 1889, being a period of four years, when the said minor will arrive at the age of twenty-one years. And the said William Jones doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said Thomas Mason, his executors, administrators and assigns, that during the said term of four years, the said Henry Jones shall well and faithfully serve the said Thomas Mason, his secrets keep, and lawful commands at all times obey, and shall gire and devote to him his whole time and labour ; that he shall not marry during the said term, nor use ardent spirits, nor practice gaming or any other unlawful sports, nor waste, injure or destroy the property of his master, but conduct himself in a sober, tem- perate, honest manner, and as a good and faithful apprentice ought to do, during all the time aforesaid. , APPRENTICES. 61 And the said Thomas Mason, for himself, his heirs, executors and administrators, doth hereby covenant, promise and agree to and with the said William Jones, his executors and administrators, that he, the said Thomas Mason, hi^ executors and administrators, shall and will teacu and instruct, or cause to be taught and instructed, thefiaid Henry Jones, in the art, trade and mystery of a Printer, and shall and will 6nd and provide for the said apprentice sufficient meat, drink, apparel, washing and lodging durmg the said term ; and at the expiration thereof shall and will give his said apprentice two suits of apparel {any other special terms may be here inserted) ; and the said Thomas Mason further agrees to pay to the said Wil- liam Jones, father of the said Henry Jones, the following sums of money, to wit : for the first year's service, twenty-five dollars ; for the second year's service, seventy-five dollars ; and for each and every subsequent year, until the completion of his term, one hun- dred dollars ; which said payments are to be made on the first day of June in each year. And for the true performance of all and singular the covenants and agreements hereinbefore contained, the said parties bind them- selves each unto the other, jointly by these presents. In witness whereof, the said parties to these presents have here- uu^o set their hands and seals, the day and year first above written. Signed, sealed and delivered, in the presence of WILLIAM JONES. [l.s.] R. JOHNSON. HENRY JONES. [l.s.] THOMAS MASON. [L.S.J I Indenture of Apprenticeship for a Girl to learn Housework, etc. This Indenture, made the tenth day of May, 1885, Between Mary Franks, of Niagara, in the County of Lincoln, Widow, of the first part, Sarah Franks, her daughter, now of the age of fifteen years, of the second part, and Robert Holden, of the same place. Farmer, of the third part, Witnesseth that the said Sarah Franks, by and with the consent of the said Mary Franks, her mother, testi- fied by her execution of these presents, hath bound and put herself, und by these presents doth bind and put herself apprentice to the 62 THB OAMADIAN LAWYER. said Robert Holden, with him to dwell and serve from the day of the date hereof until the full end of the term of two years next ensuing, fully to be completed and ended ; during which term the said Sarah Franks hur said master faithfully shall and will serve in all lawful business, according to her power and ability, and honestly and obediently in all things demean and behave herself toward her said master during the term aforesaid. And the said Robert Holden shall and will teach and instruct, or cause to be taught and instructed, the said apprentice in sewing, knitting and housewifery, the management of the dairy, and all matters connected with the calling of a farmer proper tc ' taught to her the said apprentice, together with reading, wrli^^.j and the other usual branches of a common school education ; and shall and will during the said term find, provide and allow her suf- ficient meat, drink, clothing, lodging, washing, and all other neces- saries ; and at the expiration of the term aforesaid shall and will give unto the said apprentice two suits of apparel. In Witness, etc. {Conclude as in last form). Signed, etc.. MARY FRANKS. [l.s.] JOHN SERVOS. SARAH FRANKS. [L.S.] ROBERT HOLDEN. [l.s.J Assignment of an Indenture of Apprenticeship. {To be indorsed upon it). Know all men by these presents, that I, the within named Samuel Moore, by and with the consent of James Jackson, my within named apprentice, and Henry Jackson, his father (or as the ease may be), parties to the within Indenture, tenified by their signing and sealing these piesents, for divers good causes and considerations, have assigned and set over the within Indenture, and the said James Jackson, the apprentice within named, unto John Travers, of Mil. ton, of the County of Halton, Printer, his executors, administrators or assigns, for the residue of the within mentioned term, he and they performing all and singular the covenants therein contained on my part to be kept and performed. I APPRENTICES. 68 And I, the said James Jackson, do hereby covenant on my part, with the consent of my father, the said Henry Jackson, faithfully to serve the said John Travers. as an apprentice for the residue of the term within mentioned, and to perform toward him all and singular the covenants within n.entioned on my part to be kept and performed. And I, the saif< John Travers, do for myself, my executors and administrators, covenant to perform all and singular the cove- nants within mentioned on the part of the said Samuel Moore to be kept and performed. Signed, sealed and delivered, etc. I 64 THE OANADIAM LAWi'EB. ARBITRATIONS AND AWARDS. An arbitration is the reference and submission of a matter in dispute to the decision of one or more persons called arbitrators. The findings or decisions of arbi- trators in such matters are called awards. Instead of having a dispute settled by an action in a law Court, people sometimes prefer to leave the matter to fair-minded persons mutually agreed upon, not judges of the Courts, nor, necessarily, lawyers, but men of business ability and possessed of special knowledge of the trade, or other matters which may be involved. Business men, as a rule, prefer arbitrations to lawsuits in trade, or business disputes, as involving more cer- tainty of justice, with less delay and expense. Boards of Trade usually provide that their members shall, in the first instance, submit their differences to this mode of settlement ; and in articles of co-partnership between traders, it is usual to stipulate that if any dispute shall arise it shall be referred to the determination of two indifferent persons as arbitrators, or of their umpire, who is commonly required to be chosen by the arbi- trators. It is also a common practice of all Courts where the English law is administered, to order the submission of intricate matters of account to arbitrators appointed by such Courts. So, also, many statutes require par- ticular matters in dispute between parties to be settled in this manner* I ARBITRATIONS AND AWARDS. 65 la IS a it )t n e 1. ;s s 1 Arbitrations are thus either voluntary or compulsory ; the former being made by mutual agreement, the latter where either party, under the statute law of a partic- ular Province, has a right to compel a reference of matters in controversy, without the consent of the other. In trifling matters of dispute the agreement to refer the dispute (called a submission) is verbal ; but it is preferable in all cases to have a writing signed by both parties. The writing, or submission, usually provides that the award in writing of the arbitrators, or of their umpire in case of disagreement, shall be binding and conclusive on all parties. It is generally also further provided that in case either party should neglect or refuse for a given time to appoint an arbitrator, the arbitrator chosen by the other party may make an award which shall be binding on both. Notwithstanding an agreement to refer dispute t to arbitration, either party may bring the matter into Court, unless the agreement should contain an express covenant not to sue, and the matter is in the hands ol the arbitrators. Bui the Court will not compel a party to name an arbitrator, should he refuse to do so in violation of his agreement. Where the submission provides that the award may be made a rule or order of a Court, or where the refer- ence is had under an order of the Court, the arbitrators and the parties to the reference become subject to the jurisdiction of the Court, which has power to set aside any' award which may appear to have been given unjustly or through mistake of law ; or to enforce the performance of an award where it is manifestly valid. 56 TU£ CANADIAN LAWiliH. If the submission relate to criminal matters, eithe. party may at any time revoke his submission and thui terminate the authority of the arbitrators. And gener- ally, all submissions, where not under order of Court, or a particular statute, may be revoked by either party at any time before the award is reduced to writing. Under statutes of most of the Provinces, the attend- ance of witnesses before an arbitrator can be compelled by process issuing out of the Court. The arbitrator may administer the oath, and false swearing is punished as perjury. An express order or agreement that the witnesses shall be examined upon oath is not generally necessary. The authority of arbitrators is liable to be determined not only by a revocation of the submission, but also by the death of either of the parties previously to the making of the award. In order to obviate this incon- venience, it is now usual to insert in the order or rule of Court by which reference is made to arbitration, a provision that the death of either of the parties shall not operate as a revocation of the authority of the arbi- trators, but that the award shall be delivered to the executors or administrators of the parties, or either of them, in case of their or his decease. And the same stipulation may be effectually made in a submission to arbitration by private agreement. When no time is limited for the making of the award it must be made within a reasonable time ; but if a given time be limited, the award must be made within that time, unless the time for making it be enlarged. The submission to arbitration frequently contains a power for the arbitrators or umpire to enlarge the time for making the award; and in this case the time may be I ABBITRATIOMB AND AWARDS. 67 ■t, enlarged from time to time by such arbitrators or umpire, provided the enlargement be made on or before the expiration of the time originally limited for making the award. And if the submission be made a rule of Court, then, whether the arbitrators or umpire have power to enlarge thtf time or not, the Court or a judge there has usually power to enlarge the time under statute. And should no enlargem.ent be formally made, yet the parties may, by contiLuing their attendance on the reference, or by recognizing 1' e proceedings under it, virtually empower the arbitrators or umpire to make a valid award subsequently to the time originally limited. In proceeding in the business of the arbitration, the arbitrators are bound to require the attendance of the parties, for which purpose notice of the meetings of the arbitrators should be given to them. But if either party neglect to attend either in person or by attorney after due notice, the arbitrators may proceed without him. In taking the evidence the arbitrators are at liberty to proceed in any way they please, if the parties have due notice of their proceedings and do not object before the award is made ; but in order to obviate any objec- tion, they ought to proceed in the admission of evidence according to the regular rules of law. The award should he signed by the arbitrators in each other's presence, and when made it must be both certain and final. Thus, if the award be that one party enter into a bond with the other for his quiet enjoyment of certain lands, this award is void for uncertainty ; for it does not appear in what sum the bond should be. If the arbitrators be empowered to decide all matters in difference between the parties, the award will not necessarily be wanting in finality for not deciding on all such matters, unless it 58 THE OAMAOUN LIWYEB. appear to have been required that all such matters should be determined by the award, and all such were submitted. An award, to be binding, must embrace every matter submitted, if the award reserve to the arbitrators, or give to any other person, or to one of the parties, any further authority or discretion in the matter, it will be bad for want of finality. And if the award be that any person, not a party to the reference, should do an act, or that money should be paid to, or any other act done in favour of, such a person, unless for the benefit of the parties, such award will be void. An award, however, may be partly good and partly bad, provided the bad part is independent of and can be separated from that which is good. But if by reason of the invalidity of part of the award, one of the parties cannot have the advantage intended for him as a recom. pense for that which he is to do, according to that part of the award which would otherwise be valid, the whole will be void. If it should appear on the face of the award that the arbitrators, intending to decide a point of law, have fallen into an obvious mistake of the law, the award will be invalid. But where subjects involving questions both of law and fact are referred to arbitra- tion, the arbitrators may make an award according to what they believe to be the justice of the case, irrespec- tive of the law on any particular point. The Courts have power to set aside the award for corruption or other misconduct on the part of the arbi- trators, or if they should be mistaken in a plain point of law or fact. The application to set aside the award must, howjBver, be made within the time limited by statute. But although the time limited by statute may have expired, yet, if there be any defect apparent ou ARBITRATIONS AND AWARDS. 50 rs e :e the face ol the award, the Court, as a rule, will not assist in carrying it into effect by granting process to enforce it. If the submission to arbitration be made by rule or order of the Court in any cause, the Court still retains its ancient jurisdiction of setting aside the award on account of either misconduct of the arbitrators, or of their mistake in point of law. Sometimes the Court will refer the matter back to the arbitrators for further t xamination, in the event of any application being made to the Court on the subject of the award. If an umpire be appointed, his authority to make an award commences from the time of the disagreement of the arbitrators, unless some other period be expressly fixed ; and if, after the disagreement of the arbitrators, he makes an award before the expiration of the time given to the arbitrators to make their award, such award will be valid. The umpire must be choscii by the arbi- trators in the exercise of their judgment, and must not be determined by lot, unless all the parties to the refer- ence consent to his appointment by such means. In order to enable him to form a proper decision, he ought to hear the whole evidence over again, unless the parties should be satisfied with his deciding on the statement of the a rbitrators. And the whole matter in difference must be submitted to his decision, and not some parti- cular points only on which the arbitrators may disagree. An award for the payment of money creates a debt from c ne party to the other, for which an action may be brought in any Court of law. But when the award is made a rule of Court, its performance may be enforced by execution. And where the reference is made by order of a Court of Equity, or where the award requires any act to be done which cannot be enforced by an 60 THE CANADIAN LAWYER. action at law, equity will decree a specific performance. It often happens that the matters to be referred are of too complicated a nature to admit of successful car- riage without the intervention of a professional man. The foregoing observations are not intended to apply to such .Tirtters : they are meant for plain and simple cases only. In Ontario, the fees payable to witnesses are fixed by statute at the same amount as would be paid such witnesses in any ordinary suit in the Court having jurisdiction over the matter of the reference. Parties are required to pay the costs of adjournments of the proceedings made at their request or hy reason of their absence. Beyond a reasonable fee to the arbitrators for drawing up their award, their fees are as follows : Where arbitrators are not either barrisU -., attorneys, engineers, architects, or Provincial Land Surveyors — For every meeting where the cause is not proceeded with but an enlargement or postponement is made at the request of either party, not less than $200 Nor more than 4 00 For every day's sitting, to consist of not less than six hours, not less than 5 00 Nor more than 10 00 For every fitting liot extending to six hours (fractional parts of hours being excluded) where the arbitration is ?.ctually proceeded with, for each hour occupied in such proceedings, at the rate of not less than i 00 Nor mere than i 50 Where che arbitrator is such professional person — For every meeting where the cause is not proceeded with, but an enlargement 01 postponement is made at the ABBITRATIONS AND AWARDS. 61 e. re r- n> y e request of either party, not less than $400 Nor more than 8 00 For every day's sitting, to consist of not less than six hours, not less than 10 00 Nor more than 20 no For every sitting not extending to six hours (fractional parts of hours being excluded) where the arbitration is actually proceeded with, for each hour occupied in such proceedings, at the rate of not less than. a 00 Nor more than 3 00 For remedies by arbitration in the adjustment of disputes between masters and workmen, reference should be had to the •* Trades Arbitration Act," cap. 134, R. S. O. I FOl MS. General Form of Sub,aission to Arbitration. This Indenture, made the day of 18 , Between A. B., of, etc., of the one part, and C. D., of, etc., of the other part, Whereas, certain differences have arisen between the said A. B. and the said C. D., respecting, etc., [here state concisely the subject- matter in dispute, or, if all matters in difference are referred, you had better not state such subject-matter at all] : and it is agreed by and between the said A. B. and C. D. to refer the said differences [or all matters in difference between them] to the award, order, final end and determination of U. V., of, etc., and X. Z., of, etc., arbitrators nominated by the said A. B. and C. D., respectively ; and in case they disagree about making an award, or fail to make an award before the day of next, then to the award, umpirage, final end and determination of such umpire as the said arbitrators shall by writing under their hands, endorsed on these presents, before they enter upon the consideration of the matters referred, nominate and appoint. THE CANADIAN LAWYER. Now this indenture witnesseth that they, the saU A. B. and C. D., do, and each of them for himself, severally and respectively, and for his several and respective heirs, executors and administra- tors, doth covenant, promise and agree with and to each other, his executors and administrators respectively, that the said differences for all matters in difference] between the said A. B. and C. D., be forthwith referred to the award, order, arbitrament, final end and determination of the said U. V. and X. Z. ; and in case they disagree about making an award, or fail to make an award before the day of next, then to the awavd, umpirage, final end and determination of such umpit'% as the said arbitrators shall, by writ- ing under their hands, endorsed on these presents, before they enter upon the consideration of the matters referred, nominate and appoint : so as the said arbitrators or umpire do make and publish his or their award or umpirage in writing under his or tbeir hands of and concerning the premises, ready to be delivered to the parties or to either of them, or, if they or either of them shall be dead before the making of the award or umpirage, to their respective personal representatives who shall require the same, on or before the day of next, or on or before any other day to which the said arbitrators or umpire shall, by writing signed by him or them, endorsed on these presents, from time to time enlarge the time for making such award or umpirage ; and that the said A. B. and C. D.. respectively, and their respective executors and administrators shall and will perform, fulfil and keep the said award or umpirage so to be made as aforesaid, and that the death of either of the said parties shall not operate as a revocation of the power and authority of the said arbitrators or umpire to make said award or umpirage ; and that all costs and charges of this reference and of the said award shall be in the discretion of the said arbitra< tors or umpire, who shall direct and ar/ard by whom and to whom and in what manner the same shall be paid ; And, further, that the said A. B. and C. D., and each of them, shall and will produce unto and deposit with the said arbitrators or umpire, all deeds, books, papers, evidences and writings, touching or relating to the matters in difiference in their respective possessions or power as the said arbitrators or umpire shall think fit : And that each of them tb«ll and will submit to be examined upon oath, if thought neces* ■ary by the said arbitrators or umpire, and will, as far as in them i; I ARBITRATIONS AND AWARDS. 68 t lies respectively, do all such other acts and thin«;s as the said arbitrators or umpire shall require for the better enabling him or them to make the said award : And, further, that if either of the said parties shall obstruct or prevent the said arbitrators or umpire from making an award by affected or wilful delay, or by not attend- ing after reasonable notice, and without such excuse as the said arbitrators or umpire shall be satisfied with and adjudge to be reasonable, it shall be lawful for the said arbitrators or umpire to proceed ex parte: And, further, that neither of them, the said A. B. and C. D., shall and will prosecute any action or suit in any Court of Law or Equity against the other of them, of and concerning the premises, until the said award be made and published: And, further, that this submission may be made a rule of Her Majesty's Court of [ ] if that Court shall so please : And, further, that the said arbitrators or umpire shall take the said arbitration at [ ] aforesaid, and shall have power to call for and examine all witnessess upon oath, and have the assistance of accountants in adjusting and ascertaining the state of the accounts of the said parties in difference. In witness whereof, the said parties to these presents have here* unto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A B. [l. s.] E. F. CD [L. s.J Another Form. This Indenture, made the day of 18 , Between A. B., of. etc., of the first ; art, and C. D. of, etc., of the second part. Whereas, disputes and differences have arisen, and are now depending, between the said parties of the first and second parts in reference to [state matters in dispute], and in order to put an end thereto, and to obtain an amicable adjustment thereof the said parties of the first and second parts have respectively agreed to refer the same to the award, order, arbitrament, final eci and determination of U. V., of, etc., and X. Z., of, etc., arbitrators indifferently chosen, by and on behalf of the said parties resjMo* 64 THB CANADIAN LAWYEB. lively : And in the event of the said two arbitrators hereby appointed not being able to agree within one month from the date of these presents upon their said award, then it shall and may be lawful for them to appoint some fit person as third arbitrator, by a memor- andum, in writing, under their hands, to be endorsed on these presents ; and the award of any two of them shall be final and con- clusive, both at law and in equity, upon both of the said parties hereto : such award to be made in writing on or before the day of next. ? Now this Indenture witnesseth, that the said parties hereto do, and each of them doth, each for himself severally and respectively, and for his and their respective heirs, executors and administrators, covenant and agree, well and truly to stand to, obey, abide by, observe, perform, fulfil, and keep the award, order, arbitrament and final de- termination of the said arbitrators hereby appointed ; or, in. the event of it having been necessary to appoint such third arbitrator as afore- said, to stand to, obey, abide by, observe, perform, fulfil and keep the award, order, arbitrament, and final determination of any two of them of and concerning the premises aforesaid or any thing in any manner relating thereto, so as such award be made in writing, under their hands, or under the hands of any two oi them (in the event of any such appointment as aforesaid), on or before the day of next. And it is hereby agreed, that the said arbitrators shall be at liberty, by writing under their hands, or the hands of any two of them, respectively endorsed on these presents, to enlarge the time for making the said award when and as often and to such times as they shall think fit. And also, that all the costs and charges attending the said arbitration shall be in the discretion of the said arbitrators hereby appointed, or in the event of such appointment of a third arbitrator as aforesaid, of any two of them so making their award as aforesaid, and shall be paid and satisfied pursuant to their award. And also, that these presents may be made a rule of Her Majesty's Court of at C ]. And for the full performance of the said award so to be made at aforesaid, the said parties hereto bind themselves, severally and raepectively, their several and respective heirs, executors and ARBITRATIONS AND AWARDS. 66 administrators, each to the other of them respectively, in the penal sum of [ ] lawful money of Canada, firmly by these presents. In witness whereof the said parties to these presents have here- unto set their hands and afl&xed their seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l. s.] E. F. C. D. [L. s.] Arbitration Bond, Know all men by these presents, That I, A. B.,of, &c., am held and firmly bound to C. D., of, &c., in the penal sum of f ] of lawful money of Canada, to be paid to the said C. D., or to his certain attorney, executors, administrators, or assigns, for which payment to be well and truly made I bind myself, my heirs, execu- tors, and administrators firmly by these presents. Sealed with my seal. Dated this day of « i8 . Whereis disputes and differences have arisen, and are now pending, between the above-bounden A. B. and the said C. D., touching and concerning [state subject-matter in dispute as in sub- mission.'] And whereas the above bounden A. B., and the said C. D., have agreed to refer such disputes and differences, as well as all actions, suits, controversies, accounts, reckonings, matters, and things in anywise relating thereto, to the award, arbitrament and determina- tion of U. V. and X. Z., arbitrators nominated, appointed and chosen as well by and on the part and behalf of the above- bounden A. B. as of the said C. D., aud who have consented and agreed to accept the burthen of the said arbitration. Now, the condition of the above-written bond or obligation is such, that if the above-bounden A. B. do and shall well and truly submit to, abide by, and perform, the award, arbitrament and de- termination of the said arbitrators so nominated, appointed and chosen as aforesaid, touching and concerning the matters in dispute between the above-bounden A. B. and the said C. D. and so referred to them the said arbitrators as aforesaid (provided such award be 5 66 THE CANADIAN LAWYER. made in wriiing under the hands and seals of the said arbitrators, ready to be delivered to the said parties, or such of them as shall apply for the same, on or before the day of , one thousand eight hundred and ) : Then this obligation shall oe void, otherwise to be and remain in full force and virtue. And the said obligor hereby consents and agrees that this bond of submis- sion ?nd the award to be made there under shall and may be made a rule of court of any of the Superior Courts of this Province. Signed, sealed and delivered in the presence of A. B. [l. s.] E. F. [NoTB.— A similar bond must be oxocuteil by 0. D.,8ubatitutin3 0. D. for A. B. whenever the name occurs.] Appointment of an Umpire. We, the within-named U. V. and X. Z., do hereby nominate and appoint U. U., of ' , to be umpire between us in and con- cerning the matters in difference within referred [on condition that he do, within days from the date hereof, by some writing under his hand, accept the umpirage.] Witness our hands this day of , i8 * U. V. Witness. W. W. X. Z. [Note.— The foregoing appointment should be endorsed on the arbitra tion deed or bond.] Enlargement of time for making Award, We, the undersigned arbitrators, by virtue of the power to us given for this purpose, do hereby 'appoint, extend, and {if a second enlargement, " further ") enlarge the time for making our award until the day of next, on or before which said day our award in writing of and concerning the matters in difference within men- tioned and referred to us shall be made and published. In witness whereof, we have set our hands the day of , i8 . Witness, A. B. W. W. C. D. [MoT>.— The observatioua appended to the last form apply to this and the two next forms.] r, ABBITRATIONS AND AWARDS. 67 itors, shall , one 11 DC j the imis- nade [>. for Enltirgement of Time by the Parties. We, the within-named A. B. and C. D., for ourselves severally and respectively, and for our several and respective heirs, executors and administrators, do hereby give, grant and allow unto the within- named arbitrators further time for making their award of and con- cerning the several matters within referred to them, until the day of next. In witness whereof, we have hereunto set our hands [or, if the submission was by bond or deed, say, " our hands and seals"], the day of i8 Signed, (or Signed, Sealed and Delivered) in the presence of A. B. [h. s.] W. W. C. D. [L. s.] i and con- that ■iting t>itrft :o us tcond until ward men- ay of dthe Appointment of Third Person as Additional Arbitrator. We, the within-named U. V. and X. Z., do by this memorandum under our hands (made before we enter or proceed ou the arbitra- tion within mentioned) nominate and appoint Mr. X. Y., of , the third person or arbitrator, to whom, together with ourselves ail matters in difierence between the said parties within mentioned shall be referred, according to the tenor and effect of the within submission. Witness our hands this day of , i8 . Signed in the presence of U. V. Y.Z. X. Z. Oath to be administered by Arbitrator to a Witness. You shall true answer make to all such questions as shall be asked of you by or before me touching or relating to the matters in differ- ence between A. B, and C. D. referred to ray award (or "to the award of myself and G. H."), without favor or affection to either party ; and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you God. 68 THE CANADIAN LAWYER. B. V. D. Appointment by Arbitrator for attendance before htm. I appoint , the o'clock in the evening, at in this reference. Dated the day of next, at , for proceeding day of i8 , A. A. To Messrs. A. B. and C. D., \ and their resptctiye attor- (^A* arbitrator's signature, or the neys or agents, and all - signature of one or more of them, others whom it may con- */" **^ore than one.) cero. 7 Peremptory Appointment for the same purpose. I appoint , the day of instant (or " nexV*) at o'clock in the noon precisely, at per- emptorily to proceed upon and conclude the reference now pending before me between A. B. and C. D. : And I hereby give notice, that in case of non-at.endance of either party, I shall nevertheless proceed, and immediately make my award. Dated the day of 18 E. F., Arbitrator. To Messrs. A. B. and C. D., and their respective attorneys or agents, and all others whom it may concern. General Form of Award, To all to whom these presents shall come, I, A. A , of, &c., send greeting; (&•€., proceed to recite the instrument by which the partits referred to arbitration, and so much of its terms as may be essential to show the authority of the arbitrator or umpire with respect to the subject-matter of reference, and the time, power of enlargement, and manner of making the award. Thus, ij it be by indenture, the recital may be as follows: Whereas by an Indenture bearing date, Sac., and, made between, &c., recitmg that various differences had arisen, &c., so stating all that may be material to warrant the following award, and then proceed thus ;) Now Inow ye that I, the said A. A., having taken upon myself the burthen of the said arbitration, and AnUlTUATlONS AND AWARDS. 69 having heard and duly considered all the allegations and evidence of the said respective parties of and concerning the said matters in difference so referred as aforesaid, do make this my award in writing of and concerning the said matters in difference so referred, and do hereby award, order, determine and direct that (&c., conclude with a distinct statement of the arbitrator's decision on all the points referred to him). In witness whereof, I have hereunto set my hand this day of 18 . Signed in the presence of A. A. W. W. Awiud where the Submission was by Mutual Bonds. To all to whom these presents shall come, I, A. A., of, &c. send greeting ; Whereas on » by a bond made and sealed with the seal of C. D., of, «&r., he became held and firmly bound unto A. B., of, &c., in the penal sum oi% : And whereas on the day and year aforesaid the said A. B., by another bond sealed with his seal, became held and firmly bound unto the said C. D., in the like penal sum, with conditions written under the said several bonds that the said A. 6., his heirs, executors and administrators, should well and truly stand to, abide by, perform, fulfil, and keep the award, order, and final end and determination of me, A. A., an arbitrator indifferently named and elected as well on the part and behalf of the above bounden A. 6., as the above bounden C. D , to arbitrate, award, order, judge and determine of and concerning (&c., here set out such parts of the bond as bear upon the award, and state the en- largement, if any). Now, I, the said A. A., having taken upon myself the burthen of the said arbitration, and having heard and duly and maturely weighed and considered the several allegations, vouchers and proofs made and produced on both sides. Join pursuance of the said submission make and publish this my award of and concerning the said premises in manner following; that is to say, I do award, etc. , In witness, &c. (as in last form.) Signed in presence of /, \. W. W. 70 THH3 CANADIAN LAWYETl. Award where the Submission was by agreement, and statin ff an assent to an enlargmenl. To all to whom these presents shall co:nc, we A. A., of, &c., and T. A., of, &c., send greeting: Whereas, by a certain agreement in writing under the hands of A. B., of, Sec, and C. D., of, &c.. bearing date on or about the day of last reciting that (&c., here set out such parts of the agreement as bear upon the award :) And whereas by an endorsement on the said agreement, bearing date on or about the day of last under the hands of all the said parties to the said agreement they the said parties mutually and reciprocally consented aail agreed that the time for the said arbitrators making the sail award should be enlarged to the day of then next, and that they would in all other respects abide by the terms of the said agreement. Now know ye that we the said arbitrators having taken upon us the burthen of the said reference, and having examined all such wit- nesses as were produced before us by the said parties respectively, and having fully weighed and considered all the allegations, proofs and vouchers made and produced before us, do award [etc.] In witness, etc., [as in preceding forms.'] Signed in the presence of A. A. W. W. T. A. d le tl Clauses which may be inserted in an Award where they xnit the circumstances. 1. I award that C. D. do pay to A. B. the sum of § within days after demand. 2. I award that A. B. do pay to C. D. the sum of ;} within days after demand. 3. I award and direct that C. D. do, within one month after demand, pay to the said A. B. the sum of 9 , and that the said A. B. do, upon such payment, deliver to the said C. D. a good and suflScient conveyance in fee simple, free from incumbrances, of all and singular, &c., {describe lands). 4. I award and direct that the said A. B. do pay to the said C. D. the sum of 9 , and that thereupon the said A. B. and C. D. ARBITRATIONS AND AWARDS. 71 assent ' do execute and deliver the one to the other good and sufficient re- leases of all claims and demands which they may have one against the other. 5. I award that the costs of the reference and award be paid by C. D. to A. B. 6. I award that each party bear his own costs of the reference, and that the costs of the award be paid by the said A. B. (or C. D., or in equal portions by the said A. B. and C. D.) 7. I award and direct that the said C. D. do pay to the said A. B. the costs incurred by the said A. B. of and incidental to the refer- ence and award (when the arbitrator is to ascertain the amount, add the following words) and I assess the amount of the said costs of the said A. B. at 9 > and the costs of my award at | 8. And I further award and direct that the said A. B. and C. D. do each bear his own costs of the reference, and pay one-half the costs of the ayvard ; and if either party shall, in the first instance, pay the whole or more than half of the costs of the award, the other party shall repay him so much of the amount as shall exceed the half of the said costs. 9. I award and direct that one moiety of the costs of the refer- ence and award be borne and paid by A. B., and the other moiety by CD. Affidavit of execution of Arbitration Bond. County of . ) to wit : ) I, Y. Z. of, &c., make oath and say, I. That I was present and did see the annexed Arbitration Bond duly signed, sealed and delivered by the therein named A. B., and that I am the subscribing witness to the execution of the said bond. y.z. 72 THE CANADIAN LAWYER. ASSIGNMENTS. An assignment, in its usual acceptation, is the written transfer of any kind of property, whether real or per- sonal. The person making the assignment is called the assignor, and the person to whom it is made, the assignee. Generally speaking, any interest in either lands or goods may be assigned ; as, for instance, a lease, mort- gage, or contract to purchase ; or a draft or promissory note, bond, or policy of insurance. An assignment of land, or of any interest in land, should be registered in the proper Registry Office. An assignment of goods and chattels, whether absolute, as a bill of sale, or conditional, as a chattel mortgage, not accompanied by immediate delivery and followed by an actual and continued change of possession, requires in most Provinces to be filed in the office of the County Clerk of the county or union of counties, wherein the goods are. This branch of the subject will be found more fully treated of subsequently under the heading Chattel Mortgages and Bills of Sale. An assignment of an interest in lands requires to be executed with the same formalities as other deeds. For a more extended notice of these formalities, the reader may refer to the chapter on Deeds. An assignment of the entire stock in trade, book debts, credits and e£fects of a trader is sometimes made to another person as trustee for creditors, for the pur- A8SI0NMENTS. 73 pose of liquidating rateably the debts of the person making the assignment. Before tiie abolition of the Dominion Insolvent Act, it could also be, in certain cases, compelled. Upon this subject it may be only necessary to remark that where such assignment is made the utmost fairness and honesty should charac- terize the acts of the trader making the assignment, who should not conceal or retain any portion of his estate. Such an assignment will be valid if without preference to any creditor, but if otherwise, or if any fraud appear on the part of the assignor, it will be set aside. The proper words to effect an assignment in convey- ancing are, " assign, transfer and set over." The following forms will be found to meet cases of common occurrence. In matters of difficulty, the ser- vices of a professional man should be procured. Assignment of Agreement to Purchase. (To be endorsed upon or annexed to the Original.) Whereas, the within named C. D. hath duly paid to the within named A. B. the sum of 9 i being the amount of the first two instalments of the purchase money within mentioned, together with all interest upon such purchase money up to the day of last, according to the terms and provisions of the within-written articles, and there now remains to be paid the sum of 9 only, by equal annual instalments of $ each, with interest from the day of last. And whei*eas, the said C. D. hath contracted and agreed with £. F., of, &c.. for the sale to him of the within-mentioned premises (and the improvements thereon) and all his right and title thereto and estate and interest therein under or by virtue of t^e within-written agreement, at the price or sum of' 9 I but s .oject nevertheless to the payment by hi*^. the said £. F., his heirs, executors or administrators, unto the said A. B., his executors or administrators, of the said sum of | 74 THE CANADIAN LAWYER. residue of the original purchase money aforesaid, and interest thereon fiom the period aforesaid, at the times and in manner wittin mtintioaed. Now these presents witness, that in pursuance of such agreement and in consideration of the sum of S , of good and lawful money aforesaid, to bira, the said C. D,. in hand p«iid by the said E. F. at or before the execution hereof, the receipt whereof he, the said C. D., doth hereby acknowledge, he, the said C. D., hath sold, assigned, transferred, and set over, and by these presents doth sell, asi'ign, transfer, and set over to the said E. F., his heirs and assigns. All and singular the within mentioned and described parcel or tract of land and premises, and therein described as being lot No. , in the concession of , together with all the right, title, and interest of him, the said C. D. of, in, and to the within- written articlesof agreementand covenants,and the lands and premises therein referred to, (and all improvements thereon,) and all benefit and advantage *o arise therefrom, to have and to hold to the said £. F.. his heirs, executors, administrators and assigns, for his and their own use and benefit forever. And the said C. D. doth hereby make, ordain, authorize, consti- tute, and appoint the said E. F., his heirs, executors, administrators, and assigns, his true and lawful attorney and attorneys irrevocable f-^r him, the said C. D.; and in his name, but for the sole use and benefit of the said E. F., his heirs, executors and administrators, to demand, sue for, recover and receive of and from the within- amed A. B., his heirs, executors or administrators, all such sum or sums of money and damages as shall or may at any time or times here- after accrue or grow due to him, the said C. D., his leirs, execu- tors, administrators or assigns, under or by virtue of the said recited articles of agreement and covettaits, or any matter, clause, or thing therein contained, by reason or on account of the breach or default of him, the said A. B., his heirs, executors, or administrators, in relation thereto ; the said C. D. hereby also covenanting with the said E. F., his heirs, executors and administrators, that he hath not done or suffered, nor will he do or suffer any act, matter or thing whereby the said E. F., his heirs, executors or administrators, shall or tray be hindered or prevented from comraen^;ing and prosecuting any action or actions, suit or suits, at law or in equity, for the recovery of any principal money or damages under or by virtue of ASSIGNMENTS. 75 the said articles of agreement and covenants referred to, or enforc- ing the performance of the said articles of agreement, or obtaining such other satisfaction as can or may be had or obtained for the same by virtue thereof ; And the said £. F. doth hereby, fur him- self, his heirs, executors and administrators, covenant with the said C. D., his heirs, executors and administrators, that he, the said E. F., his heirs, executors or administrators, shall and will well and truly pay to the said A. B., his executors or adm' jstrators, the aforesaid sum of $ , residue of the purchase money aforesaid, and all the interest thereon now or hereafter to become due, by the instalments and at the times mentioned and provided therefor in and by the said recited articles of agreement, and therefrom shall and will indemnify and forever save harmless the said C. D., his heirs, executors and administrators, and his and their goods and chattels, lands and tenements, ^y these presents. In witness whereof the said >arties to these presents have here- unto set their hands and seals. Signed, sealed and delivered in the presence of C. D. [ls.] W. W. E. F. [L.S.1 Assignment of a Bond by Endorsentcnt. Know all men by these presents, that for and in consideration of the sum of 9 lawful money of Canada, by E. F., of, &c., to the within-mentioned obligee, C. D., in hand well and truly paid at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, he, the said C. D., hath bargained, sold, assigned, transferred and set over, and by these presents doth bargain, sell, assign, transfer and set over, unto the said E. F., his executors, administrators and assigns, the within-written bond or obligation, and all principal and interest money thereby secured and now due or hereafter to become due thereon, and all benefit and advantage whatever to be had. made, or obtaii:ed by virtue thereof, and all the right, title, interest, property, claim and demand whatsoever, both at lav; and in equity, of him, the said C. D., of, in; to, or out of the said bond and moneys, together with the said bond. To have, hold, receive and '^r'joy the said bond and moneys unto the said E. P., his executors, administrators and assigns, from henceforth, for his and their own use and benefit forever; And the 7« THR CANADIAN LAWYEIl. said C. D. doth hereby make, constitute, and appoint, and in his place and stead put and place the said E. F., his executors, admin- istrators and assigns, the true and lawful attorney and attorneys irrevocable of him, the said C. D.. in his name, but to and for the sole use and benefit of the said E. F., his executors, administratois and assigns, to ask, demand and receive of and from the within- named A. B., the obligor in the within-written bond or obligation named, his heirs, executors, administrators or assigns, all such principal and interest moneys as now are o" shall from time to time or at any time hereafter be due upon the said bond, and to sue and prosecute any action, suit, judgment, or execution thereupon, and to acknowledge, make and give full satisfaction, receipts, releases and discharges for all moneys secured by the said bond and now due or at any time hereafter growing due thereon, and generally to do all and every such further and other lawful acts and things, as well for the recovering and receiving as also for the releasing and discharging of all and singular the said hereby assigned bond, moneys, and premises, as fully an 1 effectually to all intents and purposes as he, the said C. D., his executors, administrators or assigns, could or might do if personally present and doing the same. And the said C. D. doth hereby, for himself, his executors anJ administrators, covenant and agree with the sai 1 E. F., his executor?, administrators and : ssigns, to ratify, allow and confirm all and whatsoever the said E. F., his executors, administrators or assigns, shall lawfully do or cause to be dona in or about the premises by virtue of thes) presents. And the said C. D., for him- self, his executors and administrators, doth further covenant, promise ard agree to and with the said E. F., his executors, administrators and assigns, by these presents, in manner followiiig, that is to say : that the within mentioned sum of $ remains justly due and owing upon the sai i bond, and that he, the said C. D., hath not received or discharged all or any of the said moneys due or to grow due on the said bond, nor shall or will release, non- suit, vacate or disavow any suit or other legal proceedings to be had, made or prosecuted by virtue of these presents, for the suing for, recovering, releasing or discharging of the said moneys or any of them, without the license of the said E. F., his executors, administrators or assigns, first had and obtained in writing, nor shall or will revoke, invalidate, hinder, or aiake void these ASSIGNMENTS. 77 I ! presents, or any authority or power hereby given, without such license as aforesaid. In witness whereof the said C. D. hath hereunto set his hand and seal the day of .18. Signed, Ac, C. D. [l.s.] W. W. Assignment {Ontario Crown Lands.) Know all men by these presents, that I, A. B., of the of , in the County of and Province of Ontario, for and in consideration of the sum of 9 , of lawful money of the said Province, to me in hand paid by C. D., of the of , in the County of and Province aforesaid, at or before the date hereof, (the receipt whereof I do hereby acknowledge,) have bargained, sold, assigned, transferred and set over, and by these presents do bargain, sell, assign, transfer and set over to the said C. D., his heirs and assigns, all my ej ate, title, interest, claim and demand whatsoever, both at law and in equity, of, in and to that certain parcel or tract of land and premises situate, lying and being in the Township of , in the County of and Province aforesaid, containing; by admeasurement acres, be the same more or less, oeing composed of Lot number in the Concession of the Township of aforesaid [insert if necessary, " subject to the conditions, as to settlement and otherwise, of the Crown Lands Department, which are to be performed."] To have and to hold the same with all and every the benefit that may or can be derived from the said acres of laud, unto the said C. D., his heirs and assigns forever. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . Signed, sealel and delivered in presence of A. B. [l.s.1 Y. Z. Affidavit of Execution. County of , to wit : I, Y. Z., of the Township of in the County of , make oath and sa> . That I was p)erson- ally present and did see the within named A. B. duly sign and seal, 78 THE 0ANAr»IA2J LAWYER. and as his act and deed deliver, the within Assignment on the day of the date thereof, and that I, this depouent, am a subscribing witness thereto. Y. Z. Sworn before me at this day of A.B. a Commissioner for takin^T affidavits in and for said County. i8 . I Assignment of Lease, This Indenture made the day of , one thousand eight hundred and , Between A. B., o*. &c., of the first part, and C. D., of, etc.. of the second part. Whereas, by an Indenture of Lease, bearing date on or about the day of , and made between J. K., of, &c., of the one part, and the said A. B., of the other part, the said J. K. did demise and lease unto the said A. B. the lei^see therein named, his executors, admin- istrators and assigns, all and singular that certain parcel or tract of land and premises, situate, lying and being, in the, &c. To hold the same, with the appurtenances, unto the said lessee, his executors, administrators and assigns, from the day of , one thousand eight hundred and , for and during the term of years from thence next ensuing and fully to be complete and ended, at the yearly rent of $ , and under and subject to the lessee's covenants and agreements in the said Indenture of Lease reserved and contained. Now this Indenture Witnesseth, that in consideration of the sum of 9 I of lawful money of Canada, now paid by the said party of the second part to the said party of the first part (the receipt whereof is hereby acknowledged), he the said party of the fi.st part doth hereby grant, bargain, sell, assign, transfer and set O'.er unto the said pariy of the second part, bis executors, admin<..crators and assigns, All and singular the said parcel or tract of land, and all other the premises comprised in, and demised by, tbe said herein- before in part recited Indenture of Lease, Together with the said Indenture of Least;, and all benefit and advantage to be had or derived therefrom : To have and to hold the same, together with all ASSIGNMENTS. 79 honses and other buildings, easements, privileges and appurten- ances thereunto belonging or in any wise appertaining, unto the said party of the second part, his executors, administrators and assigns, from henceforth for and during all the residue of the said term granted by the said Indenture of Lease, and for all other the estate, term, right of renewal (if any), and other the interest of the said party of the first part therein ; Subject to the payment of the rent, and the observance and performance of the lessee's coven- ants and agreements in the said Indenture of Lease reserved and contained. And the said party of the first part doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree, to and with the said party of the second part, his executors, admin- istrators and assigns, in manner following, that is to say : That notwithstanding any act of the said party of the first part, the said hereinbefore in part recited Indenture of Lease is, at the time of the sealing and delivering of these presents, a good, valid and subsisting lease in the law, and not surrendered, forfeited or become void or voidable ; and that the rent and covenants therein reserved and contained have been duly paid and performed by the said party of the first part up to the day of the date hereof. And that, notwithstanding as aforesaid, the said party of the first part now has in himself good right, full power, and lawful and absolute authority to assign the said lands and premises, in manner aforesaid, and according to the true intent and meaning of these presents. And that, subject to the said rent, and the lessee's covenants and agreements in the said lease contained, it shall be lawful for the said party of the second part, his executors, administrators and assigns, to enter into and upon and hold and enjoy the said premises for the residue of the term granted by the said Indenture of Lease, and any renewal thereof (if any), for their own use and benefit, without the let, suit, hindrance, interruption or denial of the said party of the fi'^st part, his executors, administrators or assigns, or any other persons claiming under him or them, and that free and clear, and freely and clearly acquitted, exonerated, and discharged or otherwise, by and at the expense of the said party of the first part, h'.d heirs, rxecutors and administrators, well and effertually saved, defended and kept harmless, of, from and against all former 80 TH£ OANADUN LAWYER. and other gifts, grants, bargains, sales, leases and other incum- brances whatsoever, of the said party of the first part, or any person claiming under him, them or any of them. And that the said party of the first part, his heirs, executors, administrators and assigns and all other persons claiming any interest in the sa thereby granted, and for all other the estate, term, and interest (if any) of the said party of the first part therein, Subject to the payment of the rent and the performance of the lessee's covenants and agreements in the said Indenture of Lease reserved and contained. And the said party of the first part, for himself, his heirs, executors, sind administrators, doth hereby covenant with the said party of the second part, his executors, administrators and assigns, that notwithstanding any act of the said party of the first part, he hath now power to assign the said premises in manner aforesaid. And that subject to the payment of the said rent, and the perfor- mance of the said lessee's covenants, it shall be lawful for the said party of the second part, his executors, administrators and assigns, peaceably and quietly to hold and enjoy the said premises hereby assigned during the residue of tLe term granted by the said Inden- ture of Lttase, without any interruption by the said party of the first part, or any other persons claiming under him, free from all charges and incumbrances whatsoever of him the said party of the first part. And that he, the said party of the first part, and all per- sons lawfully claiming under him will, at all times hereafter, at the 82 THE CANADIAN LAWYER. request and costs of the said party of the second part, his executors, administrators and assigns, assign and confirm to him and them the said premises for the residue of the said term as the said party of the second part, his executors, administrators, or assigns, shall direct. And the said party of the second part, for himself, his heirs, ex- ecutors and administrators, doth hereby covenant with the said party of the first part, his executors and administrators, that he, the said party of the second part, his executors, administrators or as- signs, will, from time to time, pay the rent and perform the lessee's covenants in the said Indenture of Lease contained, and indemnify and save harmless the said party of the first part, his heirs, execu- tors and administrators, from all losses and expenses in respect thereof. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. 6. [l.s.] Y. Z. C. D. [L.S.J Assignment of Lease by Administrator. Know all men by these presents, that I, A. P., of, &c., adminis- trator of all and singular the goods and chattels, rights and credits, of the within-named C. D. deceased, for and in consideration of the sum of 9 • lawful money of Canada, to me in hand well and truly paid by £. F,, of, &c., at or before the seahng and delivery of these presents, the receipt whereof is hereby acknow- ledged, have bargained, sold, assigned, transferred and set over, and by these presents do bargain, sell, assign, transfer, and set over, unto the said £. F., his executors, administrators and assigns, all and singular the parcel or tract of land and premises comprised in the within-written Indenture of Lease, and all the estate, right, title and interest which I, the said A. B., as administrator of the said C. D. as aforesaid, or otherwise, now have, or at any time here- after shall or may have, claim, challenge or demand, of, in, or to, all or any of the said premises, by virtue of the said Indenture of Lease or otherwise, as administrator of the said C. D. To have and to hold the said parcel or tract of land, and all and singular other the premises, with their and every of their appurtenances. ABSmNMENl*S. 63 i executors, and tbem said party signs, shall s heirs, ex- the said hat be, the :ors or as- the lessee's indemnify eirs, execu- in respect have here- ive written. L.S.] L.S.J :., adminis- ind credits, ition of the le in hand sealing and by acknow- d set over, er, and set ind assigns, i comprised state, right, ator of the ' time here- f, in, or to, identure of To have id singular jrtenances, unto the said E. F., his executors, administrators and assigns, for and during all the rest, residue, and remainder yet to come and unexpired, of the within-mentioned term of years, subject, nevertheless, to the yearly rent of 9 in and by the said In- denture of Lease reserved and contained, and to become due and payable, and to all and every the covenants, clauses, provisoes and agreements therein contained. In witness whereof, I, the said A. B., have hereunto set my hand and seal the day of , i8 . Signed, &c., A. B. [l.s.] Assiginiicnt from Trader to secure Debt. This Indenture, made the day of , one thousand eight hundred and , Between A. B., of, &c., of the first part, C. D., wife of the said A. B., of the second part, and E. F., of, &c., of the third part. Whereas, the said party of the first part is justly and truly indebted unto the said party of the third part in the sum of or thereabouts, and hath ag: eed to execute unto the said party of the third part an assignment of all his estate and interest in the real and personal estate and effects hereinafter mentioned, for the purpose of paying thereout or securing the payment of such indebt' edness. Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of the sum of five shillings of law- ful money of Canada, to the said party of the first part paid by the said party of the third part, at or before the execution of these presents (the receipt whereof is hereby acknowledged), he, the said party of the first part, hnth granted, bargained, sold, released, con- veyed, assigned, transferred, and assured, and by these presents Doth grant, bargain, sell, release, convey, assign, transfer and assure unto the said party of the third part, his heirs, executors, adminis- trators and assigns. All and singular the real estate specified in the Schedule to these presents, marked A, and all the household goods, books, credits, furniture, stock in trade, bonds, bills, notes, books of account and securities for money, and all other the personal estate and effects, now belonging, due, or owing to him the said party of the first part, specified in the Schedule to these presents, marked B ; the greater part of which are now in and upon the premises 84 THE CANADIAN l,A>V'Vfi». ! upon which the said pai ty of the first part now carries on his said business, and which sii J goods are forthwith, upon the execution of these presents, to be delivered into the possession of the said party of the third part, or his ap;ont or agents in tliat behalf; and all reversions, remainders, rents, issues and profits, and all the right, title, interest, trust, possession, property, claim and demand what- soever, at law or in equity, of hi.ii the said party of the first part, of, in, to, out of, or upon the same real and personal estate, goods, chattels, effects and property, respectively. Together with the appurtenances, and together with all books, writings, deeds, bills, notes and receipts, papers and vouchers, touching or concerning the said premises hereby assigned, or any part thereof. To have and to hold, receive, take, and enjoy, the said real and personal estate, goods, chattels, stocks, moneys, credits, bonds, bills, notes, securities for money, and all and singular other the premises hereby conveyed and assigned, or intended so to be, unto the said party of the third part, his heirs, executors, administrators and assigns, henceforth forever, to and for his and their sole and only use, and as and for his and their own proper goods, chattels, moneys and effects absolutely. Subject nevertheless, and to and for the intents and purposes following, that is to .say : That the said party of the third part, or his agent or agents in that behalf, do and shall with all convenient speed sell and dispose of the said real and personal estate, stock, chattels and effects, either together or in parcels, and either by public auction or private contract, for the best price or prices that can be reasonably obtained for the same, and either for ready money or for credit or otherwise, as shall be deemed most beneficial, the receipts of the said party of the third part being sufficient discharges for the same ; and do and shall receive, collect and get in all and singular the credits and sums of money hereby assigned or intended so to be, and apply the said moneys to arise by such sale or sales, and to b« received or collected as aforesaid, after payment of all costs, charges and expenses of these presents, and incidental thereto, and in carrying out the purposes thereof, or otherwise in relation thereto, in and towards the payment and liquidation iii full of the said indebtedness of the said party of the first part to the said party of the third part, and after such payment do and shall pay the residue 1 AbSIONMENTB. 86 and surplus, if nny, to the said party of the first part, his execu- tors, administrators or assigns, or as he or they shall direct. And for the better carrying out of these presents, the said party of the first part doth hereby nominate and appoint the said party of the third part, his executors, administrators and assigns, the true and lawful attorney and attorneys of him the said party of the first part, for him and in his name to do, perform, and execute all such acts, deeds, matters, and things whatsoever in relation to all and singular the real and personal estate and effects and premises hereby assigned as aforesaid, as the said party of the third part may deem necessary for more effectually carrying into effect the true intent and meaning hereof; and th^t for the purposes aforesaid it shall be lawful for the said party of the third part, his servants and agents, to continue in and to occupy the said premises now in the occupation oi the said party of the first part, until the trusts of this assignment are fully executed. Provided also, that any collateral or other securities, by way of judgments or otherwise, which the said party of the third part now holds against the said party of the first part in respect of his said indebtedness or any part thereof, shall not be prejudiced or affected by this assignment, or otherwise than by payment of such indebted- ness out of the proceeds to arise hereunder. And provided, further, that the said party of the third part shall not be answerable or chargeable as implied trustee hereunder, except for wilful neglect or default. And the said party of the second part, wife of the said party of the first part, in consideration of five shillings to her paid by the said party of the third part, hereby releases unto the said party of the third part all dower, and right or title to dower, in the said lands hereby conveyed and every part thereof. In witness whereof, the said parties to these presents have here- unto set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. . C. D. [L.S.] E. F. [L.S.] Assignment of yndgment. This Indenture, made the day of i8 , Between A. B., of, etc., of the first part, and C. D., of, etc.. of the second part 9> ^^'V IMAGE EVALUATION TEST TARGET (MT-3) 1.0 tliUU |2.s ^ U& 112.2 :^ I4£ 11112.0 Uuu m 1.4 1 ,.6 I.I 1.25 ^> W /I '/ Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 ^ iV 86 TH£ OANADUN LAWYEB. Whereas, the said party of the first part, on or about the •\': day of , one thousand eight hundred and recovered for Ontario, at Toronto, a 1 ad ;mcnt in the Court of nr hasumof$ against AtT- wbereas. the said party of the first part hath agreed to assign the f aid judgment, and all benefit to arise therefrom, either at law or 'r equity, unto the said party of the second part, in manner her i-'aTfer expressed. Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of the sum of ^ , of lawful money of Canada, to the said party of the first part in hand paid by the said party of the second part, at or before the execution hereof, the receipt whereof is hereby acknowledged, he the said party of the first part, Hath bargained, sold and assigned, and by these presents Doth bargain, sell and assign, unto the said party of the second part, his executors, administrators and assigns, All that the said hereinbefore mentioned judgment, and all benefit to be derived therefrom, either at law or in equity, or otherwise howso- ever. To hold, receive and take the same, and all benefit and advantage thereof, to and for his and their own proper use, and as and for his and their own proper moneys and eflfects, absolutely. And the said party of the first part hereby constitutes and appoints the said party of the second part, his executors and administrators, to be his true and lawful attorney and attorneys, at the proper costs and charges of the said party of the second part, his executors and administrators, to take and prosecute all and every remedy or proceeding at law or in equity, which the said party of the second part, his executors or administrators, shall hereafter consider advis- able in reference to the said judgment, the said party of the second part, for himself, his heirs, executors, and administrators, hereby agreeing to indemnify and save harmless the said party of the first part, his heirs, executors and administrators, of and from all dam- ages, costs, charges and expenses in respect thereof. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. fL.s.] V- Z, C. D. [L.8.J ASSIGNMENTS. 87 Assignment of Mortgage, This Indenture, made the day of , one thousand eight hundred and , Between A. B., of the , in the County of and Province of Ontario, of the first part, and C. D., of the , in the County of and Province aforesaid, of the second part. Whereas, by an Indenture of Mortgage bearing date the day of , one thousand eight hundred and , and made between E. F. of, etc., of the first part, and the said A. B. of the second part, it is witnessed, that in consideration of the sum of 9 I of lawful money of Canada, to him the said E. F. paid by the said A. B., He, the said E. F., did grant, bargain, sell, alien, release, enfeoff, convey and confirm unto th3 said A. B., his heirs and assigns, all and singular that certain parcel or tract of land and premises situate, lying and being in the, etc. ; To have and to hold the same unto the said A. B., his heirs and assigns, forever, Subject, nevertheless, to a proviso therein contained for redemp- tion upon payment by the said E. F. to the said A. B. of the sum of 9 of lawful money aforesaid and interest, on the day and time and in manner therein mentioned. And whereas, the sum of 9 is now owing to the said A. B. on the said in part recited security, and the said A. B. hath agreed to sell and assign the said lands and premises, and all the moneys thereby secured, as well as the said Indenture of Mortgage, and all his interest therein, unto the said C. D. for the consideration here- inafter mentioned. Now this Indenture witnesseth, that the said party of the first part to this Indenture, in consideration of the sum of $ , of lawful money of Canada aforesaid to him by the said party of the second part to this Indenture in hand paid, the receipt whereof he, the said party of the first part, doth hereby acknowledge, and of and from the same, and every part thereof, acquit, release and dis- charge the said party of the second part, his heirs, executors, ad- mmistrators and assigns, forever ; He, the said party of the first part, hath bargained, sold, assigned, transferred, and set over to the said party of the second part, his heirs, executors, administrators and assigns, the said principal sum of 9 , so due and owing 88 THE CANADIAN LAWVl^R. to him as aforesaid, and secured by the hereinbefore in part re- cited Indenture of Mortgage, and also all future and other ^ums of money which from henceforth shall or may grow due by way of in- terest for or on account of the said principal sum of $ . And also the said messuages and tenements, lands and premises, com- prised in the said in part recited Indenture of Mortgage, and all the estate, right, title, interest, claim, and demand whatsoever of him, the said party of the first part, of, in, to, or out of the said premises or any part thereof, or the said principal and interest monies. To have and to hold, receive and take, the said principal sum of I and interest, and all and singular other the premises here- by assigned, and every part thereof, unto the said party of the second part, his heirs, executors, administrators or assigns, to and for his and their own proper moneys, securities, and effects abso- lutely ; And, for the more effectually enabling the said party of the second part, his executors, administrators and assigns, to recover and receive and said principal sum of | and interest, and to have and take the benefit of the security for the same, he, the said party of the first part, hath made, ordained, constituted, and ap- pointed the said party of the second part, his executors, adminis- trators and assigns, his true and lawful attorneys, to ask, demand, sue for, recover and receive from the said E. F., his executors, administrators, or assigns, or any other person or persons liable to pay the same, the said sum of f and interest, and to com- mence and prosecute any action, suit or other proceeding, either at law or in equity, for the recovery of the same, and on receipt of the said principal moneys and interest, or any part thereof, to give sufficient receipts and discharges ; And to make, do and execute all or any other act, matter or thing, for recovering and receiving the (lid principal sum and interest ; And the said party hereto of the first part, for himself, his heirs, executors, administrators and assigns, covenants with the party hereto of the second part, his executors, administrators and assigns, that the said principal ram of I is now owing to him, the said party hereto of the first part, under the said security, and that he has done no act or thing whereby the said principal sum of 9 is or has been received, released, discharged, or incumbered. ASSIGNMENTS. 89 In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [L.s.] Y. Z. C. D. [L.S.] Assignment of Mortgage. {By Indorsement.) This Indenture, made the day of ,one thousand eight hundred and , Between C. D. within named, of the first part, and E. r ., of, &c., of the second part, Witnesseth, that the party of the first part, in consideration of the sum of 9 .to him paid by the party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold and assigned, and by these presents doth grant, bargain, sell and assign, to the party of the second part, his heirs, executors, administrators and assigns, all the right, title, interest, claim and demand whatsoever of him, the party of the first part, of, in and to the lands and tene- ments mentioned and described in the within mortgage. And also to all sum and sums of money secured and payable thereby and now remaining unpaid. To have and to hold the same, and to ask, demand, sue for, and recover the same, as fully to all intents and purposes as he, the party of the first part, now holds and is entitled to the same. In Witness whereof, the parties to these presents have hereto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of C. D. [l.s.] Y. Z. Assignment of Debts. , This Indenture made the day of , i8 , Between A. B., of. etc., of the one part, and C. D.. of, &c., of the other part : Whereas, the said A. B. hath, for some time past, carried on the business of a Tailor, at , aforesaid, and in the course of such business the several persons whose names are mentioned in the schedule hereunder written, have become indebted to him in the c^everal sums of money set opposite to their respective names in 90 THE CANADUN LAWYEU. such schedule, and he hath contracted with the said C. D. for the absolute sale of the same debts for the sum of $ Now this Indenture witnesseth that in consideration of 9 to the said A. B., paid by the said C. D., on the execution hereof, (the receipt whereof is hereby acknowledged), He, the said A. B. doth hereby assign and transfer unto the said C. D., his executors, administrators and assigns, All and singular the several debts and sums of money mentioned in the schedule e.:eunder written, which are now due and owing to the said A. B. from the several persons whose names are mentioned in the same schedule. And all the right and interest, claim and demand whatsoever of the said A. B., to and in the same debts and premises. To have, receive and take the said debts, sums of money and premises hereby assigned unto and to the said C. D., his executors, administrators and assigns, for his and their own absolute use and benefit. And the said A B. doth hereby absolutely and irrevocably constitute and appoint the said C. D., his executors, administrators and assigns, the true and lawful attorney and attorneys, of iiim the said A. B., his executors or administrators in his or their name or names, or otherwise to receive; and if the said C D., his executors, administrators or assigns, shall deem it expedient so to do, to sue for and recover the said debts, sums of money and premises hereby assigned, or any of them ; and when the same respectively, or any part thereof, shall be received, to give discharges for the same. And generally to per- form all acts whatsoever which shall be requisite in order to give complete effect to the assignment hereby made, and to appoint a substitute or substitutes for all, or any of the purposes aforesaid, and such substitution at pleasure to revoke ; the said A. B. hereby ratifying and confirming and agreeing to ratify and confirm whatso- ever his said attorney or attoine>s, or his or their substitute or substitutes, shall lawfully do in the premises. And the said A. B. doth hereby for himself, his heirs, executors and administrators, covenant with the said C. D., his executors, administrators and assigns, that the said several debts hereby assigned, or intended so to be, are now due and owing to him, and that he, his executors or administrators will not at any time hereafter revoke the power or authority hereinbefore contained, or receive, compound for or dis- cbarge the said several debts, or any, or either of them, or any part thereof respectively, or release or interfere in any action or suit ASSIGNMENTS. 91 which shall or may be commenced in his, their, or either of their names, in pursuance of these presents, for the recovery of the same, without the consent in writing of the said C. D., his executors, administrators or assigns, but will at all times avow, justify and coniirm all such matters and things, process and proceedings, as the said C. D., his executors, administrators or assigns, or any other person or persons, by or through his or their direction or procurement, shall in pursuance of the power hereinbefore con- tained, do, commence, bring cr ^.rosecute upon, or by reason or means of the said debts and premises; and further that he, the said A. 6., his exe :utors and administrators, will at all times hereafter on the request, and at the costs of the said C. D., his executors, administrators or assigns, make, do and execute all such further assignments, letters of attorney, acts, deeds, matters and things, for the more effectually assigning and assuring unto the said C. D., his executors, administrators and assigns, the said several debts and premises, and enabling him or them to recover and receive the same respectively, for his and their own absolute use and benefit in manner aforesaid, according to the true intent and meaning of these presents, as by the said C. D., his executors, administrators or assigns, shall be reasonably required. And the said C. D. doth hereby for himself, his heirs, executors, administrators and assigns, covenant with the said A. B., his executors and administrators, that he, the said C. D., his executors, administrators or assigns, will at all times hereafter "save harmless, and keep indemnified the said A. B., his executors or administrators, from and against all losses, costs, charges, damages and expenses, by reason of his or their name or names being used in any action, suit or other proceeding, which shall or may be brought or instituted by the said C. D., his executors, administrators or assigns, or his or their substitute or substitutes under or by virtue of the power or authority in that behalf hereinbefore contamed, or otherwise by reason or in con- sequence of the j*'imc power or authority, or in relation thereunto. In witness, etc., Signed, etc., A. B. [l.s.] Y. Z. C. D. [L.S.] 92 THE CANADIAN LXWYEB. The Schedule to which the above-written Indenture refers. Name of Debtor. Amount of debt. Name of Debtor. Amount of debt. John Smith William Jones John Jacobs 9ioo oo $150 00 $200 00 Henry Bastion &c. &c. »ii8 25 Received on the day of the date of the above written Indenture of the above named C. D., the sum of $ , being the considera- tion money above mentioned to be paid by him to me. Witness, A. B. Y. Z. Norn.— In all caBcs, where the consideration for a deed is money paid by the c ne party to the other, a receipt, in the above form, should be written npou the Instrument, and signed and witnessed. Another Form. Know all men by these presents, that I, A. B., of, etc., in con- sideration of the sum of $ paid to me by C. D., of etc., (the receipt of which is hereby acknowledged) do hereby sell, assign and transfer, unto the said C. D., his executors, administrators and assigns, all my claims and demands against E. F., of, etc., for debt due tc me and all actions against the said E. F., now pending in my favour and all causes of action whatsoever against him. And I do hereby nominate and appoint the said C. D., his execu- tors, administrators and assigns, my attorney or attorneys irrevoc- able, and do give him and them full power and authority to institute any suit or suits against the said E. F., and to prosecute the same, and any suit or suits which are nt)w pending, for any cause or causes of action in favour of me, against the said E. F., to final judgment and execution ; and such execution to causa to be satisfied by levy- ing the same on any real or per.sonal estate of the said E. F. in due course of law, and the proceeds thereof to take and apply to his or their own use; but it is hereby expressly stipulated that all such ABSlGNMRNTf). 93 acts and proceedings are to be at the proper costs and charges of the said C. D., his executors, administritors or assigns; without expense to me. And I do further empower the said C. D , his executors, adminis- trators and assigns, to appoint such substi .ute or substitutes as he or they shall see fit, to carry ;nto effect the objects and purposes of this authority, or any of them, and the same to revoke from time to time, at his or their pleasure, I, the said A. B., hereby ratifying and confirming all the lawful acts of the said C. D., his executors, administrators and assigns, in pursuance of the foregoing authority. Witness my hand and seal this day of i8 . Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Assignment of a Policy of Ftre Insurance by Indorsement. Know all men by these presents, that I, the within named A. B., in consideration of the sum of $ to me paid by C. D., of, etc., (the receipt whereof is hereby acknowledged) have assigned and transferred, and by these presents do absolutely assign and transfer unto the said C. D., his executors, administrators and assigns. All my right, title and interest to and in the within policy of insurance, with full power to use my name so far as may be necessary to enable him fully to avail himself of the interest herein assigned, or hereby intended to be assigned, but at his own costs and charges. As witness my hand and seal, this day of i8 in the presence of A. B. [l.s.] Y. Z. Assignment by Bill of Sale of Goods. This Indenture made the day of i8 , Between A. B„ of, etc., (vendor), of the one part, and C. D., of, etc., {furcha. r), of the other part. Whereas, the sa'd A. B. hath contracted with the said C. D. for the absolute sale to him of the goods, chattels, furniture and effects comprised in the schedule hereunder written or hereto annexed, and n«w on the premises situate at, etc., {describe the place), at or for the price or sum of f . Now this Indenture witnesselh, that in 94 THE CANADIAN LAWYEft. pursuance of the aforesaid agreement, and in consideration of the sum of I , now paid to the said A. B. by the said C, D., the receipt whereof is hereby acknowledged, He, the said A. B., by these presents doth assign and set over unto the said C. D., his executors, administrators and assigns, All and singular the household furniture, goods, chattels and effects comprised and set forth in the schedule hereunder written or hereunto annexed, and all the advantages thereof, and all the right, title, interest, possibility, property, claim and demand of him, the said A. B., into, out of or upon the said furniture, goods, chattels and effects, and every part thereof. To have, hold, receive and take the said furniture, goods, chattels and effects hereby assigned or expressed, or intended so to be, unto the said C. D., his executors, administrators and assigns absolutely. And the said A. B. doth hereby for himself, his heirs, executors and administrators covenant with the said C. D., his executors, adminis- trators and assigns, that he, the said A. B., now hath in himself absolute authority to assign the several premises hereby assigned or expressed and intended so to be, unto the said C. D., his execu- tors, administrators and assigns, in manner aforesaid : And that the said A. B., his executors and administrators, and all persons claim- ing under him and them, shall r^t any time or times hereafter, on the request, and at the cost^^ and charges of the said C. D., his executors, administrators and assigns, do and execute all such acts and assurances for more effectually assuring the said premises hereby assigned or expressed, and intended so to be, unto the said C. D., his executors, administrators and assigns, and placing him and them in possession of the same in manner aforesaid and accord- ing to the true intent and meaning of these presents, as by him or them, or his or their counsel in the law shall be devised, advised and required. In witness whereof the parties to these presents have hereunto set their bands and seals the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. The Schedule referred to in the above written Indenture. (Here set out a full and particular description of the gooriR— they must be described with such detail as to render them easy of identification.) 1 ! ASSIQNMENTS. 95 ie |e i e Another Form. ■ This Indenture, made day of i8 , Between A. B., of, etc., of the first part, and C. D., of, etc., of the second part. Whereas, the said party of the first part is possessed of the chattels hereinafter set forth and enumerated and hath contracted with the said party of the second part, for the sale to him of the same, at the sum of $ Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of the sum of 9 of lawful money of Canada, now paid by the said party of the second part to the said party of the first part, (the receipt whereof is hereby acknowledged), He, the said party of the first part, hath bargained, sold, assigned, transferred and set over, and by these presents doth bargain, sell, assign, transfer and set over unto the said party of the second part, his executors, administrators and assigns, All those the said chattels and effects following, that is to say, (here enumerate the several articles intended to be assigned with such cer- tainty as that they may be easily identified,) And all the right, title, interest, property, claim and demand whatsoever, both at law and in equity or otherwise howsoever, of him the said party of the first part, of, in, to and out of the same, and every part thereof. To have and to hold the said hereinbefore assigned prc^mises and every part thereof, with the appurtenances, and all the right, title, and interest of the said party of the first part therein as afore- said, unto and to the use of the said party of the second part, his executors, administrators and assigns to and for his and their sole and only use forever. And the said party of the first part doth h'^rebj , for himself, his heirs, executors and administrators, coveaant, promise and agree with the said party of the second part, his executors and adminis- trators, in manner following, that is to say : That he, the said party of the firs part, is now rightfully and absolutely possessed of and entitled to the said hereby assigned premises and every part thereof, and that the said party of the first part now has in himself good right to assign the same unto the said party of the second part, his executors, administrators and assigns, in manner aforesaid and according to the true intent and meaning of these presents ; And that the said party hereto of the second part. 96 THE CANADIAN LAWYER. bis executors, administrators and assigns, shall nnd may from time to time and at all times hereafter peaceably and ({uietly have, hold, possess and enjoy the said hereby assigned premises and every part thereof to and for his and their own use and benefit, without any manner of hindrance, interruption, molestation, claim or demand whatsoever, of, from or by him, the said party of the first part, or any person or persons whomsoever : And that free and clear and freely and absolutely released and discharged or otherwise at the costs of the said party of the first part, efiectually indemnified from and against all former and other bargains, sales, gifts, grants, titles. charges and incumbrances whatsoever; And, moreover, that he, the said party of the first part, and all persons rightfully claiming or to claim any estate, right, title or interest of, in or to the said hereby assigned premises or any part thereof, shall and will from time to time and at all times hereafter, upon every reasonable request of the said party of the second part, his executors, adminis- trators, or assigns, but at the costs and charges of the said party of the second part, make, do and execute or cause to be made, done and executed all such further acts, deeds, and assurances for the more effectually assigning and assuring the said hereby assigned premises unto the said party of the second part, his executors, administrators and assigns, in manner aforesaid and according to the true intent and meaning of these presents, as by the said party of the second part, his executors, administrators or assigns, or his or their counsel, shall be reasonably advised and required. In witness, etc A. B. [l. s.] I LUCTIONS AND AUCTIONEERS. 97 AUCTIONS AND AUCTIONEERS. An Auctioneer is a person who '- authorized to sell goods or merchandise or lands at public auction or sale for a recompense, or (as it is commonly *. ailed) a com- mission. He cannot buy : he can only sell. Primarih% he is deemed in law the agent of the seller of the goods only ; but for certain purposes he is also deemed to be the agent of both buyer and seller. Thus, by knocking down the goods sold to the person who is the highest bid- der, and inserting his name in his book or memorandum, he is considered as the agent of both parties ; and the memorandum so made by him will bind both parties, as being a memorandum sufficiently signed by an agent of both parties within the Statute of Frauds before referred to in the chapter on Agreements. Before the knocking down of the goods, he is, indeed, exclusively the agent of the seller; but after the knocking down, he becomes also the agent of the purchaser, and the latter is presumed in law to give him authority to write down his name as purchaser. An auctioneer has also a special property in the goods sold by him, and a lien on the same and on the proceeds thereof, for his com- mission ; and he r lay sue the purchaser at the sale in his own name, as well as in the name of his principal. An auctioneer cf sell only for ready mone}', unless there be some usage of trade to sell on credit, or unless the terms of sale are on credit. Auction sales should be conducted with the strictest fairness, and due notice of the sale ought to be given. Every bona fide bid should be taken down. Before proceeding to sell, the conditions of sale ought to be 98 THE CANADIAN LAWYER. read or announced. Usually these conditions are written or printed ; but the verbal declarations of the auctioneer at the sale, where they do not contradict the written conditions, are binding. Although the entry by the auctioneer in his book is a sufficient memorandum to bind both seUer and buyer, yet in every sale of land it is usual to have agreements of sale and purchase signed by auctioneer and purchaser. Forms of such agreements, and ordinary conditions of sale, are subjoined. It is proper to have the written and signed agreement endorsed on, or attached to, the particulars and conditions of sale. In Ontario, under the Consolidated Municipal Act, 1883, sec. 495, by-laws may be passed by the council of any county, city and town separated from the county for municipal purposes, for licensing, regulating and governing auctioneers and others who sell goods, wares, merchandize and eflfects by public auction, and to fix the sum to be paid for every such license, and the length of time it shall be in force. Sales of land in Ontario must be without reserve, unless the contrary is stated in the particulars or con- ditions of sale. If the vendor, or seller, reserves the right to bid, this fact must be similarly disclosed ; other- wise the auctioneer is not at liberty to receive any bid from the vendor, or any agent of his. FORMS. Memorandum to be signed by an Auctioneer, after a Sale of Land. I hereby acknowledge that A. B. has been this day declared by me the highest bidder, and purchaser of [describe the land\ at the sum of 9 , [or at the sum of $ per acre or foot,] and ihat he has paid into my hands the sum of | as a deposit, 1, i !■! I AUCTIONS AND AUCTIONEERS. 99 and in part payment of the purchase money, and I hereby agree that the vendor, C. D., shall in all respects fulfil the conditions of sale hereto annexed. Witness my band, the day of .18. T. B., Auctioneer. Memorandum to be signed by Purchaser. I hereby acknowledge that I have this day purchased at public auction all that [describe the land] for the sum of $ , [or for the price of $ per acre or per foot,] and have paid into the hands of T. B., the auctioneer, the sum of 9 as a deposit, and in part payment of the said purchase money ; and I hereby agree to pay the remaining sum of 9 . unto C. D., the vendor, at , on or before the day of , and in all other respects on my part to fulfil the annexed conditions of sale. Witness my hand, this day of , z8 . A. B. t Conditions of Sale of Goods. 1. The highest bidder to be the purchaser ; and if any dispute shall arise as to the last or highest bidder, the property shall be immediately put up again at the former bidding. 2. No person to advance less than $ at a bidding. 3. The purchasers to give in their names, and places of residence {if required), and pay down a deposit of per cent, in part pay- meLt of purchase money ; in default of which, the lot or lots so purchased will be immediately put up again and re-sold. 4. The lots to be taken away at the buyer's expense, within three days after, and the remainder of the purchase money to be paid ou or before delivery. 5. Upon failure of complying with these conditions, the deposit money shall be xorfeited ; and all lots uncleared within the time aforesaid shall be resold by public auction or private sale, and the deficiency, if any, on such re-sale shall be made good by the defaulter. 100 THE OAMADUN LAWTEB. Conditions of Sale of Land, I. The highest bidder shall be declared the purchaser; and if any dispute shall arise as to the last or highest bidder, the property shall be immediately put up again at the former bidding. a. No personvsball advance at any one bidding less than 9 , or retract his or her bidding ; and the vendors, by themselves or their agent, shall be at liberty to bid once for the property. 3. The purchaser shall pay, immediately after the sale, to the ven- dors' solicitor, a deposit of per cent, in part payment of the purchase money, and sign an agreement for the payment of the remain- der on or before the day of . i& • The premises will be sold subject to all defects or inperfections of title, if any. subsisting before the commencement of the title of the present ven- dors, and not occasioned by any act done by them or any person claiming under or in trust for them ; [and subject also to the several mortgages outstanding appearing on the certificate of the registrar of the county of , which will be produced at the time of sale.] 4. The purchaser shall accept a conveyance from the vendors, to be prepared at his own expense, on payment of the remainder of the purchase money ; and possession will be given on completion of the purchase : from which time the purchaser shall be entitled to the rents and profits. But if, from any cause, the remainder of the purchase money shall not be paid on the day of , 18 , the purchaser shall pay interest for the same at the rate of per cent, from that day to the day of payment ; but, never- theless, this stipulation is without prejudice to the vendors' right of re-sale under the last of these conditions. 5. If any mistake be made in the description of the property, or there be any other error in the particulars of sale, the same shall not annul the sale, but a compensation or equivalent shall be given, or taken, as the case may require, according to the average of the whole purchase money (on such error or mis-statement being proved): such compensation or equivalent to be settled by two referees or their umpire— one referee to be chosen by each party, within ten days after notice given of the error, and the umpire to be chosen by the referees immediately after their appointment ti h AUCTIONS .VKD AUCTIONEERS. 101 if fcrty or 6. The purchaser shall not be entitled to the production of any title deeds other than such as are in the vendors' hands, [or in the hands of the several mortgagees.] 7. Upon failure of complying with the above conditions, the deposit shall be forfeited, and the vendors shall be at full liberty (with or without notice) to re-sell the property by public auction or private sale ; and if, on such re-sale, there should be any deficiency, the purchaser shall make good such deficiency to the vendors, together with all expenses attending such re-sale; the same to be recoverable as liquidated damages. [Note.— Special conditions may be necessary to meet particular cases ; but the above conditions will meet ordinary canes. Except in very plain and simple cases, the services of a professional man should be procured.] The Standing Conditions of the Hiqh Court of Justice in Ontario, for Sales of Lands. 1. No person shall advance less than $10 at any bidding under 9500, nor less than $20 at any bidding over $500 ; and no person shall retract his bidding. 2. The highest bidder shall be the purchaser, and if any dispute arise as to the last or highest bidder, the property shall be put up at a former bidding. 3. The parties to the suit, with the exception of the vendor, and (naming any parties) are to be at liberty to bid. 4. The purchaser shall, at the time of sa' \ pay down a deposit in the proportion of 9io for every 9ioo of his purchase money to the vendor or his solicitor, and shall Tpdy the remainder of the pur* chase money on the day of next ; and upon such pay- ment the purchaser shall be entitled to the conveyance, and to be let into possession ; the purchaser at the time of such sale to sign an agreement for the completion of the purchase. 5. The purchaser shall have the conveyance prepared at his own expense, and shall tender the same for execution. 6. If the purchaser fail to comply with the conditions aforesaid, or any of them, the deposit and all other payments thereon shall be forfeited, and the premises may be re-sold, and the deficiency, if any, by such re-sale, together with all charges attending the same, or occasioned by the defaulter, are to be made good by the defaulter. 102 THE CANADIAN LAWTBB. BILLS OF EXCHANGE, PROMISSORY NOTES AND CHEQUES. A PROMISSORY NOTE IS a promisc or engagement in writing to pay a specified sum of money at a time therein stated, or on demand, or at sight, to a person therein named, or his order, or to the bearer. The per- son who makes the note is called the drawer^ or maker ; the person to whom it is payable, the payee ; the person endorsing it, the endorser^ and he to whom the endorser transfers his interest therein by such endorsement, the endorsee. The person in whose possession it is, is called the holder. Minors cannot be parties to a note or bill of exchange. To constitute a valid promissory note, the following facts are requisite : It must be in writing ; the promise to pay must be an absolute, and not a conditional promise ; it must promise to pay money ; and the amount must be fixed and certain, and payable at a fixed period of time or upon some event which must certainly occur. If no time is fixed in the note for its payment, it is payable on demand ; if payable to a fictitious person, it is payable to the bearer if not aware of the fact. If it bears no date, the time will run from the first day it can be proved by evidence the note was in existence. No precise form of words is indispensable. Equiva- lent expressions may be used for both the words promise and pay^ if the meaning is preserved ; but, to run no risks, it is well to use the common forms and words, which are given hereinafter. BILLS OF EXGHANQE, ETC. 108 A note signed by more than one person is either joint, or joint and several. If two or more persons desire to become responsible so that one cannot be sued upon it without the other or others, the note should read, " We jointly, but not severally, promise." If each intends to become responsible for the whole debt with- out regard to any defence the others might have or subsequently acquire to resist payment, it should run thus, •• We jointly and severally promise ;" the holder may then sue all jointly or each separately, at his elec- tion. If the note reads simply, ♦* I promise," etc., and is signed by several makers, it is several as well as joint. Stamps are no longer necessary to be affixed to a bill or note. An accommodation note is one upon which the maker receives no consideration, but which he makes for the purpose of lending the payee, or other party, his credit to enable the payee to raise money thereupon. Upon such a note the party for whose accommodation it was made cannot recover from the person thus lending him the use of his name ; but if it is endorsed for value by the former to a third person, that third person may recover from the original maker or party lending his name and credit, the amount he has advanced upon it, even though such third person is aware that the trans- action was an accommodation. If a person, at the time of taking any note (except an accommodation note), has notice that it is void in the hands of the payee upon any legal grounds, he places himself, by such taking, in precisely the same position as the payee, unless some intermediate endorser or transferor between him and the maker had not such notice or knowledge. 104 THE CANADIAN LAWYER. If the holder took the note innocently, and for value, and without knowledge of transactions affecting its validity, he may recover upon it, unless, indeed, the note be a forgery, when it is altogether void as to all parties. Various circumstances will render a note void; thus, if obtained by fraud, or founded upon a fraudulent consideration, it is void. So if an unfair advantage is taken of the maker, or the note ' rocured from him when intoxicated. Also, if the consideration is an illegal one, as contrary to general public policy, or statute, as for future illicit intercourse, to bribe a public officer, or for a wager, or gaming debt, or the suppression of criminal proceedings. But a note given for past seducticm is good. A material alteration in any part of the note, as in the date, amount, or time of payment discharges all parties not aware of and con- senting to such alteration. Where a note is transferred after it is dishonoured or is overdue, it is taken (even though value be given for it) subject to all equities, or rights of set-ofi ;' ' " i would attach to it as against the original paye ;•, i the holder can recover no more than the original r ee could have recovered, save in the case of accommoda- tion endorsements. Notes bear interest from date only where it is so expressed on the face of them. Otherwise they bear interest, in most Provinces, from the time action may be brought on them, that is, when they become pay- able. If payable on demand, or at sight, presentment must be made before interest will run. If interest at a greater rate than the legal rate is agreed to be paid, the rate should be specially mentioned upon their face. A general endorsement is effected by the endorser's I, Is Ic ll le BILLS OF EXCHANGE, ETC. 105 writing his name on the back of the note ; this evi- dences an agreement to pay the note in the event of a refusal by the maker to pay, and of prompt notifica- tion thereof to the endorser. A special endorsement is effected by a written direction, upon the face of the note, that payment is to be made to a particular per- son ; as, " Pay to George Brown or order." If the endorser wishes to be free from all liability, he should add to his endorsement the words, " without recourse." A note payable to A. B. without adding the words "or order," or "or bearer," is not negotiable ; that is, A. B. alone can receive payment of it. The endorsement of a note passes no property, unless the endorser had, at the time, a legal property in it. When payable to a married woman, the note is pro- perly transferred by the endorsement of her husband, unless it represents her own separate property or earn- ings, when, in any Province where she has by statute such a right, she may endorse it ; if payable to a firm or partP7,rship, any member of the firm may endorse it if the firm is continuing, but if the firm has been dissolved each member or his representatives must endorse ; if payable to several persons, not partners, the endorsement must be by all of them ; upon insol- vency of the payee, his assignee is the proper person to endorse, and after his death, his executors or adminis- trators. By endorsement of a note, the endorser becomes merely security that the maker shall pay it when due. If the holder neglects to demand payment, or receives part of the money from the maker, giving further time for the balance, the endorser, unless he has expressly consented, is discharged from all liability. Whatever 106 THE CANADIAN LAWTEB. discharges prior endorsers will also discharge all sub- sequent endorsers. To hold the endorser, payment of the note must be promptly demanded of the maker i when the note is due, if such demand can be made. Neglect to make any demand will not be excused by the insolvency or death of the maker; if dead, the demand should be made on the executor or adminis- trator, or at the residence of the deceased. If the maker has left the country, demand should be made at his dwelling-house or last place of business. On all notes save those payable on demand three days (called days of grace) beyond the time appearing on the face of the note are allowed within which pay- ment may be made. These days of grace are reckoned exclusive of the day when the note would otherwise fall due, and without deduction of Sundays or holidays. If the last day falls on a Sunday or other non-juridical day (commonly called a Bank-holiday) the note will become due upon the day next following which is not a non-juridical day. Thus a note due (or of which the last day of grace falls upon) the twenty-fifth day of December, is payable, in Canada, on the twenty-sixth, unless the latter day chance to be a Sunday, or other holiday, when it is due upon the twenty-seventh or next juridical day. In computing days of grace, the day of the date of the note is not reckoned. The word "month " in a note or draft means calendar, and not lunar month; thus, a note at one month, dated the thirty-first day of January, falls due three days after the twenty- eighth day of February, or, in Leap-year, the twenty- ninth. In Canada, non-juridical days or Bank-holidays, are as follows : — Sundays, New- Year's Day, Good Friday, \ BILLS OF EXCHANOE, ETC. 107 *1 Christmas Day, the day appointed to celebrate the Birth-day of the reigning Sovereign, and any day ap- pointed by proclamation for a public holiday, or for a general fast or thanksgiving throughout the Dominion ; and the »'.ays next following New- Year's or Christmas, when either of these days falls upon a Sunday. Also, in the various Provinces, any day appointed by the Lieutenant-Governor of the Province for a public holi- day, or for a public fast or thanksgiving to be observed in the particular Province. In the Province ol Quebec, various other days, in addition to those above men- tioned, are non-juridical days. The presentment necessary to charge an endorser must be carefully attended to, both as to place and time, and as to the peison to whom presentment must be made. The note must be presented on the very day it falls due. If payable at a bank, and the holder is there on that day until the hour for closing, demanding payment, this will be sufficient to charge the endorser. If expressed on its face to be payable at a particular bank, or other place, and " not otherwise or elsewhere," presentment must be made there, but if these words be not inserted presentment to the maker in person at any place will be sufficient to charge him ; if no place of payment be named in the note, it must be presented either to the maker personally, or, during business hours, at his usual place of business, or, within reason- able hours, at his dwelling house. If payable by a firm, a presentment to any one partner, or at the firm's usual place of business, is good ; but payment of a joint note, not made by partners, must be demanded of all the makers severally. Even though the note has been lost, or mislaid, or accidentally destroyed, the holder 108 THE CANADIAN LAW V MR. must Still make a regular and formal demand, tendering a sufficient indemnity if required by the party paying, to protect that party in making the payment. A lost note or dralt, not yet due, should be ad^^ertised in the public press, to prevent its being transferred to an innocent holder. The demand must be made upon the last of the days ot grace ; an earlier demand is of no validity. Notes payable at sight, or on demand, must be presented within a reasonable time, to charge the endorser. The question of v^rhat is a reasonable time will be deter- mined by the circumstances of each case. Where payment is, upon proper presentment, re- fused, the holder must promptly notify the endorsers, and inform them that he will hold them liable for the payment of the note. Should this be neglected, the endorsers will be no longer liable. In the case of an inland note, a notice, either verbal or written, by the holder personally or by his agent, is sufilicient ; but in the case of a foreign note, it is necessary (and in both cases it is advisable) to place it in the hands of a Notary Public, inasmuch as the law provides that the protest and certificate of suoli public officer shall be prima facie evidence of the facts therein contained. He is also responsible to the holder for any neglect in giving the proper notices. In Nova Scotia, only inland bills and notes of or beyond the amount of 1540 may be protested so as to render the protest prima Jacie evidence as above. By the Dominion Statute, 37 Vict. cap. 47, it is provided as follows : — " Notice of the protest or dis- honour of any bill of exchange or promissory note payabJe in Canada, shall be sufficiently given, if ad- BILLU OF EXOUANUK, £T0. 109 I dressed, in due time, to any party to such bill or note entitled to such notice, at the place at which such bill or note is dated, unless any such party has, under his signature, on such bill or note, designated another place, when such notice shall be sufficiently given if addressed to him, in due time, at such other place ; and such notices, so addressed, shall be sufficient, although the place of residence of such party be other than either of such before mentioned places." Should any party, since the date of his signature, and to the knowledge of the holder, have died or become insolvent, the notice should be addressed to his proper representatives, or assignee, if any. As regards the time within which such notice of dis- honour is to be given, the law is as follows : — Where both parties reside in the same city or town, notice must be given or posted to the endorser at furthest on the next business day after presentment and dishonour ; where they reside at different places, the notice must be mailed the day after the dishonour, at latest, or by the iifxt mail after the dishonour. If there are several endorsers, each is allowed a day after himself receiving notice, to notify the endorser prior to himself. The notice should in its terms be full and exact, informing the party to whom it is given of the non-payment, and that the party giving it looks to him for payment. A Bill of Exchange (sometimes termed a draft) is an order in writing by one person upon another, to pay a sum of money therein mentioned, to a third person, on demand, or at some future time therein specified. The person signing the bill is called the drawer ; the person on whom the order is made, the drawee ; if the latter, or another person, accepts the bill, he is called no THE CANADIAN LAWYER. the acceptor; the party in whose favour the bill is made, is called the payee ; any person who writes his name on the back of it, an endorser ; he to whom it is transferred by such writing, the endorsee ; and any party in possession of the bill and entitled to receive the money upon it, the holder. Bills of exchange are either foreign or inland : foreign when drawn by a person out of Canada upon another within Canada, or drawn in Canada and payable abroad ; or drawn* by a person in a foreign country upon another in another foreign country ; or, as gen- erally understood, by a person in one Province upon another in another Province. The same principles of law may be said generally to govern foreign and inland bills alike, but one c' fijrence is that foreign bills must be protested for non-acceptance, or non-payment, while inland bills need not. It is also observable Ihat the laws and business customs of the foreign country in which a foreign bill is drawn or payable, or in which the party to be charged resides, may, even in Canadian Courts, regulate certain particulars of the contract, as the time of payment, formalities of protest and of notices, etc. Foreign bills of exchange sometimes consist of several parts, usually three, supposed to be mailed at different dates, called a set, each part containing a condition that it shall be paid only if the others remain unpaid ; the whole set, however, making but one bill. Each part ought to be delivered to the payee. The prin- ciples of law already enunciated as applying to pro- missory notes apply also, in large part, to bills of exchange. Af with regard to promissory notes, no precise fprm BILLS OF EXCHANGE, ETO. ill of words is required to constitute a bill of exchange, though generally adopted and recognized forms had best be followed. To make a bill negotiable, the words, " or order," or other similar words, should appear on its face. It is safer to present all bills for acceptance, although, unless payable at sight, or at so many days after sight, or after demand, presentment for payment is all that is absolutely necessary. An acceptance of an inland bill must be in writing upon the bill, and should be signed by the acceptor. It may vary the terms of the bill as to place of payment, or even time or amount ; but if the acceptance vary from the express terms of the bill, the holder has a right to treat the bill as dishonoured. If he choose to take a qualified or partial acceptance, he should at once notify the other parties. A bill can- not be drawn payable upon a contingency, or condition, but may be so accepted, if the holder is willing. Should acceptance be refused, the bill should be protested at once for non-acceptance, and the drawer and endorsers notified. After a bill has been protested for non-acceptance, any person not already a party to the bill may accept it, as it is called, *♦ for honour" or " supra protest," for the honour of the bill generally, or of some particular party to it. This evidences a conditional undertaking to pay the bill if the drawer do not, and may be given where, after the ordinary acceptance, the acceptor becomes insolvent or absconds. Such acceptance enures to the benefit of all parties subsequent to him for whose honour it is given. The acceptor for honour is entitled to notice of non-payment. Endorsements may be written either upon the face, 112 THE CANADIAN L.VWYER. or on the back of a bill. They may be written in pencil. If the endorsement is a mere signature of the party transferring, without any other words, it is called an endorsement in blank. Where the words ** Pay A. B." or *' Pay A. B., or order," are written, this is termed z>. special endorsement. Bills and notes may be endorsed before they are complete. If a bill not due be paid, but left in the holder's hands, a person taking it before it is due, in good faith and without notice of the payment, may sue upon it. An endorsement may be restrictive, and scop the negotiability of a bill, as, " Pay C. D., or order, for my use ;" or it may be qualified, as " without recourse," so as to exempt the endorser from personal liability in case of dishonour. An agent or partner should endorse in the same form as that in which he draws a bill. The place where a bill is drawn need not be stated, or written, on the bill. If a place be stated, it will be presumed that the drawer resides there, and if only a general description be given, as "Toronto" or "Halifax," it is sufficient in law, in the absence of information as to the particular street, etc., in 'vhich the drawer resides, to give him notice of dishonour by letter addressed to him merely «* Toronto," or " Halifax." A date is not an absolute essential to a valid bill, although the bill be payable after date. If the date be omitted, or an impossible date given, the date is fixed by the actual time of drawing or issuing the instru- ment. The amount of the bill is usually superscribed in figures. This is, of course, unnecessary, but it is usual. If contradictory to the written words of the « BILLS or EXCnANOB, ETC. iia n e d is )e bill, the latter would govern ; but it might be found useful, where not contradictory, in supplying the word " dollars," if the latter should, by oversight, be omitted from the body of the bill. If no time is stated on the bill for payment of the amount, the bill is payable at once, or on demand. If the time for payment be fixed, it is not material that the day is ever so distant. Bui it is a rule that a bill or note is void, even between the original parties thereto, if the payment of the money is made, by the terms of the instrument on the face of it, or by a written contemporaneous endorse- ment on the instrument, dependent upon a condition, or upon the contingency of the happening of an event which may never occur ; and the defect is not cured by the fulfilment of the condition or the occurrence of the event. Thus, if an instrument be drawn or made for the payment of a sum of money (being the price of certain goods), "upon condition that if any dispute should arise between, etc., respecting the goods, the note should be void"; or •* provided the terms mentioned in certain letters shall be complied with"; or "provided T. S. shall not pay '*; or "provided D. M. shall not return to Canada, or his death be duly certified, before the ap- pointed time for payment "; or •* when I am able"; or " when J. S. shall marry "; or •♦ when an estate, etc., shall be sold "; it is not valid as a bill or note. An instrument is not valid as a bill or note if the sum specified is not payable at all events, but is expressed to be security merely as a set-ojBf against, or deduction from, another demand. And the instrument is considered uncertain, cgntin- 8 114 THE CANADIAN LAWYER. gent, and void as a bill or note, if the money is to be paid out of a specified fund, which may never be realized or be adequate to the purpose; as, **out of rents ;" or " out of money when received ;" or •* out of my growing subsistence ;" or " out of the produce of goods when sold ;" or " out of drafts on a banker ;" or '• when they shall be paid." But, however uncertain itnnay be when the event on which the time for payment is made dependent will occur, if it be certain that it must transpire at some period, the bill or note will be good ; as, if the payment is to be made within one month *' after the death, " of a party; or "when J. S. shall come of age'' (naming the day) ; so that his death would not discharge the liability. The bill may be made payable to the drawer, or to a third person. It is not essential that either should be named, provided the bill be made pa)'able to the order of the drawer (when in effect it is payable to him), or to bearer. But alternative words on the face of the instrument as to the party to whom payment is to be made, will invalidate the bill ; as, if it be payable to A. or B. If, on framing a bill, a blank or space be left for the name of the payee, the acceptor and drawer tacitly authorize a bona fide holder, afterwards taking the bill from the drawer or his transferee, to supply his own name, so as to give effect to the instrument as a bill payable to himself ; and the objection of uncertainty, which would otherwise prevail, is thus obviated. If the name of a fictitious person be introduced as payee, the bill is inoperative in the hands of a part who takes it with knowledge of that fact ; but the BILLS OP EXCHANGE, ETO. 115 parties to the bill who were aware of the circumstance shall not be permitted to avail themselves of the irreg- ularity ; and against them the bill, in the hands of an innocent holder for value, may be treated as a b'U pay- able to bearer. If the bill be drawn in the name of a fictitious per- son, payable to the order of the drawer, with the acceptor's knowledge, the latter may be charged by a bona fide holder as undertaking to pay to the order of the person who signed as the drawer. Although the bill be accepted payable at a particular place in pursuance of the drawer's request, yet if the acceptor do not use the restrictive words "and not otherwise or elsewhere," the acceptance is, as to him, deemed to be general ; and the acceptor is responsible, although no presentment be made at the specified place. The words " value received " (though usual) are not necessary to give validity or force to the instru- ment as a bill of exchange. The formal signature of the drawer at the foot of the bill is not essential. If the drawer himself write the bill in this shape, '* /, A. B., request you to pay," etc., the instrument will be good, although not undersigned. The signature may be in pencil ; or by a mark or cross, by way of signature. When an agent draws a bill for his principal, the signature should be in the name of the latter ; or in the name of the agent, thus : " A. B." (the agent) " for C. D." {the principal); or thus : " C. D." {the principal), •• per procuration, A. B." {the agent). If an agent merely sign his own name only, as drawer, he will 116 THE CANADIAN LAWYEH. become personally liable on the bill, and the principal will not incur any responsibility thereon. If there be several drawers, and they be partners, either the name of the firm may be subscribed by one of the members or an agent of the firm, or the signature may be by the partner or agent *• for" the firm by its usual title. If the drawers be not partners, each should separately sign by himself or by an agent appointed by him for the purpose. In this case one drawer has no implied authority to sign for the others. The acceptance may be upon any part of the bill, and it may be effected by the drawer merely writing his name with the word " accepted ;" or, it seems, by his merely writing thereon " presented," or the day of the month, or a direction to a ihird person to pay the amount. An acceptance may be in pencil, or by making a mark in lieu of a signature with intent to accept. A CHEQUE is a written order, addressed to a bank, or private bankers, made upon them by a person having money in their hands, directing them to pay upon presentment to the person named therein, or to his order, or to bearer, a specified sum of money. It is transferable, like a bill or note, by endorsement or delivery. A cheque is not entitled to days of grace ; it may be taken any time after its date, and the holder still not be subject to equities, as set off and the like, exist- ing between the drawer and the party from whom the holder receives it ; and no delay on the part of the holder in demanding payment of the bank excuses the drawer from such payment, unless he has suffered ) BILLS OF EXOHANQE, ETC. 117 >al [ne ire I its some loss or injury by reason of unusual or protracted delay, and then only to the extent of such loss. Where a bank refuses to pay a customer's cheque, when drawn to an amount not exceeding the amount of the customer's deposit with the bank, it is liable to the customer in damages. But it is not bound to pay at all unless it has funds to the full amount of the cheque. The death of the drawer revokes the bank's authority to pay an outstanding cheque, but a payment in igno- rance of the death would be valid. If the sum for which the cheque is drawn be fraudulently altered and increased, the cheque is void, and should the bank pay such increased sum, it must icself bear the loss, unless the drawer's careless method of writmg the cheque itself invited the forgery. The bank also loses should it pay a cheque of which the maker's or endorser's signature is forged. A cheque should be presented for payment within a reasonable time. Such reasonable time is generally considered the first, or, at furthest, second day after receipt. Should such presentment be neglected, and tl e bank in the meantime fail, the holder would bear the loss, provided that funds of the drawer sufficient to meet the cheque were in the hands of the bank at and shortly after its issue. An " I. O. U." is a simple acknowledgment of a debt, in writing. It is not assignable by mere endorsement. FORMS. Negotiable note. Jioo. Ottawa, ist May. 1886. Three months after date, I promise to pay John ticarlett, or order, at the Bank of Montreal, Toronto, the sum of one hundred dollars, value received. THOMAS ATKINS, Vl^ 118 THE CANADIAN LAWYEtt. Note not negotiable. $2,000. Chatham, N. B., 15th March. 1886. Sixty days after date I promise to pay Samuel Harrison two thousand dollars, value received. HENRY TURNER. yoint note. $350. Annapolis, N. S., loth Jan., 1886. Six months after date we jointly, but not severally, promise to t»ay Samuel Richards, or order, three hundred and fifty dollars. H. THORNE. THOMAS BARFOOT. yoint and several note. t $580. London. Ont., 4th July, 1885. Thirty days after date we jointly and severally promise to pay to the order of Nathan Quigley five hundred and eighty dollars. CHARLES WOOD. IRWIN SECORD. Note on demand. $150. Winnipeg, Man., 17th Oct.. 1885. On demand I promise to pay Edward Chase, or order, one hundred and fifty dollars, value received. T. SILVESTER. Bill of exchange. $1,700. Victoria, B. C, 12th December, 1885. Three days after sight, pay to the order of Henry Silverthorne seventeen hundred dollars, value received, and charge to the account of CABLE, CONGREVE & CO. To Messrs. Johnson & Smart, Toronto. Cheque. To the . Toronto, 27th May, 1886. Imperial Bank of Canada: pay to Smith & Sellry, or order, r$78.4o] seventy-eight dollars forty cents. JOHN EASTON & CO. Protest of promissory note for non-payment. (The protested note is attached.) On this tenth day of July, in the year of our Lord one thousand sight hundred and eighty-six, at the request of the Manufacturers' \ s BILLS OF EXCHANGE, ETC. 119 t886. in two lER. t886. lise to lars. OT. r885. to pay ars. >OD. r885. 5r. one ER. Bank, the holders of the promissory note hereunto annexed, I, Campbell Stuart, a Notary Public for Ontario, by Royal authority duly appointed, did exhibit the said promissory note unto James Barr, at the city of Kingston, Ont., at the office of the said James Barr, being the place where the same is payable, and speaking to him did demand payment of the said promissory note, to which demand he answered " No funds." Wherefore, I, the said Notary, at the request aforesaid, have protested, and do hereby solemnly protest, as well against all the parties to the said promissory note as against all other persons whom it may concern, for all interest, damages, costs, charges, expenses and other losses suffered or to be suffered for want of payment of the said promissory note. And afterwards on the day and year mentioned in the margin, I, the said Notary Public, did serve due notice according to law of the said presentment, non-payment and protest of the said promissory note upon the several parties thereto by depositing in Her Majesty's post o£Bce at Kingston, Ont., being the nearest post office to the place of the said presentment, letters containing such notices, one of which letters was addressed to each of the said parties severally, the superscription and address of which letters are respectively copied below, as follows, that is to say. James Barr, Kingston. Ont. Martin Graham. Kingston. Ont. In testimony whereof I have hereunto set my hand and affixed ray seal of office the day and year first above written. C. STUART, Notary Public. 885. ■horne the CO. 86. rder. O. Notice to endorsee of above. loth day of July, 1886. To Martin Graham, Kingston, Ont.: Take notice that a promissory note dated on the 7th day of April, 1886. for the sum of $7,000, made by James Barr, payable three months after date thereof at the office of James Barr, and endorsed by yourself, was this day presented by me for payment at the said office, and that payment thereof was refused, and that the Manufacturers' Bank, the holders of the said note, look tojv'ou for payment thereof. And also take notice, that the same was this day protested by me for non-payment. Your obedient servant, C. STUART, Notary Public. sand era' 120 TUE CANADIAN LAWYER. Bond of indemnity upon paying a lust note. Know all Men by tiikse Presents, that I, James Edwards, of Windsor, in the County of Essex, and Province of Ontario, farmer, am held and firmly bound unto Simpson Talbot, of the same place. Insurance Agent, in the penal sum of one thousand dollars, lawful money of Canada, to be paid to the said Simpson Talbot, or his certain attorney, executors, administrators or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, and each and every of them, firmly by these presents. Sealed with my seal and dated this fourth day of August, in the year of our Lord one thousand eight hundred and eighty-four. Whereas the above named Simpson Talbot, by his promissory note signed by him, and dated the first day of May, in the year one thousand eight hundred and eighty-four, did promise to pay unto one John Mann, or order, five hundred dollars, three months after the date thereof, and such note was afterward endorsed by the said John Mann, and transferred to and became the property of the said James Edwards, as the said Edwards alleges ; and whereas the said Edwards further alleges that he held the said note in his possession for the space of some weeks, but afterwards mislaid or lost the same, and the same is now lost ; and whereas the said Simpson Talbot has, on the day of the date hereof, at the request of the said James Edwards, and upon his, the said Edwards promising to indemnify the said Talbot, and deliver up the said note to be cancelled when found, paid the said Edwards the said sum of five hundred dollars, in full satisfaction and dis- charge of the said note, the receipt whereof the said Edwards doth hereby acknowledge ; now the condition of the above written bond or obligation is such, that if the said Edwards, his heirs, executors, or administrators, or any of them, do and shall, from time to time, and at all times hereafter save, defend, keep harmless, and indem- nify the said Simpson Talbot, his executors and administrators, and his and their goods, chattels, lands, and tenements of. from, and against the said note of five hundred dollars, and of and from all costs, charges, loss, damages, and expenses, that shall or may happen or arise therefrom, and also deliver or cause to be delivered up the said note, when and so soon as the same shall be found, to be cancelled, then this obligation to be void ; otherwise to remain in full force and virtue. JAMES EDWARDS, [l.s.] Signed, sealed and delivered ) in presence of | SiMCOE Robinson. THE OAMADUN LAWYEB. 121 of fer, ice, fful Ihis |ch F". ily J*ay red BONDS. A BOND is a deed (invariably under seal) whereby the maker, or obligor, as he is called, obliges himself, his heirs, executors, and administrators, to pay, as a penalty, a specified sum of money to another person called the obligee. Some bonds contain no more thaii the obligation, and, where so drawn, they are known as single bonds. As a rule, however, a condition is added to the effect that if the obligor performs some particular act or duty, therein specified, the obligation shall be void ; otherwise that it shall remain in full force and virtue. The penalty in a bond is usually made double the amount of the true debt, if a liability in money is to be secured ; where the bond is given to secure the performance of some agreement or duty, a sum, rea- sonable under the circumstances, is fixed as the penalty. The amount is immaterial so long as it is sufficient, for in an action on the bond, only the actual indebtedness (with interest and costs) secured, if of money or money's worth, or reasonable damages, if to secure the performance of an act, can be recovered. The parties to a bond may agree beforehand that the act covenanted to be performed or abstained from, will result to the obligee in damages to a certain stipulated or liquidated amount, and fix the amount of the bond at the sum agreed upon and so specifically mentioned ; and if this sum appears reasonable, it will determine the amount of the liability. But the inclination of Courts of law is to permit only the true and actual amount of the damage or loss to be recovered, and the 122 THE CANADIAN LAWYER. fact of the clear agreement of the parties that the amount mentioned is stipulated damages, and not in the way of a penalty, must be proved in case the bond is disputed at law. Where the obligation of a bond is possible at the time of making it, but afterwards becomes impossible of performance by the act of God, the penalty is saved. Bonds given as securities to a firm, are not valid after any change in the partnership. FORMS. Single Bond without condition. Know all men by these presents, that I, A. B., of, &c., am held and firmly bound unto C. D.. of, &c., in the penal sum of $i,ooo of lawful money of Canada, to be paid to the said C. D. or to his cer- tain attorney, executors, administrators or assigns ; for which pay- ment to be well and faithfully made, I bind myself, my heirs, executors and administrators, and every of them firmly by these presents. Sealed with my seal, dated the 6th day of July, 1886. Signed, sealed and delivered in the presence of A. B. fL.s.l Y. Z. •• I Bond with condition. Know all men by these presents, that I, A. B., of, &c., am held and firmly bound unto C. D., of, &c., in the penal sum of $r,ooo of lawful money of Canada, to be paid to the said C D. or to his cer- tain attorney, executors, administrators or assigns : for which pay- ment well and truly to be made, I bind myself, my heirs, executors and administrators firmly by these presents. Sealed with my seal, dated this 6th day of July, 1886. The condition of ihe above written bond or obligation is such that if the above bounden A. B., his heirs, executors or administra- tors, do and shall well and truly pay or cause to be paid unto the said C. D., his executors, administrators or assigns, the just and full sum of f 500 of lawful money of Canada, with interest thereon at the rate of ten per cent, per annum, on the days and times, and BONDS. 123 le In Id le le d r- V- s, ie in the manner following, that is to say : The said principal sum of 9500 on the 6th day of January, 1887, and the said interest half yearly, on the 6th days of January and July in each year, (the first of such payments of interest on the 6th day of January next) with- out any deduction, defalcation or abatement whatsoever : Then the above written bond or obligation shall be void and of no effect ; otherwise shall be and remain in full force and virtue. Signed, sealed and delivered \n the presence of A. 13. [L.s.] Y. Z. Bond to convey Land. Know all men by these presents, that I, A. B., of, &c., am held and firmly bound unto C. D., of, &c., in the penal sum of $1,000 of lawful money of Canada, to be paid to the said C. D.. or to his cer- tain attorney, executors, administrators or assigns: for which pay- ment well and truly to be made, I bind myself, my heirs, executors and administrators, and every of them forever, firmly by these presents. Sealed with my seal, dated this ist day of May, 1886. Whereas, the said C. D. hath contracted with the above bounden A. B., for the absolute purchase in fee simple, free from incum- brances, of the following lands and premises, that is to say : [here describe the lands to be conveyed.) And whereas, the said C. D, hath agreed to pay therefor, the sum of §500 of lawful money of Canada, at the times, and in manner following, that is to say : {here state the mode of payment.) Now the condition of the above obligation is such that if the said C. D., his heirs, executors, administrators or assigns, shall well and truly pay, or causa to be paid, to the above bounden A. B., his executors, administrators or assigns, the sum of $500 at the time and in manner aforesaid ; and if the above boundeu A. B., his heirs or assigns, shall then by good and sufficient deed or deeds of con- veyance in fee simple, convey an^ assure, or cause to be conveyed and assured, unto the said C. I J., his heirs and assigns forever, the said premises hereinbefore described, free from all incumbrances; then the above obligation shall be void : otherwise shall be and remain in full force and virtue. Signed, sealed and delivered in the presence of A. B. [l.s.J Y. Z. Bond for payment of Purchase Money, Know all men by these presents, that I, C. D., of, &c., am held and firmly bound unto A.. B., of, &c., in the penal sum of $1,000 of lawful money of Canada, to be paid to the said A. B., or to bis cer- 124 THE CANADIAN LAWYER. tain attorney, executors, administrators or issigns : for which pay- ment well and truly to be made, I bind myself, my heirs, executors and administrators, and every of them firmly by these presents. Sealed with my seal, dated this day of i8 . Whereas, the above bounden C. D., hath contracted with the said A. B., for the absolute purchase in fee simple, free from all incum- brances, of the following lands and premises; that is to say: (hert describe the lands.) And whereas, the above bounden C. D. hath agreed to pay there- for the sum of 8500 of lawful money of Canada, at the time and in manner following; that is to say : (here state the mode of payment.) And whereas, upon the treaty for the said purchase, it was agreed that the above bounden C. D. should enter into the above bond or obligation for payment of the said purchase money, or the unpaid part thereof, and interest in manner aforesaid ; and be let into pos- session of the said lands and premises and receipt of the rents and profits thereof, from the day of the date hereof. Now the condition of the above written obligation is such that if the above bounden C. D., his heirs, executors, administrators or assigns, shall well and truly pay or cause to be paid to the said A. B., his executors, administrators or assigns, the whole of the said purchase money and interest thereon as aforesaid at the times and in manner aforesaid, without making any deduction, defalcation or abaten^ent thereout on any acconnt whatsoever; Then the above obligation shall be void : otherwise sii :11 be and remain in full force and virtue. Signed, sealed and delivered in the presence of C, D. [l.s.] Y. Z. Bond of Indemnity. Know all men by theF.e presents, That I, E. F., of, &c., am held and firmly bound unto G. H., of, &c., in the penal sum of $5,000 of lawful money of Canada, to be paid to the said G. H.. or to his cer- tain attorney, executors, administrators or assigns: For which pay- ment well and truly to be made, I bind myself, my heiis, executors and administrators, and every of them, firmly by these presents. Sealed with my seal, dated this day of 18 . The condition of the above written bond or obligation is such that if the above bounden obligor, his heirs, executors and administrators, do and shall from time to time, and at all times hereafter, hold and keep harmless and fully indemnified the said obligee, his heirs, exe- cutors and administrators, and his and their lands and tenements, goods, chattels and effects, of, from and against all loss, costs, charges, damages and expenses which the said obligee, his heirs, executors or administrators, may at any time hereafter bear, sustain, be at, or be put to, for, or by reason, or on account of, {here state BONDS. 126 the particular matters to which the indemnity is to <'//.V) or any thin^ in any manner relating thereto; Then the above written btinil or obligation shall be void : otherwise sh?.ll be and remain in full iorce and virtue. Signed, sealed and delivered in the presence of E. F. [l.s.] Y. Z. Bond from a Lessee and his Surety to pay rent according to Lease. Know all men by these presents, That we, C. D., of, &c.. and E.F., of, &c., are held and firmly bound unto A. b., of, &c., in the penal sum of $i,ooo of lawful money of Canada, to be paid to the said A. B., or to his certain attorney, executors, administrators or assigns: for which payment well and truly to be made we bind ourselves and each of us by himself, our anil each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals. Dated this day of 18 . Whereas, the above named A. B. by Indenture of Lease bearing even date with, but executed before, the above written obligation, for the consideration in the said lease mentioned, hath demised to the above bounden C. D., a certain saw mill situate at &c., {hert describe the premises) To hold unto the said C. D., his executi-rs, administrators and assigns, for the term of years from thence next ensuing (determinable nevertheless at the end of the first years of the said term, if the said C. D., his executors, administra- tors or assigns, shall give months notice thereof, in manner therein mentioned) at and under the yearly rent of $500 payable r;uarterly in manner as therem expressed: as by the said lease will more fully appear. Now the condition of the above written obligation is such, that if the above bounden C D. and E. F., or either of them, their, or either of their heirs, executors or administrators, shall and do during the continuance of the said recited lease, well and truly pay or cause to be paid, the said yearly rent or sum of $500, unto him the said A. B., his heirs or assigns, by four equal quarterlj payments of $ia5 each, on the several days following, that is to say, the day of , the day of , , the day of and the day of in each and every year during the said demise, or within fourteen days next after any of the said days or times of payment, according to the true intent and meaning of the said recited lease, (the first quarterly payment to be made on the day of next) ; Then the above written oblige ilon shall be void and of no effect: otherwise sLall remain in full force and virtue. Signed, sealed and delivered in the presence of C. D. [l.s.] Y. Z. • E. F. [L.S.] 12tJ THE CANADIAN LAWYER. CHATTEL MORTGAGES AND BILLS OF SALE. Chattel Mortgages are conveyances, by way of security, of personal property of a moveable kind, such as household furniture, farming implements, cattle, stock in trade, etc. They are special written contracts, entered into between two or more parties, for the con- ditional sale or transfer of the chattels therein men- tioned, to ensure the repayment of money loaned, or any debt, or to secure the mortgagee against a liability, such as the endorsement of a promissory note. The mortgagor's property and title to the chattels is sold, assigned and transferred to the mortgagee, subject to the transfer or reconveyance thereof upon repayment of the money loaned, etc., at the time, and in the manner specifically set forth. If the mortgagor so re- pays, oi otherwise performs his contract, the mortgage becomes void, and may be discharged by a proper written discharge, and the title to the goods revests in him. While his contract remains unbroken, it is usually stipulated that the goods, etc., are to remain in his possession, and he is to have the use of them. The object of the statutory enactments hereinafter mentioned with reference to the registration of chattel mortgages, is to enable creditors of the mortgagor, and others about to become creditors, to obtain prompt notice of the transfer of his title in effects of which he remains apparently owner. In the absence of such enactments it might lay in the power of a debtor, if fraudulently disposed, to deprive confiding creditors of the fruits of an execution against him. Purchasers in good faith might also be defrauded. CHATTEL MORTGAGES AND JJILLS OF SALE. 127 So strongly is the law opposed to such fraudulent practices, that it may be generally stated that any chattel mortgage not given and taken in perfect good faith, and for good and equitable consideration, will be null and void, and may be set aside in a Court of Justice by creditors or purchasers whose rights are in- fringed. Even if^ valuable consideration be given, yet if there exist collusion between the parties, or other fraud, the mortgage cannot be upheld in law as against creditors of the mortgagor or subsequent purchasers, in good faith, of the chattels. But a mortgage void as against such is sometimes good between the parties. In preparing a chattel mortgage great care and con- siderable skill are requisite, as well as close attention to the requirements of the local statutes governing the transaction. Should these requirements not be fulfilled, even although the defects appear at first sight trivial, the instrument maj' be found worthless for the purpose for which it was intended. This extends to matters subsequent to the first preparation and registry of the instrument, such as its renewal within the periods prescribed by the statute, and other duties imposed upon the parties by law. The express provisions of the instrument itself must also be carefully conformed to- as they embrace the specific terms of the contract. The<=*» usually give the mortgagee the right, among others, to enter upon the premises of the mortgagor and take possession of the chattels, so soon as any default is made in payment, and to sell them. Such possession is usually taken by the mortgagee's bailiff acting under written warrant signed by the mortgagee, though there is nothing to prevent the mortgagee from taking per- sonal possession himself. 128 THE CANADIAN LAWYER. If a sale takes place, the strict terms of the contract as to the mode of sale, and the disposal of the amount realized must be observed. A mortgagee improperly seizing or selling may render himself liable to the mort- gagor in damages for trespass. Upon seizure, the mortgagee becomes absolute owner of the chattels, though a Court of Equity will, in some instances, allow the mortgagor to redeem, upon just terms. It is hardly necessary to state that no bar of dower is required in a chattel mortgage. In practice it will be found well to recite, or state shortly in the body of the mortgage, the object for which the instrument is given, and the true an J actual nature of the consideration. This is in some cases absolutely necessary, and is in all useful. It is too often overlooked by conveyancers. The chattels conveyed should also be fully and accu- rately described, so that no mistake is possible. After payment of the mortgage it should be properly dis- charged. The forms which follow have been carefully prepared, and from them and the statutes appended may be learnt the principal requirements of the law in this particular in the various Provinces. BILLS OF SALE. A Bill of Sale is a conveyance in writing, generally under seal, whereby one person conveys the right, title or interest he has in goods or chattels, to another. Where chattels are of small value or are of such a nature as to be easily transferred from hand to hand, or to admit of an actual, immediate and evident change of ownership, a bill of sale is generally unnecessary. CHATTEL MORTGAGES AND BILLS OF SALE. 129 But where the chattels remain situate as before, and the change of ownership or possession is not readily .apparent, a bill of sale should be demanded, to remove all doubts and protect them against seizure by the creditors of the seller. A bill of sale executed in fraud of creditors is always void. Further requisites of bills of sale will be learnt upon peiusal of the following statutes and forms. For the provisions as to the execution and registra- tion of .chattel mortgages and bills of sale in Nova Scotia, reference must be had to cap. 92 of the Revised Statutes of that Province. ONTARIO. Following is the full text of the Act respecting Mortgages and Sales of Personal Property, R. S. O. cap. 119, all amendments to date being incorporated. REGISTRATION OF CHATTEL MORTGAGES, AND SALES OP. GOODS WHERE POSSESSION IS UNCHANGED. I. Every mortgag«3, or conveyance intended to operate as a mort- gage of gools and chattels, made in Ontario, which is not accom- panied by an immediate delivery, and an actual and continued change of possession of the things mortgaged, or a *.rue copy thereof, shall, within five days from the execution thereof, be registered as hereinafter provided, together with the affidavit of a witness thereto, of the due execution of such mortgage or conveyance, or of the due execution of the mortgafie or conveyance of which the copy filed purjiorts to be a copy, and also with the affidavit of the mortgagee or of one of several mortgagees, or of the agent of the mortgagee or mortgagees, if such agent is aware of all the circumstances connected therewith and is properly authorized in writing to take such mortgage (in which case a copy of such authority shall be registered therewith). C. S. U. C. c. 45, s. i ; 40 V. c. 7, Sched. A (134). 2* Such last mentioned affidavit, whether of the mortgagee or his agent, shall state that the mortgagor therein named is justly and truly indebted to the mortgagee in the sum mentioned in the 9 130 THE CANADIAN LAWYER. >■:, i II k^ \ y! n:^ mortgage, that it was executed in good faith and for th« express purpose of securing the payment of money justly due or accruing due and not for the purpose of protecting the goods and chattels mentioned therein against the creditors of the mortgagor, or of preventing the creditors of such mortgagor from obtaining payment of any claim against him. C. S. U. C. c. 45, s. 2. I. Every such mortgage or conveyance shall operate and take :t upon, from and after the day and time of the execution 8 eflfect upon thereof. ?.6V. c.46. s. 1 4. In case such mortgage or conveyance and affidavits are not registered as hereinbefore provided, the mortgage or conveyance shall be absolutely null and void as against creditors of the mort- gagor, and against subsequent purchasers or mortgagees in good faith for valuable consideration. C. S. U. C. c. 45, s. 3. - B. Every sale of goods and chattels, not accompanied by an immediate delivery and followed by an actual and continued change of possession of the goods and chattels sold, shall be in writing, and such writing shall be a conveyance under the provisions of this Act, and shall be accompanied by an affidavit of a witness thereto of the due execution thereof, and an affidavit of the bargainee, or his agent duly authorized in writing to take such conveyance (a copy of which authority shall be attached to such conveyance), that the sale is bona fide and for good consideration, as set forth in the said conveyance, and not for the purpose of holding or enabling the bargainee to hold the goods mentioned therein against the creditors of the bargainor, and such conveyance and affidavits shall be regis- tered as hereinafter provided, within five days from the executing thereof, otherwise the sale shall be absolutely void as against the creditors of the bargainor and as against subsequent purchasers or mortgagees in good faith. C. S. U. C. c. 45, s. 4. 6. In case of an agreement in writing for future advances for the purpose of enabling the borrower to enter into aud carry on business with such advances, the time of repayment thereof not being longer than one year from the making of the agreement, and in case of a mortgage of goods and chattels for securing the mort- ga;',ee repayment of such advances, or in case ot a mortgage of goods and chattels for securing the mortgagee against the endorsement of any bills or promissory notes or any other Habi ity by him incurred for the mortgagor, not extending for a longer period than one year from the date of such mortgage, and in case the morfcrage is executed in good faith, and sets arth fully by recital or otiiorwise, the terms, nature and e^'-^ct of the agree- nient, and the amount of liability intended to be created, and in case such mortgage is accompanied by the affidavit of a witness ijereto of the due execution thereof, and by the affidavit of the CHATTEL MOUTGAGES AND JGILLS OF SALE. 131 |ex press xruing |:haftels or of lymtnt 1(1 take :ution mortgagee, or in case the agreement has been entered into and the mortgage taken by aa agent duly authorized in writing to make such agreement and to take such mortgage, and if the agent is aware of the circumstances connected therewith, then, if accom- panied by the affidavit of such agent, such adi Javit, whether of the mortgagee or his agent, stating that the mortgage truly sets forth the agreement entered into between the parties thereto, and truly states the extent of the liability intended to be created by sncU agreement and covered by such mortgage, and that such mortgage is executed in good faith and for the express purpose of securing the mortgagee repayment of his advances or against the payment of the amount of his liability for the mortgagor, as the case may be, and not for the purpose of securing the goods and chattels men- tioned therein against the creditors of the mortgagor, nor to prevent such creditors from recovering any claims which they may have against such mortgagor, and in case such n ort^age is registered as hereinafter provided, the same shall be as valid and binding as mortgages mentioned in the preceding sections of this Act. C. ?. U. C. c. 45, s. 5. The aiTidavit of bona fides required by the two preceding sections may be made by one of two or more bargainees or mortgagees ; and no sale or mortgage heretofore made shall be invalidated by reason of such affidavit being made by one only of such bargainees or mortgagees. 7. The instruments mentioned in the preceding sections shall be registered in the office of the Clerk of the County Court of the County or Union of Counties where the property so mortgaged or sold is at the time of the execution of such instrument ; ' and such Clerks shall file all such instruments presented to them respectively for that purpose, and shall endorse thereon the time of receiving the same in their respective ollfices, and the same sliall be kept there for the inspection of all persons interested therein, or intending or desiring to acquire any interest in all or any portion of the property covered thereby. C. S. U. C. c. 45, s. 7. 8* The said Clerks respectively shall number every such instru- ment or copy filed in their offices, and shall enter in alphabetical order in books to be provided by them, the names of all the parlies to such instruments, with the numbers endorsed thereon opposite to each name, and such entry shall be repeated alphabetically under the name of every party thereto. C. S. U. C. c. 45, s. 8. 9. In the event of the permanent removal of goods and chattels mortgaged as aforesaid from the County or Union of Counties in which they were at the time of the execution of the mortgage to another County or Union of Counties before the payment and discharge of the mortgage, a certified copy of such mort.^'a e, under the baud of the Clerk of the County Court in whose office it was 132 THE CANADIAN LAWYEB. first rerristered, and under the seal of the said Court, and of the affidavits and documents and instruments relating thereto filed in such office, shall be filed with the Clerk of the County Court of ihe Countv or Union of Counties to which such goods and chattels are remr ithin two months from such removal ; otherwise the said '{(■-> I r' ittels shall be liable to seizure and sale under execu- tion c _ , I. such case the mortgage shall be null and void as against subsequent purchasers and mortgagees in pood faith for vclirih'e consideration, as if never executed. C. S. U. C. c. 45, s. 9 ; 40 V. c. r .. 29 RENEWAL OF ?IORTG.\G"S. E' 89. Every mortgage, or copy thereof, filed in purs'iance of this Act. sha'.l cease to be valid, as against the creditors of the persons making the same, and against subsequent purchasers and mort- gagees in good faith for valuable consideration, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the said term of one year, a statement exhibiting the interest of the mortgngee, his executors, administra- tors or other assigns, in the property claimed by virtue thereof, and shewing the amount still due for principal and interest thereon, and shewing all payments made on account thereof is again filed in the office of the clerk of the County Court of the County or Union of Counties wherein such goods and chattels are then situate, with an affidavit of the mortgagee, or one of several mort- gagees, or of the assignee, or one of several assignees, or of the agent of the mortgagee or assignee, or mortgagees or assignees (as the case 'may be) duly authorized in writing, for that purpose (a copy of which authority shall be filed therewith), that such state- ment is true, and that the said mortgage has not been kept on foot for any fraudulent purpose. The statement and affidavit mentioned in the next preceding paragraph may be in the form given in the schedule to this Act, or to the like effect. The said statement and affidavit shall be deemed one instrument and be filed and entered as in section 8 is required, and the like fees shall be payable. II. The affidavit required by the tenth section may be made by any next of kin, executor or administrator of any deceased mort- gagee, or by any assignee claiming by or through any mortgagee, or any next of kin, executor, or administrator of any such assignee ; but if the affidavit is made by any assignee, next of kin, executor or administrator of any such assignee, the assignment or the several assignments through which such as-^ignee claims shall be filed in the office in which the mortgage is filed, at or before the time of such refiling by sucli assigne,', iiext of kin, executor or adminis- trator of such assignee. 40 V. c. 21, s. 5. ClIATTFT. MORTGAGES AND BILLS OF FALF.. 133 |of the lied in 1 of the els are lie said |execu- aid as hh for ). s- 9 ; EVIDENCE OF REGISTRATION. {2. A copy of such original instrument or of a copy thereof, so filed as aforesaid, r.icludinii any statement made in pursuance of this Act, certified by the Clerk in whose office the same has been filed, under the seal of the Court, shall be received in evidence in all Courtf., but only of the fact that such instruments or copy and statement were received and filed according to the* endorsement ot the Clerk thereon, and of no other fact ; and in all cases the original endorsement by the Clerk made in pursuancce of this Act, upon any such instrument or copy, shall be received in evidence only of the fact stated in such endorsement. C. S. U. C. c. 45, s. 11. DISCHARGE OF MORTGAGES. 13. Where any mortgage of goous and chattels is registered under the provisions of this Act, puch mortgage may be discharged, by the filing, in the office in which the same is registered, of a cer- tificate signed by the mortgagee, his executors or administrators, ill the form given in the Schedule hereto, or to the like effect. 40 V. c. 21. s. I. |4> The officer with whom the chattel mortgage is filed, upon rect^iving such certificates, duly proved by the affidavit of a sub- scribing witness, shall, at each place where the number of such moitgage h:is been entered, with the name of any of the parties thereto, in ihe book kept under section eight of this Act, or wher- ever otherwise in the said book the said morfgnge has been enteri d, write the words, " Discharged by certificate number (stating the number of the certificate)," and to the said entry such officer shall affix his name, and he shall also endorse the fact of such discharge npon the instrument discharged, and shall affix his name to such endorsement. 40 V. c. 21, s.2. IB* Where a mortgage has been renewed under section 10 of this Act, the endorsement or ennits required by the preceding section to be made need only be mode upon the statem. nt and affidavit filed en the last renewal, and at the entries of such state- ment and aflllavit in the said book. An authority for the purpose of taking or renewing a morlgago or conveyance tnider the provisions of [this Act] may be a general one to take and renew all or any mortgages or conveyances to the mortgagee or bargainee. 16* In case any registered chattel mortgage has been assigned, such assi«;nment may, upon proof by the affidavit of a subscribing witness, be numbered and entered in the alphabetical chattel mort- gage book, in the same manner as a chat cl mortgage, and the 134 THE CANADIAN LAWYr:n. proceedings autliorizcd by the three next preccrling sections of this Act may and shall be had, upon a certificate of the assignee, proved in manner aforesaid. 40 V. c. 21, s. 4. MORTGAGES AND SALES OF CHATTELS IN UNOkGANlZED DISTRICTS. I::i 17. When the personal property mortgaged or sold is uith'n a I'rovisional Judicial District, then the provisions of this Act shall apply to such instrument with the substitution of " the Clerk of the District Court" for "the Clerk of the County Court;" and with the substitution of " ten days" for " five days" as the time within which the instrument or a copy thereof shall be registered ; but this section shall not apply to any portion of a Territorial District which forms part of a Provisional Judicial District. 40 V. C.-24, s. 14. I i I8« When the personal property mortgaged or sold is within a Territorial District, then the provisions of this Act shall apply to such instrument, with the substitution of " the Clerk of the first Division Court of the District" for the "Clerk of the County Court," and with the substitution of " ten days" for •' five days," as the time within which the instrument or a copy thereof shall be registered. 40 V. c. 24, s. 14 (2). 19 > When the personal property mortgaged or sold is within the said Temporary Judicial District, then the provisions of this Act shall apply to such instrument, with the substitution of " the Clerk of the County Court of the County of Renfrew" for " the Clerk of the County Court," and with the substitution of " twenty da) s " for " five days," as the time within which the instrument or a copy thereof shall be registered. 40 V. c. 24, s. 14 (3). 20a Evei7 instrument executed before the first day of July one thousand eight hundred and seventy-seven, and which, had it been executed after said day, would require registration under the pre- ceding provisions, shall be registered on or before 'he first day of January, one thousand eight hundred and seven! y-eight, in the manner required by the provisions of this Act, and thereafter every such instrument which under the provisions of this Act re- quires renewal shall, unless duly renewed, become void in accord- ance wi^h the provisions of this Act. 40 V, c. 24, s. 14 (4). 21. Nothing in the four preceding sections shall be used to aid in determining whether or not chapter forty-five of the Consolidated Statutes of Upper Canada wa.**, prior to the first day rf July, one thousand eight hundred and seventy-seven, in force i;( any Terri- torial, Temporary Judicial, or Provisional Judicial District. 40 V, c. 24, s. 14 (3). chattbl mortoaoes and bills of bale. 186 of (his l'rove.1 fRICTS. Plh'n a It shall (eik of with hviihin It this J which P4- PEES. 22* For services under this Act the Clerks aforesaid shall be entitled to receive the following fees : 1. For filing each instrument and affidavit, auJ for entering the same in a book as aforesaid, twenty-five cents ; 2. For filing assignment of each instrument and for making all proper endorsements in connection therewith, twenty-five cents ; 3. For filing certificate of discharge of each instrument and for making all proper entries and endorsements connected therewith, twenty-five cents; 4. For searching for each paper, ten cents ; and 5. For copies of any document with certificate prepared, filed under this Act, ten cents fur every hundred words. C. S. U. C. c. 45, s. 14 ; 40 V. c. 21, s. 6. MISCELLANEOUS. 23. All the instrumt n(s mentioned in this Act, whether for the sale or mortgage of goods and chattels, shall contain such sufficient and full description thereof that the same may be thereby readily and easily known and distinguished. C. S. U. C. c. 45, s, 6. 24. All afndavits and affirmations required by this Act shall be taken and administered by any Judge or Commissioner or other person in or out of the Province authorized to take affidavits in and for the Courts of Queen's Bench or Common Pleas, or a Justice of the Peace, and the sum of twenty cents shall be paid for every oath thus administered. 2 9a This Ac« does not apply to mortgages of vessels registered under the provisions of any Act in that behalf. C. S. U. C. c. 45, s. 15. SCHEDULE. (Section 13.) FORM OF DISCHAkGE OF MORTGAGS. To the Clerk of the County Court of the County of I, A. B., of do certify that has satisfied all mcney due on, or to grow due on a certain chattel mortgage made by to , which mortgage bears date the day of , A.D. , and was registered {or in case the morigae^e has been renewed under section ten, was rc-registered,) in the office of the 186 THE CANADIAN LAWYER. Clerk of the County Court of the County of , on the , A.D. , as No. (here mention the day and date of registration of each assignmert thereof, and the names of the parties, or mention that such mortgage has not been assigned, as the fact may be) ; and that I am the person entitle J by law to receive the money; and that such mortgage is therefore discharged. Witness my hand, this One Witness, stating residence ) and occupation. j day of A. D., i8 A. B. SCHEDULE. (Section lo.) Statement exhibiting the interest of C. D. in the property men- tioned in a Chattel Mortgage dated the day of 18 , made between A. B., of of the one part, and C. D., of of the other part and filed in the office of the Clerk of the County Court of the County of on the day of 18 and of the amount due for principal and interest thereon, and of all payments made on account thereof. The said C. D. is still the mortgagee of the said property, and has not assigned the said Mortgage (or the said E. F. is the assignee of the said Mortgage by viilueof an assignment thereof from the said C. D. to him, dated the day of 18 ,) (or as the case may be). No payments have been made on account of the said mortgage (or the followinff payments, and no other, have been made on account of the said Mortgage : 1880, January i, Cash received - - ftioo 00) The amount still due for principal and interest on the said Mort- gage is the sum of dollars, computed as follows : [here give the computation."] CD. County of To wit : i ) I, of the J of in the County of the mortgagee named in the Chattel Mortgage mentioned in the foregoing (or annexed) statement (or assignee of the mortgagee named in the Chattel Mortgage mentioned in the foregoing [or annexed] statement,) (as the case may be), make oath and say : I. That the foregoing (or annexed) statement is trus. CHATTEL MORTGAGES AND BILLS OF SALE. 137 2. That the Chattel Mortgage mentioned in the said statement has not been kept on foot for anv fraudulent purpose. Sworn before me at the of in the County of this day of i8 NEW BRUNSWICK. In tins Province the term " Bill of Sale " has, in some respects, a less extended meaning than in Ontario. It comprises bills of sale, assignments, transfers, declara- tions of trust without transfer, and other assurances of personal chattels, powers of attorney, and authorities or licenses to take possession of any personal chattels as security for any debt ; but does not include assign- mei.ts for the general benefit of creditors, marriage settlements, transfers of a ship, transfers of goods in the ordinary course of business of any trade or callingj warehouse receipts, etc., etc. By the Revised Statute of New Brunswick, chapter 75, every bill of sale or chattel mortgage, an 1 c-very schedule annexed thereto or referred to therein, or a true copy of such bill or schedule, shall be filed with the Registrar of Deeds and Wills, in the County or Dis- trict wherein the maker resides ; and shall take effect from the time of filing only, as against any subsequent purchasers, assignees, or sheriffs' seizures. If a copy of the instrument is filed, and not the original, than an affi- davit of the due execution of the instrument must ac- company and be filed with such copy. Provision is also made for the registration of a discharge of chattel mortgage. 13d tHE OAKADUN LAWYEIl. PRINCE EDWARD ISLAND. The term •• Bill of Sale " has the same meaning given it as in New Brunswick. By the Statute 23 Vict, cap. 9, every bill of sale and chattel mortgage, and every schedule and inventory therein, may be filed with the Prothonotary of the Supreme Court at Charlotte- town, or the deputy prothonotary of the County in which the grantor resides ; if the grantor be a non-resi- dent, the instrument must be filed at Charlottetown. Before such filing the execution of the instrument must be proved on oath before the prothonotary or deputy prothonotary with whom the same is filed, either by one or more of the subscribing witnesses, or by the acknowledgment of the grantor ; and such proof must be endorsed on the instrument. The oath may be taken before the prothonotary, or deputy prothonotary, or before a commissioner of the Supreme Court, and they must certify the same in the forms given in the Act. Registered instruments take priority from the date of filing ; but, as between the immediate parties to them and as against the grantor, they are good without filing. An important change in the law was effected by the statute 41 Vict. cap. 7, whereby it is enacted that all absolute bills of sale shall be fraudulent and void, ex- cept as between grantor and grantee, unless the grantee, shall, forthwith upon the execution thereof, take actual possession of the goods and chattels comprised therein, and the grantor shall cease to have the possession thereof. A chattel mortgage shall be presumed to be valid, although such possession is not taken, if registered according to 23 Vict. cap. 9 ; and if the grantee, or his ciiATTi:i4 jioutflAong aKd hua^h of AiLB. 139 agent, or one of several grantees, or the agent of all or any of them make the affidavit in schedule A (here- under given) ; which affidavit shall be endorsed upon, or annexed to, such chattel mortgage. The affidavit called for by this Act may be made be- fore any Commissioner of the Supreme Court, or County Court, or before the Prothonotary of the Supreme Court, or the deputy prothonotary- of the County in which such mortgage was required to be filed, or before any clerk or assistant clerk of the County Court. Sheriffs, Sheriffs' Bailiffs, Constables, and all persons authorized to levy under any execution from any Court, may levy upon and sell any chattels mentioned in a chattel mortgage, provided that the amounts secured by all registered chattel mortgages thereon, and interest as expressed therein, up to the day of payment, be duly paid. SCHEDULE— FORM A. I. of in County, (farmer. Dominion of Canada ; Province of I'rince Edward Island : County. ) as the case may be), the grantee ["oronft of the grantees] mentioned in the within Chattel Mortgage, {or I, of in County, agent for the grantee or one of the said grantees), make oath and say ; that the grantor named' in said Chattel Mortgage is really and truly indebted to me {or to the grantee or grantees therein named), in the sum of !| for {here state consideration), and I further say that the said Chattel Mortgage was really and truly given and accepted for the consideration therein expressed, and that to the best of my knowledge and belief the said mortgage was not executed for the purpose or with the intent of protecting the property therein described from the creditors of the said grantor, or of defrauding the creditors of the said grantor or any of them. Sworn at in ibis County, day of before me, A.B. 140 TIILS CANADIAN LAWYi^R. % MAMTOBA. Under statutory provisions similar to those in tlie Ontario Statute, chattel mortgages and bills of sale may be filed in the office of the County Clerk in the County where the goods are situate. The filing of the former is permissive, but that of the latter is necessary to pro- tect the chattels against creditors and subsequent pur- chasers. Nxi specified time is given within which these instruments must be filed, but they take effect only from the filing. Mortgages cease to be valid as against subsequent purchasers or mortgagees in good faith, or creditors, unless renewed within two years from their filing. The costs of seizure under a chattel mortgcige are fixed by statute, and are given hereafter. Receipt notes, hire receipts, and orders for chattels given by bailees of chattels, where the condition of bailment is such that the possession, but not the owner- ship, passes, are governed by the same law as chattel mortgages. They must also be registered within sixty days from their date with the Clerk of the County wherein the maker is resident. Their discharge may be registered. BRITISH COLUMBIA. By the "Bills of Sales Ordinance, 1870," registra- tion must be made within twenty-one days after execu- tion of the instrument, and rs-registration, or renewal, after five years, upon the filing of an affidavit stating the material facts. Upon piyment of a chattel mort- gage and proof thereof before the Registrar-General or a Stipendiary Magistrate, satisfaction is entered upon the instrument. CHATTEL Mor.TOAOES AND BILLS OF SALE. 141 n the c may OL,Uy ormer pro- pur, hese onjy FORMS. Chattel Mortgage. This Indenture, made the day of , i8 , between A. B., of, &c., of the one part, and C. I)., of. Stc, of ♦he other part. Witnesseth that the said party of the first part, '„r and in consideration of th^ sum of $ioo of lawful money of C'-.nada, to him in hand well and truly paid by the said party of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, doth bargain, sell and assign unto the said party of the second part, his executors, administrators and assigns, all and every the goods, chattels, furni- ture and effects in and about the dwelling house (or store) of the said A. B., situate at, &c., and hereinafter particularly mentioned, that is to say (Here specify the chattels : or you may refer to a schedule, saying after the word, ^c, '-which are particularly speci- fied in the schedule hereunder written.'") To have, receive and take the said goods and chattels hereby assigned or intended so to be, unto the said party of the second part, his executors, administrators and assigns, as his and their own proper goods and effects. Provided always that if the said party of the first part, his executors or administrators, shall pay unto the said party of the second part, his executors, administrators or assigns, the full sum of ^loo with interest thereon, at tlie rate of lo per cent, on the day of next, then these presents shall be void. And the said parly of the first part doth hereby, for himself, his executors and administrators, covenant, promise, and agree to and with the said party of the second part, his executors, administrators, and assigns, that he, the said party of the first part, his executors or administrators, or some or one of them, shall and will well and truly pay, or cause to be paid, unto the said paity of the second part, his executors, administrators and assigns, the said sum of money in the above proviso mentioned, with interest for the same as aforesaid, on the days and times and in the manner above limited for the payment thereof. And also, that in case default shall be made in the payment of the said sum of money in the said proviso mentioned, or the interest thereon, or any part thereof, or in case the said party of the first part shall attempt to sell or dispose of, or in any way part with the possession of. the said goods and chattels, or any of them, or to remove the same or any part thereof out of the County of without the consent of the said party of the second part, his execu- tors, administrators or assigns, to such sale, removal or disposal thereof, first h.i 1 and obtained in writing; then and in such cas-^ it shall and may Oe lawiul for the naid pany of the secouJ part, his 142 THE CANADIAN LAWYIiH. R. executors, administrators and assigns, pe:.ceably and quietly to receive and take unto his or their absolute possession, and thence- forth to hold and enjoy all and every or any of the goods, chattels and premises hereby assigned or intended so to be, and with his or their servant or servants, and with such other assistant or assistants as he may require, at any time during the day to enter into and upon any lands, tenements, houses and premises belonging to and in the occupation of the party of the first part, where the said goods and chattels or any part thereof may be, and to break and force open any door, lock, bolt, fastening, hinge, gate, fence, house, building, enclosure and place, for the purpose of taking possession of and removing the said goods and chattels ; and to sell the said goods and chattels, or any of them, or any part thereof at public auction or private sale, as to them or any of them may seem meet ; and from and out of the proceeds of such sale in the first place to pay and reimburse himself or themselves all such sums uf money as may then be due, by virtue of these presents and all such expenses as may have been incurred by the said party of the second part, his executors, administrators or assigns, in consequence of the default, neglect or failure of the said party of the first part, his executors, administrators or assigns, in payment of the said sum of money with interest thereon as above mentioned, or in consequence of such sale or removal as above mentioned ; and in the next place to pay unto the said party of the first part, his executors, administrators and assigns, all such surplus as may remain after such sale, and after payment of all such sum and sums of money and interest thereon as may be due by virtue of tl ;se presents at the time of such seizure, and after payment of the costs, charges, and expenses incurred by such seizure and sale as aforesaid. And the said party of the first part doth hereby further covenant, promise and agree to and with the said party of the second part, his executors, administrators and assigns, that in case the sum o'{ money realized under such sale as above mentioned shall not be suflRcient to pay the whole amount due at the time of such sale, then he, the said party of the first part, his executors or adminis- trators, will forthwith pay any deficiency t'> the said party of the second part, his executors, administrators and assigns. In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. Signed, sealed ".r.d delivered \ in the presence of j- Y.3. i A.B. [L.S.] CHATTEL MORTGAGES AND BILLS OF SALE. 143 Affidavit of Mortgagee. Ontario, County of ) I, C. D.. of the of , in the To wit ; j County of the mortgagee in the wilhin bill of sale by way of mortgage named m;»ke oath and say, that A. 13., the mortgagor in the within bill of sale by way of mort- gage named, is justly and truly indebted to me, this deponent, CD., the mortgagee therein named, in the sum of fioo, mentioned therein. That the said bill of sale by way of mortgage was executed in good faith, and for the express purpose of securing the payment of the money so justly due as aforesaid, and not for the purpose ' f protecting the goods and chattels mentioned in the said bill of 3;^^Io by way of mortgage against the creditors of the said A.B., the moru gagor therein named, or preventing the creditors of sucli morlgHg r from obtaining paymi nt of any claim againtt him. ;-worn before me, at' the of . , in the County of " , this f CD day of . i8 E. F. J. P., or a Commissioner for taking AfEIavitsfor the County of Affidavit of Witness. Ontario, County of To wit ) I, Y. Z., of the of , in the Count) .„ J of make oath and say, that I was personally present, and did see the annexed bill of sale, by way of mortgage, duly signed, staled and delivered by A.B., party thereto, and that the name Y. Z., set and subscribed as a witness to the execution thereof, is of the proper handwriting of me, this deponent, and that the same was executed at , in the said County of Swo- n before me, at the of , in the Y. Z. County of , this day of , i8 E. F. . J. P., or a Commissioner for taking AfiBdavits in and for the County of 144 THE CANADIAN LAVVY£B. Chattel Mortgage. {By way of security against Indorsement.) This Indenture, made the day of i8 . Between A. B., of. &c., of the first part, and C. D.. of. &c., of the second part : Whereas the said party ot the second part has indorsed the Promis- sory Note of the said party of the first part for the sum of 8500, of lawful money of Canada, for the accommodation of the said party of the first part, which Promissory Note is in the words and figures following, that is to say : {here copy the note.) And whereis the said party of the first part has agreed to enter into these presents for the purpose of indemnifying and saving harmless the said party of the second part of and from the payment of the said promissory note, or any part thereof, or any note or notes hereafter to be in- dorsed by the said party of the second part, for the accommodation of the said party of the first part, by way of renewal of the said recited note, or otherwise howsoever, within the period of one year from the date hereof. Now this Indenture witnesseth. that the said party of the first part, in consideration of the premises, hath bargained, sold and assigned, and by these presents doth bargain, sell and assign, unto the said party of the second part, his executors, administrators and assigns. All and singular the goods, chattels, furniture and house- hold stuff hereinafter particularly mentioned and expressed, that is to say : (describe as in preceding form). To have, hold, receive and take the said goods, chattels, furniture and household stuff hereby assigned or mentioned, or intended so to be, unto the said party of the second part, his executors, adminis- trators and assigns, forever: Provided always, and these presents are upon this condition, that if the said party of the first part, his executors or administrators, do and shall well and truly pay, or cause to be paid, the said promissory note so as aforesaid indorsed by the said party of the second part, and all and every other note or notes, which may hereafter be indorsed by the said party of the second part for the accommodation of the said party of the first Eart. by way of renewal of the said note, and indemnify and save armless the said party of the second part, his heirs, executors and administrators, from all loss, costs, charges, damages or expenses in respect of the said note or any renewals thereof, then these presents, and every matter and thing herein contained, shall cease, determine and be utterly void to all intents and purposes, anything herein contained to the contrary thereof in anywise notwithstanding. And the said party of the first part doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said party of the second part, his executors and adminis- trators, that he, the said party 0/ the first part, his executors or CHATTEL MORTGAQfiS ANb ftlLLS OP BALK. 145 ad ninistrators, or some or one of them, shall and will well and truly pay, or cause to be paid, the said promissory note in the above recital and proviso mentioned, and all future or other promissory notes which the said party of the second part shall hereafter indorse for he accommodation of the said party of the first part by way of renewal as aforesaid, and indemnify and save harmless the said p.irty of the second part from all loss, costs, charges, damages or expenses in respect thereof. And also, that in case default shall be made in the payment of the said promissory note or any renewal note or notes as in the said proviso mentioned, or in case the said party of the first part shall attempt to sell or dispose of, or in any way part with the pos> session of the said goods and chattels, or any of them, or remove the same or any part thereof out of the county of , without the consent of the said party of the second part, his executors or administrators, to such sa!e, removal or disposal thereof, first had and obtained in writing, then and in such case it shall and may be lawful for the said party of the second part, his executors or admin- istrators, v;ith his or their servant or servants, and with such other assistant or assistants as he or they may require, at any time during the day to enter into and upon any lands, tenements, houses and premises, wheresoever and whatsoever belonging to, and in the occupation of the said party of the first part, his executors or ad- ministrators, where the said goods and chattels, or any part thereof, may be, and for such persons «o break and force open any doors, locks, bolts, fastenings, hinges, gates, fences, houses, buildings, enclosures and places, for the purpose of taking possession of and removing the said goods and chattels, and upon and from, and after il>i taking possession of such goods and chattels as aforesaid, it shall and m;>y be lawful, and the said party of the second part, his executors or administrators, and each or any of them, is and are hereby authnrizeJ and empowered to sell the said gooJs and chat- tels, or any of them, or any part thereof, at public auction or private sale, as to him or them, or any of them, may seem meet, and from and out of the proceeds of such sale in the first place to pay and reimburse himself or themselves all such sums and sum of mon-:y as may then be due by virtue of these presents on the said promissory note, or any renewal note or notes, as aforesaid, and all such ex- penses as may have been incurred by the said party of the second part, his executors or administrators, in consequence of the default, neglect or failure of the said party of the first part, his executors cr administrators, in payment of the said note or notes as above mentioned, or in consequence of such sale or removal as above mentioned ; and in the next place to piy unto the said party of the first part, his executors, administrators or assigns, all of such sur- plus as may remain after such sale, and after payment of all such sum and sums of money, and interest thereon, as he, the said party of the second part shall be called upon to pay by reason of indorsing the said promissory note in the said recital and proviso mentioned, 10 146 THE CANADIAN LAWYER. or any renewal note or notes to be indorsed by the said party of the second part for the said party of the first part, as aforesaid, at the time of such seizure, and after payment of such costs, charges and expenses incurred by such seizure and sale, as aforesaid. Provided always, nevertheless, that it shall not be incumbent on the said party of the second part, his executors or administrato: s, to sell and dispose of the saicl goods and chattels, but that in case of default in payment of the said note or notes as aforesaid, it shall and may be lawful for the said party of the second part, his execu- tors, administrators and assigns, peaceably and quietly to have, hold, use, occupy, possess and enjoy the said goods and chattels, without the let, molestation, eviction, hindrance or interruption of him, the said party of the first part, his executors, «ic''"'-'-trators or assigns, or any of them, or any other persons or pe;: 'homsoever. And the said party of the first part doth hereby fuaher covenant, Eromise and agree, to and with the said party of the second part, is executors and administrators, that in case the sum of money realized under any such sale as above mentioned shall not be suffi- cient to pay the whole amount due on the said note or notes at the time of such sale, that he, the said party of the first part, his executors or administrators, shall and will forthwith pay or cause to be paid, unto the said party of the second part, his executors or administrators, all such sum or sums of money, with interest thereon, as may then be remaining due upon the said note or notes. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. CD. [L.S.J Affidavit of Mortgagee. I 1, C. D., of, &c., the mortgagee in the j wiithin mortgage named, make oath and Ontario, County of To wit: say, that such mortgage tiuly sets forth the agreement entered into between the mortgagor therein named and myself, being the parties thereto, and truly states the extent of the liability intended to be created by such agreement and covered by such mortgage, and that the said mortgage was executed in good faith and for the express pur- pose of securing me, the said mortgagee therein named, against the payment of the amount of my liability for the said mortgagor by reason of the promissory note therein recited, or any note or notes which I may endorse for the accommodation of the said party of the first part, as renewals of the said note ; And not for the pur- pose Qf securing the goods and chattels mentioned therein against b^ CITATTEL MOllTGAGES AJJD BILLS OP SALE. 147 the creditors of the mcrtfrn<.or, nor to prevent puch creditors from recovering any claims which they may haveagaiasi siicli Riortgagor, Sworn before me, at \ the of , in the County of , this day of , A. D. 18 E. F. J. P. or a Commissioner for taking Affidavits in and for the County of CD. Affidavit of Witness, Ontario, County of , to wit : I. Y.Z., of, &c., make oath and say, that I vas personally prt.scnt and did see the* annexed Bill of Sale, by way of Mortgage, duly signed, sealed and delivered by A. B. and C. D., the parties thereto, and that I, this deponent, am a subscribing witness to the same ; that the name Y. Z., set and sub- scribed as a witness to the execution thereof, is of the proper hand- writing of me, this deponent, and that the same was executed at , in the said County of Sworn before me. atv the of , in the County of , this day of , A.D. 18 . E.F. Y. Z. J. P. or a Commissioner for taking Affidavits in and for the county of Chattel Mi.rtfroge. (To secure future advances) This Indenture made the day of 18 , Between A. B., of, Sec, of the first part, and C. D., of, *c.. of the second part. Whereas, \Here set forth fully by way of recital, the terms, nature and effect of the agreement for the future advances, and the amount of liability to be created, as for instance ; " Whereas the said A. 13. is desirous of entering into and carrying on the business of a dry goods merchant at the City of Toronto, and hath applied to the said C. D. to make him future advances not exceeding in the whole the sum of 95,000, at such times and in such sums as he, the said A.B., 148 TllK CASAOl.VU LaWVER. II may require the same. And whereas, by an agreement in writing, dated on the day of 18 and made between the said A. B. and C. D., the said C. D. hath agreed to make such future advances to the extent of $5,000 to the said A. B. for the purpose aforesaid at such times, and in such sums as the said A. B. may require it : the whole to be repaid within one year from the date of the said agreement ''J Now this Indenture witnesseth that the said party of the first part, in consideration of the premises, and in pur- suance of the said agreement hath bargained, sold and assigned, and by these presents doth bargain, sell and assign unto the said party of the second part, his executors, administrators and assigns. All and singular the goods, chattels, furniture and household effects hereinafter particularly mentioned and described in the schedule hereunto annexed marked A. To have, hold, receive and take, all and singular the said goods, chattels, furniture and effects herein* before bargained, sold and assigned, or mentioned, or intended so to be, unto the said party of the second part, his executors, adminis- trate! » and assigns forever. Provided always, and these presents are upon this condition, that if the said party of the first part, his executors or administrators do and shall well and truly pay or cause to be paid unto the said party of the second part, his execu- tors, administrators or assigns, the sum of $5,000 or so much there- of as the said party of the second part shall advance to the said party of the first part, according to the terms of the said agreement, together with interest thereon at therateof per cent, per annum, within one year from the date of the said agreement, then these presents and every matter and thing herein contained, shall cease, determine and be utterly void to all intents and purposes, any thing herein contained to the contrary thereof in any wise notwith- standing. Provided always that in case default shall be made in payment of the said sum of $5,000, or so much thereof as may be advanced as aforesaid, and interest, contrary to the last mentioned proviso ; or in case the said party of the first part shall attempt to sell or dispose of, or in any way part with the possession of, the said goods and chattels or any of them, or to remove the same or any part thereof out of the City of Toronto, without the consent of ;he said party of the second part, his executors, administrators or assigns, to such sale, removal or disp)Osal thereof, first had and obtained in writing ; then and in such case it shall and may be law- ful for the said party of the second part, his executors, administra- tors or assigns with his or their servant or servants, and with such other assistant or assistants as he or they may require, peaceably and quietly to receive and take into his or their absolute possession, and thenceforth to hold and enjoy all and every, or any of the said goods and chattels : and upon and from and after taking possession of such gords and chattels as aforesaid, it shall and may be lawful and the said party of the second part, his executors, administrators and assigns, and each or any of them is and are hereby authorized and empowered, to sell the said goods and chattels, or any of them I CHATTEL MORTOAOES AMD BILLS OF SALE. 149 or any part thereof at public auction or private sale, as to him or any of them may seem meet, and from and out of the proceeds of such sale in the first place to pay and reimburse him and them all such sums and sum of money as may then be due by virtue cf these presents, and all such expenses as may have been incurred by the said party of the second part, his executors, administrators, or as- signs, in consequence of the default, neglect or failure of said party of the first part, his executors, administrators or assigns, in payment of the said sum of money with interest thereon as above mentioned and in the next place to pay unto the said party of the first part, his executors or administrators, all such surplus as may remain after payment of such sum or sums of money as aforesaid. And the said party of the first part, for himself, his heirs, executors and adminis- trators, doth hereby covenant, promise and agree to and with the said party of the second part, his executors, administrators and assigns, that in case the sum of money realized under any such sale as above mentioned, shall not be sufficient to pay the whole amount due at the time of such sale, he the said party of the first part, his executors or administrators, shall and will forthwith pay or cause to be paid unto the said party of the second part, his executors, administrators or assigns, all such sum or sums of money, with interest thereon, as may then be remaining due. And it is hereby also declared and agreed, that until default shall be made in payment of the said principal sum of $5,000 and interest contrary to the aforesaid proviso, it sh:>ll be lawful for the said A. B., his executors or administrators, to make use of ^but not to remove from the premises) the said goods, chattels and things here- by assigned or intended so to be without any hindrai^ce or disturb- ance by the said C. D., his executors, administrators or assigns. And the said A. B. doth hereby for himself, his heirs, executors and administrators, covenant with the said C. D.. his executors and administrators, that he, the said A. B., hath not heretofore made, done, permitted or sufiiered, nor will at any time hereafter make, do, permit or sufier any act, deed, matter or thing whereby, or by means whereof, the said goods, chattels and premises hereby assigned are, is, can or may be in any wise impeached, charged, affected, incumbered or prejudicially aflected in any manner howso- ever ; and also that he the said A. B., his executors or adminis- trators will, so long as any money shall remain due on this security, insure and keep insured the said goods, chattels and premises from damage by fire, in some respectable insurance ofiice, in the names of the said C. D., his executors, administrators or assigns, in the sum of 9 I and hand the policy for such insurance, and the receipt for the current year's premium, to the said 0. D., his executors, administrators or assigns, on demand ; and that in default of the said policy being so effected or kept on foot as aforesaid, it shall be lawful for the said G. D., his executors, administrators and assigns, to effect or keep on foot the same, and all the premiums and other expenses incurred by him or them in so doing shall be repaid on 150' THE CANADIAN LAWYER. ■'J demand by the said A. B., his executors or administrators, and until re-payment, the same shall be a charge on the said goods, chattels and premises hereby assigned, and shall bear interest after the rate aforesaid. And also that the said A. B., his executors and adminis- trators, will, during the continuance of this security, keep the chatu-ls, effects and premises hereby assigned, in good order, repair and condition in all respects, as they are in at the time of the execu- tion hereof. In witness whereof, the parties to these presents have hereupon set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of A. B. [L.s.] Y. Z. C. D. [L.S.1 The Schedule above referred to marked A. {Here set out a full and particular description of the goods, as required in the preceding forms.) , « Mortgagee's Affidavit. Ontario, County of , to wit : I, C. D., of, &c., the mortpapee in the within mortgage named, make oath and say, that the within mortgage truly sets forth the agreement entered into between my- self and A. B., therein named, and truly states the extent of the liability intended to be created by such agreement, and covered by the within mortgage. That the within mortg?ge is executed in good faith, and for the express purpose of securing to me the re-payment of the advances agreed to be made as withm mentioned, and not for the purpose of securing the goods and chattels mentioned therein, and set forth in the schedule attached thereto, maiked A, against the creditors of the said A. B., nor to prevent such creditors from recovering r.ny claims which they may have against the said A. B. Sworn before me at] C. D. the day oi ,\ 18 F. W., A Commissioner, Ac. Affidavit of Witness, same as in preceding Furms. Bill of sale. This Indenture made the day of one thousand eight hundred and eighty , Between A. B. of, etc., of the first part, aqd C, D. of, etc., of the second part. CHATTEL MORTOAOES AMD BILLS OF SALE. 151 Whe/eas, the said party of the first part is possessed of the goods, chattels and effects hereinafter set forth, described and enumerated, and hath contracted and agreed with the said party of the second part for the absolute sale to him of the same for the sum of dollars. Now this Indenture Witnesseth that in pursuance of the said Agreement and in consideration of the sum of dollars of law- ful money of Canada paid by the said party of the second part to the said party of the first part, at or before the sealing and delivery of these presents (the receipt whereof is hereby by him acknow- ledged) he, the said party of the first part, hath bargained, sold, assigned, transferred and set over, and by these presents, doth bargain, sell, assign, transfer, and set over unto the said party of the second part, his executors, administrators and assigns, all those the said goods,chattelsand effects wii! h may be more particularly describ- ed as follows {describe accurately) all wliich said goods, chattels and effects are contained in a dwelling house, situate and being at, etc. And all the right, title, interest, property, possession, claim and demand whatsoever, both at law and In equity or otherwise howso- ever, of hiin the said party of the first part, of, in, to or out of the same, and every part thereof. To have and to hold the said hereinbefore assigned goods, chattels and effects, and every of them and every part thereof, with the appurtenances and all the ris^ht, title an I interest of the said party of the first part therein and thereto as aforesaid, unto and tn the use of the said party of the second part, his executors, administrators and asiigns to and for his and their sole and only use for ever; and the said party of the first part doth hereby for himself, his heirs, executors and administrators, covenant, piomise and agree with the said party of the second part, his executors and administrators in manner follo%ving, that is to say, that he the said party of the first part, is now rightfully and absolutely possessed of and entitled to the said hereby assigned floods, chattels and effects, and every of them and every j^art thereof. And that the sai I party of the first part now hath in himself good right to assign the same unto the said party of the second part, his executors, administrators and assigns in manner aforeraid, and according to the true intent and meaning of these presents; and that tba siid party hereto of the second part, his executors, adminis- trators and assigns, shall and may from time to time, and at all times hereafter peaceably and quietly have, hold, possess and enjoy (he said hereby assigned goods, chattels, and efftcts and every of them and every part thereof, to and for his own use and benefit without any manner of hindrance, interruption, molestation, claim or dem.and whatsoever of, from or by him the said party of the first part, or any persnent to hold mentioned therein against the creditors of the said bargaiii of them. Sworn, etc. A Commissioner^&c. ie .ods r any i THE CANADIAN LAWYER. 158 CONSTABLES. The following sections are, with permission, selected from an excellent little work entitled The County Con- stables' Manual, by J. Jones, High Constable of the County of York, Ontario, and published in Toronto. The subject is fully and ably treated in this little work, which should be in the possession of every constable, as it contains a full and accurate exposition of the law, portions of which only can be given in a work like the present. Appointment of Constables in Ontario. The Justices may, from- time to time, at any sitting or adjourned sitting of the Court of General Sessions of llie Peace, appoint a County High Constable and a sufficient number of fit and proper persons to act as constable-, in each township, incorporated villagi;. police village, and place within the county, and may in like manner, from time to timi, in their discretion, dismiss any constable so appointed. Toprevent injurious delays arising from the long intervals between the sittings of tlie General Sessions, the County Judge may at any time appoint constables for the County of which he is Judge. Persons appointed shall, before entering on the duties of their ofTice, take and subscribe the following oath, which any Justice of the Peace may administer. Oath of Office. 1, A. B. , having been appointed constable for the county of . do solemnly swear that I will truly, faiihfu ly .ind iaipartially perform the duties appertaining to the said oiace, according to the best of my skill and ability. So help me God. Sworn before me, etc., J. P. " If a constable, duly appointed and notified, refuse to ta'.e the necessary oath, or refuse to execute the office, he is guilty of a serious oilence, and may be punished by fine or imprisonment. It 154 THE CANADIAN LAWYER. is not necessary therd should be an actual refusal, for if the party do noc atten;l t;) be sworn in bjfore the Justice, or afterwards do not execute his otfice, it is evidence of his refusal to do s •>, an 1 for this he m.iy be indicted either at the Assizes of Oyer and Terminer or General Sessions. (Archbold, C. P, 932; Burns, J. P., 1085). '* If a constable refuses to be sworn, a Justice of the Peace mav at once bind niin over to the Oyer and Terminer or General Ses- sions to answer for contempt, but there is no power voued in Magistrates to punish by summary conviction." (Dalton, cap. 28). Anrst. An arrest is the apprehending or detaining of the person in order to be forthcoming to answer an alleged or suspected crime. The constab'e should not mt^rely content himself with securing the offender, but should actually arrtst hiai, so that if he escape or is rescued by others, he 01 they may be subject to the penalties of escape or arrest. To constitute an arrest the party should, if pos- sible, be touched by the constable, who should say, / arrest 1 .1, or You are my prisoner. Bare words will not make an arrest without laying hold of the person or otherwise confining him. But '.{ an officer come into a room and tell the party he arrests him, and locks the door, this is an arrest, for he is in custody of that officer; or if in any other way the person si.I 't himself by word and action to be in custody, it is an arrest. { .'atton). Every officer, upon demand made upon him must shew the warrant under which he arrests or distrains. (WilKor, \\ 51-52). If the pnrty snatch or tfil-ethe warrant, the constable has a right to force It from him, uAing no unnecessary violence in doing so. Where a- constable has made an a rest with or without warrant, he should as soon as possible bring the party before the Justice according to the terms of the warrant ; and if guilty 1 .f any unneces- sary 'lelay he will be liable to punishment; but if the an est be made in or near the night, or at a ttme when the prisoner cannot well be brought before the Justice, or if there be danger of rescue, or the party be ill and unable then to be brought up, the coustable may secure him in the county gaol, in a lock-up house, or other safe place, till the next day, or until it may be reasonable to bring him up before the Justice ; but a warning i.s again given a;,'ainst any un- reasonable detention, (l-'atton). Ir. case a lock-up be found most convenient, it will be necessary to employ a constable to watch the prisoner at night, unless the municipility in which the lock-up is situate keep a watchman for this purpose. 32-33 Vict. cap. 31. S3C. 6 (Summary Convictions). It is laid down that where a warrant is issued in the first instance, the Justice issuing it shall furnish a copy 01 copies thereof, and cause a Cupy to b« served on each party arrested at the time of ssuch arrest, CONSTABLES. 155 »arty do do not for this Breaking Open Doors. Breaking; open an outer door or window to enter a man's house, is an objectionable and dangerous proceeding, and should only be resorted to in extreme cases. The peace and security of private dwellings is a matter of great importance. It is only in matters of high concern to the public, and to prevent the ends of jusi .lc being frustrated, that the law permits its officer to have recourse to this obnoxious proceeding. The ofliccr is therefore in no case justified in breaking open outer doois, or the windows or other parts of a house, until — T. He has declared his business; 2, demanded admission; and, 3, allowed a reasonable time for opening them to elapse, and they have not been opened in that time. Under warrant.— Upon a warrant for felony or suspicion of felony, or tocompel sureties of the peace, or for a breach of the peace, the constable to whom a warrant is directed may break open outer doors to effect an arrest, if the party is in his own house, or has taken refuge in the house of another, after notification, demand and refusal, as has been already stated. (Hatton). A constable may break in to apprehend on a capias founded on indictment for anv crime, or in the (iaytime on a warrant to search for stolen goods, if accompanied with a direction to bring the party before a Justice, or to enforce the law where a forcible entry or detainer is found by Justices, either on an inquest or their own view, or on a warrant of Justices for levying a fine ir execution of a judgment on conviction grounded on a statute that ;ives all or any part of the penalty to the Queen. (Wilson). Without jva!"^ant. — The constable's authority to break open doors by virtue of hii ofhce, as conservator of the peace acting wi.hout a warrant, is s'rictly confined to cases where an actual breach of the neace is committed in his view, or where he sees a felony committed, or has grounds 10 apprehend that a felony is likely to be committed, or if an affrayer run into a house to escape arrest, the constable in hot pursuit would be justified in effecting an entrance by force to take him. (Nevertheless, in mere breaches of the peace, if he know the parties, he had better obtain a warrant instead of taking this course). Also where a violent affray is going on in a house in the view oi hearing of a constable, which is likely to result in blood- shed or loss of life (as where there is a violent cry of mirder in the house), the necessity of the case will authorize the constable to get into the house in the readiest manner he can, to stop the affray and prevent further violence or bloodshed. Where one is known to have committed a felony or given a dan- gerous wound, and is pursued by a constable who is denied admit- tance into a house wherein ihe offender is sheltered, the door may be broken in order to take him. It would, however, be otherwise, if there was only a mere suspicion of guilt ; a warrant should be obtained. 156 THE CANADIAN' LAWYER. I I If the house In which an oflfending party is supposed to have taken refuge is not his own house, the constable should be sure that the felon is there ; for, if not there, the constable would m most cases be considered in law a trespasser. (Patton). So, if there be noise or disorderly conduct or drinking in a house at an unreasonable time of the night, and particularly in a tavern, he may break oper. the house to put a stop to it. If an officer have entered the housa in a legal manner, and the outer door is fastened upon him, he and others in his aid may break open the door to set him at liberty. The maxim that "Every man's house is his castle," only applies to the dwelling house. (Wilson). Constables. A constable must readily and strictly obey all lawful orders of Justices of the Peace, Coroners, and the officers placed over him by the General Sessions of the Peace. He must be very civil and respectful in his demeanor and con- duct to the public, giving the best answers he can to the numerous questions which will be put to him, and showing at all times a readiness to do all in his pgwer to oblige consistently with his duty. He is to speak the truth at all times and under all circumstances, and when called upon to give evidence, to state all he knows re- specting the case without fear or reservation, and without any desire to influence the result, either for or ae:aiiist the prisoner. To enable him to speak quite confidently and to prevent the pos- sibility of his evidence being shaken, he is to jot down at the time in his memorandum book dates and other particulars respecting arrests or occurrences, to which he can always refer. When called upon by a person to take another into custody, he must be guided in a great measure by the circumstances of the case and the nature of the charge or offence ; but if he have any doubt as to how he ought to act, the; safest course is to ask all the persons concerned to go with him to the nearest Justice, who will direct the constable. If a constable is called upon to act he must do so with energy, promptness and determination, for, if he wavers or doubts, the criminal may escape, or the opportunity to render assistance may be lost. (T. P. F. eg). (Authority) — The authority of constables is general and special, the ofl&ce partaking of the nature of both. The general authority accroies by virtue of their own right as officers ; the special autho- rity accrues by the right of some one els^ All constables are con- servators of the peace by right of their office, and are also the immediate and proper officers of Justices of the Peace. Constables, by virtue of their inherent powers, may act without warrant in the ]»revention of crime, and for tho arrest of offenders, (See Warrant, arrest without). CONSTABLES. 16? : taken at the cases ipplies As the immediate and proper officers of Justices of the Peace, constables act under, and are bound to obey, the lawful mandates of the magistrates of their county. The cff.ce of constable in Canada is coincident with the introduc- tion into the Province of the commercial law of England. It is of great antiquity ; but whether constables came in with Justices of the Peace, or existed at common law in England, is of little moment to us ; but the law-writers who have examined the question say that constables existed as subordinate conservators of the peace long before Justices of the Peace were made by the ist Edward III , A.D.. 1327. Coroners' Constables. It will be the duty of a constable, should a death occur from vio- lence or unfair means, or through culpable or negligent conduct (of any other person than deceased), to notify the neaiest coroner while the body is fresh, and, if possible, while it renjains in the same situation as when the party died. He should attend the coroner when he arrives, and if the coroner considers an inquest necessary, the constable, on receiving the warrant to summon the jury, should immediately summon and make his return therfon. The constable officiating at an inquest opens the proceedings by proclamation, assists the coroner, preserves order, and is to obey all lawful orders of the coroner. The coroner has by law the right to do all acts which ore necessary to enable him to hold his inquest on the view of the body ; and as incides'tal to this right, he could break open doors to get at the body ; a.-)'' those who obstruct him in so doing are guilty of a misdemeanor, and a constable who is present is bound to protect him. {Proclamation before calling jury). Oyez, Oyez, Oyez. You good men of this county summoned to appear here this day, to inquire, for our Sovereign Lady the Queen, when, how, and by what means R. F came to his death, answer to your names as you shall be called, every man at the first call, upon the pain and peril that shall fall thereon. God save the Queru. [Proclamation for default of jurors). Oyez, Oyez, Oyez. You good men who have been already severally called, and have made de- fault, answer to yor.- names and save your peril. God save the Queen. {Proclamation for witnesses). Oyez, Oyez, Oyez. If any one can give evidence on behalf of our Sovereign Lady the Queen, when, hew, and by what means R F came to his death, let him come forth, and he shall be heard. God save the Queen. {Proclamation of adjournment). Oyez, Oyez, Oyez. All manner of persons who have anything more to do at this Court before the Queen's coroner for this county, may depart home at his time, and give their attendance here again (or at the adjourned place) on next, being the day of instant, at of the clock, in the precisely. God save the Queen, 168 THE CANADIAN LAWYER. ? (ProclnnuHlon at adjunrnrd tnrethrr). Oycz. 0;pz, Oyez. All manner of persons who have anything more to do at this Court before the Queen's coroner for this county on this inquest now to be taken and adjourned over to this time and place, draw near and give your attendance; and you, gentlemen of the jury, who have been impannelled and sworn upon this inquest touching the death of R F , severally answer to your names and save your recognizances. {Proclamation at the close of inquest). Oyez, Oyez, Oyez. You good men of this county who have been impannelled and sworn of the jury to inquire, for our Sovereign Lady the Queen, touching the death of R F , and who have returned your verdict, may now depart hence and take your ease. Cod save the Queen. Rejusing to Assist a Constable. To suppress an affray or accomplish an arrest, a constable may call to his asststance any private person present, who will be bound to render aid under the penalty of severe punishment for refusal or neglect ; but the constable must carry this in mind, that to warrant his interference there mu.st be evident appearance that' a felony or other crime against the Queen's peace is on the point of being com- mitted ; and this caution also may be given as to threats, that mere rash words or abusive or violent language used to the constable or to any other person, unless calculated to deter the officer from doing his duty, or directly tending to a breach of the peace, would not of themselves form a sufficient ground for the arrest of the wrong doer. (Patton. i6). And on page 26, the same writer says: " I would reiterate, that whenever necessary, a constable may call upon any by-stander in the Queen's name to assist him in making an arrest, or securing an offender ; and that private persons acting in aid of the officer are entitled to the same indemnity as the officer, for their acts in his aid." Search Warrant. — 32-33 Vict. Cap. 30. sec, I2. In executing a search warrant, the coiistable must be careful strictly to pursue its directions. The warrant (Form E. 2) com- monly specifies the place to be searched, the goods to be seized and the person to be taken. If the outer door of the house to be searched be shut, and upon demand not opened, the constable may break it open, and so may inner doors, boxes, etc., after the keys have been demanded and refused. The constable should not take away any goods but those specified in the warrant, unless they are indispensable in substantiating the charge of stealing the goods specified. The constable should take with him materials for striking a light, if necessary, and he should take sufficient time to make a thorough search. The owner of the CONSTABLES. 159 goods should, in all ca^es, accompany the constable to point out the goods, in order to prevent mistakes. The constable, in accordance with tlie warrant, should have necessary and proper assistance to watch outside, to prevent the goods being taken away or the accused person escaping. When the goods, or any portion of them, are found, the constable is to bring them nnd the person before the Justice, according to the directions of the warrant subject to his order. If the accused be committed for trial, the constable should make an inventory of thi goods in his memorandum book, and mark the exhibits so as to be identified by him. If a horse is the subject of the larceny, the best plan would be to hand him over for safe keeping to the owner, on his entering into a recognizance to prosecute, and giving a guaran- tee that the horse shall be forthcoming. Warrants, Arresting on. When a warrant is placed in a constable's hands for execution, he should satisfy himself that it is under the hand and seal of the Jus- tices issuing same, that it is properly directed, viz. : " To all or any of the constables or other peace officers in tlie county of, etc., etc." (32 and 33 Vict., cap. 30, form B). It shall state shortly the matter cf the information or complaint on which it is founded. It shall name or otherwise describe the person against whom it has been issued. It shall order the constable to apprehend the defendant, and to bring him before the Justice issuing the warrant, or some other Justice, to answer the said charge. It need not be made returnable at any particular time, but may remain in force until it is executed. . If the warrant is found deficient in any particular it should be taken to the Justice who issued it to have its defects rectified. The constable should make an entry in his memorandum book of the time of its receipt, and the necessary particulars. The warrant should be executed with secrecy and despatch, and after execution the constable should endorse it with the date of its execution. The constable should also ascertain from the warrant the nature of the offence, and whether he knows the party named in the warrant ; if not he should find out from the complainant the descriptic n, per- sonal appearance, manner, dress, or any peculiarity by which he may be recognized, and it would be advisable for the constable, if possible, to take the complainant or some person who could point out the accused. An arrest may be made in the night as well as the day, but not on Sunday, unless tne o£fence charged includes a breach of the peace or felony. The accused should be brought without delay before the proper Magistrate, and it is the duty of the Magistrate to make such mm 100 tllB caKvdian LaWVEII. arrangements vith the officer who is entrusted with tlic execution of the warrant, that the case be brought on to a hearing as speedily as possible after the arrest. To detain an accused person ?br an un- reasonable time would be very improper, illegal and unjust. If the accused person escape, go into or reside in another county, it will be necessary for the constable to have the warrant endorsed by a Justice having jurisdiction where the accused is. The constable, therefore, will wait upon a Justice having such jurisdiction, who will endorse the warrant on the constable making oath as to the signature of the Justice who issued the warrant (3»-33 Vict. cap. 30, !iec. 19), or, in case of fresh pursuit, at any place in the next adjoin- ing territorial division, and within seven miles of the border of the first division, without having the warrant backed. Under 32-33 Vict. cap. 30, sec. 8, any Justice may grant and issue a warrant to apprehend any one charged for an indictable offence, or a search warrant on a Sunday as well as on any other day. It is also pro- vided that no warrant or other process shall be served on the Lord's Day, except in cases of treason, felony or breach of the peace. Withoul Warrant, — 32-33 Vict., Cap. 29, Sec. 2. Any person found committing an offence punishable either upon inJictment or upon summary conviction, may be immediately ap- Erehended by any constable or peace officer without a warrant, or y the owner of the property on or with respect to which the offence is being committed, or by his servant, or any other person autho- rized by such owner, and shall be forthwith taken before some neighbouring Justice of the Peace to be dealt with according to law. A constable may arrest for any felony committed in his presence, and he is bound at all risks to use his best endeavours to do so. Nothing short of imminent danger to his life will excuse him for allowing the offender to escape. He may also arrest on his own suspicion that a felony has been committed, and that the party he arrests is or was concerned in it. When he arrests upon his own suspicion, it must not be upon any loose, vague suspicion, eithor of an offence having been committed, or of its having been committed by the person arrested, but he must, in the language of the law, have reasonable and probable cause for believing both of these facts. If he arrest without having reason- able and probable cause for so doing, he will be liable to answer in damages to the aggrieved party for making the arrest, but if he arrest under justifiable circumstances, he will not be liable for making the arrest, although the party taken was not concerned in the felony, nor will he be liable even although there was no felony at all committed. So, also, if a constable arrest one for a felony upon information derived from another, he will be fuUv authorized in doing so, if he had reasonable and probable cause for believing the information he got to be correct, and he will not be liable, although, as before stated, no felony, in fact, had been committed 9X all. (Wilson. 33). I OONSTABLKS. 161 >nof y as un- the The constable, however, must be careful that he has such reason- able and probable cause to justify his proceedings, for, if he have not, he will be liable, in like manner as any one else would be, for his malicious conduct. The constable then should consider — (i) Who it is that gives him information. (2) Who the person is who is alleged to have committed the offence. (3) The general probability of the facts narrated. For instance, a constable is not justified in apprehending a person, as receiver of stolen goods, on the mere assertion of the principal felon. So it also follows, if he arrest on his own suspicion of the party being a felon, or upon information communicated to him by an- other, he should not detain the party arrested after his suspicions are, or ought to be, entirely re.iioved, or if he discover the informa- tion which was given him to be false or untrustworthy. (Wilson, 36). Thus, if a constable arrest on a suspicion of theft, and after searching the party, discover nothing, and the suspicion appears to be groundless, he may discharge the party out of his custody with- out taking him before a Magistrate. A constable may arrest on information of others that a party has committed a felony. Thus, if a reasonable charge of felony is made against a person who is given in charge to a constable, the constable is bound to take him, and he will be justified in so doing, though the charge may turn out to be unfounded. A constable may justify an arrest on a reasonable charge of felony without warrant, although it should afterwards appear that no felony had been committed, but a private individual cannot. A constable is justified in apprehending a person on suspicion of felony, if he have reasonable or probable cause to believe that the party charged is the felon. Also, any person whom he finds loitering on any highway, yard, or other place, during the night, and whom he has good cause to suspect of having committed, or being about to commit, a felony, and detain such person, and bring him before a Justice, before noon the following day, to be dealt with accordmg to law. {32-33 Vict, cap. 29, sec. 5). A constable is bound to take up any one committing a breach of the peace in his view. He may also, when there has been a breach of the peace, though not in his' presence, and in order to prevent a renewal of it, arrest one whom he has good reason to believe is about to break it. But, when no breach of the peace has taken place in his view, and there is no likelihood of its being broken, he cannot, either at his own instance or a complaint of any one, without a warrant, unless specially authorized by statute. Neither can a constable receive any person from another, who has been arrested by that other, for an alleged breach of the peace, unless at his own risk ; that is, if the party taken hive brj':en the peace, the constable will be right in 11 i IS II 162 THE CANADIAN LAWYER. receiving him into his custody, but if he have not, the constable will be liable in taking him, in like manner as the other will who deli- vered him to the constable. The general rule, therefore, for a constable is never to arrest or receive any one into his custody for any offence less than a felony, unless — ii) The constable has either seen the offence committed, or 2) Fears a breach of the peice, or 1) Unless a warrant authorizing the arrest is delivered to him. (Wilson. 25.) NOVA SCOTIA. In case of riot, tumult or disturbance, or of just ap- prehension thereof, outside of Halifax or any incorpo- rated town, three justices of the peace may by writing appoint any number of special constables, their appoint- ment to continue in force fourteen days ; in case of disturbance at any public meeting, any justice, at the request of the chairman of the meeting, or of three freeholders, may verbally appoint special constables to preserve the peace. Neglect or refusal to act incurs a penalty of eight dollars. Ordinary constables are appointed by the Municipal Council. THE CANADIAN LAWYEB. 163 DEEDS. The LEGAL and technical definition of a deed is a writing sealed and delivered. Bonds, therefore, and assignments and chattel mortgages, of which we have treated in previous chapters, are all deeds : that is to say, they are writings sealed and delivered. The popular idea of a deed, however, is commonly asso- ciated with the transfer of land, and it is in this sense in which we shall speak of a deed in this chapter. A deed ot land, then, is a writing sealed and delivered by the parties, by which lands, tenements or heredita- ments are conveyed by one person to another. It may be either written or printed, or partly written and partly printed, and on paper or parchment. Figures, as a general rule, should be avoided, and all words written in full without abbreviation or contraction. The name, residence and occupation or addition of every party to the deed should be carefully inserted, and also some date : properly the date of the day of execution, but not necessarily ; for a deed may legally be dated on one day, and not executed until some other and subsequent day. Care should be used in describ- ing the lands conveyed ; an error here may entail con- siderable expense before it can be rectified. If a whole township lot be conveyed, it will be sufficient to describe it as lot number so and so, in such a conces- sion, township and county, comprising so many acres. If a portion only be conveyed, describe accurately the part intended ; as the north or south half, or north- east or south-west quarter, as the case nay be. Where the bounds ries are well known, and sspecially where 161 THE CANADIAN liAWYEB. only a portion of a lot is conveyed, it will be desirable to describe the premises by metes and bounds ; giving the course or magnetic bearings, and the measuration of each side. A well prepared deed should contain no alterations or interlineations of any kind ; they will not, however, invalidate the instrument ; but if necessary to be made, the fact that they were so made before sig- nature of the deed should be stated in the attestation clause at the foot, and the witness should put his initials in the margin, opposite all such alterations or interlineations, so that he may be the better able, if ever called on, to prove that they were so made before execution. When once signed and executed, a deed must not be altered, as any such alteration might wholly vitiate the deed. The person conveying the land is called the grantor ; the person to whom it is to be conveyed is called the grantee. If the grantor is a married man, his wife should, in all Provinces where she is by law entitled to dower, join in the deed and bar her dower ; otherwise, when her husband dies she will be entitled to one- third of the land conveyed for her life time. Land may be conveyed in such a manner as to preclude the wife of the party to whom it is conveyed from any right to dower on her husband's death ; but the species of deed by which this may be done is very special, and can only safely be prepared by a professional man. In preparing deeds, care should be taken that all persons whose interests in the property are intended to be conveyed should be made parties to and should duly execute the instrument. Minors, or persons under twenty-one years of age, are incapable of making a binding disposition of their lands, unless under the sane- DEEDS. I6r> tion of an orJcr of a Court of competent jurisdiction. The same may be said of lunatics and idiof s, whose interests may be transferred only by order of a Court, or by trustees or committees appointed or sanctioned by it. The power of corporations to convey depends upon the extent of the rights and privileges conferred upon them by law, and the method in which they execute conveyances is usually determined by statute. With regard to married women, the form in which a conveyance of their lauds must be drawn and attested differs in the various Provinces, and an explanation of the formalities required in each is deemed unnecessary in this connection. Every deed should be signed by the grantor. It is not necessary that the grantee should sign unless the deed contains some covenant on his part. The ordi- nary way of executing a deed is for the party conveying to sign his name in his usual manner, opposite the seal at the foot, and placing his finger on the seal to say " I deliver this as my act and deed." If the person should be unable to write, he may execute by mark. In this case some person should write opposite the seal the words " A. B. his mark," leaving space in the middle for the mark to be made — bis usually a cross : thus A. X B. The mark must, of mark course, be made by the party himself, though his hand may be guided, or he may do it by simply touching the pen while the mark is being made by some other per- son for him. Before a deed is executed by an illiterate person, or, indeed, by any person if he so requests, it ought to be read over and explained, so that he may fully under.«itand what he is doinpf. ,1 106 THE CANADIAN LAWYER. Before purchasing property it is essential that the title to it should be properly investigated. Registry offices are established in every County and District, where all deeds and other instruments affecting land ought to be registered. In Ontario, a deed of land should be executed in duplicate — one copy whereof will be left in the registry office, and the other retained by the party. Upon the deed intended to be left in the registry there must be an affidavit of execution made by the attesting witness. It is sufficient if this affidavit be only placed on such one ; but it is usual and convenient to have an affidavit on both. In Ontario, to secure registration, an affidavit of a subscribing witness to the deed must be made (upon the instrument, or securely attached to it) which, after sett- ing forth the name, place of residence and addition or occupation of the witness, in full, must show the follow- ing facts : — (i) The execution of the original deed and duplicate, if any there be ; (ii) the place of execution ; (iii) that the witness knew the parties to the instrument, if such be the fact ; or that he knew such one or more of them, according to the fact ; (iv) that he is a sub- scribing witness thereto. The affidavit is, under pro- visions of the Ontario statute, to be made before some one of the following persons : X. If made in Ontario, it shall be made before — The Registrar or Deputy Registrar of the County in which ibe lands lie, Or, before a Judge of any of the Superior Courts of Law or Equity, Or, before any Judge of a County Court within his County, Or, before a Commissioner authorized by any of the Superior Courts to take affidavits. 31 V. c. 20. s. 41 (i). Or, before any Justice of the Peace for the County in which such affidavit is sworn. 39 V. c. 25, s. 3. DEfiDS. 167 the istry rict, land 2. If mnde in Quebec, it shall be made before — A JuJgcor I'rothonotary of the Sup' .ior Court, orClork of the Circuit Court, Or, before a Commissioner authorized under the laws of Ontario to take, in Quebec, affidavits in and for any of the Courts of Record in the Province of Ontario, Or, before any Notary Public in Quebec, certified under his official seal. 31 V. c. 20, s. 41, (2) ; 34 V. c. 14, ss. 2 & 6; C. S. C. c. 79. 8. 3. 3. If made in Great Britain or Ireland, it shall be made before — A Judge of the Supreme Court of Judicature in England, or " of the Court of Session or the justiciary Court in Scot- land, or of the High Court of Chancery, or of the Court of Queen's Bench, Common Pleas, or Exchequer, in Ireland. Or, before a Judge of any of the County Courts within his County, Or, before the Mayor or Chief Magistrate of any City, Borough, or Town corjjorate therein, and certified under the com- mon seal of such City, Borough or Town corporate. Or, before a Commissioner authorized to administer oaths in the Supreme Court of Judicature in England, or before a Commissioner authorized by the laws of Ontario to take, in Great Britain or Ireland, affidavits in and for any of the Courts of Record in the I'rovince of Ontario, Or, before any Notary Public, certified under his official seal. 31 V. c. 20, s. 41 (3) ; 34 V. c. 14, ss. 2, 4 & 6; 40 V. c, 7, bched. A. (126). 4. If made in any British Colony or Possession, it shall be made before — ^ A Judge of a Court of Record, or of any Court of Supreme Jurisdiction in the Colony. Or, before the Mayor of any City, Borough or Town corporate, and certified under the common seal of such City, Borocgh or Town, Or, before any Notary Public, certified under his official seal. Or. if made in the British Possessions in India, before any Magistrate or Collector, certified to have been such under the hand of the Governor of such Possession. Or, before a Commissioner authorized by the laws of Ontario to take, in such British Colony or Possession, affidavits in and fur any of the Superior Courts of the Province of Ontario. 31 V. c. 20, s. 41 (4) ; 34 V. c. 14 ss. 2, 4 & 6. 5. If made in any Foreign Country, it shall be made before — The M yor of any City, Borough or Town corporate of such country, and certified under the common t>^4l of such City, Borough or Town corporate, Or, before any Consul, Vice-Consul, or Consular Agent of H«r Majesty. rt«ident therein, 168 THE CANADIAN LAWYER. IB' ini Or, before a Judge of a Court of Record, or a Notary Public, certified under his official seal, Or, before a Commissioner aut'iorized by the laws of Ontaric to take, in such country, affidavits in and for any of the Courts of Record of the Province of Ontario. 31 V. c. 20, s. 41 {5) ; 34 V. c. 14, ss. 2, 4 & 6. The fees for registering a deed are $1.40 where the document does not exceed 700 words in length ; if it exceeds that number, then fifteen cents for every addi- tional 100 words up to 1400, and ten cents for each 100 words over 1400, If the iastiumeiit embraces different lots or parcels of land situate in different lur alities in the same county, then the Registrar is entitled to 40 cents for the necessary entries and certificates, and fif- teen cents for every 100 words up to 1400, and ten cents for every 100 words over that number. A corporation usually executes a deed by affixing to it its common seal and signing by its chief ofBcer, as Mayor, President, etc. No affidavit is necessary to prove the execution of a deed by a corporation ; the seal alone is alifficient evidence. Where land is conveyed to a cor- poration, the word "successors" shou' 1 be used in j'lace of the word " heirs," in referring to it. In Ontario and Manitoba, short forms of deeds of grant are established by statute, the abbreviated covenants in whi 'h are given an amplified meaning therein fully set forth. The object of enactments of this nature is to save unnecessary expense of registration. Where one person has, by power of attorney under seal, authority to execute a deed of lands for another, the power should be registered or attached to the deed and duly verified or authenticated. The only forms of deeds given here are the common forms of bargain and sale used in the DEEDf^. 169 ordinary conveyance of real property. The, forms given are with absolute covenants and with qualified or limited covenants. The former are very extensive, and ought not to be given without some sufficient reason, as they bind the grantor with reference to the acts of all parties through whom the property may have passed. Limited covenants, on the contrary, are confined to the acts of the grantor himself and those claiming under him. A quit claim deed, if made to a party already possess- ing some interest in the land, releases all the interest which the grantor has in the land, whatever it may be. A deed poll is made by one party only, as in the case of a sheriff's deed. A trust deed is made to a person called a trustee, who is to hold the land for the use or benefit of some other person. The wife of the trustee is not entitled to dower in the land. Where deeds are made without -^ny consideration, they may be set aside in favour of the creditors of t)i^ grantor, and of purchasers from him in good faith and for valuable consideration. NOVA SCOTIA. The same general principles as to registry as are in force in Ontario, apply in Nova Scotia. By cap. 84 of Revised Statutes, a Registrar is appointed for every County and District in the Province, with whom all deeds, mortgages, judgments and attachments binding lands, are to be recorded. Deeds, etc., are copied out in the registry books in full. The execution of deed? 's proved either on the affi- davit ol a subscribing witness, or on the personal acknow- 170 THE CAKADIAK LAWYER. ledgmentoftheparties under oath. Such oath isadminis- tered, in the Province, by the Registrar, or any Judge of the Supreme Court of the Province, or Justice of the Peace ; out of the Province, it is administered by any cpmmissioner appointed to take affidavits without the Province, a Judge of any Court of Record, Mayor of a city, Justice of the Peace, or Notary Public, acting where the deed is pro\ ed ; or any consul or vice-con- sul of Great Britain. If all the witnesses to a deed are dead, or absent from the Province, the deed may be registered upon sufficient proof of the handwriting of any witness, or of the parties. No particular forms are necessary. BRITISH COLUMBIA. A Land Registry Office is established at Victoria, and district registries in other parts of the Province. Before any deed or instrument is recorded or registered, its execution must first be acknowledged or proved in the manner provided by the Registry Act, and the fact %f such acknowledgment or proof must be certified by endorsement upon such deed or instrument. The acknowledgment or proof of instruments, if made within the Province, may be made before — X. The Registrar or Deputy- Registrar ; 2. Any Stipendiary Magistrate ; 3. Any Judge or Registrar of any Court having a seal ; 4. Any Notary Public practising within the Pro- vince. if acknowledged or proved without the Province, and within British Dominions, it may be made before — I. Any Judge, Clerk or Registrar of any Court having a seal ; dkeds. 171 2. Any Notary Public ; 3. Any magistrate of any town or district, having a seal of office ; 4. Any commissioner appointed for the purpose. MANITOBA. The law of registration is similar to that ot Dntario. The affidavit of execution must be made as follows : (i) If made in Manitoba — before the registrar or deputy registrar of the County in which the lands lie, or, a judge of any of the Superior or County Courts ; or, a commissioner. (2) If made in any other Province of the Dominion — before a Judgeor Prothonotaryof any of the Superior Courts of Law or Equity ; or, before any Notary Public, certified under his official seal. (3) If made in Great Britain or Ireland, or any Province in Canada — before a Judge of any of the Superior Courts of Law or Equity therein, or a Judge of any County Court, within his County ; or before the Mayor or Chief Magistrate of any City, Borough, or Town corporate ^herein and certified under th: com- mon seal of such City, etc. ; or any Notary Public, or a Commissioner. (4) If made in any British Colony or possession — before a Ju Jge of a Court of Record ; the Mayor of any City, Borough, or Town cor- porate, and certified under the common seal of such City, etc., or any Notary Public. (5) Or if made in the British Possessions in India — before any Magistrate, or Collector, certified to have been such under the hand of the Governor of such Possession. (6) If made in any foreign country — before ihe Mayor of any City, B trough, or Town corporate of such Country, and certified under the common seal of such City, etc. ; or before any consul of Her Majesty resident therein ; or a Judge of a Court of Record, or Notary Public. (7) If made in the N. W. Territories or Keevvatin — before a Judge of any Court, or Police Magistrate, or a Commissioner authorized to taki-* affidavits by any Court, or before any J. P. or N. P, certified under his official sea). NEW BRUNSWICK. Registry offices are established in every County. Wills must be registered within six months of the death of the testator, if his death occurs in the Province, and within three years from such death if the same occurs out of the Province. All conveyances must be regis- tered, as well as leases of more tha ' three years' dura- tion. 172 The CANADIAN LAWYER. FORMS. • , Deed of Grant. {Absolute Covenants) Th'!; Indenture made (in duplicate) the day cf , i8 Between A. B., lic, of the first part, C. D., wife of the said party of the first part, of the second part, and G. H., of, &c„ of the third part ; Witncsseth. that the said party of the first part, in considera- tion of the sum of $500, of lawful money of Canada, to him, by the said party of the third part, in hand well and truly paid, at or be- fore the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), doth grant unto the said party of the third part, his heirs and assigns. All and singular that certain parcel or tract of land and premises situate, lying and being in the (here de- scribe the lands), Together with the appurtenances : To have and to hold the same lands, tenements, here iitaments.and all and singu- lar other the premises hereby conveyed or intended so to be, with their and every of their appurtenances, unto the said party of the third part, his heirs and assigns, to the sole and only use of the said party of the third part, his heirs and assigns forever. Subject, nevertheless, to the reservations, limitations, provisoes and condi- tions expressed in the original grant thereof from the Crown. And this Indenture further witnesseth, that the said party of the second part, with the privity and full approbation and consent of her said husband, testified by his being a party to these presents, in consideration of the premises, and also in consideration of the further sum of five shillings of lawful money of Canada aforesaid, to her by the said party of the third part in hand well and truly paid at or before the sealing and delivery of ihesj presents (the receipt whereof is hereby acknowledged), hath granted and released, and by these presents doth grant and release, unto the said party of the third part, his heirs and assigns, all dower, an J all right and title thereto, which she, the said party of the second part now hath or in the event of surviving her said husband mi^lit or would have in, to or out of the lands and premises hereby conveyed or intended so to be. And the said party of the first part doth hen by, for himself, his heirs, executors and administrators, covenant promise and agree with and to the said party of the third part, nis heirs and assigns, in manner following, that is to say ; Thai he, the said party of the first part, now hath, in himself, good right, full power and absolute authority to convey the said lands and other the premises hereby conveyed or intended so to be, with their and every of their appur- tenances, unto the said party of the third part, in manner aforesaid and according to the true intent and meaning of these presents; And that it shall be lav.lul for the said party of the third part, his DEEDS. 178 heirs and assigrs. from time to time and at all times hereafter peaceably and quietly to enter upon, have, hold, occupy, possess and enjoy the said lands and premises hereby conveyed or intended so to be, with their and every of theii appurtenances, and to have, receive and take the rents, issues and profits thereof, and of every part thereof to and for his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim or demand what- soever of, from or by him, the said party of the first part, or his heirs, or any other person or persons whomsoever ; And that free and clear, and freely and absolutely acquitted, exonerated and for- ever discharged or otherwise by the said party of the first part or his heirs well and sufficiently saved, kept harmless, and indemnified of, from and against any and every former and other gift, grant, bargain, sale, jointure, dower, use, trust, entail, will, statute, recog- nizance, judgment, execution, extent, rent, annuity, forfeiture, re- entry, and any and every other estate, title, charge, trouble and incumbrance whatsoever ; And lastly, that he, the said party of the first pa! t, his heirs, executors or administrators, and all and every other person whomsoever having or claiming, or who shall or may hereafter have or claim, any estate, right, title or interest whatsoever, either at law or in equity, in, to or out of the said lands and premises hereby conveyed or intended so to be, or any of them, or any part thereof, by. from, under or in trust for him, them or any of them, shall and will from time to time and at all times hereafter, upon every reasonable request, and at the costs and charges of the said party of the third part, his heirs or assigns, make, do or execute, or cause to be made, done or executed, all such further and other lawful acts, deeds, things, devises, conveyances and assurances in the law whatsoever, for the better, more perfectly and absolutely conveying and assuring the said lands and premises hereby conveyed or intended so to be, and every part thereof, with their appurte- nances, unto the said party of the third part, his heirs and assigns, in matiner aforesaid, as by the said party of the third part, his heirs and assigns, his or their counsel in the law, shall be reasonably devised, advised or required : so as no person who sha'l be required to make or execute such assurances shall be compellable, for the making or executing thereof, to go or travel from his usual place of abode. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presjnce of A. B. [l.s.] E F. C. D. [L.S.J Received, on the day of the date of the within Indenture, the sum of 95C0, of lav.'ful money of Canada, being the full consideration therein mentioned. A. 6. Witness, E. F. 174 THE CANADIAN LAWYER. Same with Qualifed Covenants. This Indenture, made (in duplicate) the day of i8 Between A. B. of, &c„ of the first part, C. D., wife of the said party of the first part, of the second part, and G. H., of, &c., of the third part : Witnesseth, that the said party of the first part, in considera- tion of the sum of §500, of lawful money of Canada, to him by the said party of the third part in hand well and truly paid at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), doth grant unto the said party of the third part, his heirs and assigns, All and singular that certain parcel or tract of land and premises situate, lying and being in the (here des- cribe the lands), Together with the appurtenances : To have and to hold the same lands, tenements and hereditaments, and all and singular other the premises hereby conveyed or intended so to be, with their and every of their appurtenances, unto the said party of the third part, bis heirs and assigns, to the sole and only use of the said party of the third part, his heirs and assigns, forever. Subject, nevertheless, to the reservations, limita'aons, provisoes, and con- ditions expressed in the original grant thereof from the Crown. And this Indenture further witnesseth, that the said party of the second part, with the privity and full approbation and consent of her said husband, testified by his being a party to these presents, in consideration of the premises, and also in consideration of the fuiiher sum of five shillings of lawful money of Canada aforesaid, to her by the said party of the third part in hand well and truly paid at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), hath granted and released, av\ by these presents doth grant and relense, unto the said party of the third part, his heirs and assigns, all dower, and all right and title 'ihereto, which she, the said party of the second part, now hath, or in the event of surviving her said husband might or would have in, to or out of the lands and premises hereby conveyed or intended so to be. And the said party of the first part doth hereby, fcff himself, his heirs, executors and administrators, covenant, promise and agree wirh and to the said party of the third part, his heirs and assigns, in manner following, that is to say : That for and notwithstanding any act, deed, matter or thing by the said party of the first part done, executed, committed or knowingly or wilfully permitted or suffered to the contrary, he, the szu\ p^rty of the first part, now hath in him- self good right, full power and absolute authority to convey the said lands and other the premises hereby conveyed or intended so to be. with their and every of their appurtenances, unto the said party of the third part, in manner afoiesaivi, and according to the true intent of these presents : And that it shall be lawful for the said party of the third part, his heirs and assigns, from time to time, and at all times hereafter, peaceably and quietly to enter upon, have, hold, occupy, poniiiiiis and enjoy the said lands and premises hereby con- i TT DBEOS. 175 veycd, or intended so to be, with their and every of their appurten- ances, and to have, receive and take the rents, issues and profits thereof, and of every part thereof, to and for his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim or demand whatsoever of, from or by him, the said party of the first part or his heirs, or any person claiming or io claim by, from, und.^r or in trust for him, them or any of tliem : And that free and clear, and freely and absolutely acquitted, exonerated and for- ever discharged or otherwise by the said party of the first part, or his heirs, well and sufficiently saved, kept harmless, and indemnified of, from and against a .y and every former and other gift, grant, bargain, sale, jointure, dower, use, trust, entail, will, statute, recog- nizance, judgment, execution, extent, rent, annuity, forfeiture, re- entry and any and every other ect'ite, titlf, charge, trouble, and incumbrance whatsoever, made, executed, occasioned or suffered by the said party of the first part, or his heirs, or by any person claim- ing or to claim by, from, under or in trust for him. them or anvof them : And lastly, that he, the said party of the first part, his heirs, executors or administrators, and all and every other person whom- soever having or claiming, or who shall or may hereafter have or claim, any estate. ri;ht, title or interest whatsoever, either at law or inequity, in, to or out of t!ie sai ilanisanJ pr.mises h reb\ c iuveyed or intended so lo be, or any of them, or any part therct f. by, from, under or in trust for him, them or any of them, shall and will from time to time, and at all times hereafter, upon every reasonable request, aud at the coAs and charges of the said party of the third part, his heirs or assigns, make, do or execute, or cause to be mad", done or executed, all such further and otl er 'awful acts, deed <, things, devices, conveyances and assurances in the law whatsoever, for the better, more perfectly and absolutely conveying and assuring the said lands and premises hereby conveyed or intended so to be, and every part thereof, with their appurtenances, unto the said party of the third part, his heirs and assigns, in manner aforesaid, as by th(.> said party of the third part, his heirs and assigns, his or their counsel in the law, shall be reasonably devised, advised orrequired, so as no such further assurances contain or imply any further or other covenant or warranty than against the acts and deeds of th>i person v ho shall be required to make or execute the same, and his heirs, executors or administrators only, and so as no person who shall be required to make or execute such assurances shall be com- pellable, for the making or executing thereof, to go or travel from his usual place i f abode. In witness whereof, tlie snid parties to these presents have here- unto set thfir hands and affixtd their SLsals, the day and year first ab ve written. Signed, sealed and delivered in the presence of A. B. [L.s.] E. F. C. D. [L.fc.] 176 THE CANADIAN LAWYER. Received on the day of the date of the within Indenture, the sum of ^500 of lawful money of Canada, being the full consideration therein mentioned. Signed in presence if E. F. A. D. Ontario Short Form under Statute. This Indenture, made (in duplicate) the day of 18 , in pursuauce of an Act respecting short forms of conveyances : Between A, B., of, &c., of the first part, C. D., wife of the said party of the first part, of the second part, and E. F., of, &c., of the third part: Witnesseth, that in consideration of 8500 of lawful money of Canada now paid by the said party of the third part, to the said party of the first part (the receipt whereof is hereby by him acknowledged), He. the said party of the first part, doth grant unto the said party of the third part, his heirs and assigns for ever. All and singular that certain parcel or tract of land and premises situate, lying and being {here describe the premises.) To have and to hold unto the said party of the t^^ird part, his heirs and assigns, to and for his and their sole and only use for ever. Subject never- theless, to the reservations, limitations, provisoes and conditions expressed in the original grant thereof from the Crown. The said party of the first part covenants with the said party of the third part, That he has the right to convey the said lands to the said party of the third part, notwithstanding any act of the said party of the first part ; And that the said party of the third part shall have quiet possession of the said lands free from all incumbrances ; And that the said party of the first part will execute such further assurances of the said lands as may be requisite ; and that he will produce the title deeds enumerated hereunder, and .allow copies to be made of them at the expense of the said party of the third part ; And that the said party of the first part has done no act to encum- ber the said lands. And the said party of the first part releases to the said party of the third part all his claims upon the said lands; And the said party of the second part, wife of the said party of the first part, hereby bars her dower in the said lands. In witness whereof, the said parties hereto have hereunto set their hands and seals. Signed, sealed and delivered in the presence of A. B. [l. s.] Y. Z. C. D. [L. s.] Received on the day of the date of this Indenture from the said party of the third part, the sum of 9500 being the full consideration therein mentioned. A.B. Witness, Y.Z. t>E1iDd. 177 Deed of Gift of Lands, This Indenture, made (iu duplicate) the day of i8 , BetWL-en A. B.. of, ^c, of the one part, and C. D. (the eldest son of the said A. B..) of the other part. Witnesseth. that the said A.B.. in consiJeratiun of the natural love and affection which he hath and beareth unto the said C. 1)., Doth give and grant unto the said C. D., his heirs and assigns, All that parcel or tract of land, &c., [describing the premises] , together with all and singular the appurtenances to the said parcel or tract of land and premises uelonging or in any wise appertaining. To have and to hold the said parcel and tract of land, and all and singular other the premises hereby granted, unto and to the only proper use and behoof of the said C. D., his heirs and assigns, forever. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year above written. Signed, sealed and delivered in the presence of A,. B. [L.S.] Y. Z. AJidavit of Execution of Deed County of ) I, Y. Z , of, Sec, [state here the name, ii» full, of To'wit : I the witness ; his place of residence and oceupation] make oath and say : — 1. That I was personally present and did see the within instru- ment and duplicate duly signeJ, sealed and executed by the parties thereto. 2. That the said instrument and duplicate were executed at 3. That I know the said parties. 4. That I am a subscribing witness to the said ibstrument and duplicate. Sworn before me at in the county of this day of 18 . A Commissioner for taking Affidavits, dc. Deed of Right of Way. of 18 , between A. B., This Indenture made this day of. etc., and C. D., of, etc. Witnesseth that the said A. B. for and in consideration of the sum of 9 lawful money of Canada to him in hand well and truly paid, the receipt whereof is hereby acknowledged, hatli 12 178 THE CANADIAN LAWYER. granted, bargained and sold, and by these presents doth grant, bargain and sell unto the said C. D., his heirs and assigns, the free and uninterrupted use, liberty and privilege of, and passage in and along, a certain alley or passage of feet in bread' h by feet in depth, extending [describe the passage] together with free ingress, egress and regress to and for the said C. D., his heirs and assigns, and his and their tenants and under-tenants as by him or them shall seem necessary or convenient, at all times and seasons for ever hereafter, into, along, upon, and out of the said alley or passage, in common with him the said A. B., his heirs and assigns, and his and their tenants and under-tenants; to have and to hold all and singulA- the privileges aforesaid to him the said C. D.. his heirs and assigns, to his and their only proper use and behoof, in common with him the said A. B., his heirs and assigns as aforesaid for ever. [Add stipulations as to meeting expenses of paving, repairing, etc., alley, if thought necessary.] In witness whereof, etc. y. Z. A. B. [L.S.] ;t Release of Dower. This Indenture made (»« duplicate) the day of one thousand eight hundred and eighty , between A. B., of, etc., of the first part, and C. D., of, etc., of the second part. Whereas, E. B., late of the of , in the county of I in the Province of by an Indenture dated the day of one thousand eight hundred and for the consideration therein mentioned did grant and convey to the aforesaid C. D., therein described, his heirs and assigns, all that certain piece or parcel of land, situate, lying and being {describe lands.) And whereas the said E. B. departed this life on the day of one thousand eight hundred and leaving his wife the party of the first part him surviving. And whereas the said party of the first part, the wife of the said E. B. did not join in the execution of the said Indenture, and at th.> request of the said party of the second part she hath agreed tu execute these presents for the purpose of releasing her dower in the said lands and premises hereinbefore described. Now this Indenture witnesseth, that the said party of the first part, in consideration of the premises and of the sum of dollars of lawful money of Canada to her in hand well and truly paid by the said party of the second part, the receipt whereof is hereby acknowledged, doth grant, release and quit claim unto the said party of the second part, his heirs and assigns, all dower and all right and title thereto which she the said party of the first part now hath in the said lands before mentioned, or can or may or could or might hereafter in anywise have or claim whether at . l>t:Et)d. 179 Common law or otherwise howsoever in to or out of the lands and premises before mentioned and described. To have and to hold the same unto the said party of the second part, his heirs and assigns for ever. In witness whereof, the said parlies hereto have hereunto set their hands and seals. Signed, sealed and delivered in the presence of A. B. [l.s] Y. Z. Deed of Quit Claim. This Indenture made {in duplicate), the day of in the year of our Lord one thousand eight hundred and eighty , between A. B., of, etc., of the first part, and C. D., of, etc., of the second part. Witnesseth, that the said party of the first part for and in consideration of of lawful money of Canada to him in hand paid by the said party of the second part at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged) hath granted, released, and quitted claim, and by these presents doth grant, release, and quit claim unto the said party of the second part, his heirs and assigns for ever : all the estate, right, title, interest, claim and demand whatsoever, both at law and in equity, or otherwise, howsoever and whether in possession or expectancy of him the said party of the first part of into or out of all and singular that certain parcel or tract of land and premises situate, lying and being {describe lands,) Together with the appurtenances thereunto belonging or appertaining To have and to hold the aforesaid lands and premises with all and singular the appurtenances thereto belonging and apper- taining unto and to the use of the said party of the second part, his heirs and assigns for ever, subject nevertheless to the reserva- tions, limitations, provisoes an'l conditions expressed in the original grant thereof from the Crown In witness whereof the said [ ariies to these presents have hei unto set their hands and seals. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. IMAGE EVALUATION TEST TARGET (MT-3) A O ^ .5^^. .>V%^ V^ f/. % 1.0 f^^ I 1^ IM I.I 2.5 s !,- lllll^ us 2.0 m 1.25 1.4 1.6 ^ 6" - ^ 7i V Hiotographic Sciences Corporation ^ 4 1 ,v :1>^ <^ >* ^, '^: 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4503 4^ 4^ ■"4 ^ ^ 'A X 1^ I'HE CANADIaK LaWV£8. DITCHES AND WATERCOURSES. ONTARIO. Throughoti'; the Provinces of Canada the rights of land owners are, as a rule, governed by the English comnrion law. But, in these Provinces, it was early recognized that the circumstances under which new districts must, to meet the demands of settlement, be quickly brought from a condition of unbroken forest to that of arable or farm land, are naturally different from those which exist where lands have been cleared, settled and cultivated for centuries. To render that law more suitable to a new country, certain alterations were consequently demanded, and such will be found to be generally made by statute wherever reasonably necessary. Thus, under the old law of England, a field or farm might imperatively require, for its proper cultivation, drainage through channels over the land of an adjoining owner, or of some other owner, whose consent to the construction of such drain would have to be secured, by purchase or otherwise. Should such owner refuse to accord it, no drainage could be effected, no matter how necessary to render his neighbour's field or farm cultivable. To remedy this state of the law, the legislatures of certain Provinces have framed statutes for the purpose of enabling such drainage to be carried out in a simple and inexpensive manner, with a just regard, as far as possible, to the rights of all parties interested. The provisions of the law in Ontario arc frovemed ! I DITCHES AND WATERCOURSES. 181 by "The Ditches and Watercourses Act, 1883," and amendments, and are as follcrws : Where lands, whether immediately adjoining or not, would be benefitted by the making of a ditch or drain, or by deepening or widening a ditch or drain already made in a natural watercourse, or by making, deepen- ing or widening a ditch or drain for the purpose of taking off surplus water, or in order to enable the owners or occupiers of the lands the better to cultivate or use them, the respective owners shall open and make, deepen or widen such drain. Each must under- take a just and fair proportion of the work, according to the interest he may have in its construction. Even should one owner possess no interest whatever in the proposed drain to be made across his land, as in no way benefitting him, he yet cannot on that ground ob- ject to its construction, if beneficial to others ; though, of course, he could not, in that case, be called upon to share the expense of it. And such ditches or drains, once opened, deepened or widened, must be kept up and maintained in the same proportion (according to interest) by the owners and their successors in the ownership of the lands, unless altered circumstances demand other arrangements. The ditch or drain must be continued to a proper outlet, so that no lands, unless with the consent of the owner, shall be overflowed or flooded by reason of it. It is lawful to construct it through one, or any number of lots, until the proper outlet is reached. An officer denominated an engineer is appointed by every Municipal Council ; any person whom the Coun- cil deem competent may be appointed. Where it is desired to have such ditch or drain af> 182 THE CANADIAN LAWYER. the statute authorizes constructed, and the owners dis- pute as to the proportions m which the works should be performed by them, the course to be pursued is as follows : Any owner may serve upon the other owners or occupants of the lands to be affected a notice in writing signed by- him in the form hereafter given marked B, or to the like eftcct, naming a day, hour and place convenient to such ditch or drain at which the parties are to meet, and, if possible, come to an agree- ment. Such notice must be scived not less than six clear days before the time of meeting. If at the meet- ing an agreement is come to, it is reduced to writing according to form A, hereafter given, or to the like effect, and is signed by all the parties. It must then be filed, within four clear days of the signing, with the clerk of the municipality in which the land requiring the ditch or drain is situate. It may thereafter be en- forced, if necessary, like an award of the engineer. If no agreement is come to, any owner may file with the aforesaid clerk a requisition, shortly describing the ditch or drain, and naming the lands which will be affected by it, as well as the several owners, and re- questing that the engineer sliall attend at the time and place named in the requisition, which is made out according to form C, or to the like effect. The requisi- tion must be filed with the clerk not less than six clear days before the day of meetirg appointed therein. A notice (Form D, or to the like effect) must also be served upon all the persons named in the requisition, at least four clear days, to secure their attendance. Where such notice is served upon an occupant who is. not the owner of the land he occupies, it is his duty immediately to notify the owner, failing in wliiglj h^ i§ DITCHES AND WATERCOURSES. 183 I liable for all damages sufiered by such owner by reason of his neglect. It is the engineer's duty, upon receiving from the clerk a copy of the requisition, to attend at the time and place named therein and examine the premises. If he deems it proper, or if any of the parties request it, he may hear evidence of the parties or their witnesses on oath. He may also adjourn such examination and may require any other parties interested in the ditch or drain to attend, requiring the usual notice to be served upon them. If he concludes that the work is neces- sary, he is to make his award in writing, within thirty days from his receipt of the requisition, specifying clearly the locality, description and course of the drain, its points of commencement and termination, the por- tion of the work which each of the parties is to do, and the time in which it must be completed, the amount of his fees and other charges, and by whom these are to be paid. This award is in form E, or to the like effect, and is to be filed by the engineer with the clerk, who thereupon notifies each of the persons affected thereby of such filing. Any interested person affected by the award may, within fifteen days of its filing, appeal therefrom to the County Judge in the manner laid down in the Act. The municipality pays the engineer's fees, and also pays any other fees or costs awarded to any person ; and, unless such be repaid by the person liable under the award, the whole amount is placed upon the collector's roll as a charge upon such person's lands in 'le same manner as municipal taxes. Provision is also made for the inspection of the work by the engi- Leer after the time limited in his award for its comple- tion 'f should he then find th^ siame not completed m 184 THE CANADIAN LAWVEB. accordance with the award, he may let the same in sections, after giving four clear days' notice in writing of his intention. The extra costs attending this pro- ceeding, together with ten per cent, added, if not paid by the paity liable, are placed in the collector's roll as before. The drain may be continued into an adjoin' ^g muni* cipality. No unauthorized person shall use u ditch or drain constructed under the Act, save pursuant to its provisions. All notices under the provisions of the Act are to be served personally, or by leaving the same at the place of abode of the owner or occupant, with a grown up person residing thereat ; and in case of non-residents (who are persons residing out of the municipality in which the lands are situate) then upon the agent ot the owner, or by registered letter add esse J to the said owner at the post-office nearest to his last known place of abode. The fees of the engineer are fixed by the Council ; the fees to witnesses and for the service of papers are the ordinary Division Court fees. FORMS. A. Town;.hip of Whereas it is found necessary tliat a ditch or drnin should be made (deepened or widened) on Lot No. in the concession of the Township of and it is necessary to continue the same through lot number in the > oncession of the township of ^if more thun one lot, dauiibe them). '. m »g o- id IS 1- )r s »e ;e P ;s n le d ;e < DITCHES AND WATEBCOUBSES. 185 Therefore we owners of the land hereinafter <* .scribed, do agree each with the other as follows: — That I, owner of {describe lot) agree that I will make (deepen or widen) and maintain that part of such ditch or drain commencing at stake number one planted {de- scribing the locality of said stake) and thence to stake number two, and that said portion of said ditch or drain shall be {describing depth and width) and I, owner of (giving the name of each person, the land owned by him, then the portion of work assigned, its depth, width, etc.), and each of us agrees to have our said respective portions completed on or before the dav of A.D. 18 Dated, ) (Signed by the Parties.) Witness, / B. Township of To Sir, — As the owner of lot number in the conces:>ion of the Township of 1 require to construct a ditch or drain through said lot, and find it necessary to continue the san.e throuiEih your land, being lot number in the concession of the Township of under the Ditches and Watercourses Act, 1883, and request that you will attend at on the day of 18 at the hour of o'clock, in the noon, with the object of agreeing, if possible, upon the respective portions of such ditch or drain to be made, deepened or widened by the several parties interested. Dated this day of 18 Yours, &c. C. To of Clerk of the municipality of the Sir, — As the owner of lot number in the concession of the Township of I require to construct a ditch or drain through said lot, and it will be necessary to continue the ditch or drain through the following lands-<-on lot number in the concession of the Township of owned by Lot number in the concession of the Township of owned by {describe each lot through which the ditch or drain must be continued, and the name of the owner of each parcel), and having failed to agree upon the respective portions to be ma.ie by each, I {or we) lecjuire the engineerappointed by the municipality 186 THE CANADIAN LAWYER. for the purpose, to attend at the locality of said proposed ditch or drain on the day of i8 at the hour of o'clock in the noon, examine the premises, hear the parties and their witnesses, and make his award under the provisions of the Ditches and Watercourses Act, 18S3. Dated (Signed by Party or Parties.) D. To Take notice that the enfjine jr appointed by the municipality for the purpose will attend at lot number in the con- cession of on the day of A.D. 18 at the hour of o'clock in the noon, to examine the site of the proposed ditch or drain and make his award therein ; and you as the owner of (describe the lot) which may be affected thereby, are requested to attend (with any witnesses you may desire to have heard) at said time and place. Dated Yours, &c. BRITISH COLUMBIA. Under "The Draina ) > < b < X X H o D (A 03 IZi o o 3 4 o to 1 <3 O "" _ s.s « •* 5»; S--5 C ^ Id o e S a— •• I— >- o Bge-S*;-?* I ■ e-S '-■''Xi o P4 ' 00 « b •♦* B *» •S2®9£^ Ba « o j;5 o S e Q^ »^" c £ »-s o a " u a> "is B in II •§^ Is •c s o C « o 5 II P j5 Oi^'S 8] CD F< o ^ B V O Q 00 d iz; a o •■« ■ *a o a •2 2 2 o a .S o « o $ so o .2 o 3 P-b5 a- '^a .a *ja^ S P50§ "2 o a e 3 B-^.B .aao'3' c4 214 THE CANADIAN LAWYER. Affidavit for nttachment. {If tnciiie after suit commenced, insert style of Court and cause.) I, A. B., of the in the County of , (or I, E. F., of, &c., agent for the said A. B., of, &c.,') make oath and say : — ist. That C. D., of {or late of) in the County of is justly and truly indebted to me, {or to the said A. B.) in the sum of dollars and cents, on a promissory note for the payment of dollars and cents, made by the said CD, payaisle to me {or the said A. B.) at a day now past ; Or for goods sold and delivered\ by me {or the said A. B.) to the said C. D. Or for goods bargained and sold Or for crops bargained and sold Or for money lent Or for money paid for the said | CD. • / Or for and in respect of my {or the said A.B.) having relinquished and given up to and in favor of the said C. D., at his request, the benefit and advantage of work done and materials found and pro- vided and moneys expended by me (or the said A. B.) in and about the farming, sowing, cultivating and improving of certain land and premises ; Or for the use by the said C. D., by my permission {or by the permission of the said A. B.) of messuages and lands of me {or the said A. B.); Or for the use by the said C D. of pasture land of me {or the said A. B.) and the eatage of the grass and herbage thereon, by the permission of me {or the said A. B.) ; Or for the wharfage and warehouse room of goods deposited, stowed and kept by me {or the said A. B.) in and upon a wharf, warehouse and premises of me {or the said A. B.) for the said C. D., at his request ; Or for horse-meat, stabling, care and attendance provided and bestowed by me {or the said A. B.) in feeding and keeping horses for the said C. D., at his request; or for work done and materials provided by me {or the said A. B.) for the said C D., at his request ; Or for expenses necessarily incurred by me {or the said A. B.) in attending as a witness for the said C D., at his request, to give evidence upon the trial of an action at law then depending in the Court, wherein the said C. D. was plaintiff, and one E. F. defendant ; Or for money received by the said C D. for my use {or for the use of the said A. B.) ; Or for money found to be due from the said C. D. to me, {or to the said A. B.) on an account stated between them, {or other cause of action, stating the same in ordinary and concise language.) 21 veri the of cut ( att< ext all ex« tb wi hi tc DIVISION COURTS. 216 If 2nd. I further say that I have good reason to believe and do verily believe that 'the said C. D. hath absconded from that part of the ■ ominion of Canada, which heretofore constituted the Province of Canada, leaving personal property liable to seizure under exe- cution for debt in the County of in this Province.* (Or, instead of matter between the asterisks, the said C. D. hath attempted to remove his personal property, liable to seizure under execution for debt, out of this Province ; or the said C. D. hath attempted to remove his personal property liable to seizure under execution for debt from the County of to the County of , in this Province ; or the said C. D. keeps concealed in the County of in this Province to avoid service of process) with intent and design to defraud me {or the said A. B.) of my {or his) said debt. 3rd. That this affidavit is not made by me, nor the process thereon to be issued, from any vexatious or malicious motive whatever. Sworn, &c. A. B. Replevin. Affidavit to obtain yttdge^s order for writ of replevin. In the Division Court in the County of County of , to wit : I, A. B., of make oath and say: ist. That I am the owner of {describe property fully) at present in the possession of C. D.; or that I am entitled to the immediate possession of {describe property), as lessee, (bailee, or agent), of E. F., the owner thereof; or as trust^'e for E. F.) {or as the case may be), at present in the possession of C. D. 2nd. That the said goods, chattels, and personal property are of the value of dollars, and not exceeding $60. 3vd. That on or about the diy of , the sai I goods, chattels, and personal property, were lent to the said C. D., for a period which has expired, and that although the said goods, chattels and personal property have been demanded from the said C. D., he wrongfully withholds and detains the same from me, the said A. B.; or, that on or about the day of , the said C. D. fraudulently obtained possession of the said goods, chattels and personal property, by falsely representing that {here state the false representation), and now wrongfully withholds and detains the same from me ; or, that the said goods, chattels and personal property were on the day of last, dis- trained or taken by the said C. D., under color of a distress for 216 THB CANADIAN LAWYER. rent, alleged to be due by me, to one E. F., when in fact no rent was due by me to the said E. F., (or as the case may be, setting out the facts of the wrongful taking or detention complained of with certainty and precision!) 4th. That the said C. D. resides {or carries on business at , within the limits of the Division Court in the County of , (or that the said goods, chattels and personal property were distrained^, (or taken and detained), (or detained! at within the limits of the Division Court of tlie County of Sworn, &c. A. B. Affidavit to obtain writ without order in first instance. [The first four sections may be as above, and the following must be stated in addition :] 5th. That the said personal property was wrongfully taken, (or fraudulently got) out of my possession w^ithin two calendar months before the making of this affidavit, that is to saj^ on the day of last. Cth. 1 am advised and believe that I am entitled to an order for the writ of replevin now applied for, and I have good reason to apprehend, and do apprehend, that unless the said writ is issued without waiting for an order, the delay will materially prejudice my just rights ia respect to the said property. [Or if the property was distrained for rent, or damage feasant, then the statement given in the last specific alternative under the yd clause of the above form will be sufficient to obtain writ without order.] Claim of Replevin. In the Division Court in the County of A. B., of , states that C. D., of , did on or about the day of , A. D. 18 , take and unjustly detain (or detain, as the case maybe), and still doth detain his goods, chattels and personal property, that is to say (here set out the description of property) which the said A. B. alleges to be of the value of dollars; whereby he hath sustained damages ; and the said A. B. claims the said property with damages in this behalf as his just remedy. A.13. DIVISION COURTS. 217 of |rty of tsi or hs or to Bd Particulars in cases of contract. A. B., of , claims of C. D., of , the sum of 9 , the amount of the following account, viz., {or the amount of the note, a copy of which is under written,) together with the interest thereon, [or, for that the said C. D. promised {here state shortly the promise) which undertaking the said C. D. hath nut p)erformedj or, for that the said C. D. by deed under his seal dated the day of , A. D. i8 , covenanted to, &c., and that the said C. D. hath broken said covenant whereby the said A. B. hath sustained damages to the amount aforesaid : or, for money agreed by the said C. D. to be paid by the said A. B., together with a horse of the said C. D., in exchange for a horse of the said A. B., delivered by the sfiift A. H. to the said C. D. ; or for that the said C. D., by warranting a b'>rse to be then sound and quiet to ride, sold the said horse to the said A. B., yet the said horse was not then sound and quiet to ride; or for that the said C. D., in consideration that the said A. B. would supply E. F. with goods on credit, promised the said A. B., that he, the said C. D. would be answerable to the said A. B. for the same, that the said C. D. did accordingly supply the said E. F. with godUs to the price of 9 and upwards, on credit, that such credit has expired, yet ntither the said E. F. nor the said C. D. has as yet paid for the said goods ; or for that the said A. B. let to the said C. D. a house for seven years to hold from the day of , A. D. , at $ a year, payable quarterly, of which rent quarters are due and unpaid. {The above forms are given merely as examples of statements of causes of action, and the claim must show such further particulars as the facts of the case require.) Particulars in cases of tort* A.B. of , states that C. D. of , did, on or about the day of , A. D. i8 , at the Township of , unlawfully [take and convert one cow and one calf, the property of the said A. B. ; or break and injure a waggon of the said A. B. ; or falsely represent L. O. as fit to be trusted, the said C. D. at the said time knowing that the said L. O. was insolvent, whertSy the said A. B. was induced to give him credit : or assault and beat the said A. B. {or as the case may be, stating the tort sued for in concise language) ;J The said A. B. hath sustained thereby damages to the amount of , and claims the same of the said C. D. A. B. '■'I 218 THE CANADIAN LAWYER. Landlord's claim for rent. ( Whereas, I have been informed that you have seized the goods of C. D., of , on his premises at , to satisfy a certain judgment of the Division Court in , against the sail C. D., at the suit of A. B. ; I hereby give you notice that I am the landlord of the said premises, and that I claim 9 for rent now inarrcar, being for one quarter (eras the case may be,)Hnd I require you to pay the same to me before you apply the proceeds of the sale of said goods or any part thereof to satisfy the said judgment. E. F. Dated, &c. Landlord of the said Tenement. To V. W , Bailiff of &c. Particulars of claim on Interpleader. In the Division Court in the County of Betwuen a B , Piainiiy, AND C- E -D- -F- -, Defendant. -, Claimant. To whom it may concern — E. F., of , claims as his property the followinst goods and chattels (or moneys, &:.) seized and taken in rxecution, (or attached) as it is alleged, namely, {specify the goods and chattels, or chattels or moneys, ^c, claimed) and the grounds of claim are {set forth in ordinary languaf^e the particulars on which the claim is grounded, as how acquired, from whom, when, and the consideration faid or to be paid, and when) and this the said E. F. will maintain and prove E. F. Dated this day of , i8 . N. Vi.—If any action for the seizure has been commenced, state in what Court, and how the action stands. DIVISION COURTS. 219 f of lain JaiM (the low I ire the Int. \nt. Applictition for Judgmtnt Summons. , To X. Y., Clerk of the Division Court in the County of Be pleased to summons , of, &c., to answer accorcMng to the Statute in this behalf, touching the debt due me by the judgment of the Court of the Division Court of the County of , on my behalf, a minute whereof is hereunto annexed. A. B., Plaintiff'. ?i: Affidavit for order to garnish debt. In the Division Court in the County of Between A U , Phintiff. AND -, Dejendani. I, A. B., of the of , in the County of , the p'aintiff in this suit, {if the affidavit be made by theplaintifjTs attorney or agent, make the necessary alteration) make oath and say, that judg- ment was recovered in this case against the above named defendant on the day of A. D. i8 , for the sum of 9 debt and costs, (or according to the judgment,) and that the same remains wholly unsatisfied, (or that 8 part thereof yet remains unsatis- fied.) That I have reason to believe, and do believe, that E. F., resid- ing at within this Province is (or if the person indebted to the Defendant be not known, say " that one or more persons residing in this Province, whom I am unable to nanie, are ") indebted to the Defendant in the sum of 8 , (or if the amount be unknown, say " in an amount which I am unable to name." for goods sold and delivered by the Defendant to the said E. F., (or otherwise according to the nature of the debt sought to be garnished.) Sworn before me at the] of , in the County of this day of , . . „ A.D.I8 . ^ ^•**- X. Y.. Clerk. 220 THE CANADIAN LAWYER. De/t' lid ant's notice to the Plaintijff or Clerk. In the Division Court in the County of Between A B , Plaiul'tff. AND -D— — , Dffciuiaiit, Take notice that 1 will admit, on the trial, the first, second and third items of the Plaintiff's particulars to be correct [or the sign- ing and endorsement of the promissory note sued upon {or as the cane may be)] or Take notice that I dispute the claim of the Plaintiff in full {or here specify all or any of the grounds of defence.) Dated the day of , A. D. i8 Yours, &c., C. D.. Defendant. To the Plaintift (or to the Clerk of the said Court.) The several grounds of defence may be stated as follows where they meet the circumstances. I. I dispute the following items of your claim, viz., {here specify the items), and admit the residue. Or 2. I will on the trial claim a set-off against your demand, and the particulars thereof rxe hereunto annexed. Or 3. I will on the trial insist that your claim is barred by the Statute of Limitations {or other statutory defence.) Or 4. I will on the trial insist that I am discharged from pay- ment of your claim by the provisions of the Insolvent Act. Or 5. T will admit on the trial the 1st, gth, nth (or other) items of your j.: fticulars of account to be correct. Or 6. I will admit on the trial the signing [or endorsement] of the promissory note [or bill of exchange] sued upon, {or as the case may be), and deny the residue of your claim. Or 7. I will on the trial insist that you are not a duly certified Attorney or Solicitor. Or 8 I will insist as a defence upon the trial that you have not given the proper notice of action before suit to which I am entitled as a Justice of the Peace {or Peace officer) under Rev. Stat, of Ont. cap. 73, wr as a Bailiff of the Division Court under the 231 sec. of the Division Courts Act. at T d< th n ftlVlSlOK COURTS. 221 Affirmation by Quakers, &>€., and Jurat thereto. (Court and style of cause.) I, A. B., of , &c., do solemnly, sincerely and truly declare and affirm that I am one of the Society called Quakers {or Menonisis, Tunkers, Unitas Fratrum or Moravians, as the case may be), and I do also solemnly, sincerely and truly declare and affirm as follows, that is to say {state the fads.) Solemnly affirmed at^ A. B. , in the County of , on , before me. / X. Y.. Clerk, &c. * Or as the case may be. Affidavit of Disbursements to several witnesses. In the Division Court in the County of Between A B , Plaintiff, AND -, Defendant. I, A. B., of , the above Plaintiff {or C. D.. the above De- fendant, or £. F., agent for the above Plaintiff or f^efendant) make oath and say : ist. That the several persons whose names are mentioned in the first column of the schedule at the foot hereof were necessary and material witnesses on my behalf {or on behalf of the said Plaintifl or Defendant) and attended at the sittings of this Court on the day of as witnesses on my behalf {or on behalf of the said Defendant or Plaintiff) and that they did not attend as witnesses in any other cause ; {if otherwise, state the facts.) 2nd. That the said witnesses necessarily travelled in going to the said Court, the number of miles respectively mentioned in figures in the second column of the said schedule opposite to the names of each of the said witnesses respectively, 3rd. That the severe ' and respective sums of money mentioned in figures in the third column of the said schedule opposite to the names of the said witnesses respectively, have been paid by me {or by the Plaintiff or Defendant) to the said witnesses respectively as in the said schedule set forth for their attendance and travel as witnesses in this cause. Sworn before me at this day of A. B. 18 X. Y. CUrk. 222 THE CANADIAN LAWYER. Schedule re/erred to in the foregoiiifr Affidavit. Affidavit for revival o/yudgment. In the Division Court, in the County of Between A B , Plaintiff, AND -, Defendant. I, A. B,. of the of , in the County of , yeoman {if the affidavit be made by the Plaintiff^ s attorney or agent, with the necessary alteration), make oath and say as follows : ist. On the day of , A. D. i8 ,1 recovered a judgment of this Court against the above named Defendant for % , debt, and 9 i costs of suit. 2nd. No part of said moneys so recovered has been paid or satis- fied, and the said judgment remains in full force (or " the sum of , part only of the said moneys has been paid, and the judg- ment remains in full force as to the residue of the said moneys so recovered thereby.") 3rd. I {or the said Plaintiff) am entitled to have execution of the said judgment, and to issue execution thereupon (for the sum of 9 ) as I verily believe. Sworn, &c. THE CANADIAN LAWYER. 223 agent, jvered mi for ' satis- iUID of ! judg- eys so ion of le sum EXEMPTIONS FROM SEIZURE FOR DEBT. The policy of exempting from seizure for debt certain goods and chattels of the debtor, and of permitting him to retain these notwithstanding the amount or number of the debts he may owe, is one generally recognized in all the Provinces. This policy is based upon the general belief that, were the creditor per- mitted by law to strip his debtor of all the simplest necessaries of life, leaving the latter altogether depen- dent upon charity, no commensurate good would be accomplished, while the result would be prejudicial to the interests of the community at large, and even opposed to the commonest sentiments of humanity. Seizures are generally of two kinds : one under land- lord's warrant of distress for overdue rent, and the other under warrant or writ of execution for judgment debts. Exemptions from seizure under the first class may be summed up as follows : (i) Things fixed to the freehold (even though the tenant may remove them), as kitchen ranges, coppers, grates, etc. (ii) Chattels not belonging to the tenant, but happening to be upon the premises to be attended to, repaired of worked up in the way of his trade, as a horse left with a blacksmith to be shod, a coat delivered to a tailor to be repaired, goods left with an auctioneer for sale, or with a wharfinger or warehouseman for safe keeping, (iii) Chattels actually at the time in use by some person, as the horse a man is riding, the coat he is wearing, etc. (iv) Goods belonging to guests at an inn. (v) Goods in custody of the law. (vi) Wild 224 'mU CANADIATJ LAtVYEli. anin. *ls. (vii) Any perishable article, such as butcher's meat. The foregoing are absolutely privileged from seizure. Certain other chattels are said to be condition- ally privileged, that is, they may not be seized if any other sufficient distress is found available on the premises. Such are, beasts of the plow, instruments of husbandry, and the implements or instruments of a man's trade or profession. With regard to the second class, namely, seizures- under writs of execution, the exemptions in the various Provinces are as follows : ONTARIO. The exemptions from seizure under execution, as set out in the Revised Statutes, cap. 66, are as follows ; 2. The following chattels are hereby declared exempt from seizure under any wiit, in respect of which this Province has legislative authority, issued out of any Court whatever in this Province, namely : 1. The bed, bedding and bedsteads in ordinary use by the debtor and his iamily ; 2. The necessary and ordinary wearing apparel of the debtor and his family ; 3. One stove and pipes, and one craae and its appendages, and one pair of andirons, one set of cooking utensils, one pair of tongs and shovel, one table, six chairs, six knives, six forks, six plates, six teacups, six saucers, one sugar basin, one milk-jug, one teapoti six spoons, all spinning wheels and weaving loomH in domestic use, and ten volumes of books, one axe, one saw, one gun, six traps, and such tishing nets and seines as are in common use ; 4. All necessary fuel, meat, fish, flour and vegetables, actually provided for family use, not more than sufficient for the ordinary consumption of the debtor and his family for thirty days, and not exceeding in value the sum of forty dollars ; 5. One cow, four sheep, two hogs, and food therefor for thirty days; 6. Tools and implements of, or chattels ordinarily used in, the debtor's occupation, to the value of sixty dollars. 23 V. c. 25. s. 4 (1-6). Set 23 V. c. 25, s. 3. 7. Bees reared and kept in hives to the extent of fifteeA hives. a9 V. c. 8, s. a. Stt Rtv. Stat. c. 96, s. a. EXEMPTIONS FHOM SEIZURE FOB DEBT. 225 By '♦ The Free Grant and Homesteads Act," R. S. O. cap. 24, the lands located under such free grants are exempt from seizure as follows : I8> No land located as af ^msaid, nor any interest therein, shall in any event be or become liable to the satisfaction of any debt or liability contracted or incurred by the locatee, his widow, heirs or devisees, before tiie issuing of the patent for such land. 2. After the issuing of the patent for any such land, and while such land or any part thereof, or any interest therein, is invned by the locatee or his widow, heirs or devisees, such land, part or interest, shall during the twenty years next after the date of such location be exempt from attachment, levy under execution, or sale for payment of debts, and shall not be or become liable to the satisfaction of any debt or liability contracted or incurred before or during that period, s^ive and except any debt secured by a valid mortgage or pledge of such land made subsequently to the issuing of the patent. 31 V.c. 8, s. 14. 19. Nothing in this Act shall be construed to exempt any land from levy or sale for rates or taxes heretofore or hereafter legally impos.d. 31V. C.8, s. 15. NOVA SCOTIA. ■ The exemptions from seizure under execution, as set out in the Revised Statutes, cap. 104, sec. 40, are as follows : 40. The necessary wearing apparel and bedding of the debtor and his family, and the tools or instruments of his trade or calling, one stove, and his last cow, shall be exempted from execution. NEW BRUNSWICK. By the R. S. N. B., cap. 47, exemptions are as follows : — The wearing apparel, bedding, kitchen utensils, and tools of his trade or calling, to the value of one hundred dollars, of any debtor, shall be exempt from levy or sale under execution. The interest of the allottee in free grant lands, before the issue of the patent, can not be taken in execution. 15 226 THE CANADIAN LAWYER. PRINCB EDWARD ISLAND. By Revised Stp* . ^o Vict., cap. i8, exemptions are as follows : — The necessary wearing apparel and bedding of the debtor and liis family, and the tooLs ntiJ instruments of his trade or callin.e;, five pounds in money, and hi^ st c . ^re exempted from execution. MANITOBA. The following personal and real estate are declared by statute exempt from seizure by virtue of all writs of execution issued by any Court in the Province, namely : 1. The bed, the bedding and bedsteads in the common use of the defendant and his family ; 2. The necessary and ordinary clothing of the defendant and his family ; 3. The necessary stoves, with their pipes, for the domestic use of the defendant and his family, a table, the necessary and ordinary kitchen utensils and table crockery belonging to the defendant and his family ; a spinning wheel, a weaver's loom, the books of a pro- fessional man, one axe, one saw, one gun, .'.ix trapis, the nets and seines used by the defesdant ; 4. The necessary food for the defendant's family during thirty days ; 5. Two cows, two oxen, two horses or mulss, four sheep, two pigs, twelve fowls, and the foo 1 for the same for sixty days ; Provided, however, that such exemption as to horses shall apply only in case they are used by the owner in earning his livmg. 6. The tools and necessaries used by the defendant in the prac- tice of his trade or profession, to the value of one hundred dollars, if the defendant is a mechanic, but up to the value of two hundred dollars if the defendant is a farmer or a professional man ; 7. The articles and furniture necessary to the performance of religious services ; 8. The land cultivated by the defendant, provided the extent of the same be not more than one hundred and sixty acres ; in case it be more, the surplus may be sold, subject to any lien or encum- brances thereon ; 9. The house, stables, barns and fences on the defendant's farm, subject, however, as aforesaid. The defendant is entitled to a choice from the greater quantity of the same kind of articles v/hich are exempted from seizure. EXE?.IPriONS FROM SEIZURE FOB DEBT. 227 BRITISH COLUMBIA. The following persvonal property is exempt from forced seizure or sale, by any process of law or in equity, or from any process in bankruptcy, that is to say: The goods and chattels of any debtor or bankrupt, at the option of such debtor or bankrupt, or if dead, of his personal represen- tative, to the value of five hundred dollars, the same not being homestead property under the provisions of the " Homestead Ordinance, 1867." A homestead registered in pursuance of the provisions of cap. 77, R. S. B. C, is free from forced seizure or sale as afovesaid for or on account of any debt or liability incurred after such registration, provided it be of a value not greater tbaa 9^\5oo ; aad if of greater value. th.« excess QvJy is liahir 228 THE CANADIAN LAWYER. GUARANTIES. A guaranty is a promise or agreement to answer or be responsible for the payment ot some debt, or the performance of some duty of another person (who is in the first instance liable) should that person fail to pay such debt or perform such duty. Guaranties must be in writing, that is, before they can be enforced in a Court of law the agreement itself, or some memorandum or note of it, must be in writing and signed by the party making it, or who is to be held responsible upon it, or by an agent lawfully authorized to sign it. A verbal guaranty is therefore worthless. To constitute a concluded or perfect agreement of guaranty, it should be accepted by the party to whom it is offered, and his acceptance of it notified to the maker, and assented to by him. The amount guaran- teed need not necessarily appear on the writing, al- though it is proper that the instrument be fully and carefully worded. Where given to or by a firm or partnership, any change in the firm by the addition or withdrawal of one or more partners renders it void, un- less it be otherwise expressed or provided. As a rule, it is best to mention in the written guar- anty the consideration upon which it is given, though in Ontario this is, by statute, no longer necessary. *i I GUARANTIES. 229 FORMS. Guaranty for goods to be furnished. In consideration that A. 15. will furnish dry goods and millinery to a value not exceeding one thousand dollars to C. D., of , I hereby guarantee to him, the said A. B., that such goods to the value furnished (but not exceeding the said sum) will be paid for within the usual time by the said C. D., and if not by him, then by ire. This guaranty to continue in force one year and no longer. E. F. Guaranty for a clerk. In consideration that the directors of the Union Bank do engage and receive into their employ A. B. as a clerk, I guarantee that he will well and faithfully and honestly serve them as such, duly accounting for all moneys, property and securities committed to his care as such clerk, and that I will reimburse them for any losses occurring through his misconduct or dishonesty. £. F. Guaranty for a servant. To Mr. John Edwards, Burlington, Ont.: Sir, — If you will engage Patrick Stevens as coachman, I guaran- tee to be responsible for any loss you may suffer by reason of any incompetency or neglect of duty of his in such employment during the space of six months. Simon Street. 280 TBB CANADIAN LAWYER. LANDLORD AND TENANT. The relation of landlord and tenant is that which subsists between the owner of houses or lands, and the person to whom he grants the use of them. It may be created by contract in writing, as a lease, or agreement for a lease ; or by verbal agreement, as is usually the case in a letting from year to year. The owner, who is called the landlord or lessor, grants the possession and use of the property to the tenant or lessee for a speci- fied time ii consideration of the payment of a stipulated sum of money called rent. A lease may be made for the life of either the land- lord or the tenant, or it may be made for any number of years, or it may be at will, — that is, determinable at any moment at the will, properly signified, of either the lessor or lessee. An agreement for a lease must be in writing, and in Ontario and New Brunswick all leases exceeding three j'ears in duration must be by deed, or the tenancy will be held in law a tenancy at will only ; and if for more than seven years they must also be registered. A lease in writing, not under seal, for a term not exceeding three years in duration will in Ontario amount only to an agreement lor a lease for the term specified. Leases in writing should be made in dupli- cate, one copy ior each party ; and it is prudent in all cases that the lease should be in writing ; a written lease containing fully the terms agreed upon tends to prevent disputes and litigation. Landlord and tF/ioo ^t 50 " " over 100 and under 300 i 75 " " over 300 200 Man keeping possession per diem 2 00 Appraisement, v\hether by one appraiser, or more, 2 cents in the dollar on value of the goods. (atalogue, sale and commission, and delivery of goods : — On the net produce of the sale, if under 9too — ten cents in the dollar ; if over $100 and under $300 — eight cents; and if over I1300 — six cents. I.:' ■'I *■ I A copy of the distress must be served, and the pen- alty for overcharge is the same as provided in Man- itoba. FORMS. Lease of House. This Indenture, made the day of , 18 , betvi-een A. B., of, &c., of the first part, and C. D., of. &c., of the second part, Witnesseth, that in consi deration of the rents, covenants and agreements hereinafter reserved and contained on the part of the said party of the second part, his executors, administrators and assigns, to be paid, observed and performed, he, the said party of the first part, bath demised and leased, and by these presents doth demise and lease, unto the said party of the second part, his exe- cutors, administrators and ass^igns, all that messuage or tenement situate, lying and being, &c., {here describt the premises) together with all houses, out-bouses, yards and other appurtenances thereto belonging, or usually known as part or parcel thereof, or as belong- ing thereto : to have and to hold* the same for and during the term of years, to be compute from the day of 16 242 THE CANADIAN LAWYETl. i8 , and from thenceforth next ensuing, and fully to be completed and ended. Yielding and paying therefor yearly and every year during the said term hereby granted unto the said party of the first part, his heirs, executors, administrators or assigns, the sum of $ , to be payable quarterly on the following days and times, that is to say, {here state the days of payment) the first of such payments to become due and be made on the day of next. Provided always, and these presents are upon this express con- dition, that if the said yearly rent, hereby reserved, or any part thereof, shall at any time remain behind or unpaid for the space of twenty-one days next over or after any of the days on which the same shall become due and payable, then, and in every such case. it shall be lawful for the said pnrty of the first part, his heirs, exe- cutors, administrators, or assigns, into and upon the said premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess and enjoy, as if these presents had never been executed. And the said party of the second part, for himself, his heirs, executors, administrators and assigns, doth hereby covenant, promise and agree to and with the said party of the first part, hi.i heirs, executors, administrators and assigns, in manner following, that is to say ; That he, the said party of the second part, his executors, adminis- trators and assigns, shall and will well and truly pay, or cause to be paid, to the said party of the first part, his heirs, executors, adminis- trators, or assigns, the said yearly rent hereby reserved at the times and in manner hereinbefore appointed for payment thereof. And also shall and will, from time to time, and at all times durin;? the said term, keep in good and suflicient repair the said premise s hereby demised (reasonable wear and tear and accident by fire ex- cepted), and the same so kept in repair shall and will, at the end, expiration or other sooner determination of the said term, peaceably and quietly yield and deliver up to the said party of the first part, his heirs, executors, administrators or assigns. And also shall and will well and truly pay, or cause to be paid, all taxes, rates, levies, duties, charges, assessments and impositions whatsoever, whether parliamentary, local, or otherwise, which now are, or which during the continuance of this demise shall at any time be rated, taxed or imposed on, or in respect of the said demised premises, or any part thereof. And also that it shall be lawful for the said party of the first part, his heirs, executors, administrators and assigns, and their agents respectively, either alone or with workmen or others, from time to time at all reasonable times in the daytime, during the said term, to enter upon the said demised premises, and every part thereof, to view and examine the state and condition thereof ; and in case any want of reparation or amendment be found on any such examination, the said party of the second part, bis executors, administrators or LANDtORt) AND Ti; 'i4n assigns, shall and will from time to time cause tlie same to be well and sufficiently repaired, amended, and made gdoJ, within one month next after notice in writing shall have been given to them or left at or upon the said demised premises for that purpose. And if the said party of the second part, his executors, administrators or assigns, fail in makmg the necessary repairs in manner hereinbefore described, that it shall be lawful for the said party of the hrst part, his heirs, executors, administrators and assigns, and their agents, to enter into and upon the said hereby demised premises, and have the same repaired in a proper manner, and to render the account for such repairs to the said party of the second part, his executors, administrators and assigns, and demand payment for the same, and if default is madi.\ to sue for the same in any Court of Law having jurisdisdiction over the same. And the said party of the second part, his executors, administrators or assigns, shall not, nor will at any time or times during the con- tinuance of this demise, sell, assign, let or otherwise part with this present lease, or the said premises hereby demised, or any part thereof, to any pi rson or persons whomsoever, for the whole or any part of the said term, nor alter, change or remove any part of the said premises, yards or offices, externally or internally, without the license and consent in writing of the said party of the first part, his heirs, executors, administrators and assigns, from time to time first had and obtained. And the said p irty of the first part, for himself, his heirs, execu- tors and administrators or assigns, covenants with the said party of the second part, his executors, administrators and assigns, that he, the said party of the second part, his executors, administrators and assigns, well and truly paving the rent hereinbefore reserved, and observing, performing and keeping the covenants hereinbefore con- tained, shall and may, from lime to time, and at all timesduring the said term, peaceably and quietly enjoy the said premises hereby demised, without molestation or hindrance. In witness whereof, the said pirties to these presents have here- unto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [L.S.] Lease of Land. This Indenture, made the day of , i8 , between A. B., of, &c., of the first part, and C. D., of, &c., of the second part, Witnesseth, that in consideration of the rent, covenants, and agree- ments hereinafter reserved and contained, and to be paid, observed and performed by the said party of the second part, his executors, administrators and assigns, He, the said party of the first part, Ui TllK CANADIAN LAWVER. Hath demised and leased, and by these presents Doth demise and lease, unto the said party > i the second part, his executors, adminis- tr. lors and assi^-ns, All that certain parcel or tract of land and premises situate, lying and bein^ {here describe the lands). To have and to hold the said parcel or tract of land, with the appurtenances, unto the said party of the second part, his executors, administrators and assigns, from the day of .18, for the term of , from thence next ensuing, and fully to be complete and ended, Yielding and paying therefor, unto the said party of the first part, his executors, administrators and assigns, the yearly rent or sura of 5 , of lawful money of Canada, by equal yearly pay- ments, on the day of , in each and every year during the said term, the first payment to be made on the day of , nexi ensuing tlie date hereof. {The times of payment may be quarterly or half-yearly, if desired.) And the said party of the second part, doth hereby for himself, his heirs, executors, administrators and assigns, covenant, promise and agree with and to the said party of the first part, his executors, administrators and assigns, that he, the said partv of the second part, his executors, administrators and ass'gns, shall and will well and truly pay, or cause to be paid, to tha said party of the first part, his executors, administrators or assigns, the said yearly rent here- by reserved, at the times and in n'.anner hereinbefore mentioned for payment thereof, without any deduction or abatement whatsoever thereout for or in respect of any rates, taxes, assessments, or other- wise: And also shall and wUl, on or before the day of , now next, at his own costa and charges, fence in the premises here- by demised in a goo 1 and substantial manner, {add here such cove- nants as to the mode of cultivation, &'C., as mny be agreed on.) And it is hereby agreed, on the part of the said party of the first part, his heirs, executors, administrators and assigns, that if at any time within the said term of the said party of the second part, his heirs, executors, administrators or assigns, shall desire to pur- ch..se the fee simple of the land hereby demised, he shall be allowed to do so by paying the sum of 9 , of lawful money aforesaid, provided the same rent shall have been regularly paid up to the time when he may so desire to purchase ; and provided he gives to the party of the tirst part, three months previous notice of his intention to purchase. And it is hereby agreed, on the part of the said party of the second part, his executors, administrators and assigns, that if at any time or times during the said term, the said rent, or any part thereof, shall be in arrear and unpaid for the space of thirty days after any of the days or times whereon the same ought to be paid, as afore- said, then it shall be lawful for the said party of the first part, his heirs, executors, administrators or assigns, to enter into and take possession of the premises hereby demised, whether the same be lawfully demanded or not, and the same to sell and dispose of, either by public auction or private sale, as to him or them may LANDLORD AND TENANT. S40 seem best, without the let, hindrance or deniil of him the said party of the second part, his heirs, executors, ndniinistrators and assigns: And further, that the non-fulhlment of the covenants hereinbefore mentioned, or any of them, on the part of the leiiseeor lessees, shall operate iis a forfeiture of these presents, and the same shall be con- sidered null and void to all intents and purposes whatsoever ; And also, that the said party of the second part, his executors, adminis- iralors and assigns, shall not, nor will, during th« said term, grant or demise, or assign, transfer, or set over, or otherwise, by any act or deed, procure or cause the said premises hereby demised, or intended sj lo be, or any part thereof, or any estate, term, or interest therein, to be granted, ,)!>signed, transftrred, or set over, i;nto any person or persons whatsoever, without ti.f rc.isent in writing oi ilie said party of the first part, his heirs or assigns, first had and obtained. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above written Signed, sealed and delivered • in the presence of A. B. [l.s.] Y. Z. C. D. iL.s.J Lease of a House and Farm. This Indenture, made the day of , iS , Between A. B., of, &c., of the one part, and C. D., of, &c., of the other part, Witnesseth, that for and in consideration of the rents, covenants, conditions and agreements hereinafter reserved and contained, and which, on the part and behalf of the said C. D., his executors, ad- ministrators and assigns, are or ought to be paid, done and per- formed, the said A. b. hath demiseil, leased, set and to farm let, and by these presents doth demise, lease, set and to fr.rm let, unto the said C. D., his executors and administrators, All that parcel or tract of land, Ac, {describing the lot) together with the frame dwelling house, barns, st?ibles, and other out-houses thereupon erected, standing ana being, together with all ways, paths, passages, waters, watercourses, privileges, advantages, and appurtenances whatsoever, to the same premises belonging, or in any wise apper- taining. To have and to hold the said parcel or tract of land, dweding-house, buildings and premises hereby demised unto the said C. D., his executois, administrators and assigns, from the day of the date of these presents, for. and during, and until the full end and term of years from thence next ensuing, and fully to be complete and ended : Yielding and paying therefor yearly, and every year duiing the said term hereby granted, unto the said A. B., his heirs and assigns, the yearly rent or sum of ^ , of lawful current money of Can.ida by two equ.d half-yearly payments, to be made on the day of , and the day of i.': ;- 216 THE CAJJADIAN LAWYER. in each and every yenr durlnp the said term, without any deduction or abatement thcreoui for or upon any account or pretence whatso- cjv<;r, I'roviiisd aKva\s, nevertheless, that if it shall happen that the saiil yearly rent heitby reserved, or any part thereof, shall be behind and unpaid for the ppace of twenty-one days next over or after either of the said days hereinbefore mentioned and appointed for payment of the same (being lawfully demcnded) or if the said C. D., his executors or administrators, shall assign over, underlet, or otherwise depart with this indenture, or the premises hereby leased, or any part thereof, to any person or peisuns whomsoever, without the consent of the said A. B., his heirs or assigns, first had and obtained in writing, under bis or their hands, for that purpose; then, and in cither of the said cases, it shall and may be lawful to and for the said A. B.. his he'rs or assigns, into the said premises hereby demised, or any part thereof, in the name of the whole, to re-tnter and the same to have again, retain, re-possess and enjoy, as in his and their first and former estate or estates, anything herein contained lo the contrary ther of in any wise, notwithstanding. And the said C. D. doth hereby, for himself, his heirs, executors, administrators, and assigns, covenant, promise and agree to and with the said A. ii., his heirs and assigns, in manner following, that is to say: That he, the said C. D., his executors, administrators and assigns, shall and will well and truly pay, or cause to be paid, unto the said A. B., his heirs and assigns, the said yearly rent of 1^ , by equal half-yearly payments, on or at the days or times and in the manner hereinbefore mentioned and appointed for payment thereof. Also that he, the said C. D., his executors, administrators and assigns, shall and will, at his and their own costs and charges well and sufficiently repair and keep repaired the dwelling-housi buildings, fences and gates now erected, or which shall at any tim or times hereafter during the said term be erected, upon the saiu demised premises, he, the caid A. B., his heirs and assigns, upon request and notice to them made, finding and allowing on the said premises, or within miles distance thereof, all rough timber, brick, lime, tiles, and all other materials whatsoever (except straw), for doing thereof, to be carried to the said hereby demised premises at the charge of the said C. D., his executors, administrators or assigns, or otherwise permitting and allowing him or them, at their like costs and charges, to cut and fell such and so many timber- trees upon some part of the premises hereby demised as shall be requisite and necessary for the purpose (damage happening by acci- dental fire, tempest, or other inevitable accident being always excepted) : And further, that he, the said C. D., his executors, administrators and assigns, shail and will at all times during the said term cultivate and farm such part or parts of the said lands and premises as now are or shall hereafter be brought into cultiva- tion during the said term in a proper husbandlike manner. And shall and will at the expiration or other s iner determination of this lease peaceably and . m- plete and ended : Yielding and paying therefor, yearly and every year during the said term hereby granted unto the said party of the first part, his heirs, executors, administrators or assigns, the sur of 8 , to be payable on the following days and times, that is to say : on. &c., (state here the days of payment,) The first of such pay- ments to become due and be made on the day of , next. That the said (lessee) covenants with the said (lessor). To pay rent, and to pay taxes, and to repair ; and to keep up fences, and not to cut down timber, and that the said (lessor) may enter and view the state of repair ; and that the said (lessee) will repair acct rding to notice; and will not assign or sub-let without leave; and that he will leave the premises in good repair. Proviso for re-entry by the said (lessor) on non-payment of rent, or non-performance of coven- ants ; The said (lessor) covenants with the said (lessee) for quiet enjoyment. In witness whereof, the said parties have hereunto set their hands and seals. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. tL.s.J Distress H- irrant. To Mr. A. B., my Bailiff. I do hereby authorize and require you'to distrain the goods and chattels of C. D. (the tenant) in the house he now dwells in, \or on the premises in his possession], situate at , in the county of , for dollars, being one j'ear's rent due to me for the same on the first of May last, and to proceed thereon for the re- covery of the said rent, as the law directs. , Dated the day of i8 . J. S. (Landlord) Inventory and Notice. An inventory of the soveral goods and chattels distrained by me, J. S., [or if as Bailiff, say A. B.. as Bailiff to Mr. T. S.] this day of , in the year of our Lord, 18 , in the dwelling-house, out-houses and lands [as the case may be] of C. D., situate at , in the county of , [and if as Bailiff, say, by the authority and on the behalf of the said J. S..] f.>r the sum of dollars, being one year's rent due to me [or to the said J. S.,] for the said houses and premises on first of May last, and as yet in arrear and unpaid. 1 (1 . ir \\ 1 1 1 i' 1 ( i r if- 1 I i \: 1 i \i\ 260 THE CANADIAN LAWYER. I. In the Divelling-house. (Kitchen) Two pine tables, six old chairs, five copper sauce-pans, &c., &c. (Parlor) One large pier Ipoking-glass, two sconces in gilt frames, two main gany car.i tables. &c., &c. (Dining Room) Six. hair-bottom chairs, mahogany frames, Ac, one set of dining tables, &c., &c. (Out-houses) 2. In the Barn. Six sacks of wheat, six hurdles, &c., &c. [And soon, describing the things as correctly as may be according to the place from which they arc taken. At the bottom of the inventory subscribe one of the following notices to the tenant according as the case may be.] Mr. C. D. Take notice that I have this day distrained (or that I, as Bailiff to y. S., your landlord, have this day distrained) on the premises above mentioned, the several gocls and chattels specifievl in the above inventory, for the sum of dollars, being one year's rent due to me (or to the said J. S.,) on first of May last, for the said premises, and that unless you pay the said arrears of rent, with the charges of distraining for the Eamn, or replevy tSis said goods and chattels within five days from the date liereof, th;5 caid goods and chattels will be appraise 1 and sold according to law. Given under my hand the day of , iS J. S. (Landlord.) or A. B. (BaiUif) Notice of Distress of grozving crops. Mr. C. D., Take notice that I have this day taken and distrained, (or that as Bailiff to J. S., your landlord, I have tnken and distrained), on the lands and premises known as lot number one in the township of &c., &c., the several growing crops specified in the inventory for the sum of % , being one year's rent due to me (or to the said J. S.,)on the first of May last, for the said lands and premises; and unless you previously pay the said rent with the charges of dis- training for the same, I shall proceed to cut, gather, make, cure, carry and lay up the crops when ripe, in the barn or other proper place on the said premises, and in convenient time sell find dispose? of the same towards ^alibfaction of the ^aid rent, and of the charges of such distress, appraisement and sale, according to the form of the statute in siu-k case made and provided. Given under my hand the day of , i8 . J. S. (Landlord.) or A. D. (Bniliff) A true copy of the above inventory war. this day of , delivered to the above mentioned C. D., in the presence of us. G. H. J. K. i LANDLORD AND TENANT. 251 Tenant's request for delay. Mr. A. B., I hereby desire you will keep possession of my goods which you have this day distrained for rent due or alleged to be due from me to you, in the place where they now are, being the house No. 3 Dean Street, Toronto, for the space of seven days from the date hereof, on your undertaking to delay the sale of the said goods and chattels for that time to enable me to discharge the said rent, and I vAM pay the man for keeping the said possession. Witness my hand this day of , 18 . CD. Witness, R. S. Notice to quit by Lamllord, To C. D. [Tenant.) I hereby give you notice to quit and deliver up the premises which you now hold of me, situate at {here describe the premises) on the day of , iS . Dated the day of , 18 . Years, &c., A. B. (Landlord.) Notice to quit by Tenant, To A. B., {Landlord) I hereby give you notice that on the day of next I shall quit and deliver up to you, the peacpable and quiet posses, sion of the premises now held by me, with the appurtenances situate at , in the township of , in the county of , in this F'rovince. Dated this day of , 18 . Yours, &c.. C. D. {Tenant.) \n u] ^2, 252 THE CANADIAN LAWYEB. LINE FENCES. ONTARIO. The provisions of the law upon the subject of the erection and maintenance of line fences are veiy similar in the Provinces of Ontario, New Brunswick, Prince Edward Island, Manitoba and British Columbia, in all of which special statutes have been enacted governing the subject. It is thought necessary only to give the exact statutory law of one Province, namely, Ontario, which is concisely embraced in the R. S. O. cap. 198. The expression "occupied lands," where it occurs below does not include so much of a lot, parcel or farm as in unenclosed, although a part of such lot, parcel or farm is enclosed and in actual use and occupa- tion. The Act is as follows : An Act respecting Line Fences. I* This Act may be cited as " The Line Fences Act." 2. Owners of occupied adjoining lands shall make, keep up and repair a just proportion of the fence which marks the boundary between them, or if there is no fence, they shall so make, kepp up and repair the same proportion, which is to mark such boundary : and owners of unoccupied lands which adjoin occupied lands, shall, upon their being occupied, be liable to the duty of keeping up and repairing such proportion, and in that respect shall be in the same position as if their land had been occupied at the time of the original fencing, and shall be liable to the compulsory proceedings hereinafter mentioned. 37 V. c. 25, s. 2. 8« In case of dispute between owners respecting such proportion, the following proceedings shall be adopted : 1. Either owner may notify (Form i) the other owner, or the occupant of the land of the owner so to b^ notified, that he will. not less than one wtek from the service of such notice, cause three Fence-viewers of the locality to arbitrate in the premises. 2. Such owners so notifying shall also notify (Form 2) the Fence- viewers, not less than one week before their services are required. LINK FENO£S. 253 ;e 3. The notices in both cases shuU he in writing, signed by the person notiiying, and shall specify the time and place of meeting for the arbitration, and may be served by leaving the same at the place of abode of such owner or occupant, with some grown-up person residing thereat ; or in cass of such lands being untenanted, by leaving such notice with any agent of such owner. 4. The owners notified may, within the week, object to any or n\\ of the Fence-viewers notified, and in case of disagreement, the Judge hereinafter mentioned shall name the Fence-viewers who are to arbitrate. 37 V. c. 25. s. 3. 4* An occupant, not the owner of land, notified in the manner above mentioned, shall immediately notify the owner; and if he neglects so to do, shall be liable for all damage caused to the o^-ner by such neglect. 37 V. c. 25, s. g. 6a The Fence-viewers shall examine the premises, and if re- quired by either party, they shall hear evidence, and are authorized to examine the parties and their witnesses on oath, and any one of them may admmister an oath or affirmation as in Courts of Law. 37 V. c. 25, s. 4. 6a The Fence-viewers shall make an award (Form 3) in writing, signed by any two of them, respectiiig the matters so in dispute; which award shall specify the locality, quantity, description and the lowest price of the fence it orders to be made, and the time within which the work shall be done, and shall state by which of the said parties the costs of the proceedings shall be paid, or whether either party shall pay some proportion of such costs. 2. In making such av.'ard, the Fence-viewers shall regard the nature of the fences in use in the locality, the pecuniary circum-. stances of the persons between whom they arbitrate, and generally the suitableness of the fence ordered to the wants of each party, 3. Where, from the formation of the ground, by reason of streams or other causes, it is found impossible to locate the fence upon the line between the parties, it shall be lawful for the Fence-viewers to locate the said fence either wholly or partially on the land of either of the said parties, where to them it seems to be most convenient ; but such location shall not in any way affect the title to the land. 4. If necessary, the Fence-viewers may employ a Provincial Land Surveyor, and have the locality described by metes and bounds. 37 V. c. 25. s. 5. 7 . The award shall be deposited in the office of the Clerk of the Council of the Municipality in which the lands are situate, and shall be an official document, and may be given in evidence in any legal proceeding by certified copy, as are other official documents; .Mid notice of its being made shall be given to all parties interested* 37 V. c. 35, s. 6. ^ 254 THE CANADIAN LAWYER. 8. The award may be enforced as follows: — The person desiiiii!:; (o enforce it shall serve upon the owner or occupant of the adjoin • ing lands a notice in writing, requiring him to obey the award, an 1 if the award is not obeyed within one month after service of such notice, the person so desiring to enforce it may do the work which the award directs, and may immediately recover its value and the costs from the owner by action in any Division Court having juris- diction in the locality; but the Judge of such Division Court ma\, on applicc.tion of either party, extend the time for making sucti fence to such time as he may think just. 37 V. c. 25, s. 7. 9a The award shall constitute a lien and charge upon the lands respecting which it is made, when it is registered in the Registry Office of the County, or other Registration Division in which the lands are. 2. Such registration may be in duplicate or by copy, proved by a£Sdavit of a witness to the original, or otherwise, a-' in the case o; any deed which is within the meaning of " The Registry Act." 37 V. c. 25, s. 8. lOa The Fence-viewers shall be entitled to receive two dollars each for every day's work under this Act. Provincial Land Sur- veyors and witnesses shall be entitled to the same compensation as if they were subpoenaed in any Division Court. 37 V. c. 25, s. lo. II. Any person dissatisfied with the award made may appeal therefrom to the Judge of the County Court of the County in which the lands are situate, and the proceedings on such appeal shall be as follows : 1. The appellant shall serve upon the Fence-viewers, and all parties interested, a notice in writing of his intention to appeal within one week from the time he has been notified of the award ; which notice may be served as other notices m^entioned in this Act. 2. The appellant shall also deliver a copy of such notice to the Clerk of the Division Court of the Division in which the land lies, and the Clerk shall immediately notify the Judge of such appeal, whereupon the Judge shall appoint a time for the hearing thereof, and, if he thinks fit, order such sum of money to be paid by the appellant to the said Clerk as will be a sufhcient indemnity against costs of the appeal. 3. The Judge shall order the time and place for the hearing of the appeal, and communicate the same to the Clerk, who shall notify the Fence-viewers and all parties interested, in the manner iiereinbefore provide J for the service of other notices under this Act. 4. The Judge shall hear and determine th;^, appeal, and set aside, alter, or affirm the aw .rd. correclint^ any error therein, and he may examine parties and witnesses on oath, and, if he so pleases, may Line fences. 255 inspect the premifes ; and may order payment of costs by either party, and fix the amount of such costs. 5. His decision shall be final ; and the award, as so altered or confirmed, shall be dealt with in all respects as it would have been if it had not been appealed from. 6. The practice and proceedings on the appeal, including the fees payable for subpoenas and the conduct money of witnesses, shall be the same, as nearly as may be, as in the case of a suit in the Division Court. 37 V. c. 25, s. 11 ; 40 V. c. 7, Sched. A. (202); 40 V. c. 8, s. 58. 12. Any agreement in writing (Form 4) between owners respect- ing such line fence may be filed or registered and enforced as if it was an award of Fence viewers. 37 V. c. 25, s. 12. • 13. The owner of ths whole or part of a division or line fence which forms part of the fence enclosing the occupied or improved land of another person, shall not take down or remove any part of such fence. (a) Without giving at least six months' previous notice of his in- tention to the owner or occupier of such adjacent enclosure; (b) Nor unless such last mentioned owner or occupier after demand made upon him in writing by the owner of such fence, refuses to pay therefor the sum to be determined as provided in the sixth section of this Act ; (c) Nor if such owner or occupier will pay to the owner of such fence or of any part thereof, such sum as the Fence-viewers may award to be paid therefor under the sixth section of this Act. 40 V. c. 29, s. I. 2. The provisions of this Act relating to the mode of determining disputes between the owner of occupied adjoining lands ; the manner of enforcing awards and appeals therefrom ; and the schedules of forms attached hereto, tind all other provisions of this Act, so far as applicable, shall apply to proceedings under this section. 40 V. c. 29, s. 2. 14. If any tree is thrown down, by accident or otherwise, across a line or division fence, or in any way in and upon the property adjoining that upon which such tree stood, thereby causing damage to the crop upon such property or to such fence, it shall be the duty of the proprietor or occupant of the premises on which such tree ♦.heretofore stood, to remove the same forthwith, and also forthwith to repair the fence, and otherwise to make good any damage caused by the falling of such tree. 2. On his neglect or refusal so to do for forty-eight hours after notice in writing to remove the same, the injured party may remove the same, or cause the same to be removed, in the most convenient and inexpensive manner, and may make good the fence so damaged, and may retain such tree to remunerate him for such removal, and ifi I -i: Sit :■]'■ •t VI ]■ ^'•'■' 256 THE CANADIAN LAWYEll. may also recover any further amount of damages beyond the value of such trre from the pany liable to pay it under this Act. 3. For the purpose of such removal the owner of such tree may euter into and upon such adjoining premises for the removal of the same without being a trespasser, avoiding any unnecessary spoil or waste in so doing. 4. All disputes arising between parties relative to this section, and fcr the collection and recovery of all or any sums of money becoming due thereunder, shall be adjusted by three Fence-viewers of the Municipality, two of whom shall agree. 29-30 V. c. 51, s. 355 (28). IB* The forms in the Schedule hereto are to guide the parties, being varied according to circumstances. 37 V. c. 25, s. 13. SCHEDULE OF FORMS. FORM I. {Section 3.) NOTIOS TO OPPOSITE PARTY. Take notice, that Mr. , Mr. , and Mr. , three fence-viewers of this locality, will attend on the day of , 18 , at the hour of , to view and arbitrate upon the line fence in dispute between our properties, being Lots {or parts of Lots) One and Two in the Township of , in the County of Dated this day of , 18 To C. O., Owner of Lot 2. Concession of the A.B., Owner of Lot i. FORM 2. {Section 3.) NOTICE TO FENCE-VIEWERS. Take notice, that I require you to attend at on the day of , X.D. 18 , at o'clock a.m., to view aud arbitrate on the line fence between my property and that LINE FEN0E8. 267 of Mr. in the County of Dated this , being Lots {or parts of Lots) Nos. One and Two Concession of the Township of , in the day of ,i8 Owner of Lot i. FORM 3. {Section 6.) AWARD. We, the fence-viewers of {name of the locality), having been nominated to view and arbitrate upon the line fence between by {name and description of owner who notified) and {name and description of owner notified), which fence is to be made and maintained between (describe properties), and having examined the premises and duly acted according to " The Line Fences Act," do award as follows : That part of the said line which commences at and ends at {describe the points) shall be fenced, and the fence maintained by the said , and that part thereof which commences at and ends at {describe the points) shall be fenced, and the fence maintained by the said The fence shall be of the following de- scription {state the kind offence, height, material, 6'c.,) and shall cost at least per rod. The work shall be commenced within days, and completed within days from this date, and the costs shall be paid by {state by whom paid; if by both, in what proportion.) Dated this day of , A.D. 18 {Signatures of fence-viewers.) FORM 4. {Section 12.) AGREEMENT. We and . owners respectively of Lots {or parts of Lots) One and Two in the Concession of the Township of , in the County of , do agree that the line fence which divides our said properties shall be made and main- tained by us as follows : {follow the same form as awa* ) Dated this day of , A.D. 18 {Signatures of parties.) 18 258 THE CANADIAN LAWYEU. AN ACT TO FURTHER AMEND THE LINE FENCES ACT, 47 VICT. CAP. 42. I. Where, within th3 menning of section 3 of " The Line Fences Act," ihere is any dispute 1 etween owners or occupants of lands situate in different municipalities, the following words or expressions in said Act shall have the meaning hereinafter expressed, namely ; (i) The phrase "fence viewers" shall mean two fence viewe.s ui the municipality in which is situate the land of the owner or occupant notified under sub-section i of section 3 of said Act, and one fence viewer of the municipality in which is situate the land of the party or person giving the notice ; except that in case of a dis- agreement having occurred within the meaning of sub-section 4 of said section, the said phraso "fence viewers" shall mean fence viewers from either or both municipalities. (2) The expression " in which the lands arc situate " and the expression " in which the land lies," shall respectively mean " in which are situate the lands of the own r or occupant so notifie 1 under said sub-sectiou one." MANITOBA, By the R. S. M. cap. 25, An Act respecting Boundaiy Lines and Line Fences, it is provided that in case the owner of land requires to have any boundary ling sur- veyed, he shall give notice thereof in writing to all parties interested, and in one month thereafter may employ a duly qualified surveyor, who shall survey the said line, and each party interested shall pay his pro- portionate share of the expenses of the survey. No line fence shall be removed without the consent of all parties interested, and v/henever any owner of % land erects a line fence, the owner of the adjoining land shall, as soon as he encloses land adjacent or along the line fence, pay to the person who erected the line fence, or to his assignee, a fair compensation for one-half the line fence; such compensation may be determined by arbitration if not otherwise agreed on. UNE FENCES. 269 Each of the parties occupying adjoining tracts of land shall make, keep up, and repair, a just proportion of the division or line fence on the line dividing such tracts, and equally on either side thereof. The owner of the whole or part of a division or line fence which forms part of a fence enclosing the occupied or improved land of another person, shall not take down or remove any part of such fence without giving at least twelve months' notice of his intention so to do to the owner or occupier of such adjoining enclosure, nor unless the latter, after demand in writing, refuses to pay therefor such sum as three fence viewers, or a majority of them, in writing, determine to be a reason- able value therefor. All disputes relating to line fences are determined by three fence viewers, or a majority of them, who make their award in writing. This award is transmitted to ih ) clerk of the County Court of the County where the land is situate. If any party neglects or refuses to appoint a fence viewer to act for him, the latter may be appointed by a Justice of the Peace, who is, for such appointment, entitled to a fee^of one dollar. Fence viewers are entitled to a fee of two dollars per day each, for not more than two days, and one dollar for transmitting their award. i 260 TUE CANADIAN LAWYER. MASTER AND SERVANT. In law the terms " Master" and •' Servant" have a wider definition than is given them in their popular signification, and are more nearly construed by the terms •* Employer " and *' Employed." Contracts of this nature (as, indeed, all other contracts) are best put in writing. If this rule were generally observed, much expensive and vexatious litigation would be avoided* Contracts for service not to be performed within a year must by law be committed to writing, and must be signed by the party to be held liable thereon or his agent duly authorized. If this is not done the contract is invalid and cannot be enforced. Where writing is employed, care should be taken that the full terms and stipulations agrfeed upon be embraced in the document, and both parties should sign it, before a witness if possible. A general verbal hiring, without stipulations as to the periods of payment, etc., will be construed by law, and in the absence of facts leading to a contrary con- clusion, to be a hiring for a year. But if there be stipulations as to the periods of payment, as, for in- stance, the payment of wages by the week or month, these circumstances may determine the hiring to be a weekly or monthly hiring, and then the law applicable to a weekly or a monthly hiring will apply. General custom will also regulate the determination of this point. With regard to menial or domestic servants, a well established custom prevails : the master may terminate the contract at any time by giving a month's notice, or MAflTKll AND SERVANT. 261 by payment of a month's wages, and tne servant, on his part, by a similar notice, or forfeiture of a month's wages. But governesses and tutors are not do- mestic servants, and this rule will not apply to them. Their engagements, in the absence of express stipulation, will be presumed to be yearly engage- ments, terminable on three months' notice, or pay- ment of three months', or one quarter's salary. The quarter's notice may terminate the engagement at any time, not necessarily the end of a current year. Employees are sometimes paid by a stated proportion, or percentage, of the profits of the employer's business being given them, either in lieu of, or in addition to, wages or salary. Such agreements should invariably be in writing and carefully prepared, in order that the contract may not be construed as one of partnership, with all its incidents, such as the employee's right of demanding an account of the business, etc., and, on the other hand, his responsibility for its debts. In the absence of an express contract between the parties, an agreement of hiring may be presumed from the mere fact of the service, unless the service has been with near relations. For example, if a man serves another in the capacity of a book-keeper or farm servant, or groom, for a continued period, the Jaw presumes that the service has been rendered in fulfilment of a contract of hiring or service, and if nothing has been said about wages, the law presumes that the parties agreed for such wages as a j customary or reasonable in that class of employment. But where the service has been with a parent, or near relation, of the party serving, a hiring is not presumed by the law, but must be expressly proved to support a claim tor wages ; for such services 262 THE CANADIAN LAWYER. i ■ are often rendered as acts of charity or kindness, ami are not presumed to be paid for unless a special agree- ment has been made. A groom or coachman, occupying rooms over a coach house, or stable, or a lodge-keeper or farm servant occupying a separate house upon his master's premises, does not thereby become a tenant, requiring due notice to quit before being legally required to give up the premises occupied. The question of whether such person becomes a tenant as well as a servant is sometimes one difficult to determine, but if there is no lease given, or rent paid by the servant ''even though the benefit of the occupation of such pre- mises be tikcn into account iu fixing the amount of wages,) and if the occupation be for the more convenient rendering of the services required of the employed, there can be, generally speaking, no ten- ancy implied. The occupation of the servant is that of his master. The servant must enter upon his duties at the time agreed ; and tnust serve during the period spec" ied, or until the contract is legally put an end to, as by notice, etc. He must obey all lawful commands, and perform all such services as are usually required ot one in his class ot employment, or si ch a«^ he has specially agreed to perform ; but cannot be required to go beyond this, or serve in a capacity not originally contemplated. He must be faithful, obedient and honest in his employment. His failure in these respects may subject him to dis- missal, or an action for breach of contract on the part of his master. If the service in which he is employed is one requiring a certain amcmnt of skill, the fact of his entering voluntarily upon the employment is taken I MASTER AND SERVANT. 268 ■;■; i ' as an implied guaranty on his part that he is possessed of such necessary skill, and his want of it is a breach of the contract. While not generally liable for mere accidents or unintentional acts resulting in loss to the master or destruction of the master's property, he is yet responsible for negligence causing loss, more especially if repeated. Wilful disobedience, habitual neglect of just and reasonable orders, repeated absence without leave, or refusal to perform work, on the part of the servant, justifies the master in dismissing him without the usual notice. The servant is also rr oonsible to his master in damages for any fraud or wrongful act which renders the master liable in damages to a third person. The master must receive the servant into his service, so as to permit him to earn his wages, unless, indeed, he have such grounds for refusing as won-l justify him in immediately dismissing the servant if received. Having received him, the master must retain and employ him during the term stipulated, or until the con- tract is legally dissolved in the performance of the duties contemplated in the agreement of hiring, and pay him his lawful wages or compensation. He cannot require the performance of unusual services, or such as subject the servant to danger of life or limb, where such is not specifically agreed to by the servant. The imple- ments, tools, macliinery or engines which he supplies for his servants or workmen in their employment must be in proper condition and reasonablv safe to protect the workmen against unnecessary hazards. And should SMch be in an unsafe condition, tiie servant is justified in refusing to work with them. If the servant, how- M I- h i^i 264 THE CANADIAN LAWYER. 'I ever, with full knowledge of the defect of the imple- ment or machine, chooses voluntarily to work with it, the master will not be responsible for injuries occa- sioned the servant through such defects. A. servant or workman has a right to expect that his fellow workmen employed by his master to assist him in any work are reasonably competent for employment in such work, and should they be not so, and it be proved that the master was negligent in their selection, and in fact had no grounds for believing them competent, he would be liable for injuries arising through their ignorance or unskilfulness. But otherwise a master may be said to be not liable to a servant for injuries sustained by the latter through the negligence of a fellow servant ; but he will be responsible for any accident which occurs to a servant through the master's own personal negligence. A servant who is aware of the risks incident to his employment, impliedly accepts them, and cannot hold his master liable for damages he may suffer in the ordinary course of that employment. Should the servant, in obedience to his master's order do any act apparently lawful, or not to the servant's knowledge unlawful, but thereby incur any civil responsibility to damages to another person, he is entitled to call upon his master to protect and indemnify him from any loss sustained. But if the ser^'ant, in obedience to an order, knowingly performs a criminal act, he cannot seek such indemnity. In regard to domestic servants, it is implied in their contract of hiring that they shall be supplied with proper food, shelter, bedding and other necessaries. The master is not, however, compelled to pay for le- it, a- MASTBR AND SERVANT. 266 medicines or medical attendance. Where the servant falls ill or is temporarily incapacitated for work by hurt or accident in his master's service, no deduction of wages, for the time lost should be made. master is not justified in inflicting corporal punish- ^\ ment upon a servant of full age. Any attempt to do so renders him liable for an assault. Moderate punish- ment may be resorted to in case of a child who is a ; ervant or apprentice, for sufficient cause, as continued and wilful disobedience. In the absence of stipulation, the servant is entitled to such wages as are fair, or usual for the class of work performed or services rendered, or such as a jury will award. Where a servant is discharged by his master for good and sufficient cause, he cannot claim wages already earned by him previous to such discharge though not yet payable according to the terms of the contract of hiring. The death of either servant or master concludes th? contract, and in the absence of custom or statute, wages for the broken period between the last regular day of payment and the death cannot be recovered. The right of discharge is based upon the assur.ied breach of the contract by the servant himself. It im- plies the right of the master to dismiss the servant immediately, without waiting for the expiration of the stipulated term of service and without giving the ordinary length of notice. A discharged servant who refuses to leave the premises is a trespasser who may be put off by force. The law relating to apprentices is s. ;/drately dealt w'th in '\ former chapter. I : ■r m 266 THE CATiTADIAN LAWYKU ^''' ' "Pi".;*;' .It's Strikes and Boycotting are treated hereafter in a sep-ucte chapter. ONTARIO. By the provisions of Revised Statute, chapter 133, no voluntary contract of service is to be binding on any of the parties for a longer term than nine years from the date of the contract. Verbal agreements of service shall not exceed one year in duration, but all agreements for service shall be binding on the parties thereto for the due fulfilment thereof. Disputes with respect to the terms of the agreement, or anything pertaining thereto, misusaqe of a servant, non-ps.yment of wages, etc., are determined before a Justice of the Peace. By an amendment to the Act, passed in 1886, any agreement or bargain, verbal or written, cx^)ress or implied, made between any person, and any other person not a resident of Canada, with reference to the employment of such other person within the Province, and made previous to the migration or coming into Canada of the person to be employed, shall be, as against such person, void and of no effect. But this amendment of the law does not apply to the employment of skilled foreign work- men upon new industries, or at any industry where skilled workmen cannot otherwise be obtained ; nor to teachers, professional actors, artists, lecturer? or singers. Special classes of workmen are also, in this Province, affected by the provisions of '* The Railway Accidents Act, 1881," "The Ontario Factories Act, 1884," and '• The Workmen's Compensation for Injuries Act, 1886;'* the first named of which requires certain safe- guards to be taken by Railway Companies in the interests I « MASTER AND SERVANT. 267 of their employees, the second named secures valuable rights to employees in factories ; and the third determines certain rights of employees against their employers for injuries sustained by reason of defec- tive machinery and appliances, or the co-employment of incompetent overseers or workmen. An ex- tended notice of these statutes is not in this place necessary, inasmuch as reference to the very words and term.i of the Act is indispensable to all affected by them. By cap. 29 of the statutes of 1885, upon any assign- ment for the general benefit of creditors, or upon wind- ing up of Joint Stock Companies, the wages or salary of employees who were such at the date of the assign- ment or winding up order, or within one month prior thereto, not exceeding three months' wages or salary, shall rank upon the assets in priority to the claims of ordinary or general creditors. For the residue, if any, of their claims, such persons may rank as ordinary or general creditors. Employees of execution debtors are similarly protected. The Act applies to wages or salary, whether the employment in respect to which the same is payable be by the day, by the week, by the job or piece, or otherwise. Nota^'-rn keeper or boarding-house keeper shall keep the wearing apparel of any servant or labourer in pledge for any expenses incurred to a greater amount than six dollars, and on payment or tender of such sum, or any less sum due, such wearing apparel shall be immediately given up, whatever be the amount due by such servant or labourer. But this does not apply to other property of the servant or labourer. i THE CANADIAN LAWYER. Application may be made to any Justice of the Peace to enforce the above law. Such Justice may also summon any master or employer, against whom complaint is made by a servant or labourer for non-payment of wages, to appear before such Justice, and may examine into the complaint, and may discharge the servant or labourer from the service or employment of such master, or may direct the pay- ment to him of any wages found to be due, not exceed- ing forty dollars, to be levied with costs against tlie master, if not paid in twenty-one days. MANITOBA. Any hired clerk, journeyman, apprentice or servant, or labourer, who is guilty of ill-behaviour, drunkenness, refractory conduct, or idleness, or of deserting service or duties, or absenting himself without leave of his employer, or refusing or neglecting to perform his duties, or to obey the lawful commands of his master or mistress, or who is guilty of dissipating the property of his master or mistress, or of any unlawful act injuri- ously affecting their interests, shall be liable, upon conviction before a Justice of the Peace, to a penalty not exceeding twenty dollars and costs. The same penalty may be inflicted on aoy domestic servant, journeyman or labourer, who deserts or aban- dons his service or job, or who neglects or refuses to perform the job or work for which he or she was en- gaged, before the time agreed upon, or before the com- pletion of the agreement. Persons knowingly harbour- ing or concealing a servant or apprentice who has abandoned the service of his master or mistress, or MASTER AMD SEBVAMT. 269 instigating any servant or apprentice to abandon such, is liable to the same penalty. Suits for wages up to $ioo may be brought before any Justice of the Peace. Every builder or contractor, whether chief contractor or sub-contractor, employing workmen by the day or by piece work to carry out his contract, is required to keep a pay-list drawn up in the form of the schedule «• A " hereunder given, showing the names and wages or price of the work of such workmen ; and every pay- ment made to them shall be attested by the signature or cross of each of such workmen, made in presence of a witness who shall also sign the pay-list ; and any pro- prietor shall require the production of such pay-list before the payment of any amount claimed to be due on such work. It is the duty of the proprietor for whom the work is being done, from time to time, to see that the workmen who appear by the pay-list to be unpaid, are paid what is owing them by the builder or contractor ; and until the workmen are paid in full the proprietor is, to the amount o^ the contract price, equally liable with the builder or contractor to the workmen directly for such amounts owing, s.ad may be sued as the contractor could be. A copy of the original contract must be filed by the builder or contractor, under oath, with the Clerk of the County Court, where the same is open to inspection : he may also register it in the Registry Office. Where suit is brought, several workmen may join in ovte action, and where the money recovered is less than the full amount ot their claims, it must be divided rate- ably among them. Workmen furnishing labour or ^r V I 270 THE CANADIAN LAWYER. materials have a right to inspect the premises they are working on, to enable them to compute their claims, and their witnesses have a similar right. If the contract is not completed, they are allowed what it is worth. Where the proprietor or contractor makes an assign- ment for the general benefit of creditors, the overdue wages or salary of all persons employed within one month prior to the assigment, not exceeding three months' wages or salary, is paid as a preferential claim. Such employees are also entitled, on sale of the pro- perty of a debtor under execution, to be paid by the sheriff their overdue wages or salary, not exceeding three months' wages or salary, in priority to the claims of other creditors, upon delivering to the sheriff or bailiff a claim under oath, as in schedule " B " given hereunder. SCHEDULE "A." Pay-list of the workmen employed by A. B. (name of the con- tractor) upon the works being contracted for C. D. (name of the proprietor.) Name of Workman. No. of Days, Wages per Day. Nature of Job. Price Total of Job. Amount due. Eeceipt | Signature Signature of of Witness Workiuan. i of Pay't. MASTER AND BEUVANT. 271 they are ir claims, I contract is worth, n assign- i overdue [thin one rg three ial claim. the pro- d by the jxceeding he claims sheriff or B " given SCHEDULE "B." of the con- lame of the Signature f of Witness of ray't. A. B. CD. Claimant V. Defendant. T, A. B., of in the County of , make oath and say : 1. I am the above named claimant. 2. The above named defendant is justly and truly indebted to me in the sum of dollars for {here state shortly the nature and particulars of the claim.) Sworn, etc. A. B. PRIN'CE EDWARD ISLAND. By chapter 26 of the Act Wm. IV., it was enacted that all contracts that shall be entered into relative to the hire of servants, if for the term of one month or for any longer period, shall be made in writing and signed by the parties thereto ; or shall be made verbally in presence of one or more credible witnesses. Servants engaging for one calendar month or more may be punished for misconduct, absence from duty, etc., upon complaint before two Justices, by confine- ment in gaol for any term not exceeding one calendar month. Similarly, masters convicted before two Justices of ill-treating servants may be punished by fine. Any person knowingly hiring the servant of another, or hiring any servant without a written discharge from his or her last master or mistress being produced (if such master or mistress is resident in the Island,) may be fined £5, and any master refusing a discharge to a servant justly demanding the same may be fined a similar sum. 1 272 THE CANADIAN LAWYER. MECHANICS' LIENS. A mechanic's lien is the right which any mechanic, machinist, builder, miner, labourer, contractor or other person, doing work upon any building, erection or mine, or furnishing materials to be used in its con- struction, alteration or repair, or erecting, furnishing or placing machinery of any kind in, upon, or in connec- tion with it, has to claim an interest in what his labour and materials have contributed to make valuable, as though he were a part owner ; his right being limited to the just price of such work, materials or machinery. The lien does not exist save where established by special statutes, but such have been enacted in at least five of the Provinces of the Dominion. This lien is practically a mortgage in favour of the mechanic, or person furnishing labour or materials upon the building or erection, and the lands upon which it stands, or on the mine. The statutes gener- ally declare a lien holder a purchaser to the amount of the claim ; and his interest in the building or erection may be insured by him against destruction by fire ; but if the building be destroyed or blown down before the lien is filed, it cannot then be filed. The Acts upon this subject in the Provinces of On- tario, Nova Scotia, Prince Edward Island, Manitoba and British Columbia are so nearly identical in all their features, that it is considered unnecessary in a work of this nature to give each in detail. The exact statute law of Ontario, with all amend- ments to date, is given below. The Nova Scotia Statute is cap. 85 of the Revised Statutes of that MECHANICS UENfl. 273 Province, and may be said to be identical with the Ontario Acts with regard to the rights of the parties, as well as the procedure and forms to be followed. The same may be said of the law governing the sub- ject in Prince Edward Island, the statute being the 42 Vict. cap. 8, amended by the 45 Vict. cap. 1 1 ; and of the law in force in Manitoba, which is cap. 53 of the R. S. M., amended by the Act passed in 1883. The statutory requirements must be strictly complied with. ONTARIO. I. This Act may bo cited as " The Mechanics' Lien Act." 2« In the construction of this Act (i). " Contractor " shall mean a person contracting with or employed directly by the owner for the doing of work or placing or furnishing of machinery or materials for any of the purposes men- tioned in this Act : (2). " Sub-contractor " shall mean a person not contracting with or employed directly by the owner for the purposes aforesaid, but contracting with or employed by the " Contractor," or under him by another " Sub-contractor ;" and (3). "Owner" shall extend to and include a person having any estate or interest, legal or equitable, in the lands upon or in respect of which the work is done, or materials or machinery are placed or furnished, at whose request and upon whose credit or on whose behalf or with whose privity or consent or for whose direct benefit any such work is done, or materials or marhinery placed or fur- nished, and all persons claiming under him, whose rights are acquired after the work in respect of which the lien is claimed is commenced, or thr materials or machinery furnished have been commenced to be furnished. 38 V. c. 20, s. i. 8. Unless he signs an express agreement to the contrary, every mechanic, machinist, builder, miner, labourer, contractor or other person doing work upon or furnishing materials to be used in the construction, alteration or repair of any building or erection, or erecting, furnishing or placing machinery of any kind in, upon or in connection with any building, erection or mine, shall, by virtue of being so employed or furnishing, have a lien cr charge for the price of such work, machinery or materials, upon such building, erection or mine, and the lands occupied thereby or enjoyed therewith, and limited in amount to such sum as is justly due to the person entitled to such lien. 36 V. c. 27, s. i ; 38 V. c. 20, s. 2. ~ hi 18 By a subsequi-nt i 11 ^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I I 40 21 22 1.8 1.25 1.4 |||.6 ^ 6" ► <^ //, Hiotographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ?^ 274 THE CANADIAN LAWYETl. amendment, no agreauent shall be held to deprive anyone otherwise entitled to a lien, and not a party to such agreement, of the benefit of such lien. <•■ A statement of claim, in the form or to the effect in the Sche- dule to this Act, may be filed in the Registry Office in the County or ether Registration Division in which such land is situate, before or »^>ri;jg the progress of the work aforesaid, or within thirty days from Ihc completion thereof, or from the supplying or placing of the 'nacLinery aforesaid. 3. Such statement of claim shall be verified by the affidavit of the ffcrson entitled thereto, to be sworn before any Commissioner for taking affidavits in the County, and shall state: (a) The name and residence of the claimant and of the owner of the property to be charged, and of the person for whom and upon whose credit the work is done or materials or machinery furnishe !, and the time or period within which the same was, or was to be, done or furnished : (h) The work done or materials or machinery furnished ; ic) The sum claimed as due, or to become due; \d) The description of the land to be charged, 3. When such statement is so registered, the person entitled to said lien shall be deemed a purchaser pro tanto, and within the pro- visions of " The Registry Act," 36 V. c. 27, s. 2. 6. The Registrar, upon payment of the fee of one dollar, shall register such claim, so that the same may appear as an incumbrance against the land therein described ; and such lien shall be dis- charged by the Registrar on his receiving a certificate to that effect from the person entitled to said lien, and verified as required in cases of certificate of discharge of mortgage. 36 V. c. 27, s. 3. 6* Every lien under this Act shall attach upon the estate and in- terest, legal or equitable, of the owner in the building, erection or mine upon or in respect of which the work is done or the materials, or machinery placed or furnished, and the land occupied thereby or enjoyed therewith ; but the lien shall not in any case attach upon such estate and interest, so as to make the same or the owner thereof liable to the payment of any greater sum than the sum payable by the owner to the contractor ; and in ca^e the lien is claimed by a sub-contractor, the amount which may be claimed in respect thereof shall be limited to the amount payable to the contractor or sub- contractor (as the case may be) tor whom the work has been done, or the materials or machinery have been furnished or placed. 38 V. c. 20, s. 3. 2. In cases where the estate or interest charged by said lien is leasehold, the fee simple may also, with the consent of the owner thereof, be subject to said charge, provided such consent is testified by the signature of such owner upon the statement of claim at the time of the registering thereof, and duly verified. 36 V. c. 27, s. 10. ' MECHANICS LTRNS. 275 < ii 7. In case the land npon or in respect of which the work is done or materials or machinery are placed, is incumbered liy a mortgntjo or other charge existing or created before the commencement of the work or the placing of the materials or machinery upon the land, such mortgaga ot other charge shall not have priority over the lien to any greater extent than the sum by which the selling value of the land, with such work, materials or machinery thereon, exceeds the sum by which such selling value thereof has been actually increased by the improvement caused by such work, materials, or machinery being placed thereon. 38 V. c. 20, s. 4. 8a All persons furnishing material to or doing labour for the person claiming a lien under this Act, in respect of the subject of such lien, who notify the owner of the premises sought to be affected thereby, within thirty days after such material is furnished or labour performed, of an unpaid account or demand against such lien-holder, for such material or labour, shall be entitled to a charge therefor pro rata upon any amount payable by such owner under said lien; and if the owner thereupon pays the amount of such charge to the person furnishing material and doing labour as afore- said, such payment shall be deemed a satisfaction pro tanto of such lien. 36 V. c. 27, s. n. 9> In case of any dispute as to the validity or amount of such unpaid account or demand, the same shall be first determined by suit in the proper Court in that behalf, or by arbitration, under sec- tions e'ghteen and nineteen, at the option of the person having such unpaid account or demand against the lien-holder; and during the pending of the proceedings to determine the dispute, so much of the amount of the lien as is in question therein may be withheld from the person claiming the lien. 36 V. c. 27, s. 11. lOa In case the person primarily liable to the person entitled to the lien fails to pay the amount awarded within ten days after the ■ award is made, the owner, contractor or sub-contractor may pay the same out of any moneys due by him to the person primarily liable as aforesaid, on account of the work done or materials or machinery furnished or placed in respect of which the indebtedness arose ; and such payment, if made after an award shall in all cases, or if made without any arbitration having been previously had or dispute existing, then, if the indebtedness in fact existed, and to the extent thereof, operate as a discharge pro tanto of the moneys so due as aforesaid to the person primarily liable. 38 V. c. 20, s. 8. Ila All payments, up to nmety per centum of the price to be paid for the work, machinery or materials, as defined by section three of this Act, made in good faith by the owner to the contractor, or by the contractor to the sub-contractor, or by one sub- contractor to another sub-contractor, before notice in writing by the person claiming the lien has been given to such owner, contractor or sub< contractor (as the case may be), of the claim of such person, shall ■1 \\\ f ■ \ \ 27C THE CANAnlAK LAWYER. operate as a discharge f>ro tanto of the lien created by this Act, but this section shall not apply to any payment made for the purpose cf defeating or impairing a claim to a lien existing or arising under this Act. 2. The said lien shall, in addition to all other rights or remedies given by the said Act, also operate as a charge to the extent of ten per centum of the price to be paid as aforesaid by such owner, up to ten days after the completion of the work in resp>ect of which such lien exists, or of the delivery of the materials, and no longer, unless notice in writing be given as hereinbefore provided. 3. Every mechanic or other person who has bestowed money or skill and materials upon any chattel or thing in the alteration anJ improvement in its properties or for the purpose of imparting an additional value to it so as thereby to be entitled to a lien upon such chattel or thing for the amount or value of the money or skill and materials bestowed, shall, while such lien exists but not afterwards, in cas^the amount to which he is entitled remains unpaid for three months after the same ought to have been paid, have the right in addition to all other remedies provided by law, to sell the chattel or thing in respect of which the lien exists, on giving one week's notice by advertisement in a newspaper published in the municipality in which the work was done, or in case there is no newspaperpublished in such municipality, then in a newspaper published nearest thereto, stating the name of the person indebted, the amount of his indebted- ness, a description of the chattel or thing to be sold, the time and place of sale, and the name of the auctioneer; and after such sale, such mechanic or other person shall apply the proceeds of such in payment of the amount due to him and the costs of advertising and sale, and shall pay over the surplus (if any) to the person entitled thereto on application being made to him therefor, and leaving a like notice in writing at the last or known place of residence (if any) of the owner, if he be a resident of such municipality. 12 1 When the amount of the claims in respect of any lien is within the jurisdiction of the County or Division Courts respectively, proceedings to recover the same, according to the usual procedure of the said (^ourt by jud|?;ment and execution, may be taken in the proper Division Court or in the County Court of the County in which the land charged is situate ; or proceedings may be taken before the Judge of the said Courts, who may proceed in a summary manner by summons and order, and may take accounts and make requisite enquiries, and in default of payment may direct the sale of the estate and interest charged at such time as the same can be sold under execution, and such further proceedings may be taken for the purpose aforesaid as the Judge thinks proper in his discretion. 2. Any conveyance under the seal of the County Court Judge shall be effectual to pass the estate or interest sold. 3. The fees and costs in all proceedings taken under this section •ball be such as are payable in respect of the like or Similar matters MECHANICS LIENS. 277 ut of is according; to the ordinary procedure of the said Courts respectively. 36 V. c. 27, s. 5; 38 V. c. 20, s. 10. 13. In other cases the lien may be realized in the Court of Chancery according to the ordinary j-rocedure of that Court. 36 V. c. 27, s. 6 ; 38 V. c. 20, s. II. M* The said Judge or Court, in his or its discretion, may also direct the sale of any machinery and authorize its removal. 36 V. c. 27, s. 7; 38 V. c. 20, s. 15. I6« Any number of lien-holders may join in one suit and .ill suits brought by a lien-holder shall be taken to be brought on behalf of all the lien-holders of the same class who shall have registered their liens before or within 30 days after the commencement of such suit, or who shall within the said 30 days file in the office frum which the writ issued a statement of their respective claims ; r.iiciin the event of the death of the plaintiff therein, or his refusal or neglect to proceed therewith, may by leave of the court in v\hich the suit is brought, en such terms as may be deemed just and reasonable, he prosecuted and continue.1 by any other lien-holder of the same class who shall have registered his lien or fi.ed his claim in the manner and within the time above limited for that purpose. 16* In the event of the death of a lien-holder, his right of lien shall pass to his personal representatives, and th^ right of a lien- holder may be assigned by any instrument in writing. 38 V. c. 20, 8. 12. 17. Where there are several liens under this Act against the same property, each class of the lien-holders shall rank pari passu for their several amounts, and the proceeds at any sale sluill be dis- tributed amongst them pro rata, according to their several classes and rights, and they shall respectively be entitled to execution for any balance due to them respectively after said distribution. 36 V. c. 27, s. 12 ; 38 V. c. 20, s. 9. I8> In c^ise a claim is made by a sub-contractor in respect of a lien tu which he is entitled, and a dispute arises as to the amount due or payable in respect thereof, the same shall be settled by arbitration. 2. One arbitrator shall be appointed by the person making the claim, one by the person by whom he was employed, and the third arbitrator shall be appointed by the two so chosen. 3. The decision of the arbitrators or a majority of them shall be final and conclusive. 38 V. c. 20, s. 6. 19. In case either of the parties interested in any such dispute refuses or neglects within three days after notice in writing requir- 111 w fi I 278 THE CANADIAN LAWYER. ing him to do so, to appoint his arbitrator, or if the two arbitrators appointed fail to a^ree upon a third, the appointment may be made by a County Judge of the County in which the lanvis in respect of which the lien is claiiTied are situate. 38 V. c. 20, s. 7. 20* Every lien which has not been duly registered under the pro- visions of sections four and five shall absolutely cease to exist after the expiration of thirty days after the work has been completed, or materials or machinery furnished, unless in the meantime proceed- infi;s are instituted to realize the claim nnder the provisions of this Act, and a certificate thereof, (which ay be granted by the Judge or Court before whom or in which t.. . proceedings are instituted,) is duly registered in the Registry Office of the County or other Registration Division wherein the lands in respect of which the lien is claimed are situate. 38 V. c. 20, s. 14; 36 V. c. 27, s. 4. 2l.*Every lien which has been duly registered under the provi- sions of sections four and five shall absolutely cease to exist after the expiration of ninety days after the work has been completed, or materials or machinery furnished, or the expiry of the period of credit, unless in the meantime proceedings are instituted to realize the claim under the provisions of this Act, and a certificate thereof, (which may be granted by the Judge or Court before whom or in which the proceedings are instituted,) is duly registered in the Registry Office of the County or other Registration Division wherein the lands in respect cf which the lien is claimed are situate. 36 V. c. 27, s. 4. 22a During the continuance of any lien, no portion of the pro. perty afiected thereby, or the machinery therein, shall be removed to the prejudice of such lien ; and any attempt at such removal may be restrained by application to the County Court or the Judge thereof, or the Court of Chancery respectively, according as the claim is under or over the sum of two hundred dollars. 36 V. c. 27, s. 8; 38 V. c. 20, s. 16. 28> Upon application to the County Court or the Judge thereof in claims under two hundred dollars, and to the Court of Chancery in other cases, such Judge or Court may receive security or payment into Court in lieu of the amount of such claim, and may thereupon vacate the registry of such lien, or may annul the said registry upon any other ground. 36 V. c. 27, s. 9 ; 38 V. c. 20, s. 17. 24* In any of the said cases, the Court or Judge may proceed to hear and determine the matter of the said lien, and make such order as seems just, and in case the person claiming to be entitled to such lien has wrongfully refused to sign a discharge thereof, or without just cause claims a larger sum to be due than is found by such Juc paj fiti coi foi er« m: foi pe sa m of P' mechanics' liens. 279 rs ftr Judge or Court, the Judge or Court may order and adjudge him to pay to the other party such costs as the Judge or Court may think fit to award. 36 V. c. 27, s. 9; 38 V. c. 20. s. 17. 26> Wherever any mechanic, artisan, machinist, builder, miner, contractor, or other person, has furnished or procured any materials for use in the construction, alteration or repair of any building, erection or mine, at the request of and for some other person, such materials shall not be subject to execution, or other process, to en- force any debt, other than for the purchase thereof, due by the person furnishmg or procuring such materials, and whether the same have or have not bee^i ia whole or in part, worked into, or made part of, such building or erection. 36 V. c. 27, s. 13, 26. Emc jpt so far as is herein otherwise provided, tho provisions of " The Registry Act " shall not apply to any lien arising under the provisions of this Act. 38 V. c. 20, s. 18. SCHEDULE. {Section 4.) STATEMENT OF CLAIM, A.B. of under " The Mechanics' Lien Act,'* claims a lien upon the estate or interest of C. D. of in respect of the following work {or materials), that is to say, which work was {or is to be) done {or materials were furnished) for the said C. D. on or before the day of The amount claimed as due, or to become due, is the sum of dol ars. The description of the land to be charged is the following : {Description of land.) Dated at , this day of , A.D. 18 . 36 V. c. 87, Sched. 45 VIC. CAP. 15. An Act to make further provision respecting the Lien of Mechanics and Laborers. I. This Act may be cited as the " Mechanics' Lien Act, 1882." : 1 i i ' i i ■I 280 THE CANADIAN LAWYER. 2. Every mechanic, labourer, or other person, who performs labour for wages upon the construction, alteration, or repair of any building or erection, or in erecting or placing machinery of any kind in, upon, or in connection with, any building, erection, or mine, shall, to the extent of the interest of the owner as that term is interpreted by the " Mechanics' Lien Act," have, upon such building, erection, or mine, and the land occupied thereby or enjoyed therewith, a lien for such wages, not exceeding the wages of thirty days, or a balance equal to his wages for thirty days. This is not to prejudice any lien which any such person may have under the said " Mechanics' Lien Act." 3. The lien given by the preceding section shall operate not- withstanding any agreement between the owner and contractor for excluding a lien, and notwithstanding that the labour is in respect of a buildiqg, erection, or mine which belongs to the wife of the person at whose instance the work is done. 4. In case of there being a contract for the construction, altera- tion, repair, erecting or placing aforesaid, the said lien for wages shall, to the extent of ten per cent, of the price to be paid to the contractor, have priority over all other lieus under the said Act, and over any claim by the owner against the contractor for, or in consequence of, the failure of the latter to complete his contract. II 6. In case of there being such a contract as aforesaid, if any person other than the contractor has performed labour or supplied materials on or for the execution of the contract, the owner shall, in the absence of a stipulation to the contrary, be entitled to retain, for a period of thirty days after the completion of the contract, ten per centum of the price to be paid to the contractor. •. To obtain the benefit of this Act, the proceedings to realise the lien hereby provided for may be instituted, and the lien regis- tered, at any time (i) within thirty days after the last day's labour for which the wages are payable, or (2) within thirty days after the completion of the construction, alteration or repair of the building or erection, or after the erecting or placing ot the machinery, in or towards which, respectively, the labour was performed and the wages earned, but so that the whole period shall not exceed sixty days from the last day's labour aforesaid ; and the lien shall not continue after the said respective periods unless the same is duly registered before the expiration of the said periods so limited. 7. Sections twenty and twenty-one of the said " Mechanics' Lien Act" shall apply to any lien given by this Act save as its provisions have been varied by the preceding section. MECHAMIOS LIENB. 281 IS iny ny ]or rm :h lor \es fB. Ive I 8. The statement of claim may include the claims of any num- ber of mechanics, labourers, or other persons aforesaid, who may choose to unite in the statement ; in such case the statement of each claimant is to be verified by his alfidavit. •■ The statement of claim register(i a court or judge otherwise orders. 8. Nothing in this Act contained shall in anyway interfere with, aftect or prejudice the priority of lien for wages to which any mechanic, labourer or other person is entitled under " The Mechanics' Lien Act, 1882." TUB OANADtAK LAWYEII. 286 [rd Jhe let, led pre Ihe irt jy MORTGAGES OF LAND. A mortgage is a pledge of lands as security for a debt, whereby the debtor, or ■ edgor, or, rs he is com- inonly called, the mortgagor, convey.? the land to the creditor or pledgee, or, as he is commonly called, the mortgagee, subject to a condition or proviso that, if the debt is discharged by a day named, the pledge shall be void, and the mortgagor shall be entitled to receive back and hold the lands free from all claims created by the mortgage. What is called the legal ownership of the lands is vested in the creditor, but, in equity, the debtor and those claiming under him remain the actual owners, until debarred by judicial sentence, or by legislative enactment. It may be said generally that all kinds of property in land which may be absolutely sold, may be the sub- ject of a mortgage, unless prohibited by specific legis- lation. Mortgages may be legal or equitable. A legal mortgage is described above, but may be given for the performance of a covenant as well as the repayment of a debt. It must be in writing, but may be made either in one deed containing the whole con- tract, or in n resides, a Notary Public, a Stipendiary Magistrate, a Police Magistrate. ev as ar th in c C NATURALIZATION AND ALIENS. 803 ln!n ate- [da, of lg.i to Ibis be [da. of led ^e a ice 12. The alien shall adduce in support of bis application such evidence of his residence or service, and intention to reside or serve, as the person before whom he takes the oath aforesaid may require ; and such person, on being satisfied with such evidence, and that the alien is of good character, shall grant to such alien a certificate in the form B in the schedule hereto or to the like effect. 13* Such certificate shall be presented, — In Ontario, to the Court of General Sessions of the Peace of the county within the jurisdiction of which the alien resides, or to the Court of Assize or Nisi Prius during its sitting in such county ; In Quebec, to the Circuit Court in and for the circuit within ih^; jurisdiction of which the r-lien resides ; In Nova Scotia, to the supreme Court or to the Circuit Court during its sittings in the county within the jurisdiction of which the alien resides, or to the County Court of such county ; In New Bnmswick, to the tiupreme Court or the Court of Assize or Nisi Prius during its sittings in the county within ;he jurisdiction of which the alien resides, or to the County Court of such county ; In British Columbia, to the Supreme Court during its sittings in the electoral district within the jurisdiction of which the alien resides, or to the Court of Assize or Nisi Prius during its sittings in such electoral district, or to the County Court of such electoral district : In Manitoba, to the Court of Queen's Bench during its sittings in the county within the jurisdiction ot which the alien resides, or to the Court of Assize or Nisi Prius during its sittings in such county, or to the County Court of such county ; In Prince Edward Island, to the Supreme Court during its sittings in the county within which the alien resides, or to the Court of Assize or Nisi Prius during its sittings in such county, or to the County Court of such county, — In ooen court, on the first day of some general sitting of such court ; and thereupon such court shall cause the same to be openly read in court; and, if during such sitting the facts mentioned in such certificate are not controverted, or any other valid objection made to the naturalization of such alien, such court, on the last day of such sitting, shall direct that such certificate be filed of record in the court. 14. In the North-West Territories and in the District of Keewa- tin, such certificate shall be presented to such authorities or persons as may be provided by order or regulation of the Governor-General in Council, and thereupon such authority or person shall take such proceedings with respect to such certificate, and shall cause the same to be filed of record in such way as may be provided by such order or regulation. 15. The alien shall, after the filing of such ceitificate. be entitled, under the seal of the Court if such cumiicate has been presented to 804 THE CANADUN LAWYER. i i a Court, to a certificate of naturalization in the furm C in the schedule hereto annexed or to the like effect ; and if the certificate has been presented to an authoritj' or parson, as provided by order or regulation of the Governor-General in Council, the alien shall be entitled to receive from such authority or person a certificate of naturalization authenticated as may be provided by such order or regulation. 16. The certificate granted to an alien who applies for natural- ization on account of service under the Government, as provided by the tenth section hereof, shall be filed of record in the office of Her Majesty's Secretary of State for Canada ; and thereupon the Governor-General in Council may authorize the issue of a certificate of nattiralization to such alien in the form D in the schedule hereto, or to the like effect. I7a An alien to whom a certificate of naturalization is granted shall, within Canada, be entitled to all political and other rights, powers and privileges, and be subject to all obligations, to which a natural born British subject is entitled or subject within Canada, with this qualification, that he shall not, when within the limits of the foreign State of which he was a subject previously to obtaining his certi^cate of naturalization, be deemed to be a British subject unless he has ceased to be a si bject of that State in pursuance of the laws thereof, or in pursuance of a treaty or convention to that effect. 18* A special certificate of naturalization may, in manner afore- said, be granted to any person with respect to whose nationality as a British subject a doubt exists, and such certificate may specify that the grant thereof is made for the purpose of quieting doubts as to the right of such person to be deemed a British subject ; and the grant of such special certificate shall not be deemed to be any admission that the person to whom it was granted was not prev- iously a British subject. Such special certificate may be in the form £ in the schedule hereto annexed, or to the like effect. 19a An alien who has been naturalized previously to the coming into force of this Act may apply for a certificate of naturalization under this Act, and such certificate may be granted to such natu- ralized alien upon the same terms and subject to the same condi- tions upon which such certificate might have been granted if such alien had not been previously naturalized. 20a A natural born British subject who has become an alien in pursuance of this Act or of any Act or law in that behalf, and is, in this Act, referred to as a "statutory alien," may, upon the same terms and subject to the same conditions as are required in the case of an alien applying for a certificate of naturalization, apply to the . le le >e )f [I. id lof le ;te o, NATURALIZATION AND ALIENS. 305 proper Court or authority or parson in that behalf for a certificate, hereinafter referred to as a " certificate of re-admission to British nationality," re-admitting him to the status of a British subject within Canadn. Such certificate may be in the form F in the schedule annexed, or to the like effect. 2L A copy of the certificate of naturalization may be registered in the Land Registry Office of any county or district or registration division within Canada, and a copy of such registry, certified by the registrar or other proper person in that behalf, shall be sufficient evidence of thv, aturalization of the person mentioned therein, in all courts and places whatsoever. 22* The clerk of the court by which the certificate of naturaliza- tion is issued, shall, for all services and filings in connection with such certificate, be entitled to receive from such person the sum of twenty-five cents, and no more; and no further or other fee shall be payable for or in respect of such certificate. The registrar shall, for recording a certificate of naturalization be entitled to receive from the person producing the same for registry, the sum of fifty cents, and a further sum of twenty-five cents for every search and certified copy of the same, and no more. 23* A statutory alien to whom a certificate of re-admission to British nationality within Canada has been granted shall, from the date of the certificate of re-admission, but not in respect of any previous transaction, resume his position as a British subject within Canada, — with this qualification, that within the limits of the foreign ^tate of which he became a subject he shall not be deemed to be a British subject within Canada, unless he has ceased to be a subject of that foreign State according to the laws thereof, or in pursuance of a treaty or convention to that eflect. 24a Where any foreign State has, before or after the coming into force of this Act, entered into a convention with Her Majesty to the eflect that the subjects of that State who have been naturalized as British subjects may divest themselves of their status as subjects of such foreign State, and where such convention or the laws ot such foreign State require a residence in Canada of more than three years or a service under the Government of Canada or of any of the Provinces of Canada, or of two or more of such Provinces, of more than three years, as a condition precedent to such subjects divesting themselves of their status as such foreign subjects — an alien being a subject of such foreign State who desires to divest himself of his status as such subject, may, if at the time of taking the oath of residence or service he has resided or served the length of time required by such convention or by the laws of the foreign State, instead of taking the oath shewing three years residence or service, take an oath showing residence or service for the length of 20 v\\ 806 THE CANADIAN LAWTRR. b!l^— ■''*' .\'''> time required by such convention or by the laws of the foreign State ; and the certificate to be granted to the alien under the twelfth section hereof shall state the period of residence or service sworn to. The certificate of naturalization shall likewise state the period of residence or service sworn to, and the statement in such certificate of naturalization shall be sufficient evidence of such residence or service in all courts and places whatsoever. 26* An alien who, either before or after the coming into force of this Act, has, whether under this Act or otherwise, become entitled to the privileges of British birth in Canada, and who is n subject of a foreign State with which a convention to the effect above mentioned has been entered into by Her Majesty, and who desires to divest himself of his status as such subject, and who has resided or served the length of time required by such convention or by the laws of the foreign State, may take the oath of residence or service shewing residence or service for the length of time required by such convention or by the laws of the foreign State, and apply for a cer- tificate (or a second certificate, as the case may be) of naturalization under this Act. NATIONAL STATUS OF MARRIBD WOMEN AND INFANT CHILDREN. 26a A married woman shall, within Canada, be deemed to be a subject of the State of which her husband is for the time being a subject. 27* A widow, being a natural born British subject, who has become an alien by or in consequence of her marriage, shall be deemed to be a statutory alien, and may, as such, at any time during widowhood, obtain a certificate of re-admission to British nationality, within Canada, in manner provided by this Act. 28* Where the father, being a British subject, or the mother being a British subject and a widow, becomes an alien in pursuance of this Act, every child of such father or mother, who during infancy has become resident in the country where the father or mother is naturalized, and has, according to the laws of such country, become naturalized therein, shall, within Canada, be deemed to be a subject of the State of which the father or mother has become a subject, and not a British subject. 29 ■ Where the father, or the mother being a widow, has obtained a certificate of re-admission to British nationality vvuthin Canada, every child of such father or mother who during infancy b-^s become resident within Canada with such father or mother, shall be deemed to have resumed the position of a British subject within Canada, to all intents. r ti j1 NATUnALIZATtON ANt> ALIENS. 307 30. Where the f.ither, or the m<->tl;er being a widow, has obtained a certificate of naturalization withiu Canada, every child of such father or mother who during infancy has become resident with such father or mother within Canada shall, within Canada, be deemed to be a naturalized British subject. 31. Nothing in this Act contained shall deprive any married woman of any estate or interest in real or personal property to which she may have become entitled previously to the coming into force of this Act, or affect such estate or interest to her prejudice. 32« The Governor-General in Council may by regulation pro- vide for the following matters : — 1. The form and registration of declarations of British nationality ; 2. The form and rej;istration of certifics^tes of naturalization in Canada : . 3. The form and registration of certificates of re-admission to the British nationality within Canada ; 4. The form and registration of declarations of alienage ; 5. The transmission to Canada for the purpose of registration or safe keeping, or of being produced ns evidence of any declarations or certificates made in pursuance of this Act, out of Cnnada, or of any copies of such declarations or certificates, also of copies of entries contained in any register kept out of Canada in pursuance of or for the purpose of carrying into effect the provisions of tilis Act; 6. With the consent of the Treasury Board, the imposition and application of fees in respect of any registration authorized to be made by this Act, and in respect of the making any declaration or the grant of any certificate authorized to be made or granted by this Act ; 7. The persons by whom the oaths may be administered under this Act ; * 8. Whether or not such oaths are to be subscribed as well as taken, and the form in which such taking and subscription are to be attested ; 9. The registrations of such oaths ; . 10. The persons by whom certified copies of such oaths mny be given ; 11. The transmission to Canada for the purpose of registration or safe keeping, or of being produced as evidence, of any oaths taken in pursuance of this Act out of Canada, or of any copies of such oaths, also of copies of entries of such oaths contained in any regis- ter kept out of Canada in pursuance of this Act ; 12. The proof, in any legal proceeding, of such oaths ; 13. With the consent of the Treasury Board, the imposition and application of fees in respect of the administration or registration of any such oath. 308 THE CANADIAN LAWYEll. The Governor-General in Council, by a further regulation, may repeal, alt^^r or add to any regulation previously made by him in pursuance of this section. Any regulation made by the Governor- General in Council in pursuance of this section shall be deemed to be within the powers conferred by this Act, and shall be of the same force as if it had been enacted in this Act. MISCELLANEOUS. 37* Where any British subject has, in pursuance of this Act, become an alien, he shall not thereby be discharged from any lia- bility in respect of any acts done before the date of his so becoming an alien. 38. Each and every person who, being by birth an alien, had, on or before the coming into force of this Act, become entitled to the privileges of British birth, within any part of Canada, by virtue of any general or special Act of Naturalization in force in such part of Canada, shall hereafter be entitled to all the privileges by this Act conferred on persons naturalized under this Act. 41* Every person who, being by birth an alien, did, prior to the first day of January, i868, take the oaths of residence and allegiance required by the naturalization laws then in force in that one of the Provinces now forming the Dominion of Canada, in which he then resided, shall, within Canada, be admitted to all the rights and privileges of a natural born British subject conferred upon natural- ized persons by this Act ; and the certificate of the judge, magis- trate, or other person before whom such oaths were taken and subscribed, shall be evidence of his having taken them ; or he may take and subscribe the oah in form G in the schedule hereto before some judge, justice, or person authorized to administer the oaths of residence and allegiance under this Act, in tl^ county or district in which he resides. 42« All aliens who had their settled place of abode in either of the late Provinces of Upper Canada or Lower Canada or Canada, or in Nova Scotia or New Brunswick, on or before the first day of July, A. D. 1867, or in Rupert's Land or the North-West Territories on or before the fifteenth day of July, A.D. 1870, or in British Columbia, on or before the 20th day of July A.D. 1871, or in Prince Edward Island, on or before the first day of July, A.D. 1873, and who are still residents in Canada, shall be deemed, adjudged, and taken to be, and to have been entitled to all the privileges of British birth within Canada, as if they had been natural born subjects of Her Majesty, subject to the following p'-ovision, that is to say : — That no such person (being a male) shall be entitled to the benefit of this Act, unless nor until he shall take the oaths of allegiance NATURALIZATION AND ALIENS. 809 1 and residence in the form prescribed by this Act, before some Justice of the Peace or other person authorized to administer oaths under this Act. 43. The oaths taken under the Inst preceding section shall be filed of record, — if the person making them resides in the Province of Ontario, with the Clerk of the Peace of the countv in which he resides, — if he resides in the Province of Quebec, with the Clerk of the Circuit Court of the circuit within which he resides, — if he resides in Nova Scotia, with the Clerk of the -upieme Court, — and if he resides in New Brunswick, with the Clerk of the Supreme Court, — if he resides in British Columbia or Prince Edward Island, with the Clerk of the Supreme Court, — if he resides in Manitoba, with the Clerk of the Court of Queen's Bench, or with the Clerk of the County Court of the county in which he resides, — if he resides in the North- West Territories or in the District of Keewatin. with such person or authority as may be provided by order or regulation of the Govrrnor-General in Council; and upon its being so filed, the person making it shall be entitled to the benefit of this Act and of the privileges of 'British birth within Canada, and shall also, upon payment of a fee of twenty-five cents, be entitled to a certifi- cate from the person with whom the oaths have been filed, in the form H of the schedule hereto, or to the like efr»,'ct ; and the pro- duction of such certificate shall be prima facie evidence of his naturalization under this Act, and that he is entitled to and enjoys all the rights and privileges of a British subject. • 49< After the coming into force of this Act, no alien shall be nPMiralized within Canada, except under the provisions of this Act. (Empowers the Governor-General to provide by regulation certain forms, etc.) SCHEDULE OF FORMS. A. {See Section lo.) The Naturalization Act, Canada, i88i. Oath of Residence. I, A. B., do swear (or, being a person allowed by law to pflfirm in judicial cases, do affirm) that, in the period of years preceding this date I have resided three {or five, as the case may be) years in tlio Dominion of Canada with intent to settle therein, without having I een, during such three years (or five years, as the case may be), a stated resident in any foreign country. So help me Gud. bworn before mc at | on the [ A. B, day of / 310 THE CANADIAN LAWYER. The Naturalization Act, Canada, i83i. Oath uf Service. I, A. B., do swear (or, being a person allowed by law to affirm injudicial cases, do affirm), that in the period of years preceding this date, I have been in the service of the Government of Canada (or, of the Government of the Province of , in Canada, or as the case may be) for the term of three years, and I intend, when naturalized, to reside in Canada {or to serve under the government of as the case may be). Sworn before me at ] on the |> A. B. day of ) (0 gi N tc tl w d t) C tl e b s The Naturalization Act, Canada, i88i. Oath of Allegiance. I, A. B., do sincerely jproraise and swear ior, being a person allowed by law to affirm in judicial cases, affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, avlawful Sovereign of the United Kingdom of Great Britain and Ireland and of the Dominion of Canada, dependent on and belonging to the said Kingdom, and that I will defend her to the utmost of my power against all traitorous conspiracies or attempts whatever which shall ba made against Her Person, Crown and Dignity, and that I will do my utmost endeavour to disclose and make known to Her Majesty, Her Heirs or Successors, all treasons or traitorous conspiracies or attempts which I shall know to be against Her or any of them ; and all this I do swoar (or affirm) without any equivo- cation, mental evasion or secret reservation. So help me God. Sworn before me at this \ A. B. day of B. (Sec Section 12.) The Naturalization Act, Canada, 1881. Certificate under Section 12. I, C. D. (name and description of the person before whom the oaths have been taken— See Section 11), do certify that A. B., an alien, ot» tb^ day of , subocribed and togk before me the QAihs MATUBALIZATIOM AND ALIENS. 811 {or affirmatiotis) of residence and allegiance, {or service and alle- giance, as the case may be), authorized by the tenth section of The Naturalization Act, Canada, 1881, and therein swore (or affirmed) to a residence in Canada {or service, &c.,) of years, that I have reason to believe and do believe that the said A. li., within the period of years preceding the said day, has been a resident within Canada for three or five, (as the case may be) years {or has bejn in the service of the Government of Canada for three years ; or, as the case may be) that the said A. B. is a person of good character, and that there exists, to my knowledge, no reason why the said A. B. should not be granted all the rights and capacities of a natural born British subject. Dated at , the day of CD. If the above Certificate be applied for by a person with respect to whose nationality a doubt exists, and who desires a special Certificate of Naturalization under siction eiffhleen, add the following : — " I further certify that the said A. B. has doubts as to his nation- ality as a British subject, and desiros a special certificate of naturalization under section ei;j;iiteen of said Act." If the above certificate be ap/ lied for by a person, prcrionsly a natural born British subject, but ■idij became an alien by natvralizalion, an appropriate statement to that effect should be inserted in the cer' tificate. m I. < I) C. {See Section 15,) The Naturalization Act, Canada, i88i. Certificate of Naturalization. Dominion of Canada, ) Province of ) In the {name oj Court) : Whereas. A. B., of, «S:c. {describing him as formerly of such a place, in such a^ foreign country, and now of such a place in Canada, and adding his occupation or addit'on) has complied with the several requirements of The NaturalizaJon Act, Canada, 1881, and has duly resided in Canada for the period of (three or five, as the case may be) years. And whereas the certificate granted to the said A. B. under the twelfth section of the said Act has been duly read in open Court, and thereupon, by order of the said Court, has been filed of record in the same pursuant to the said Act. (H) This is therefore to certify to all whom it may concern that under and by virtue of the said Act, A. B. has become naturalized as a British subject, (§) and is, 812 THE CANADIAN LAWYER. within Canada, entitled to all political and other rii^hts, powers and privileges, and is subject to aP obligations to which a natural born British subject is entitled or subject within Canada, with this qualification that he shall not, when within the limits of the foreign State of which he was a subject (or citizen) previous to the date hereof, be deemed to be a British subject unless he has ceased to be a subject {or ci'izen) of that State in pursuance of the laws thereof or in pursuance of a treaty or convention to that effect. Given under the seal of the said Court, this day oi , one thousand eight hundred and E. F. Judge, Clerk (or other proper officer of the Court.) This form may be altered so as to apply to thj North-West Terri- tories or District of Kcewatin. Si tl a t' V C D. (Sec Section 16.) The Naturalization Act, Canada, 1881. Certificate of Naturalization to a person after service under 'Govern- ment. Whereas A. B., of (descrilircr him, and additt/r his occupation or addition) has complied with the several requirements of The Natu- ralization Act, Canada, 1881, and has been in the service of the Government of Canada, {cir, '.is the case 'may be) for a term of not less than three years, and intends, when naturalized, to reside in Canada (or to serve under the Government of , as the case may be) ; and whereas the certificate granted to the said A.B., under the twelfth section of the said Act, has been duly filed of record in the office of Her Majesty's Secretary of State for Canada pursuant to the said Act ; and whereas the Governor General in Council has duly authorized the issue of this certi6cate of naturalization ; This is therefore to certify to all whom it may concern that under and by virtue of the said Act the said A. B. has become naturalized as a British subject, and is, within Canada, entitled to all political and other rights, powers and privileges, and is subject to all obligations to which a natural born British subject is entitled or subject within Canada, with this qualification that he shall not, when within the limits of the foreign State of which he was a sub- ject (or citizen) previous to the date hereof, be deemed to be a British subject unless he has ceased to be a subject (or citizen) of that State in pursuance of the laws thereof, or in pursuance of a treaty or convention to that efTect. Given under my hand, this day of Stcrdary of 6tate of Canadif, \ MATUBALIZATION AMD ALIENS. 813 E. {See Section i8.) Special Ccrtijicate of Naturalization to a person with respect to whose nationality a doubt exists. The Naturalization Act, Canada, i38t. Follow form C. down to the sign II — then add : And whereas the said A. B. alleges that he is a person with respect to whose nationality as a Dritish subject a doubt exists, and this certificate is issued for the purpose of quieting such doubt, and the application of the said A. B. therefor, and the issuing thereof shall not be deemed to be any admission that the said A. U. was not heretofore a British subject — {then continue the rest of form C. to the end. Form D. to be altered in a similar way when necessary. Ml , li F. {See Section 20.) Certificate of re-admission to British Nationality, The Naturalization Act, Canada, 1881. Formal part as in Form C. Whereas A. B , of {describing him as inform C), who alleges that he was a natural born iiritish subject, and that he became an alien by being naturalized as a subject {or citizen) of has com- plied with the several requirements of The Naturalization Act, Canada, iSSi, and has duly resided in Canada for the period of three {or five, as the case may be) years ; and whereas the certificate granted to the said A. 13„ under the twelfth section of the said Act, has been duly read in open Court, and thereupon by order of the said Court has been filed of record in the same pursuant to the said Act : This is therefore to certify to all whom it miy concern that under and by virtue of the said Act the said A. B., from the date of this certificate, but not in respect of any previous transac- tion, is re-admitted to the status of a British subji^t — {then follow form Cfrom the sign § to the end.) Form D. to be altered in a similar manner w.'ten necessa j. Where the applicant is a widow, the form must be modified accord- inglv, and recite that she became an alien by marriage with her late husband L. Af ., a subject (or citizen) of y 314 THE CANADIAN LAWY£R. G. (See Section 43.) The Naturalization Act, Canada, 1881. I, A. B., of , do swear {or affirm) that on or about the day of , one thousand eight hundred and , at , in the (County, etc.,) of , in the Province of , I did take and subscribe before (1 Judge, Magistrate or other person, naming him) the oaths (or affirmations) of residence and allegiance require 1 by the laws respecting the naturali:.ation of aliens then in force in the sui J Province, So help me God. Sworn before me at ] on the \ A. B. day of 18 ) » G. I. (See Section 44.) The Naturalization Act, Canada, iSSi. I, A. B., of , do swear (or affirm) that I had a settled place of abode in (Upper Canada, Lower Canada, Nova Scotia, or Nev/ Brunswick, as the case may be) on the first day of July, A. D. 1867, (or in Rupert's Land or the North-West Territories, on the fifteenth day of [uly, A. D. 1870) (or in British Columbia, on the twentieth day of July, A. D. 1871) [or in Prince Edward Island, on the first day of July, A.D. 1S73), and I resided therein with intent to settle therein ; and I have continuously since resided in the Dominion of Canada. '60 help me God. Sworn before me at on the 1- A. B. day of 18 H. (See Section 45.) The Naturalization Act, Canada, 1881. I hereby rZiKny tbai A lV, of . has filed with me as (Clerk of the F'cac* . . or as the c ise may be) the oath (or affirmation) . •' *h'r.h rr.e following is a copy : — (Copy of Oath or AJJirmation.) This certificate is issued pursuant to the forty-fifth section of The Not'.trnHtatim Act, Canada, 1881, and is to certify to all to whom It may concern that (Follow Form C,) NATURALIZATION AND ALIENS. 315 ;■ ■e REGULATIONS MADE UNDER THE AUTHORITY OF THE NATURALIZATION ACT. CANADA, 1881. 1. The time within which an alien's three years residence or service must be had before taking the oaths or affirmations of residence and allegiance, and procuring the same to be filed of record as provided in the tenth section of the said Act, is limited to five years, immediately preceding the taking of such oaths or affirmations. 2. In the North-West Territories and in the District of Keewatin, the certificate mentioned in the twelfth section of the said Act shall be presented to one of the Stipendiary Magistrates of the North-West Territories, who shall fake such measures to satisfy himself that the facts stated in the certificate are true, as shall in each case appear to him to be necessary ; and when satifcficd that the facts stated in the certificate are true, he shall grant to the alien a certificate of naturalization, authenticated under his hand and seal: Each Stipendiary Magistrate shall keep a record of the certifi- cates presented to and filed with him ; also u record of all certificates of naturalization granted by him, of which he is hereby authorized at any time to give a certified copy. 3. The forms of declarations of alienage made in pursuance of the said Act shall be respectively as follows : — h ' The Naturaltzation Act, Canada, i8Sr. Declaration of Alienage by a Naturalized British Subject. I, A. B., of having been naturalized as a British subject on the of ,18 , do hereby, under tiie provisions ol the Order of the Governor-General in Council of the , and of the treaty between Great Britain and C. D., renounce my naturalization as a British subject, and declare that it is my desire to resume my nationality as a subject (or citizen) of C. D. (Signed) A. b. Made and subscribed this day of 18 , before me, (Ligned) E. F., Justice of the Peace * (or other oj^cial title.) lii i;:!« The Naturalization Act, Canada 1881, Declaration of Alienage by a Person born within British Dominions, but also a subject or citizen of a Foreign Stiite by the la::> thereof. I, A. B., of being held bv the common law of Great Britain to be a natural born subject of Her Britannic Majesty by 816 THE CANADIAN LAWYER. reason of my having been born within Her Majesty's dominions, and being also held by the law of C. D. to have been at my birth, and to be still, a subject (or citizen) of C. D., hereby renounce my nationality as a British subject, and declare that it is my desire to be considered and treated as a subject {or citizen) of C. D. (Signed) A. B. Made and subscribed this day of i8 , before me. (Signed) E. F. Justice of the Peace (or other official title.) K. The Naturalization Act, Canada, i88i. Declaration of Alienage by a Person who is by origin a British subject. I, A. B.. of . having been born out of Her Britannic Majesty's Dominions of a father being a British subject, do hereby renounce my nationality as a British subject. (Signed) A. B. Made and subscribed this day of i8 , before 1T16 (Signed) G. H. Jusiiceof the Peace (or other official title.) or of vis F I L. The Naturalization Act, Canada, i88i. Dcclatalion cf British Nationality. I. A. P., of I being a natural born subject of Her Britannic Majesty, and having voluntarily become naturalized as a subject (or citizen) of C. D., on the of , i8 , do hereby renounce such naturalizatioif, and declare that it is my desire to be considered and treated as a British subject. (:;igned) A. B. Made and subscribed this day of iS , before ftXQ (Signed) E. F. Justice of the Peace (or other official title.) 4. Every declaration, whether of alienage or British nationality, made in pursuance of the said Act, shall be deposited and regis- tered in the Qifice of the Secretary of State of Canada ; Katubaltzation and aliens. 917 t. ic y The Secretary of State of Canada, the Under Secretary of Static or the Deputy Registrar General of Canada may give certified copies of any such declaration for the purposes mentioned in the said Act. 5. With the consent of the Treasury Board, the following pro- vision is made in regard to the imposition and application of fees : — Matter in which fee may be taken. For taking a declaration, whetherof alienage or Brit- ish nationality For administering the oath of allegiance For registration of declara- tion, with or without the oath of allegiance For certified copy of declara- tion, with or without oath. Amount of fee. $ cts. 40 40 I 00 I 00 How to be applied. To the Just ice or other official taking declaration. To the Justice, Commission- er, Notary, Stipendiary or other Magistrate admiots- tering the oath. Consolidated Revenue of Canada. Consolidated Revenue of Canada. Consented to by the Treasury Board. Privy Council. Ottaw.\, 19th December, 1883. The foregoing Regulations, made under the authority of the Natutalization Act, Canada, 1881, have been approved by His Excellency the Governor General in Council this igth day of December, 1883. JOHN J. McGEE, Clerk, Privy Council. OTHER FEES NAMED IN STATUTE: To Clerk of Court on certificate of naturalization ?o 23 To Registrar land registry office for recording 050 " for search and certified copy 025 For certifioate under section 43 o 35 313 THE CANADIAN LAWYER. PARTNERSHIP. A partnership is an association of two or more per- sons, contributing, in equal or unequal proportions, money, labor, skill, care, attendance or services in the prosecution of some trade or manufacture or business, upon the express, or implied understanding that the profit, or loss, attending the operations, is to be shared among the parties in certain proportions. The capital may be supplied by one alone, and the skill and lab )r by another alone, or both may furnish both capital and labor. A person under the age of 21 years, being unable to make a valid contract, cannot o ni a partner- ship ; nor can an idiot or lunatic, for the same reason ; and, as a rule, and in the absence of statutory provision, a married worn m cannot, save where her husband is a convicted felon, or an alien enemy and abroad, or where by order of a competent Court she is permitted to do so. The contract of partnership is founded wholly on the consent of parties, and may be created and evidenced by their acts and deeds, and their common participation in the profit and loss of a trade or busi- ness, or of a particular speculation or adventure, as well as through the medium of an express contract. If parties are not to share the profit and loss, there can be no partnership as between themselves, whatever may be their apparent situation and position as regards the public. If one man joins another in ^he furtherance of a particular undertaking, and ontributes work and labor, services and skill, towards the attainment of the common object, upon the understanding that the remu- PAHTNERSHIP. 819 neration is to depend upon the realization of profits, so that, if the business is a losing business, he is to get nothing, he stands in the position of a partner in the undertaking, and not in that of a laborer or servant for hire. But a person who merely receives out of the profits the wages of labor, or a commission, as a hired servant or agent, such as a factor, foreman, clerk or manager, and who has no interest or property in the capital stock of the business, is not a partner in the concern, although his wages may be calculated accord- ing to a fluctuating standard, and may rise and fall with the accruing profits. Statutes of the various Provinces provide for the legal rights of such person. A partner in a private commercial partnership (not being a public joint-stock company with transferable shares) cannot introduce a stranger into the firm, as a partner, without the consent ot all the members of the co-partnership. Every person who shares in the profits of a business carried on by himself personally, or by others as his agents, is a partner in the business as regards the public and third parties, and is liable as such, whatever may be the private stipulations and agreements between him and the parties who appear to the world as the mana- gers and conductors of the business ; because the profits form a portion of the fund on which the creditors have a right to rely for payment. A general partnership is one formed for trade or busi- ness generally, without limitations. A special partner- slflp is one in which the joint interest extends only to a particular concern, as, for example, in the erection of a hotel. A limited partnership is one in which one or more of the partners put in a certain amount of capital, 820 THE CANADIAN LAWYER. which is liable for the contracts of the firm, but beyond that amount the party advancing is not liable. A person who lends his name as a partner, or who '.rs his name to continue in the firm after he has ' ily ceased to be a partner, is still responsible to third persons as a partner. *^. pa •<-"r'r may buy and sell partnership effects ; make contracts i:i reference to the business of the firm ; pay and receive money ; draw and endorse and accept bills and notes ; release ordinary partnership debts, payable on demand under seal ; and all acts of such a nature, even though they be upon his own private account, will bind the other partners, if connected with matters ap- parently having reference to the business of the firm, and transacted with other parties ignorant of the fact that such dealings are for the particular partner's private account. So also the representation, or mis- representation, of any fact, made in any partnership transaction by one partner, or the commission of any fraud in such transaction, will bind the entire firm, even though the other partners may have no connection with, or knowledge of the same. A partner will bind the firm by his representations and admissions made to others in the general course of the partnership business, but cannot bind them by deed, unless empowered by deed so to do ; nor by giving guaranties, unless the giving of such is part of the re- gular business of the firm*. He can hire clerks and workmen, but cannot discharge them against the will of his partners. In lawsuits, he may prosecute or de- fend an action for the nrm, but if his partners object to his course they have a right to demand that he shall indemnify them against law costs. PAUTNERSiilP. 321 Dormant and secict partners, whose names do not appear to the world, may be made responsible for the engagements of a trading firm of which they are mem- bers. Persons may become clothed with the legal liabilities and responsibilities of partners as regards the public and third parties, by holding themselves out to the world as partners, as well as by contracting the legal relationship of partners among themselves. If a man, therefore, allows himself to be published to the world as a member of a particular firm ; if he permits his name to appear in the partnership name or to be used in the business ; if he suffers it to be exhibited to the public over a shop-window ; or to be written or printed in in- voices or bills of parcels or prospectuses : or to be published in advertisements, as the name of a member of the firm, he is an ostensible partner and is chargeable as a partner, although he is not in point of fact a part- ner in the concern, and has no share or interest in the profits of the business. But if a man's name is used without his knowledge or consent, and he is represented by others to be a partner without his authority or per- mission, he cannot, of course, be made responsible as a partner upon the strength oi such false and fraudu- lent representation. An incoming partner cannot be made responsible for the non- performance oC, contracts entered into by the firm before he became an actual or reputed member ofiit. Dormant and secret partners may release themselves from all further liability by a simple withdrawal and relinquishment of their share in the profit and loss of the business ; but, if they are not strictly secret as well 21 II 322 THE CANADIAN LAWYER. as dormant partners, notice of tlie termination of their connection with the co-partnership must be given. A general notice is sufficient as to all but actual custom- ers : these must have some kind of actual notice. If no time has been limited for the dissolution of a general trading partnership, it is a partnership at will, and may be dissolved at any time at the pleasure of any one or more of the partners. If the partnership was established by deed, the renunciation and disclaimer of it by the party who withdraws from the firm ought to be made by deed. But if the partnership was con- tracted xvithout deed, or, as it is technically called, by parol, it may be renounced in the same manner. If the partners have agreed that the partnership shall continue for a definite period, it cannot be dissolved before the expiration of the term limited, except on the •mutual consent of all the parties, or by the outlawry, felony or death of any one or more of them, or by the decree of a Court of Equity. The Courts will interfere to prevent gross breaches of the partnership agreement on the part of a member, or improper conduct likely to cause great loss to the partnership, and will award in- junction or damages; and where these remedies appear insufficient, or other good cause exist, may dissolve the partnership. If a partnership for a definite term has been created by deed, the mutual agreement of the parties to dissolve it must be by deed also. The part- nership is dissolved by the death or insolvency of one of the partners ; or by an assignment by any partnefW his share and interest in the business. A dissolution by one partner is a dissolution as to all. An executor, administrator or personal represent- ative, continuing in the business aftcsr the death of a PARTNERSHIP. 823 I partner, is personally responsible as partner for all debts contracted. Immediately after a dissolution, a notice of the same should be published in the public papers, and in the official Gazette, for general information, and a special notice sent to evpry person who has had dealings with rlie firm. If these precautions be not taken, each partner will still continue liable for the acts of the others to all persons who have had no notice of the dissolution. The strictest good faith, and an adherence to the highest principles of business honour and integrity will be required of partners in all dealings between themselves. Where differences of opinion arise as to the conduct of business affairs, the voice of the majority should be allowed to govern ; but the majority cannot commit any partner to the risk of transactions outside the scope of the business contemplated in the partner- ship articles. It will be found a wise course to provide in these articles, very carefully, as to all matters about which there is likely otherwise to be misunderstanding. Each partner is liable to the others for a breach of any express covenant in the articles, and each may sue the others for any balance of profit admitted to be due him, or upon outside transactions unconnected with the partnership. Upon a dissolution, any superior Court having equity jurisdiction will direct the accounts to be taken by one of its officers, if the partners cannot otherwise agree upon a division of profits and losses. In Ontario and British Columbia, agreements where- by an employee receives a defined share of the net profits or proceeds of a business, in lieu of or in ad- dition to salary or wages, do not create the relation :J24 THE CANADIAN LAWYER. i-f partnership, with the rights and liabilities attending ;uch relation. Persons advanc'ng money by way of K-an, on similar terms, the widow and children of a deceased partner receiving a portion of the profits by way of annuity, and persons receiving a portion of such profits in consideration of the sale of the good-will of the business are likewise similarly protected. In Ontario, also, a declaration in writing is required by the R. S. O. cap. 123 to be delivered, by all persons associated in trading, manufacturing or mining partner- ships to the Registrar of the County in which such partnerships intend to carry on business. This declar- ation is in the form of a certificate which must contain the full names, additions and residences of each of the partners, the style of the firm, and the time at which the partnership is to begin and end, and also declare that the persons therein named are the only members of the partnership. A similar declaration must be filed where an alteration takes place in the membership, or place of residence of any member, or in the style of the firm. The original declaration should be filed within six months next after the formation of the part- nership. Forms are given in the Act, which should be referred to, as it contains provisions of much import- ance with reference to the rights of general and special partners, though too extended for a longer notice in this chapter. In Manitoba, similar provisions are enacted by the Partnerships Act, R. S. M.cap. 17. The declaration is required to be filed with the Prothonotary, or deputy- prothonotary of the Court of Queen's Bench, as the case may be, of the Judicial District in which the prin- cipal place of business of the partnership is situate. PAnTNEHSIIir. 825 of The registration of trading partnerships is also re- quired by the statute law of Nova Scotia and New Brunswick, under provisions similar to the above. In all of the Provinces, limited partners-hips may bo formed, consisting of general and special partners, the latter of whom are not liable for the debts of the part- nership beyond the amount they contribute to the capital. The general partners only can transact the business, sign for the partnership and bind the firm. A certificate in a given form must be signed by all the partners and deposited with the Registrar and Pro- thonotary. The provisions of the statutes upon these subjects should be carefully followed. PRINCE EDWARD ISLAND. By the statute 39 Vict. cap. 8, it is enacted that all persons composing a partnership for the transaction of mercantile, mechanical or manufacturing business, except banking and insurance, shall make and severally sign a certificate in the presence of one or m ve witnesses, which shall contain the name or firm of the partner- ship, the names and respective residences of the part- ners, the general nature of the business to be trans- acted, and the time when the partnership is to com- mence, and terminate ; to be in the form given in the schedule to the Act. No partnership is deemed to be formed until such certificate is registered in the office of the Prothonotary or Deputy Prothonotary of the Supreme Court, in the county where the business of the partnership shall be carried on ; such certificate to be proved on the acknowledgment of the several part- ners, or on the oath of the subscribing witness, to be 326 THK CANADIAN LAWYKH. made before sudi Prothonotary or Deputy Prothoni)- tary, or before a CDmmissioner ; and no suit or action can be brought for any debt due the partnership until such certificate is registered. The partnership is held to continue until a certificate, made and acknowledged as aforesaid by the partner or partners desiring to be discharged from further liability, is registered as in the first instance, declarin' such termination or dissolution, or the withdrawal c 7 of the partners therefrom. No dissolution (except by operation of law) can take place unless a notice thereof shall be registered in the same manner as the original certificate, and unless such notice shall be published for three weeks in the Royal Gazette, and in at least one other newspaper published in the Province. When a new member is admitted, a certificate must be filed, under the hands of the members of the firm ; and no new member shall be considered as between himself and other members as a partner, until such certificate has been filed, although he shall be as fully liable for its debts contracted while he was connected with it. I il FORMS. Partnership Deed. Articles of agreement, made the day of , 18 , Between A. B., of, &c., C. D., of, Ac, E. F., of, &c., and G. H , of, &c. Whereas, the saiJ parties hereto respectively are desirous of entering into a co-partnership in the business of , at for the term and subject to the stipulations hereinafter expressed '; Now, therefore, these presents witness that each of them, the said l»ARTNRRflHI?. 827 parties hereto respect!, .'v, for himself, his heirs, executors and administrators, hereby covenants with the others and other of them, their and his executors and administrators, in manner following ; that is to say : ist. That the said parties hereto respectively will henceforth be and continue partners together in the said business of , for the full term of years, to be computed from the day of , i8 , if the said partners shall so long live, subject to the provisions hereinafter contained for determining the said partner- ship. 2nd. That the said business shall V>e carried on under the style or firm of A. B & Co. 3rd. That the said partners shall be entitled to the profits of the said business in the proportions following ; that is to say (here state the shares ;) and that all losses in the said businens shall be borne by them in the same proportions, unless the same shall be occasioned by the wilful neglect or default of one or eitherof thesaiJ partners, in which case the same shall be made good by the partner through whose ne«lect the same shall arise. 4tb. That the said partners shall each be at liberty, from time to time during the said partnersh p, to draw out of the said business, weekly, any sum or sums, not exceeding for each the sum of 9 per annum ; such sums to be duly charged to each of them respec- tively, and no greater amount to be drawn by either of the said partn.-r3, except by mutual consent. 5lh. That all rents, taxes, salaries, wages and other outgoings and expenses incurred in respect of the said business shall be paid and borne out of the profits of the said business. 6th. That the said partners shall keep, or cause to be kept, proper and correct books of account of all the partnership moneys received and paid, and all business transacted on partnership account, and of all other matters of which accounts ought to be kept according to the usual and regular course of the !-aid business : which said books shall be open to the inspection of all partners, or their legal repre- sentatives ; and a general balance or statement of the said accounts, stock in trad.;, and business, and of accounts between the said partners, shall be made and taken on the day of , in each year of the said term, and oftener, if required. 7tb. That the said partners will be true and just to each other in all matters of the said co-partnership, and will at all times during the continuance thereof diligently and faithfully employ themselves respectively in the conduct and concerns of the said business, and devote their whole time exclusively thereto, and will not transact or engage in any other business or trade whatsoever; and will not either in the namo of the said partnership, or individually in their own names, draw, accept or endorse any accommodation bill or bills, promissory note or notes, or become bail or surety for any person or persons, or knowingly or wilfully do, commit or permit any act, matter or thing, by which, or by means of which, the said partner- 828 tHE CANADIAN LAWYER. ship moneys or effects shall be seized, attached, cr taken in execu- tion for their own private debts or liabilities; and in case any partner shall fail or make default in the performance of any of the agreements or articles of the said partnership in so far as th« same is or are to be observed by him, then the other partners' or anyone or moreofthem.maygivecoticein writing to such partner ollending stat- ing in what respects he is deemed to be so in default ; and in case sue: ' : failure or default is not rectified by a time to be specified for th^- purpose in such notice, the said partnership shall thereupon at once. or at any other time to be so specified as aforesaid, be dissolved and determined accordingly. 8th. That in case any of the said partners shall die before Hic: expiration of the term of the said co-partnership, the said partner- ship shall thereupon cease, and the surviving partner or partners shall within oix calendar months after such decease, settle and ad- just with the representative or representatives of such deceased partner, all accounts, matters and things relating to the said co> partnership. In witness whereof, the said parties have hereto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [i-.s.] Y. Z. C. D. [L.S.] E. F. [L.S.] G.H. [L.s] Dissolution of Partnership, By Indorsement. We, the undersigned, do hereby mutually agree that the partner- ship heretofore subsisting between us, as Wholesale Grocers, un !er the within articles of co-partnership, be, and the same is hercl;"> d-s- solved, except for the purpose of the final liquidation and settkn.cnt of the business thereof; and upon such settlement wholly to rc.ise and determine. In witness whereof, we have hereunto set our hands and seals this day of , a. d. i8 . Signed, sealed and delivered in the presence of Y.Z. A. B. CD. E. F. G.H. rL.s.j [L.S.] fL.S.] [L.S.1 PARTNERSHIP. 329 'if Notice thereof. \r««;rA i<« hereby dven that the partnership heretofore subsisting r'aTd plnL'^sbfp1;a^o b!pre'sen,ed .o .h. said A. B., by whom "■S%t"'°"""'-.his day of .-„■.« • Witness, n r) Y. Z. E. f! G. H. Notice when business to be continued. Notice is hereby given that the Partnership heretofore subsUting hPtw<"en us the undersigned A. B.. C. D., E. t. ana «j. vi.. ^s wKp^le Grocers was this day dissolved by mutual consent, so S^ atretardsSe sdd I B. All debts due to. the said partnership areto be^paid. and those due from the same discharged, at ^ where the business will be continued by the said C. D., E. F. and G. H.. under the firm of " D. <&- Co." Dated at Witness, Y. Z. this day of , A.D. 18 A. B. CD. E. F. G II. 830 THE CANADIAN LAWYEIt. PATENTS OF INVENTIONS. The Patent Office in Canada is attached to the Department of Agriculture, and the Minister of Agri- culture, for the time being, is the Commissioner of Patents. Patents of inventions are grants by the Crown of the exclusive right to make, use and sell any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement not known and used by others. The principal statute now in force relating to patents is the Dominion Statute, 35 Vict. cap. 26, passed in 1872, with subsequent Acts and amendments. Under the Act, the Commissioner is empowered to make rules and regulations, subject to the approval of the Governor in Council. Any person who has invented or discovered any new and useful ait, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter, not known or used by others before his invention thereof, or not being for more than one year previous to his application in public use, or on sale, in Canada, with the consent or allowance of the inventor, may petition for a patent. But if a patent for the invention has been in existence in any other country more than twelve months prior to the application for the patent in Can- ada, the Canadian inventor is not, under the statute, entitled to a patent : where a foreign patent exists, the Canadian patent must expire at the earliest date at which any foreign patent for the same invention ex- pires. The executors or administrators, or other legal PATENTS OP INVENTIONS. 881 i representatives, of a deceased inventor, or persons to whom he has assigned or bequeathed the right of ob- taining the patent, may secure the issue of it. A patent will issue for the improvement of an invention already patented, but this does not confer upon either holder the right to infringe the patent of the other. Where joint applications are made, the patent is issued in the name of all the applicants. No patent will issue for an invention or discovery having an illicit object in view, nor for any mere scien- tific principle or abstract theorem. Every application for a patent must be by petition, addressed to the Commissioner of Patents. Every applicant must make oath, or when entitled by law to make an affirmation instead of an oath, then an affirmation, that he verily believes that he is, or where the inventor is dead, that the person whose assignee or representative he is, is, or was, the inventor of the in- vention for which the patent is solicited, and that thf several allegations in his petition are true and correct. This oath or affirmation may be made before any Jus- tice of the Peace in Canada ; or if the applicant is out of Canada at the time, it may be made before a Minister Plenipotentiary, Charged' Affaires, Consul, Vice-Consul, or Consular Agent of the United Kingdom, or any Judge of a Court of Record, or a Notary Public, or the Mayor or other Chief Magistrate of any city, borough or town corporate in the country in which the applicant happens to be. The petitioner must elect some known and specified place in Canada as his domicile or place of residence, and mention the same m his petition. The petitioner must insert the title or name of his invention, and dis- 382 THR CANADIAN LAWYER. ttnctly allege all the facts which are necessary to entitle him to a patent. A specification, in duplicate, must accompany the petition, describing the same in such full, clear and exact terms as to distinguish it from all con- irivances or processes for similar purposes. It must correctly and fully describe the mode or modes of ope- rating contemplated by the inventor ; and state clearly and distinctly the contrivances and things which he claims as new, and for the use of which he claims an exclusive property and privilege ; and it must bear the name of the place where made, and date, and be signed by the inventor, if alive, and if not, by the applicant and two witnesses. In the case of a machine, the specifi- cation must fully explain the principle and the several modes in which it is intended to apply and work out the same. Where the invention admits of illustration by means of drawings, the applicant must also, with his application, send in drawings, in duplicate, showing clearly all parts of the invention. Each drawing must bear the signature of the applicant, or of his attorney, and contain written references corresponding with the specification ; but the Commissioner may, in his discre- tion, require further drawings, or dispense with any of them ; and with the duplicate specification and draw- ings, and in lieu thereof, may cause copies of the specifi- cations and drawings in print, or otherwise, to be used. Where the invention admits of it, a working model must also be delivered, unless the Commissioner spec- ially dispenses with it. Specimens of ingredients and composition, where these are the subject of the inven- tion, sufficient in quantity for experiment, must also be delivered to the Commissioner, where they are not ex- plosive or dangerous. PATENTS OF INVENTIONS. 888 le It Forms of petition and specification, &c., will be found at the end of this chapter. The patent, when issued, will grant to the patentee, his executors, administrators, assigns and legal repre- sentatives, for the period of time mentioned therein, the exclusive right, privilege, and liberty of making, con- structing, using, and selling to others to be used, the invention patented, subject tj the adjudication of the Court. It will be valid for five, ten, or fifteen years at the option of the applicant ; but the holder of a five or ten years' patent may obtain an extension for one or two sepa- rate periods of five years each ; making a period of fifteen years in all, beyond which extensions are not granted. Where an error occurs in the specification, through mistake or inadvertence, and without fraudulent inten- tion, a patent may be surrendered and a new one issued. And if an inventor obtains, through inadvertence and mistake, without wilful intent to defraud, a patent for more than he is entitled to, he may disclaim. Such disclaimer must be in writing, and in duplicate, and attested by two witnesses, one copy to be filed and the other attached to the patent. Patents may be assigned either in whole or in part The assignment must be in writing, and must be regis- tered in the Patent Office. An unregistered assignment will be void as against one subsequently registered. The Government have a right to use any patented in- vention or discovery, but they will pay the patentee therefor such sum as the Commissioner may report to be a reasonable compensation for the use thereof. The remedy for the infringement of a patent is by an action at law, for damages, and an injunction may be obtained to restrain any future infringement. Such an , I 884 THE CANADIAN LAWYER. injunction may be obtained from the Court of Law in which any action for damages is pending ; or it may be obtained from a Court of Equity. If any material allegation m the petition or declara- tion of the applicant be untrue, or if the specifications and drawings contain more or less than is necessary, and such omission or addition be wilfully made for the purpose of misleading, Xhe patent will be void. A patent will cease to be operative '^^'ler two years, unless the patentee or his assignee > assignees has or have within that period, commenced, and since contin- uously carried on in Canada, the construction or manu - facture of the invention. The importing of the invention into Canada after twelve months after issiie of the patent may also avoid it, unless permitted by the Commissioner, by whom the time may be extended. Patents issued under any of the Acts of the several Provinces now forming the Dominion, prior to the ist day of July, 1869, remain in force for the term for which they were originally granted, subject to the provisions of the new Act, so far as applicable. The following fees are payable to the Commissioner, and must be paid in advance : On petition for patent for five years C20 00 " for a patent for ten years 40 00 •' for a patent for fifteen years 00 00 " ^or extension from 5 to 10 years 20 00 " " loto 15 years .... 2000 *' " 5 to 15 years .... 40 00 On registering assignment 2 00 On attaching a disclaimer 2 00 On lodging a caveat 5 00 On asking copy of patent with specification 4 00 PATENTS OF INVENTIONS. 885 If an inventor or applicant is afra.d that some person may get the advantage of him by applying for a patent before he (the inventor) has perfected his invention, he may file a description of such invention in the Pateiit Office (to be there left sealed) with or without plans ; and such filing will operate as a caveat, and will entitle him to notice in case any one else should apply for a patent. Every patentee must stamp or engrave on each J atented ariicle or on a label on a package of such arti- cles sold or offered for sale, the year of the date of the patent, thus: " Patented, 1872," {or as the case may be.) The penalty for neglect to do this is fine and imprison- ment. By 47 Vict. cap. 38, a bill of exchange or promissory note, the consideration of which consists in whole or in part of the purchase money of a patent right, or of a partial interest in a patent right, must have written or printed across its face, before it is issued, the words " given for a patent right." Any transferee will then take the same subject to any defence or set-ofF which would have existed between the original parties. The issuing, selling or transferring of such bill or ncte without such words, maybe punished by imprison- ment and fine. FORMS. Petition for Patent. To THE Honorable tub Commissioner of Patents for In- ventions. The petition of A. B., of, &z , [state here name, r-Jdence and occupation in full.) Shevvhth : Thai your petitioner haa iavented (undiscovered) a ne.v and useful 836 THE OANADUN LAWYER. {art, machine, manufacture, or composition of matter, or a new and useful improvement on such art. Sec. : inserting here the title or name of his invention, or discovery, its object, and a short description of the same) not known or used by others before this invention {or dis- covery) thereof, {or not bein^ at this time in public use, or on sale in any of the Provinces of the Dominion, with the consent or allow- ance of the inventor or discoverer thereof.) That your petitioner has elected his domicile at {state here some known place in Canada), and that he has resided for one year and upwards, prior to the time of this application for a patent at {state where, and if in several places, state where, and the period of residence at each place.^ Your petitioner therefore prays that a patent may issue in his favor granting him the exclusive property in the said invention {vr discovery). Dated the day of , i8 . A. B. Oath or Affirmation. Province of , County of , to wit : I, A, 13., of &c., {insert name, residence and occupation), make oath and say (or if an affirmation, say, do solemnly and sincerely declare and affirm) as follows : 1. That I verily believe that I am (or that E. F., of &c., whose assignee (or representative) I am, is {or) was) the true inventor {or discoverer) of the {here insert the name or title of the invention or discovery), for which I am soliciting a patent. 2. That I have {or the person whose assignee or representative he is, has been) a resident of Canada for one year now last pact. Sworn {or affirmed) before me, at , in the County of , this day of , A.D., i8 . ) A. B. Y.Z. J. P. {or as the case may be)» Specification, Whereas I, A. B., of, &c., have invented {or discovered) a new and useful {art, machine, &'c., state here the proper name or title of the invention or discovery ; or if an improvement only, so state it) ; and the following is a full, clear and exact description of the same ; (here k PATENTS OP INVENTIOKS. 837 describe the invention or discovery in such exact and clear terms, as to distinguish it from all contrivances or processes for similar purposes : correctly and fully describe the mode of operating ; and the contrivance and things which are claimed as new. If the invention is a maihine, explain fully the principle and several modes of appliance. Where the invention or discovery admits of illustration by drawings, refer to them here thus :) The plans and drawings accompanying this specifica- tion show clearly all parts of the invention (or discovery). Figure No. I shows etc., (stating clearly what each figure illustrates). Witness my hand at , this day of , i8 . Signed in presence of A. B. CD. E. F. [Note. — The specification and drawings must be in duplicate ; and the latter must bear the name of the inventor, and contain written references to the specification, and be certified by the applicant to be the drawings referred to in the specification.] Surrender for Re-issue. To THE Honorable the Commissioner of Patents for Inven- tions. The petition of A. B., of, &c., sheweth : That your petitioner did obtain letters-patent under the seal of the patent office, for a new (thrashing machine) which letters- patent are dated the day of . A. D., i8 That your petitioner now believes that the same letters-patent are inoperative, or invalid, by reason of insufficient description or specification, (or by reason of his claiming more than he had a right to claim as new), which error has arisen from inadvertence, acci- dent or mistake, and without any fraudulent or deceptive intention. Your petitioner therefore prays that he may be allowed to surren- der the said letters-patent, and that new letters-patent may issue to him for the same invention for the residue of the period for which the original patent was issued, in accordance with the corrected description and specification herewith presented. A. B. (A corrected specification and declaration must accompany this petition.) Disclaimer. Know all men by these presents. That I, A. B., of, &c., to whom letters-patent under the seal of the Patent office, for a new (thrash- 22 388 THE CANADIAN LAWYER. ing machine,) did issue on the day of , a.d. i8 , did by mistake, accident or inadvertence, and without any wilful intent to defraud or mislead the public, make my specification too broad, claiming more than that of which I was the original or first inventor, [or, claiming to be the first inventor, or discoverer of a material and substantial part of the said {thrashing machine), of which I was not the first inventor or discoverer, and which I have no legal or just right to claim] ; Now know ye, That I, the said A. B., do hereby disclaim that part of the specification and claim which is in the following words, to wit : [Insert here that part which is disclaimed, in the words of the original. State also the extent of the interest which the disclaiming party has in the patent, whether an entire or partial interest.] Witness my hand, at , this day of , a.d. i8 Signed in the presence of A. B. CD. E. F. Assignment of an Entire Interest in a Patent. To all to whom these presents shall come, A. B., of, &c., sends greeting: Whereas, the said A. B. has invented a certain ( ), and has applied for and obtained letters-patent from the patent office in Canada; granting to him and to his assigns the exclusive right to make ^ud vend the same : which letters-patent are dated on the day of , A.D. i8 And whereas, C. D., of, &c., has agreed to purchase from the said A. B. allihe right, title and interest which he, the said A. B., now hath in the said invention under the said letters-patent, for the price or sum of dollars. Now these presents witness, that for and in consideration of the said sum of dollars, by the said C. D. paid to the said A. B. at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), he, the said A. B., hath assigned and transferred, and by these presents doth assign and transfer, unto the said C. D., his executors, administrators and assigns, the full and exclusive right to the invention made by him, and secured to him by the said letters-patent, together with the said letters- patent, and all his interest therein or right thereto. In witness whereof, the said A. B. hath hereunto set bis hand and seal, this day of , a.d, i8 Signed, sealed and delivered in the presence of A. B. [l.s.] X. Y. (An assignnant of a partial interest may be readily framed from the foregoing. Every assignment must be registered in the patent office.) POWEH OF ATTORNEY. 839 POWER OF ATTORNEY. A power of attorney, or letter of attorney, is a writing under seal, given to authorize another person, who is, in such case, termed the " attorney" of the person exe- cuting the power, to execute a deed, or sign a cheque, or receive rents, or perform any other lawful act in his stead. It is usu-lly given to enable the attorney to do such acts as the person giving the power is unable, owing to absence, illness, etc., to perform. It is either general, or special : general when so drawn as to em- power the attorney to do any act which the principal could delegate an attorney to do, and special when limited to some speciftc act or acts. It is revocable at any time unless given for consider- ation and expressed to be irrevocable. Any person of full age may execute a power of at- torney. In drawing the power, care should be taken to describe fully and accurately the duties the attorney may fulfil, and the exact extent to which he may bind his principal. The attorney cannot bind his principal further than the power warrants, and cannot appoint a substitute, or delegate his powers, unless the instrumen- so provides. He should sign his principal's name to acts done under the power, adding his own name with the word •• attorney." i A power of attorney should be executed before a" witness in the usual manner of executing deeds. Where conveyances or mortgages of land are executed under ,it, it should be registered with the deed or conveyance, in the proper Registry Office. ) I. 840 THE CANADIAN LAWVEIl. The revocation of a power is effected by the execution of an instrument of revocation. The death of the prin- cipal also effects, ipso facto, a revocation. By statute, however, acts done by the attorney under the power before notification of the death to the parties concerned are generally protected. BRITISH COLUMBIA. By 38 Vict. cap. 18, it is enacted that every power of attorney continues in force until the death, bankruptcy, insolvency or (if a female) the marriage of the princi- pal, or until the revocation of such power shall have been filed in the office of the Registrar-General of Titles; and lawful acts done by the attorney, after such death, bankruptcy, insolvency, marriage or revo- cation, and before the filing of such revocation, shall be effectual in favour of any person dealing with the attorney in good faith and without notice ( I suci death, etc. A confirmation in writing by the pr; ^>al of any conveyance, mortgage or other specialty or 'imple contract in writing, purporting to be signed or e: jcuted by such person, by his attorney, or of any act of his attorney, is conclusive evidence of the attorney's au- thority. 1 FORMS. General Power of Attorney. I, A. B., of in the County of and Province of , have made, con^-ti^iuted and appointed, <«nd by these presents do make, constitc ., and appoint C. D. of , my true POWER OF ATTORNEY. 341 and lawful attorney for me, and in my name and stead and on my behalf to (here state what acts the attorney is empowered to do) giving and granting unto my said attorney iull and ample power and authority to perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes, as I might or could do if personally present, I hereby ratifying and confirming all that my said attorney shall lawfully do or cause to be done by virtue hereof. Id witness whereof, I have hereunto set my hand and seal, this day of , A. D. one thousand eight hundred and Signed, sealed and delivered in the presence of A.B. [i..s.] E. F. G. H. GENERAL FORMS IN COMMON USE. (formal parts as before.) To sell and convey real estate : To grant, bargain and sell my farm, known and described as follows (describe iully) or such part or parcel thereof as he shall deem advisable, for such price and upon such terms as to paymeut or otherwise as he may deem proper, and for me, and in my name to make, execute and deliver such good and sufficient deeds and conveyances of the same as may be requisite, with the usual cov- enants. To lease real estate : To lease and let to any person, as tenant, my house property being, etc., and to execute any proper instrument of lease for that purpose upon such terms as are usual, and as my attorney may deem advantageous to me, and to ask, demand, distrain for. receive, collect and recover all moneys or sums of money which may become due, or owing me as rent or otherwise in connection with the said lease, and to sign and deliver all proper receipts and acquittances therefor. To transfer stock : To assign, transfer and set over unto of of stock nuw held by me, aud in my name in the per cent, is now paid. shares upon which 842 THE CANADIAN LAWYEB. U To accept drafts, etc. . To accept all drafts drawn upon me in the usual course of my business, and to sign my name as acceptor thereof. Revocation of Power of Attorney. Know all men by these presents that I, A. B. of , in the County of and Province of . . for divers good causes and considerations me thereunto specially moving, do hereby by these presents revoke, retract, countermand, annul and make void a certain power of attorney, given by me under my hand and seal dated the day of , i8 , to C. D. of , and all powers and authontiss therein expressed and delegated. In witness whereof, etc. THE CANADIAN LiWYEB. 848 e Id y te d PROTECTION OF GAME. The following laws upon this subject will be found of interest to sportsmen, farmers, game inspectors and others. ONTARIO. The law is governed by 49 Vict. cap. 45, extracts of which follow : 2* None of the animals or birds hereinafter mentioned shall be hunted, taken or killed, within the periods hereinafter limited ; 1. Deer, elk, moose, reindeer or caribou, between the fifteenth day of December and the fifteenth day of October ; 2. Grouse, pheasants, prairie fowl or partridge, between the first day of January and the iirst day of September ; 3. No quail shall be hunted, taken, or killed, during the years ib86, 1887, and no wild turkeys during the years 1886. 1887, 1888; and in each c se thereafter not be.ween the fifteenth day of Decem- ber and the fif aenth day of October following. 4. Woodcock, between the first day of January and the fifteenth day of August ; 5. Snipe, rail and golden plover, between the first day of January and the first day of September : 6. Swans or geese, between the first day of May and the first day of September ; 7. Ducks of all kinds, and all other water fowl, between the first day of January and the first day of September ; 8. Hares, between the fifteenth day of March and the first day of September. 3. No person shall have in his possession any of the said animals or^irds, no matter where procured, or any part or portio.i of any such animals or birds, during the periods in which they are so protected ; provided that they may be exposed for sale for fifteen days, and no longer, after such periods, and may be had in posses- sion lor the private use of the owner and his family at any time, but in all cases the proof of the time of killing, taking or purchasing, shall be on the person so in possession. 4. No eggs of any of the birds above mentioned shall be taken, destroyed, or had in possession by any person at any time* 844 THE CANADIAN LAWYLl. 8a None of the said animals or birds, except the animals men- tioned in section 7 of this Act, shall be trapped, or taken by means of traps, nets, snares, gins, baited linos, or other similar contrivan- ces; noi shall such traps, nets, snares, gins, baited lines, or contri- vances, be set for them, or any of them, at any time; and such traps, nets, snares, gins, baited lines, or contrivances, may be de- stroyed by any person Arithout such person thereby incurring any liability therefor. 6* None of the contrivances for taking or killing the wild fowl known as swans, geese or ducks, which are described or known as batteries, swivel guns, sunken punts, shall be used at any time ; and no wild fowl, known as ducks, or other water fowl, except geese c r swans shall be hunted, taken or killed, between the expiration of the hour next after sunset and the commencement of the hour next before sunrise. 7a No beaver, mink, muskrat, sable, martin, otter, or fisher, shall be hunted, taken or killed, or had in possession of any person be- tw. en the first day of May and the first day of November ; nor shall any traps, snares, gins, or other contrivances, be set for them during such period ; nor shall any muskrat house be cut, speared, broken or destroyed, at any time ; and any such traps, snares, gins, or otheycontrivances so set, may be destroyed by any person with- out such person thereby incurring any liability therefor: provided that this section shall not apply to any person destroying any of the said animals in defence or preservation of his property. 8a Offences against this Act shall be punished upon summary conviction on information or complaint before a justice of the peace, as follows : (a) In case of deer, elk, moose, reindeer or caribou, by a fine not exceeding $50, nor less than 9 10, with costs, for each offence ; (6) In case of birds or eggs, by a fine not exceeding $25 nor less than $5. with costs, for each bird or egg ; (c) In case of fur-bearing animals, mentioned in section 7 of this Act. by a fine not exceeding $25, nor le.ss than $5, with costs, for each offence ; (rfl In the case of other breaches of this Act, by a fine not exceed- ing 925t nor less inan $5, with costs. 8« The whole of such fine shall be paid to the prosecutor unless the convicting justice has reason to believe that the prosecution is in collusion with, and for the purpose of benefitting the accused, in which case the said justice may order the disposal of the fine as in ordinary cases. lOa In all cases confiscation of game shall follow conviction, and the game so confiscatp-;. shall be given to some charitable institu- tion or purpose, at the discretion of the convicting justice, PnOTECTION OP GAME. 845 len. leans Jvan- Intri- such de- any fowl \n as and seer fthe next II. In order to encourage persons who have heretofore imported or hereafter import different kinds of game, with the desire to breed and preserve the same on thdr own lands, it is enacted that it shall not be lawful to hunt, shoot, kill or destroy any such game without the consent of the owner of the property wherever tke same may be bred. 12* It shall not be lawful for any person to kill or take any ani- mal protected by this Act, by the use of poison or poisonous sub- stances, nor to expose poison, poisoned bait or other poisoned substances, in any place or locality, where dogs or cattle may have access to the same. 13, — (i) No person shall at any time hunt, take or kill, any deer, elk, moose, reindeer, or caribou, for the purpose of exporting the same out of Ontario, and in all cases the onus of proving that any such deer, elk, moose, reindeer or caribou, as aforesaid, so hunted, taken or killed, is not intended to be exported as aforesaid, shall be upon the person hunting, killing, or taking the same, or in whose possession or custody the same may be found. (2) Oifences against this section shall be pun< hed by a fine not exceeding 925i nor less than 95 for each animal. M. No owner of any hound, or other dog known by the owner to be accustomed to pursue deer, shall permit any such hound, or other dog, to 'un at large in any locality where deer are usually found, during rhe period from the fifteenth day of November, to the fifteenth day of October, under a penalty on convicti(4n, of not more thnn $25, nor less than $5, for each offence ; any person harbouring or claiming to be the owner of any such hound or dog shall be deemed the owner thereof. IB* It shall be lawful for the council of any county, city, town, township, or incorporated village, to appoint an officer who shall be known as the game Inspector for such county, city, town, township or incorporated village, and who shall perform such duties in en- forcing *he provisions of this Act, and be paid such salary, as may be mutially agreed upon. I6> (i) It shall be the duty of every such game Inspector appoint- ed as aforesaid, forthwith to seize all animalsor portions of animals in the possession of any person contrary to the provisions of this Act, and to bring the person in possession of the same before a jus- tice of the peace, to answer for such illegal possession. (2) It shall also be the duty of every Fuch game Inspector, to in- stitute prosecutions against nil person found infringing the pro- visions of this Act, or any of them, and every such Inspector may cause to be opened, or may himself open in case of refusal, any bag, ! i 846 TH& CANADIAN LAWYER. C nrcel, chest, box, trunk, or receptacle in which he has reason to elieve that game killed or taken during the close season, or peltries out of season, are hidden. (3) Every such Inspector, if he has reason to suspect, and does suspect that game killed or taken during the close season, or peltries out of season, are contained or kept in any private house, shed, or other buiding, shall make a deposition in the Form A annexed to this Act, and demand a search warrant to search such store, private hinise, shed, or other building, and thereupon such justice of the peace may issue a search warrant according to Form B. I7« This Act shall come into effect on aud afier the first day of July next after the passing thereof. T Her Insi to fi seas and etc., {as hi:T w't Gi\ FORM A. ! I I, undersigned game Inspector for do hereby declare that I have reason to suspect, and do suspect, that game killed or taken during the c'ose season, or furs out of season, etc., etc., {as the case may be) are at pre.sent held and concealed {describe the property, occupant, etc., and the place). Wherefore I prav that a warrant may be grant'd and given to me to effect the necessary searches {describe here the property, etc., as above). Sworn before me at this day of A.1J. iS L. B. X. Y. J. P. / Game Inspector. FORM B. Province of Ontnrio, ) Ctember. ctoi^k ugust^ ugust. ugust. cember. aui: ary Feb- farch to ist Deer The following extracts give the amended law upon the subject. 61. None of the animals or birds hereinafter mentioned in this section shall be shot at, hunted, trapped, taken or killed within the periods hereinafter limited (a) deer, elk, moose, reindeer or caribou, or their fawn, and rabbits and hares, between the first day of Jan- uary and the first day of October ; (6) grouse, partridges, prairie chicken and pheasants, between the first day of January and the first day of September ; (c) woodcock, plover and snipe, betw en the fifteenth da^ 6f March and the first day of August ; (d) any kind of wild duck/^a-duck, widgeon, teal, wild swan or wild geese, except the vari y\ 850 THE CANADIAN LAWYER. only, and not for purposes of sale or traffic. No person or corpora- tion shall at anytime or in any manner export or c;i se to be export- ed or carried out of the limits of the Province any of the animals or birds mentioned in this section, and this provision shall apply to railway and express companies. 6S. No person shall shoot, destroy, kill, wound or injure, or attempt to shoot, destroy, kill, wound or injp.re, or take, capfjie, buy, sell, expose for sale, or have in possession at any time, any bird, except eagles, falcons, hawks, owls, wild pigeons, black-birds, king-fishers, jays, crows, ravens or any imported cage-birds or other domesticated birds generally known as cage-birds, any birds com- monly known as poultry, or the birds especially mentioned in section sixty-one herein. No person shall set, wholly or in part, any net, trap, springe, snare, cage or other machine or engine, by which any bird except eagles, falcons, hawks, owls, wild pigeons, black birJs, king-6shers, jays, crows, ravens or any imported caj^e-birds or oiher domesticated birds generally known as cage-birds, or any birds commonly known as poultry, might be killed or captured ; and any net, trap, springe, snare, cage or other machine or engine, set, either •wholly or in part, for the purpose of either capturing or killing any bird except those previously mentioned in this sentence, may be destroyed by any person, without such person incurring any liabil- ity therefor. No person shall take, injure, destroy, or have in possession any nest, young or egg of any bird except eagles, falcons, hawks, owls, wild pigeons, black-birds, king-fishers, crows, ravens, any imported cage-birds or other domesticated birds generally known as cage-birds, or any birds commonly known as poultry. Any market clerk, policeman, constable or game guardian may seize, on view, any bird unlawfully possessed, and carry the sam.=! before any magistrate, to be by him confiscated, and if alive to be hber.-ited, at.d it shall be the duty of all market clerks, policemen, constables and game guardian, to seize such birds. THE CANADIAN LAWYER. B51 RECEIPTS AND RELEASES. A RECEIPT is an acknowledgment in writing that the I)arty by or for whom it is signed has received from the party named therein money or goods as specified. It is, as a rule, only prima facie evidence that such money or goods were received, and if shown to be obtained by fraud or misrepresentation, or given under mistake of the facts, it may, as between the parties to it, be annulled or treated as invalid by a Court of Equity. Payment of money or delivery ot goods may of course be proved by verbal evidence as well as by receipt, even where the latter was given, but has been lost or mislaid. A RELEASE is a Written discharge of any right, title, or demand which one man may claim against another. No special form of words is essential if the intention be plain, though the words commonly used, where money- claims or goods are referred to, are " remise, release, acquit and discharge." With reference to lands, or in- terests in lands, the release is commonly called a quit- claim, and is a conveyance of whatever interest the releasor may have in the property, the words used being, •' remise, release and forever quit-claim." A quit-claim of interest in lands is only effectual where the releasee, or person in whose favour it is given, already holds the possession of the lands, or some interest therein. It should be executed with the same formalities as a deed. All releases are properly made under seal. A release ot all demands is a bar to all actions, claims, demands, and causes of action which th party executing the same may have against the releasee up to the date of its exe- 852 THE CANADIAN LAWYEll. cution. A release of one of two joint debtors is a legal release of both. One of several executors may legally release a debt due the estate without the signature of the others. FORMS. j Receipt for cash payment on Acccuni. Kingston, Ont., January 7th, 1886. Received from A. B. five hun- dred dollars to be applied on account. 9500.00. C. D. Receipt in full of Account. Halifax, N.S., May 20th, i886. I^eceived from Messrs. E. F. * Co., seventy dollars and sixty-three cents, in full balance of account rendered to ist instant! 970.63. G. H. Receipt for Promissory Note delivered, Victoria, B.C., March ist, 1885. Received from Messrs. E. F. & Co., their note in favour of ourselves or order dated this day, pay- able four months after date at the Merchants' Bank here, for one thousand dollars, which, when paid, will be in full of all demands. 9 1, 000.00. G. H. & Co. Receipt for Deeds left. Moncton, N.B., May 3rd, 1885. I have this day received from J. K., the following title deeds of his farm lately purchased by me, to wit : {here describe deeds, etc., giving names of parties, dates and nature of instrument), for which I agree to be accountable, and to return the same on demand. L. AI. RECEIPTS AND RELEASES. 853 Mutual Release on settling Partnership Accounts. Whereas a partnership has heretofore subsisted between us, A. B. and C. D., and has been this day dissolved by mutual consent, and the accounts of all transactions and dealings thereof up to such dis- solution have been to our mutual satisfaction adjusted and balanced whereby nothing remains due from the one of us to the other. And whereas to ratify and confirm such settlement and adjustment, and to prevent and obviate any further disputes or disagreements touching and concerning all or any of such accounts or partnership transactions we have mutually agreed to release each other, and these presents are executed with such intention. Now know all men that I, the said A. B., for the consideration hereinbefore expressed have remised, released and forever dis- charged, and by these presents, etc.. {following general form, each partner executing a separate general release to his co-partner, with necessary change of names in operative part.) General Release of all Demands. Know all men by these presents, that I, A. B., of as well for and in consideration of the sum of one dollar to me in hand paid by C. D., of the same place, at and before the sealing and delivery hereof, the receipt whereof I do hereby acknowledge, as for divers other good causes and valuable considerations me thereto specially moving, have remised, released, quit-claimed, and forever discharged, and by these presents, for me, my heirs, executors, and administrators, do remise, release, quit-claim, and forever discharge, the said C. D., his heirs, executors, and administrators, each and every of them, of and from all and all manner of action and actions, suits, debts, dues, duties, sum and sums of money, accounts, reckon- ings, bonds, bills, specialties, covenants, contracts, agreements, promises, variances, damages, judgments, extents, executions, claims, and demands whatsoever, in law, equity, or otherwise how- soever which against the said C. D. I ever had, now have, or which I, my heirs, executors, and administrators hereafter can, shall, or may have, for, upon, or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents. , In witness whereof I have hereunto set my hand and seal this tenth day of May, a.d. 1886. Witness : A. B. [l. s.] 28 354 THE CANADIAN LAWYEB. STRIKES AND BOYCOTTING. A strike may be defined as a simultaneous and con- certed refusal, on the part of workmen, to continue work, or an agreement to simultaneously quit the employment of their common master or employer. This may be regarded in law in two aspects ; — either as the common act of a body of persons banded together, or with reference to the individual acts oj the employees. In the latter view, the act of quitting employment may or may not amount to a breach cl contract according to the terms of the agreement undet which the workman is employed, and to determine this question reference must be had to the principles enun- ciated in the chapter on master and servant, where the legal rights and remedies of the parties respectively are pointed out. Regarded, further, as a joint act, for the responsibility of which each individual is answerable, the following considerations may be applicable. Any workman is at liberty to peaceably quit the employment of him who hires him, at any time ; and the fact that others of his fellow employees also choose the same time to quit work, cannot be held to restrict his liberty in this regard. So long as he commits no breach of his own agreement of hiring, he has done no wrong. The matter is personal with himself. Should, however, he interfere with, threaten or molest other workmen in the service of his former employer, for the purpose of forcing them also to desert their employment, or should he even unfairly entice them STRIKES AND BOYCOTTINO. 855 away from, or procure their to desert, such employ- ment, he is guilty of an improper act, and may be sued by their employer in damages. There is, further, a criminal liability on the part of workmen guilty of such improper acts, as is more fully set forth in the statutes of Canada, extracts from which are appended. The statutes of Canada, 39 Vict. cap. 37, provide as follows : — I. Every person who wrongruUy and without legal authority, with a view to compel any other person to abstain from doing any- thing which he has a legal right to do, or to do anything from which he has a legal right to abstain — (i). Uses violence to such other person, or his wife or children, or injures his property ; or — (ii). Intimidates such other person, or his wife or children, by threats of using violence to him, her or any of them, or injuring his property ; or — (iii). I'ersistently follows such other person about from place to place ; or — (iv). Hides any tools, clothes or other property owned or used by such other person, or deprives him, or hinders him in the use thereof; or — (V;. !< allows such other person with one or more other persons in a disorderly manner in or tb rough any street or road ; or — (vi). Besets or ^\atches the house or other place where such other pt^rson resides or works or carries on business or happens to be — - hall be liable to a fine not exceeding one hundred dollars, or to imprisonment for a term not exceeding three months; Attending at or near or approaching to such house or other place as aforesaid, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section. 4. A prosecution shall not be maintainable against a person for conspiracy to do any act, or to cause any act to be done for the pur- poses of a trade combination, unless such act is an offense indictable by statute or is punishable under the provisions of the Act hereby amended ; nor shall any person, who is convicted upon any such Erosf :ution, be liable to any greater punishment than is provided y such statute or by the said Act as hereby . niended, for the act of which he may have been convicted as aforesaid. Malicious injury to wires, batteries, etc., and malicious obstruc- tion of the working of the telegraph in Canada, is made a misde- i I !f »'l»' 856 THE CANADIAN LAWYER. meanor punishable by imprisonment in any gaol for any term less than two years, without or without hard labour Any person guilty of a wilful omission or neglect of duty which endangers the safety of any railway passenger, or guilty of assistint; therein, is liable to like punishment. Boycotting may be defined as a method of injuring or persecuting a citizen, w ith the object of ruining his busi- ness, or compelling him to remove from the district wherein he resides. It is generally sought to be accom- plished by the conjoint agreement of a large number tc hold no intercourse, and have no dealings of any kind, with him or with any who assist him or who decline to join in the boycott. Where this treatment is the result of a common and concerted agreement on the part of several individuals, it may constitute the crime of conspiracy, for which those guilty are liable to be indicted before the Grand Jury. It is in such cases a crime of grave magnitude, and if accompanied by acts of violence, merits the severest punishment. Happily it is little known in Canada, and no extended reference to it is necessary. if f i : *; 'I THE TORUEKS SYSTEM OF LAND TRANKFER. 357 THE TORRENS SYSTEM OF LAND TRANS- FER. This system is now in force in Manitoba, the North- West Territories, and in part of Ontario. It is ex- pected that it will be in operation throughout the whole of Ontario before another year has passed. The Torrens system was introduced into Manitoba in the year 1885, and into Ontario during the same year. The bill for its introduction into the North-West Territories wns passed by the Parliament of Canada in the year ih 3. The following statements, explana- tory of the system, have been compiled from varicjj sources, to enable readers to familiarize themselves with its objects and methods. The Torrens system ofFei >^ to the owners of land, alienated from the Crown prior to the coming into ope- ration of the Act, the opportunity of causing their lands to become subject to a law which will free them forever from the old system of conveyancmg by deed, while imposing upon them a certain new procedure. Laud once brought under the system cannot be with- drawn from its operation, but all dealings with it must, thenceforth, be conducted as the Act directs. Alienated land not brought under the operation of the Act remains subject to the general law regarding real property, conveyances, mortgages, etc., affecting them, continue to be drawn up in the old forms, and to be registered in the General Registry Ofifice. The old and n^,7 systems of Transfer and Registra- tion continue, therefore, to exist side by side. 858 THE CANADIAN LAWYER. In Manitoba and the North West Territories, laiicj granted by the Crown subsequent to the introluc' jii of the Torrens Act is under the Act ipso facto. The Crown Grant is registered under the Act without the grantee taking any steps in the matter. The old system of conveyancing, therefore, cannot there be applied to land bought from the Crown after the introduction of the Torrens system, but all dealings with such lanrl must be conducted on the system oi registration of title. Any other land may be brought under the Act on the application of the persons interested. The appli- cation, with the deeds, is left at the Lands Titles' Office, and the title is there investigated by the officers appointed lor that purpose. If it be found that the title, although perhaps not technically perfect, is yet secure against ejectment and against the claims of any other person, the land will be brought under the Act, and the proprietor, or his nominee, will receive a certificate of title. In Ontario, provision is made for the issue of three ISnds of certificates; (i) an absolute certificate; (2) a qualified certificate ; (3) a possessory certificate. The latter should more properly be called a certificate of recorded possession. It is merely a certificate that the person claiming is in possession as owner subject to any defects there may be in his title prior to legislation. It is, of course, possible that the certificate of title may, through error, issue to the wrong person, and that in- justice may be done. In such case the person injured has a remedy in damages against the Government, and, in order to form a fund to meet claims of this nature, a fee is charged of one quarter of one per cent, on the value of all land brought under the Art. On the issue of the certificate, the old deeds, if they r ilate exclusively to TBE TOBRSKS 8YST£M OF LAND TBAN8FEB. 359 the landappliedfor,are cancelled andretained in theoffice. If they relate to other property, they are returned, each deed being marked as cancelled, so far as relates to the land brought under the Act. In any case, they are of no use to the land brought under the Act, since from thenceforth the certificate of title is conclusive evidence that the person named in it is entitled to the land it describes. The certificate of title operates as a Govern- ment guarantee that the title is perfect. It is indefeas- ible, and there is no going behind it. A certificate of title is issued to every person entitled to any estate of freehold in possession in land under the Act. Every certificate is in duplicate. One duplicate is given to the proprietor, the other is reta'ned in the Lands Titles' Office. The certificate in the office con- stitutes the register book, which, in the words of Mr. Torrens, is the pivot on which the whole mechanism turns. Every certificate is marked with the number of the volume and the folium of the register book. Crown Grants of land bought since the Acts came into opera- tion are also issued in duplicate, one of which is bound up in the register book, and such grants are, in all respects, equivalent to certificates of title. S.) far, it will be said, the title is Fimplified, but how is this simplicity to be retained — how will future com- plications be prevented? This is the problem which the Act endeavours to solve. For the purpose of facilitating transactions, forms of transfer, mortgage, lease, and other dealings are fur- nishiidinthe Act, the forms ordinarily in use in Ontario being set out belc»w. Any person of ore' -nary education ;le troubiu, learn to fill the very up r I it' 360 1?flE CANADIAN LAWYER. more simple cases, without professional assistance. If a proprietor holding a certificate of title wishes to sell the whole of the land included in it, he fills up and executes a printed form of memorandum of trans/erf which may be endorsed by the purchaser. The trans- fer is presented at the office, and a memorial of the trans- fer is recorded by the proper officer on both duplicates of the certificate of title. The purchaser, by the record- ing of the memorial, stands in precisely the same posi- tion as the original owner. If only a part of the land in a certificate is to be transferred, such part is described in the memorandum of transfer, the transfer is noted on both duplicates of the original certificate, a fresh certi- ficate is issued to the purchaser for the part transferred, and the original certificate is noted as cancelled with respect to such part. The process is repeated on every sale of the freehold, and it will thus be seen that every person entitled to a freehold under the Act has but one document to show his title, through however many hands the property may have passed, and such document vests in him an absolutely indefeasible title to the land it describes. If the proprietor wishes to mortgage or lease his land, or to charge it with the payment of a sum of money, he executes in duplicate a memorandum of mortgage, lease or encumbrance, in the form provided in the Act, altered so as to neet the particular circum- stances of the case. This is presented at the Lands Titles' Office with the certificate of title I a memorial of the transaction is entered by the proper officer on the certificate of title, and on the duplicate certificate forming the register book. The entry of this memorial constitutes registration of the instrument, and a note. THE TORRISNS SYSTEM Of LAKD TRANSFER. d6i If lell Ind ler. under the hand and seal of the proper officer, of the fact of such registration is made on both duplicates of the instrument. Such note is conclusive evidence that the instrument has been duly registered ; one of the duplicates is then filed in the office, and the other is handed to the mortgagee or lessee. The certificate of title will thus show that the original proprietor is enti- tled to the land it describes, subject to the mortgage, lease, or encumbrance ; while the duplicate instrument held by the mortgagee, lessee, or encumbrancee, will show precisely the nature of his interest. Each person has, and can have, but one document of title, and this shows conclusively the nature of the interest he holds and to that interest his title is indefeasible. If a mort- gage is paid off, under the Torrens Act proper, as passed in Manitoba, a simple receipt is endorsed on the duplicate mortgage held by the mortgagee. This is brought to the office, and the fact that the mortgage has been paid off is noted on the certificate of title. A mortgage under the Act does not involve a transfer of the *' legal estate," although the mortgagee is made as secure as if such trans- fer had taken place. The necessity, therefore, for a deed of reconveyance, when the mortgage is paid off, at once vanishes. If a lease is to be surrendered, it has merely to be brought to the office with the word * surrendered ' in- dorsed upon it, signed by the lessor and lessee, and attest- ed and the proper officer will note the fact that it has been surrendered, on the certificate of title. Mortgagesor leases aretransferred by indorsement, by a simple form. The Act provides implied powers of sale aad foreclosure in mort- gages; and in leases, implied covenants to pay rent and taxes, and to keep in repair, together with power for the lessor to enter and view the state of repair, and to li B62 TUB CANADIAN LAWYER. ! ,; I ! re-enter in case of non-payment of rent or breach of covenant. All these may be omitted, or modified if. desired. In order to save verbiage, short forms are: provided, which may be used for covenants in leases,' or mortgages, the longer forms which they imply being set out in the Act. | Every person, therefore, entitled to a freehold estate in possession, has (if his land is subject to the Act) a certificate of title, or land-grant, on which are recorded memorials of all mortgages, leases or encumbrances, and of their discharge or surrender. If he transfers his entire interest, a memorial of the transfer is recorded on the certificate, and the transferee takes it subject to recorded interests. The transferee can, if he chooses, have a fresh certificate issued in his own name, and in that case the old certificate is cancelled, and the memo- rials of the leases or mortgages to which the land is subject are carried forward to the new one. If a pro- prietor transfers only a part of his land, his certificate is cancelled so far, a fresh certificate is issued, and memorials of outstanding interests are similarly carried forward. Memorials of dealings with leases or mort- gages are noted on the duplicate lease or mortgage held by the lessee or mortgagee, and on the folium ot the register book. The officers of the department, therefore, and persons searching, can see at a glance the whole of the recorded dealings with every property; while each person interested can see, by the one docu- ment he holds, the precise extent of his interest. It cannot be too emphatically pointed out th it it is not the execution of the memorandum of transroi , lease or mortgage, but its registration in the Lands Titles' Office^ that operates to shift the title. No instrumeuL I ? ^. THE TORREKS SYSTEM OF LAND TRANSFER. d6d until registered in the manner prescribed by the Act, is effectual to pass any estate or interest in any land under the operation of the Act, or to render such land liable to any mortgage or charge ; but upon such registration^ the estate or interest comprised in the instrument passes, or the legal effect of the transaction, whatever it may be, is complete. Registration takes effect from the time of production of the instrument, not from the time of the actual making of the entry. The publicity attending an ordinary mortgage is son.etimes avoided under the old system by an equita- ble mortgage. Registration of title does not do away with this mode of charging land, but an equitable mort- gage or lien upon land may be created by deposit of the grant or certificate of title. The following discrip- tion of the practice as regards equitable mortgage is extracted from a pamphlet recently published by Sir R. R. Torrcns: — " The borrower executes a contract for charge in the authorized form, either for a specified sum, or, as is more usual, for such sum as may appear due upon balance of account at any future date. This in- strument, with the certificate of title, is held by the creditor, who does not register, but lodges a Caveat forb'.dding the registration of any dealing with the land until fourteen days, or other named period, have elapsed after notice of intention to register the same has been served by the Registrar at an address given. A red ink cross, with the number of the Caveat, is then inscribed (U the proper folium of the register. The creditor, upon receipt of such notice, or at any timo, may turn his equitable mortgage into a registered charge, by presenting the contract for charge with the deposited certificate of title at the Registry Office. ii 864 THB CANADIAN LAWYER. A very important principle in the Torrens system of registration of title, and one which should be most jea- lously guarded, if that system is to retain the simplicity which is the main-spring of its success, is the non- recognition of trusts. No notice of trusts may be entered on the register, nor may any instrument declar- ing trusts be registered. The usual simple transfer must be registered, and the transferees, notwithstand- ing their fiduciary position, appear there as the regis- tered proprietors for all intents and purposes. An instrument declaring the trusts may, however, be depo- sited in the Registry office for safe custody, and the rights of the persons beneficially interested are protected by the execution by the transferees of such an instru- ment, which is lodged in the Registry for safe custody and reference. A protection against fraud is provided by enacting that whenever the words *• No Survivor- ship " are written on the instrument of title held by trustees, the land in respect of which they are regis- tered cannot be dealt with by a less number of trustees than those registered, without the sanction of the Supreme Court. A Caveat prohibiting the registration of any dealing, except in accordance with the trusts so declared, may be lodged by any person interested in the trust property. These safeguards do not interfere with the principle sought to be maintained, namely, that the trustee, being the registered proprietor, can give an absolutely indefeasible title to a person with whom he deals, and that beneficiaries, though the Caveats pro- vide a check upon frauds and breaches of trust, must rely mainly on the integiity of their trustees. THE TORRENS SYSTEM OF LAND TRANSFER. 866 REGISTRATION OP DEALINGS WITH LAND, UNDER THB REAL PROPERTY ACT. It is an essential part of the Torrens System that every instrument purporting to deal with any interest or estate in land subject to it must be regis- tered in order to give legality to the transaction. It is the registration, not the signatures of the parties, which gives such a transaction its binding force, and no change in the title is effected by an unregistered instrument. The principal transactions and instruments which have to be notified to the Lands Titles' Office, and registered there in order to give a valid title to any person claiming under them, are : — Transfer in fee. Lease. Mortgage. Encumbrance or charge. Endorsement of Transfer of Lease. Ditto of Mortgage. Ditto of Encumbrance. Ditto of Surrender of Lease. Ditto of Discharge of Mortgage. Power of Attorney. Transmission by Marriage. Ditto by Insolvency. Ditto by Will, or Intestacy. Fi. fa,, or Order or Decree of Supreme Court. TRANSFERS, LEASES, AND MORTGAGES. Of a transfer in fee, only one copy need be presented for registration ; a mortgage must be in duplicats, and a lease in triplicate. m Jij 866 THE CANADIAN LAWYER. The instruments presented for registration are re- ceived by the proper Official, who examines them to see that they fulfil all the requirements of the Act, namely, that they are free from erasures, properly wit- nessed and proved; also that they are accompanied by diagrams, if necessary, and by the certificate ot title. The Master of Titles or other official has to satisfy him- self that the transaction is one to the registration of which no objection exists, and for this purpose he has to com- pare the original and duplicate and to see that the instrument is sufficiently clear and explicit, and that the parties are legally in a position to deal as proposed in it. After registration, the memorandum of transfer is of no further use to the transferee, for he obtains, instead of it, either a new certificate declaratory of his title, or else, if he prefers it (where the whole of a holding is transferred), the original certificate, with a memorial recording the transfer. If the fee of part only of the land included under an existing grant or certificate of title be transferred, the transferee gets a certificate for the portion acquired by him, while the proprietor has the choice either of leaving in the office his old certificate, cancelled as to the por- tion transferred, with the view of ultimately disposing of the remainder, or of taking out a new certificate for the balance of the land retained by him, his old certifi- cate being altogether cancelled. A proprietor who intends to sub-divide his land with the view of disposing of it in lots is required to deposit in the Lands Titles' Office a plan, in duplicate, certified by a declaration of a licensed surveyor, in which all allotments, streets, &c., must be distinctly delineated, the allotments being marked with numbers or symbols. THE TORRENS SYSTEM OF LAND TRANSFER. 867 ASSIGNMENT, ETC., OF MORTGAGES, ENCUMBRANCES, OK LEASES. Mortgages, encumbrances, and leases, may be trans- ferred by a simple endorsement written upon the copy of the instrument retained by the proprietor of the interest dealt witli, and duly registered. The surrender of a lease is effected by endorsing the simple word ** Surrendered," signed by the lessee, and "Accepted" by the lessor, this being attested in the prescribed manner and duly registered. A mortgage or encumbrance may be discharged (in Manitoba) by the simple endorsement on the instrument of a receipt for the money secured, signed by the party entitled, attested by a witness, and duly registered. In Ontario, the same form of discharge of mortgage is used as under the Ontario Registry Act. il TRANSMISSION. Upon the death of the proprietor of any land which is subject to the Real Property Act, his executor or administrator makes an application in writing to the Registrar-General, or Master of Titles, to be registered as proprietor, producing in substantiation of his claim the duplicate grant or certificate of title, and t ^robate, or letters of administration. This is received, entered and examined in the manner above described relating to transfers, and a memorial is entered on the duplicate grant or certificate of title and in the register-book, recording the date of the will and probate, or of the letters of administration, the date and hour of their pro- duction, the date of the death of the proprietor, etc. This having been done, the executor or administrator IMAGE EVALUATION TEST TARGET (MT-3) ■"i 1.0 1.1 i;^ |2.8 2.5 2.2 m 1.25 1.4 1 1.6 •• 6" ► 9 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 i ^ A' #7^^ 868 THE OAKADUN LAWYER. becomes the registered proprietor, holding in trust for the persons benefically entitled, and his title has re- j: "-.tion back to the time of the death of the deceased pr. pnetor, etc. if the registered proprietor of an estate or interest in \^ad becomes insolvent, or makes any statutory assign- ment for the benefit of his creditors, his assignees or trustees are entitled to be registered as proprietors in respect of the same. An application in writing 's made by them to the Registrar-General to have the particulars of their appointment entered in the register-book, and evidence of such appointment is furnished to him. A memorandum notifying the same having been entered in the register-book, the trustees become the proprietors of the estate or interest of the insolvent, or assignor, in the land. LOSS, OR DESTRUCTION, OF CERTIFICATE OR GRANT. The proprietor of land whose grant or certificate of title has been lost, mislaid, or destroyed, may obtain a "provisional certificate" from the Lands Titles' Office which is an exact copy of the duplicate bound up in the register-book with all the memorials (if any) re- corded thereon. He has to make a statutory declaration setting out the facts and all particulars affecting the title, and the intended issue of the provisional certi- ficate must be notified by advertisement. Any one who chooses to apply for it may obtain, upon payment of a small fee, a certified copy of any registered instrument afiecting land under the provisions of the Act, and this is available as evidence in all Courts of Justice. THE ¥OBB£ii}S SlTSilEll OP tiHt) TRANSFER. m NEW CERTIFICATES. in n- or in de A registered proprietor who desires to have a certifi- cate of title free from memorials disclosing past liabil- ities or transactions, which no longer aifect the land, may surrender his existing certificate, and obtain a clean one on payment of a moderate fee. Similarly, a registered proprietor may surrender t^To or more grants or certificates for contiguous lands, and take out one certificate for the whole ; or, if he so desires, he may surrender a single grant or certificate, and take out as many new certificates as he chooses there shall be sub-divisions of his land, paying the prescribed fees in either case. Such is the system which, in the Australian Colonies, has, in a great measure, superseded the cumbrous, tedious, uncertain, and costly system of conveyancing, and which Sir R. R. Torrens states "has been test-id by an experience of over twenty years, during which up- wards of 539,000 transactions of var.ous kinds have been completed at a reduction in cost from pounds to shillings, and in time from months to days." The following are the Forms in ordinary use in the Province of Ontario : 1 X. — Form of Register oh first entry of Ownership, LAND TITLES ACT, 1 885. A. B., of is the owner in fee simple of {description of property), subject to the exceptions and qualifications mentioned in section 9 of The Land Titles Act, 1885, and numbered therein {as the case may be, if the title is free from some of them). In witness whereof I have hereunto subscribed my name and affixed my seal this day of , A. D. 18 (Signed) 24 870 una OANADIAK LAWTBB. Whtre title is Possessory, say : The title of A.B. is subject to the claims (if any) which can be enforced to the said land by reason of any defect in the title of {name of the first registered owner.) When the land is subject to a life estate, say ; The title of ^4. B. is subject to the life estate of O. ff ., of in the said land. And if subject to a mortgage, say ; The title of A. B. is subject to a mortgage dated the day of , made by A.B. to W.B., to secure 93.ooo and interest at the rate of 7 per cent, per annum from the 17th day of July. 1882, payable as therein mentioned. (If mortgage is dis- charged, say:) Discharged by Certificate No. B, 1602. Where the land is subject to a lease, say : The title o{ A. B. is subject to a lepse, dated the day of , made by A. B. to Yl Z.. for the term of ten years. 2. — Form of Certificate of Ownership, LAND TITLES ACT, 1 885. This is to certify that A.B. is the owner (&€., in terms of the entry •'» the register.) 3. — Form of Application for first Registration of Owners. LAND TITLES ACT, l88<;. A.B., of etc., being entitled for his own benefit to an estate in fee simple in the land, in the township of , in the county of York, called or known as containing by estimation {or as the ease may be, according to sections 5, 71 or 72 of the Act, and described in the schedule hereto, or described as follows, as the casi may be) applies ^o be registered (or where applicable, to have registered in his stead C. D., of etc.), as owner of such land, {or leasehold land) with (in the case of freehold land), a Possessory title {or with an Absolute title, or, in the case of lease- hold land, with or without a declaration of the lessor's title to grant the leaae, as the case may be.) THE TORIIENS SYSTEM OP LAND TRANr^FER. 371 >e of nd ay Vis- r of i. ntry te in unty ation Act, s the vkere wner and). lease- grant The address of the said A. B. (and C. D. respectivrly) for service is as above {or if the application is made through a solicitor, at the office of such solicitor). Dated this day of , i8 . {Signature of the applicant or his solicitor.) The above mentioned C. D. (or the vendor, or the person whose consent is required to the execution of the trust or power to sell) hereby consents to the above application. (Signature of C. D., or the vendor, or his solicitor, or of the other consenting parties.) 3. — Applicant's Affidavit. LAND TITLES ACT, 1885. I, of make oath and say : — 1. I am the absolute owner in fee simple in posstssion (or as th, of, etc., being interested in the land registered in the name of under the number in the or in the charge registered the day of i8 , in the name of E. F., of, etc., on the lands, etc., {as the case may be,) require that jpo dealing with such land {or charge) be had on the part of the registered owner until notice has been served upon me. My address for service of notice is lot , in the conces- sion, in the County of York, and my Post Office address is Dated this day of , 18 . Signature of the cautioner or his solicitor. 10. — Affidavit in support of Caution lodged under Section 58. LAND TITLES ACT, 1885. I, A. B.. of, etc., make oath and say as follows: 1. The land {or charge) to which the Caution dated the day of , 18 , lodged by me at the office of the Master of Titles in the City of Toronto applies, is the land {or charge registered the day of i8 , in the name of on the land) registered in the name of under the No. in the said office. 2. I am interested in such land {or charge), and the particulars of my interest are as follows {here state particulars.) THE TOBBBNS SYSTEM OF LiLND TRAMBFER. 875 zi. — Charge or Mortgage. LAND TIT RS ACT, .885. I, A. B,, the registered owner ^i the land entered under the Land Titles Act, 1885, in the register under the above number, in consid- eration of (92,ooo) paid to me. charge such land with the payment to C. D., of, etc., on the day of i8 , of the prin- cipal sum of ($ ,000) with interest at the rate of per cent, per annum, and with a power of sale to be exercised after default, and . months' subsequent notice of the intention to sell, (or, as the case may be). [Add any covenants which are agreed to and are not implied under the Act or otherwise.) Dated the day of i8 , (Signature of registered owner.) Witness, X.Y. NoTB— If no interest is to be payable, or no power of sale given, tubsti- tute the words " without interest,''^or " without a power of sale," as the case may be. 13. — Transfer of Charge or Mortgage, LAND TITLES ACT, 1885. I, C. D., the registered owner under the Land Titles Act, 1885, of the charge dated the day of 18 , and registered on the day of 18 , on the land registered fn the name of A. B., under the above number, in consideration of (92,000) paid to me, transfer such charge to E,F., of, etc., as owner. Dated the day of 18 (Signature of registered owner.) Witness, X.Y. 14. — Transfer of Freehold or Leasehold Land, LAND TITLES ACT, 1885. I, A.B., the registered owner of the land, or leasehold, entered in the register under the Land Titles Act, 1885, under the above num- ber, in consideration of (93,ooo) paid to me, transfer such land to CD., of, etc. Dated the day of 18 . (Signature of registtrtd Qwntr.) Witness, X.Y* 876 IHE CANADIAN LAWYER. 15. — Transfer of Frtthold or Leatthold Land in Parctls. LAND TITLBS ACT. I885. I, A. B., the registered owner of the freehold {or leasehold) land entered in the register under No. , and registered with an Abso- lute title {or with a Qualified title, or with a Possessory title, or, in the case of a leasehold, with a declaration that the lessor had an Absolute or Qualihed title to grant the lease, or, without the decla- ration of the title of the lessor, as the case may be) in consideration of (9if50o) paid to me, transfer to CD., of, etc., the land {or Itase) hereinafter particularly described, or so much thereof, being part of the land now registered under No. etc. {Signature of r,:gn end owner.) it. — Form of Transfer by Endorsement, LAND TITLES ACT, 1 885. I, the wilhin named A. B., in consideration of 9 paid to me by C. D., transfer to C D. the within mentioned land Dated, etc., {Signature.) {No seal necessary.) Witness (as above.) 17. — Form of Transfer of Charge or Mortgagt, LAND TITLES ACT, 1885. I, the within named A. B., in consideration of 9 paid to me, do transfer to C. D. the within mentioned mortgage. Dated, etc. (Signature.) {No Seal necessary.) Witness {as above.) THE TOBBENS SYSTEM OF LAND TBAMSFEB. 877 18. — Transmission of Registered Ownership on death of Owner, Application under Sections 47 or 49. LAND TITLES ACT, 1 885, A.B., the registered owner of the land, (or charge, dated the day of 18 , on the land, etc., as the case may be) No. on the register, died on the day of 18 , (or otherwise, as the case may be, within sections 47 or 49 of the Act) ; C. £>., of etc., is entitled o the said land (or charge), and applies to be registered as the owner thereof accordingly. The evidence in support of the above application consists of (here 'State the evidence to be lodged heretvith.) Dated the day of 18 . (Signature of C. D. or his solicitor.) 19. — Transmission of Registered Ownership, Application under Section 46. A.B., the registered owner of the land No. on the register died on the day of , 18 , (or otherwise, as the case may be) ; C. D., of, etc., being interested in the said land, applies to be registerel (or to have E.F., of, etc., registered), as owner of the said land. The interest of the said C. D., (or E. F.) and the existing rights of the several other persons interested in the said land, are stated in the affidavit* of the said C. D. and G. H . of, etc., the solicitor of the said C. D , filed herewith, and the other evidence i-i support of this application is left herewith. Dated the day of , 18 . (Signature of C. D, or his solicitor.) *Affldavit, eto., to be left with application. 20. — Affidavit attesting Execution of Instrument and identifying Owner. LAND TITLES ACT, 1885. I, G. H., of, etc., a Solicitor of the Supreme Court of Judicature, do make oath and say that I am well acquainted with A. B.^ the person named in the within document dated the day oi 18 , that I saw him sign the said document ; that the name A. B., at the foot thereof, is the handwriting of the said A. B.^ 878 THE CANADIAN LAWYER. and that the said A. B. is the same person as A. B. who is named in the register as the owner of (the charge dated the day uf , i8 , and registered the day of ,) the land entered on the register under the number , and that the said A. B. is of full age and under no legal disability. I 21. — Form of Power of Attorney to make Transfers. LAND TITLES ACT, 1885. I, A. B. do appoint C. D. my attorney to transfer to E. F. abso- lutely (or by way of mortgage, as the case may be) all my lands as entered and dL-scribed in the register of estates under No. 129, and my estate therein. A.B. Witness (as above.) X. Y. (If such is the intention, add, that the power sliall not be revoked by the death of the said A. B., an 1 the exercise of the same after his death shall be binding on his representatives). 21. — Form of Revocation of Power. LAND TITLES ACT, 1 885. I, A.B. , of , hereby revoke the power of attorney given by me to , dated the day of In witness whereof, I have hereunto subscribed my name this day of {Signature of A. B.) V/itness {as above.) V duo deir the mer vidi sev( fai sol toi an mi sa bs se tr S( o s c THE CANADIAN LAWYEB. 879 VESSELS. ;ed ler Under this head it is not judged necessary to intro- duce more than such forms as are in most general demand among those engaged in maritime pursuits ; the special forms connected with the various depart- ments of Custom House business being all of them indi- vidual in their nature, and easily procured at the several ports as needed. -en bis I FORMS. Bill of Sale of Vessel, Know all Men by these Presents, that Thomas Brown, of Hali- fax, in the Province of Nova Scotia, ship captain, owner of the schooner cr vessel called The Ariadne, of the burden of four hundtv-^d tons or thereabouts, now lying at the Port of Kingston, Ontario, for and in consideration of the sum of five thousand dollars of lawful money of Canada, to him paid by James Jackson, of Halifax ufure- said, mariner, the receir i whereof he doth hereby acknowledge, hath bargained, sold and a .signed, and by these presents doth bargain, sell and assign unto tl e said James Jackson, his executqts, adminis- trators and assigns, A' and Singular, the hull or body of the said schooner or vessel called The Ariadne, now lying at the said Port of Kingston, Ontario, together with the masts, yards, bowsprit, spars, standing and running rigging and gear, boats, anchors, chains, cables, blocks and all ether necessaries belonging or apper- taining to the said schooner or vessel, which said schooner or vessel has been duly Registered at Toronto, Ontario, and the Certificate of such Registry is as follow * {Co^ Certificate of Registry,) 880 THE CANADIAN LAWYEB. And on the back of such Certificate is also endorsed an account of the Shares held by each of the owners mentioned in such Certi- ficate in the form fol. owing: — {Copy Endorsement.) To have and to hold the said schooner or vessel and all other the before mentioned necessaries belonging cr appertaining thereto unto the said James Jackson, his execut0''s, administrators and assigns, to his and their own use and uses ; and as his and their own proper goods and chattels from henceforth forever. And the sa-d Thomas Brown doth hereby for himself, his execu- tors and administrators, covenant, promise and agree to and with the said James Jackson, his executors, administrators and assigns, in manner following, that is to say : That at the time of the ensealing and delivery hereof he hath in himself good right, full power and lawful authority to grant, bargain, sell, assign and set over the said schooner or vessel and all the necessaries belonging or appertaining thereto unto the said James Jackson, his executors, administrators and assigns, in manner and form aforesaid : And that the said schooner or vessel and all other the necessaries belonging or appertaining thereto and every part thereof now are and so from henceforth for evei shall be, remain and continue unto the said James Jackson, his executors, administrators and assigns free and clear ind freely and clearly acquitted and discharged of and from all former bargains, sales, gifts, grants, titles, debts, charges and incumbrances whatsoever : And further, that the said Thomas Brown, hisf xecutors and admin- istrators shall and will from time to time and at all times hereafter at the requests, costs .and charges of the said James Jackson, his exe- cutors, administrators and assigns, make, do and execute, or cause or procure to be made, done and executed, all and every such further and other lawful and reasonable act and acts, deed and deeds, devices, conveyances and assurances in law whatsoever for the fur- ther, better and more effectually conveying, assigning and assuring the said schooner or vessel, and all the necessaries belonging or appertaining thereto, and every part thereof, unto the said James Jackson, his executors, administrators or assigns as by him, them any or either of them, or his or their any or either of their Counsel in the Law shall be reasonably devised, advised and required. In Witness whereof, I have hereunto set my hand and seal the day of January, in the year of our Lord one thousand eight hundred and eighty-seven. Signed, sealed, and delivered in the presence of X. Z. Thomas Brown. fL.S.] :ount 'erti- VKSSetEt. Mortgage of Vessel, del |er the Jereto js and |ir own For 1 Port of Record No. Where Built. When Launched. P'rtol Registry 18,722. Pictou, N. S. 2 August. 1882. Halifax, N. S. Measurement. Length .... 62 .... feet Breadth .. 17 .... leet Depth .... 9 .... feet Tonnage and Name. Tonnage 200 Name Flora McAllister. To all to whom these Presents shall come — Greeting; : Whereas : (Stale nature of Mortgage Debt and the transaction between Mortgagor and Mortgagee out of which it arises, as) J. S. of, etc., mariner, the owner of the above named schooner the Flora- McAllister, hath borrowed of A. B. of, etc., the sum of 98 jo, and it hath been agreed between them that the said schooner shall be mort- gaged to secure such debt. Now, therefore, the undersigned J. S. in consideration of the premises, for himself and his heirs, covenants with the said A. B., and his assigns, to pay to him or them the sums for the time being due on this security, whether by way of principal or intere&t, at the times and in the manner following, that is to say : in one year from date, with interest at ten per cent. ; and for better securing to the said A. B. the payment of such sums as last afore- said the said J. S. doth hereby mortgage to the said A. B. the ship above described. Lastly, J. S., for himself and his heirs, covenants with the said A. B., and his assigns, that he hath power to mortgage, in manner aforesaid, the above-mentioned ship, and that the same is free from incumbrances. (If any incumbrances, add "save as appears by the record of the said ship.") In witness whereof, we have hereto subscribed our names and afRxed our seals at Pictou, N.S , this day of J une, one thousand eight hundred and eighty-six. Executed by the above-named) J. S. [L.S.J in the presence of ) A. B. [L.S.] Transfer of Mortgage, I, A. B., of. etc., the within mentioned mortgagee, in considera- tion of eight hundred dollars this day paid to me by E. F., of, etc., 882 THE OAKADUK LAWYER. hereby transfer to him the benefit in full of the within written security. In Witness whereof, I have hereunto subscribed my name and affixed my seal, this tenth day of November, one thousand eight hundred and eighty-six. Executed by the above namel ' in the prewnce of i" '^* ®- ^^'^^ X.Z. Discharge of Mortgage. Received the sum of eight hunlred and fifty dollars in discharge of the within written security. Dated at Charlottetown, P. E. I., this fourth day of January one thousand eight hundred and eighty-seven. Witness, etc, A. B. THE OAKADlAK LAWYER. 883 WILLS. A WILL, or Testament, is a writing by which the owner of property declares how he wishes his property to be disposed of after his death. When a man makes a will he is called a testator; and when a woman makes a will she is called a testatrix. A person who dies with- out making a will is said to die intestate. The person to whom a will bequeaths a legacy is called a legatee, and he to whom it devises land is called a devisee. A will may be written on paper, parchment, or any other material, and in any hand ; but it must be legible and intelligible. No precise form of words is essential to its validity, but great care should be taken that th« wishes of the testator be expressed in plain, clear, terms. Any person twenty-one years of age o£ over, and of sound and disposing mind and memory, who is not at the time under the influence of fear, fraud, or coercion, is competent to make a will. The wills of persons of sound mind are not affected by their subsequent insan- ity. All wills, save as hereinafter mentioned, whether of personal. or real estate, require to be in writing. No will takes effiect until the death of the testator. It may be rendered void by cancellation or revoca- tion, or by the execution of a will of later date. The will is revoked if the testator destroy it by burning, tearing, etc., with intent to revoke it, or if some other person do so by his direction. The subsequent mar- riage of the testator will revoke a will previously made. To pass real estate the will must be made in acccordance with the laws of the country where such real estate is dd4 tflE CANADIAK LAWtEfi. situated ; but to effect personal property it need only be in accordance with the law of the country of the tes- tator's residence or domicile. ,9 A will must be signed at the foot or end thereof, by the testator, or for him by some other person in his presence and by his direction. A testator who is unable to write, may have his hand guided in making a mark against his name if he understands the purport of what is being done and assents to the act. The testa- tor must make or acknowledge the signature in the presence of two or more witnesses present at the same time, and such witnesses must attest and must write their names to the will in the presence of the testator. No seal is necessarj'^ to a will, though it is customary to attach one ; nor is any special form of memorandum or certificate of attestation necessary, though it is well to write the following form, which will generally answer: " Signed, published and declared by the said A. B. as and for his last will and testament in the presence of us, both present at the same time, who at the request of the said A. P. and in his presence, and in the pres- ence of each other, have hereunto set and subscribed our names as witnesses." It is well to write the resi- dence and occupation of each witness beneath his sig- nature, as he may be called upon to make oath when the will is proved. Care must be taken that only par- ties who take nothing under the will should be wit- nesses, as otherwise the devise or bequest to the witness or to the husband or wife of the witness is void. Credi- tors of the testator may be witnesses without defeating bequests for payment of their debts, and executors may be witnesses; but it is best to choose others. The witnesses should note well the mental and physical WILLS. 885 condition of the testator, and satisfy themselves tnat he fully understands the will and what is being done. The will should begin with a statement of the name, occupation and residence^ of the testator. The full name of the devisees or legatees should also be given, and, if necessary to prevent mistakes where there are two of the same name, their occupation or residence, or such other description as may obviate all misunder- standing. The testator may know well enough, when he bequeaths a legacy to " John," or " Maria," whom he means, but if there are two " Johns " or two " Marias " among his relatives (which may not be unlikely) disputes may arise. A devise to ** children " will not include illegitimate children. A devise or bequest to a wife in lieu of her dower must be clearly so expressed, or she may be held entitled to both. No devise or bequest can deprive her of her dower if she prefers to take the latter ; she has her choice between her dower and the bequest. By what are called the Statutes of Mortmain, no lands, or money to be laid out in the purchase of lands, can be given by will to any religious or superstitious uses, though this may be done by deed executed and deposited as required by the Statutes. A man can leave but one will, though he may exe- cute many codicils to it, the more recent of which gov- ern the former. Hence, the dating of the will, and of each codicil, must never be omitted. If two wills are left by the testator, and neither is dated, neither will takes effect, and there is an intestacy. The will is construed as though the testator made it immediately before his death, unless a contrary inten- tion clearly appears on the face of the will. 25 886 THE OAMADUN LAWYEB. If the same estate is devised by the same will to two different parties, they will divide it in equal shares. Alterations in a will by interlineations will not affect its validity, but to take effect they must be initialled in the margin of the will, opposite where they occur, by the testator and the witnesses, to show that they were made before the will was signed ; or they may be referred to in the attestation clause, or in a memor- andum in another part of the will attested as before mentioned. The only kind of will which does not require to be in writing, is what is called a noncupative will. This is a will which is made by the verbal declarations of the testa- tor, and depends for proof merely upon oral testimony, though it is, after the testator's death, reduced to writ- ing. It may be made only by a soldier in actual mili- tary service or by a mariner at sea. It affects personal property only. A codicil is a supplement, or an addition,, made to a will by the testator, intended for a further «.;• ijf.tion or alteration of the will, or to make some ad.t: .. to or subtraction from the former dispositions of t' estator. It may be written upon the same paper as the will, or upon a separate sheet, and it may be left attached to the will or separate in another place, though it is best to attach it. It should be executed in the same man- ner, and with the same formalities, as the original will, and should be read as part of it. It may be also non- cupative, under the same circumstances that a will may be. In every will of personalty, there should be an appointment of some person or persons as executor WJIiLS. 887 Iwo feci in ;ur, ley lay lor- jbre or executrix. A married woman may be appointed executrix of her husband's will. In selecting executors, regard should be had to their trustworthiness, as the estate is very much in their control, and they have not, generally, to give bonds as have administrators. They should be, if possible, men of reputation and of business habits, and acquainted to some extent with the business affairs of the testator. Any person may be appointed executor ; but it a person under twenty-one be appointed, he will not be allowed to exercise the office during his minority ; and during this time the administration of the goods of the deceased will be granted to the guardian of the infant, or to such other person as the Surrogate Court may think fit. There is this difference between a will of lands and a will of personal property. Under the former, in the absence of contrary statutory provisions, the devisee, or person * j whom the land is given, takes the land direct, without the intervention of any executor ; while, on the other hand, a legatee of personal property can only get the same through the executor or administrator. The moment a testator dies, the executor becomes entitled to the possession of the whole of the personal property, and is bound to see that all the testator's debts are paid, before he pays a single legacy, or parts with any of the property to the legatees to whom it may be given. In those Provinces, however, where, as in Ontario, real estate now descends to the executor, or personal repre- sentative, for the payment of debts, the distinction be- tween real and personal property, in matters of descent, is less clearly marked than it formerly was. Be;|[ore an executor can act, he should get himself 388 THE GANADUN LAWYER. lawfully clothed with the necessary authority. This he does by proving the will. Wills must be proved in the Surrogate or other proper Court of the county where the testator had, at the time of his death, his fixed place of abode ; and if he had no fixed place of abode in, or resided out of the Province, at the time of his death, then in the Court of any county in which he had any personal or landed property. The first thing, then, for an executor to do is, to take the will to the clerk of the proper Court ; there the necessary affidavits and docu- ments can be filled up and the will proved in due form. When the will has been proved, it is the duty of the executor to pay the testator's debts out of the personal estate, to which such executor becomes entitled by virtue of his office. For this purpose the executor has reposed in him by the law the fullest powers of disposi- tion over the personal (and in some Provinces certain powers over the real) estateof the deceased, whatever may be the manner in which it has been bequeathed by the will. If he suspects there are debts or claims of which he has not accurate knowledge, he should advertise for them to be sent in to him for payment. When the debts have been paid, the legacies left by the testator are then to be discharged. In order to give the executor sufficient time to inform himself of the state of the assets and to pay the debts of the deceased, he is allowed a twelvemonth from the date of the death of the testator, before he is bound to pay any legacies. Notwithstand- ing the lapse of a year from the testator's death, the executor is still liable to any creditor of the deceased to the amount of the property which may have come to the executor's hands ; and if he should have paid any legacies in ignorance of the claims of the creditor, his i Wills. 889 only remedy is to apply to the legatees to refund their legacies, which they will be bound to do, in orde* to satisfy the debt. From this liability to creditors an executor cannot be discharged, unless he throw the property 'nto Court, in which case the Court undertakes the administration, and the executor is consequently exonerated from all risk. The executor, however, is, of course, not answerable to the testator's creditors beyond the amount of property wliich has come to his hands, unless he should, for a sufficient consideration, have given a written promise to pay personally, or should do any act amounting to an admission that he has property of the testator sufficient for the payment of the debts. In Ontario, however, after advertising for claims of creditors, he may, by statute, be exempt from personal liability to creditors who neglect, after due notice, to inform him of their claims, and of whose claims he has no notice. After payment of the testator's debts and legacies, the residue of his personal estate must be paid over to the residuary legatee, if any, named in the will ; and if there be no residuary legatee, then to the testator's next of kin. When a person dies without making a will, his pro- perty is then distributed according to the provisions of the Acts of the legislature passed to regulate such matters. In Ontario, the lands of a person dying intes- tate descend first to all his children, sons and daughters, equally, and if any child should be dead leaving chil- dren, these grand-children will stand in their parent's place and be entitled to the share which would have fallen to their parent, had such parent been alive. Fail- ing children, the lands will go to the intestate's father j 890 THE CANADIAN LA^ vm. and if the father be dead, then to the mother ; and if the mother be dead, then to the brothers and sisters and collateral relatives. If, however, thr land came to the intestate in right of his mother, then, upon his death without children, such land will revert to the mother if living, and if dead, to the father for life, and then to the brothers and sisters. With regard to personal property, under the Statutes of Distributions, if the intestate leave a widow and any child or children, the widow shall take a third part of the surplus of his effects. If he leave no child or descendant of a child, she takes one-half. If the in- testate leave children, two-thirds of his effects, if he leave a widow, or the whole if he leave no widow, shall be equally divided among his children, or, if but one, to such child. If the intestate leave no children or representatives of them, his father, if living, takes the whole : or, if the intestate should have left a widow, then one-half. If the father be dead, the mother, brothers and sisters of the intestate shall take in equal shares, subject, as before, to the widow's right to a moiety. If there be no brother or sister, the mother shall take the whole, or, if the widov. be living, a moiety only, as before ; but a step-mother can take nothing. The children of brothers or sisters who are dead stand in their parent's place. If a married woman is possessed of property, real or personal, she may dispose of the same by her will to whom she pleases. The separate personal property of a married woman dying intestate is to be distributed in the same proportions between her husband and chil- dicn as the personal property of a husband dyin^ in- t< c tvn«ta. 891 Jif d le r r le ii testate is to be distributed between his wife and children. When a person dies intestate, any of the next of kin (and failing them, a creditor), as explained in a previous chapter, may obtain letters of administration, from the Surr9gate or other proper Provincial Court, which v/ill clothe the party obtaining such letters with the same authority that an executor has. An administrator's duties and liabilities are precisely the same as those of an exe- cutor, save that an administrator must give a bond for the due performance of his duties, which, as a rule, an execu- tor need not do. Where a will appoints no executor, an administrator with the will annexed will be appointed. Every codicil revokes and alters the will and earlier codicils in so far as its directions, devises and bequests change those of the will and of the earlier codicils. But if a legacy be revoked under mistake of fact, as if the testator revokes under the erroneous impression that the legatee is dead, whereas in fact he is alive, the revo- cation is void. A father may, by his will, appoint a guardian to his child or children, who shall have custody of their persons and estates until they teach full age. Wills in Ontario made before and not re-executed or revived after the ist January, 1874, ^i^e governed by rules slightly different from those above set out, but it is not deemed necessary in this treatise to explain them. In Ontario, lands which are at the testator's death encumbered by mortgages, pass subject to them, and the devisee cannot call upon the executors to pay off the mortgages out of the personal estate, unless the will specially directs it. Where the testator leaves real or personal property 8da THE OAMADUN LAWYER. to a child or grandchild, and such child or grandchild dies before the testator, leaving issue, the devise or be- quest may be taken by the latter. Wills may be deposited for safe keeping with the clerk of the Surrogate Court in any county in Ontario, upon payment of a small fee. Upon the death of the testator they may be proved before the same official, and may be registered, if they affect lands, in the proper Registry office. By the statute law of Manitoba, a holograph will, or one wholly written and signed by the testator himself, shall, in that Province, be subject to no particular form, nor shall it require an attesting witness or witnesses. In New Brunswick, a married woman may, with the consent of her husband, make a will, such consent to be expressed in writing on the ytiWf and executed in like manner. Such consent cannot be revoked by the husband save in the wife's lifetime, and with her con- sent in writing, executed in like manner. But the wife may revoke or cancel the will without her husband's consent, by any writing executed like a will, or by burn- ing, tearing, etc., the document, with intention to revoke. The general law of Prince Edward Island is similar to that of other Provinces. Wills in that Province must be proved within a certain fixed time from the death of the testator ; — ^thirty days after the death of the testator where the executor is resident in the Prov- ince, and six months after notification to the executor where the executor is non-resident in the Province, The Surrogate may order executors to give security to the estate if this is reasonably requested by a creditor or legatee. WILLS. 89a FORMS. Short form of Will. This is tha last Will and Testament of me, A. B., of, &c., made this day of , in the year of our Lord one thousand eight hundred and , as follows : I give, devise and bequeath all my messuages, lands, tenements and hereditaments, and all my household furniture, ready money, securities for money, money secured by life assurance, goods and chattels, and all other my real and personal estate and e£fects what- soever and wheresoever, unto C. D., his heirs, executors, adminis- trators and assigns, to and for his and their own absolute use and benefit, according to the nature and quality thereof respectively ; subject only to the payment of my just debts, funeral and testa- mentary expenses, and the charges of proving and registering this my will. And I appoint E. F., of . executor of this my will ; and hereby revoking all other wills, I declare this only to be my last will and testament. In witness whereof. I have hereunto set my hand and seal, the day and year above written. Signed, sealed, published and declared by the said A. B., the testator, as and for his last will and testament, in the presence of us. who at his request, in his presence, and in the presen''e of each other, have hereunto subscribed our names, as Avitnesses to the due execution thereof. R. S. X. Z. A. B. [L.S.] General form of a Will disposing of Real and Personal Estate, in Legacies. I, A. B.. of . in the county of , gentleman, being of sound and disposing mind and memory, do make and publish this my last Will and Testament, hereby revoking all former Wills by me at any time heretofore made. I St. I hereby constitute and appoint my wife, E. T., to be sole executrix of this my last will, directing my said executrix to pay all my just debts and funeral expenses, and the legacies hereinafter given, out of my estate. 2nd. After the payment of my said debts and funeral expenses, I give to each of my children the sum of dollars, to be paid to each of them as soon after my decease, but within one year, m convraiently may be done. ft94 THE CAKADIAN LAWtEB. 3rd. And for the payment of the legacies aforesaid, I give and devise to my said executrix all the personal estate owned by me at my decease (except my household furnituru and wearing apparel), and so much of my real estate as wili be sufficient; in addition to the said personal estate herein given, to pay the said legacies. 4th. I give to my said executrix all my liousehold furniture and wearing apparel, for her sole use. 5th. I devise to my said executrix all the rest and residue of my real estate, us lon^ as she shall remain unmarried, and my widow, with remainder thereof, on her decease or marriage, to my said children and their heirs respectively, share and share alike. In witness whereof, I have hereunto set my hand and seal, this iay of , in the year of our Lord oue thousand eight I u i- dred and Signed, published and declared by the said A. B., as and for his last will and testament, in the presence of us, who in the presence of each other, and at his request, have sub- scribed our names as witnesses hereto. CD. R. S. A. B. [L.S.] Codicil to a Will. . This is a codicil to the last Wiil and Testament of me, A. B., of &c., bearing date the day of , a.d. 18 , {the date of the will.) I do hereby revoke the bequest of all my household furniture to my son John, and do give and bequeath the same to my daughter Jane, to and for her own absolute use and benefit forever. I give and bequeath to my daughter Mary, in addition to the le<2acy bequeathed to her by my said Will, the further sum of 1400. In all other respects I do confirm my said Will. In witness whereof, I have hereunto set my hand and seal, this day of , A.D. 18 . Signed, published and declared by the said A. B., the testator, as and for a codicil to his last Will and Testament, in the presence of us, both pr< sent at the same time, who, at his request, in his presence and in the presence of each other, have hereunto subscribed our names as witnesses to the due execution hereof, R. S. X. Z. A. B. [L.S.J WILLS. 895 Nuncupative Will, In the matter of the Nuncupative Will of Thomas Atkins, deceased. On the third day of May, in the year one thousand ei^ht hundred and . Thomas Atkins, Sergeant in Her Majesty's Regi- incint of foot, being in extremis in his last sickness, in his tent or dwel- ling, situate in etc., [describing the situation ; if in the dwel- ling of another, so stating and describing] , in the presence of the sub- scribers, did declare his last Will and Testament in the following V ords, or to that effect, viz. : — " He mentioned that he had about one hundred pounds in the Scottish and Colonial Bank of Birmingham, and ten pounds in the hands of Captain Loftus Hay." He then said, " I want Captain Hay to act as my trustee and executor, and put it out at interest for my mother's use during her life, and after her death, to go to my sisters. All my other property I want my mother to have for her separate use." At the time the said Thomas Atkins pronounced the foregoing will, he was of sound and disposing mind, memory, and understand* ine;, and did bid us who were present, to bear witness that such was hi 1 Will. Reduced to writing this fifth day of May, in the year one thou- sand eight hundred and . John Brown. Edward Baker. Samukl Nelson. i DICTIONARY OF LAW TERMS IN .COMMON USE. 1 Abate. To abate a nuisance is to cause it to be discontinued. Administrator dk son tort. One who intermeddios with an estate without proper authority. Agistment. Pasturage of cattle. Alias. A term applied to a second writ issuing for the same pur- pose as a prior writ. Alibi. In another place. A mensa bt thoro. From ued and board ; a judicial separation of man and wife which does not annul the marriage. Amicus curiae. Friend of the Court ; a bystander in Court who may suggest to the Court matters of fact or law for its guidance. Anno Domini. The year of Our Lord. Assets. Property of any kind which may be found to belong to the estate of an insolvent or a deceased person liable to the payment of debts. Assignee. One to whom property is assigned. In bankruptcy, a person appointed to take charge of the debtor's estate. Ass:z£s. Sittings of the Courts (generally twice a year) in each county, for the disposal of criminal and civil business. Attachment. The arrest of a person or seizure of his goods under process of law. A vinculo matrimonii, a divorce which absolutely dissolves a marriage. Bailment. The receiving and keeping of goods by one for another. I ILL OP Lading. A memorandum signed by the masters or cap- tains of vessels acknowledging the shipment of goods. Blackmail. To levy blackmail is to extort money by threats of publishing injurious matter, or of criminal proceedings. Bona Fide. In good faith. Capias. A writ authorizing an arrest of a person. Causa Mortis. On account of death. Caveat. " Let him take heed ;" a warning. Cepi Corpus. The return endorsed by a sheriff upon a writ of arrest. Certiorari. A writ directing the proceedings or record of a cause to be brought before a higher Court. Cestui que trust. The party in whose interest a trustee holds property. Compos Mentis. Of sound mind. Contra bonos mores. Inconsistent with good morals. 898 THE CANADFAN LAWYER. CovBRT. Married. Crim. Con. Criminal conversation ; adultery. CuRTBSY OF England. A tennncy by the curtesy is the right of a wido^rer to enjoy for life the lands left by his deceased wife. CuRTiLEGE. A court yard. Db facto. Actually existing. De jure. According to law. De novo. Anew ; from the beginning. Depositions. Written testimony taken down upon a legal investi- gation. Detinet. *• He detains ;" a form of action at law to recover pos- session of specific property. Devastavit. " He has wasted ;" wasteful and improper conduct of administrators with estates. Dies non. A legal holiday. Domicile. The place where a man habitually resides. Donatio mortis causa. A gift ot personal property made in con- templation of death and by manual transfer. Ea.semcnt. a right to do some act upon the land of another. Emblement. The profits of land, as grass, fruit and crops. Enciente. Pregnant. Entail. Property descending to heirs, of the body only. Escheat. Property re\'erting to the Crcwn. Escrow. A deed signed, but left with another to be delivered upon performance of some stipulated act by the grantee. Estoppel. A bar to an action arising from a man's own act or deed. EsTi?AV. An animal straying tipon the highway or oa another's lands. Estreat. Where the condition of a bail-bond is broken, the bond is estreated that payment of the penalty may be enforced. Ex OFFICIO. By virtue of the office. V.x PARTE. On one part ; without participation of both parties, Ex POST FACTO. After the act has been done. Ex TEMPORE. Off-hand ; without premeditation. Felo we se. a suicide. Feme < 'overt. A married woman. Feoffment. A deed of grant of lands. Ferae naturae. Animals and birds ferae naturae are such as are wild and not capable of being domesticated. Fiat. An imperative command or decree. Fieri facias. A writ of execution, Flotsam. Goods found floating in the sea. Forma pauperis. A poor person is sometimes allowed by the Courts to brin^ suit in this manner, without payment of fees. DICTIONARY OF LAW TERMS IN COMMON USE. 899 :e Forum. A Court of Justice. Franchise. A privilege or exemption. Garnishment. The attachment of debts due a debtor in the hands of his creditors. Habeas Corpus. A writ whereby the legality of any imprisonment may be enquired into. Half BUioo. Where the relationship proceeds from a single ancestor only : thus two brothers having the same father bat different mothers, or vice versa, are of the half blood. Hotchpot. Brinping all moneys into one sum or account for equal division. Incest. Illicit intercourse within the prohibited degrees of con- sanguinity. In esse. In being. In extremis. In immediate danger of death. In posse. Within probability. In propria persona. In one's own person. In terrorem. By way of warning or menace. In transitu. On the passage. In ventre sa mere. The condition of a child begotten but not born before the death of the father. Ip.so facto. By that fact. Ipso jure. By the law itself. Joint tenants. Are such as possess a common title to the same land. Jointure. Lan Is or money set apart for the support and main- tenance of a woman, to take efTect after her husband's death. JuR.\T. The memorandum or certificate appended to an affidavit to show when, where, and l;efoie what officer it was sworn. Jure gentium. By the l.iw of n.Ttions. Justifying bail. If exception be taken to the bail offered by a person arrested, the bail must justify, by proving on oath that they are possessed of sufficient property, are resident freeholders or householders, etc. Laches. Negligence or culpable delay in prosecuting le.^al rights. Lkvare facias, a writ of execution against goods and chattels. I..KX TALiONis. The law of retaliation in kind. Livery of seisin. The delivery, or handing over from one to another, of the possession of lands. Loco parentis. In the lace of the parent. Locus sigilli. (commoiii;- abb. L. S.) The place of the seal. Malfeasance. A wrongful act. Malum in sb. Bad in itself; that which is forbidden by natural or moral justice. 400 THE CANADUN LAWYER. ■'> ■**■,• < Malum prohibitum. Bad because forbidden ; that which is for* bidden by express statutory or common law. Mandamus. A peremptory writ to enforce the fulfilment of a duty. Mesne. Middle ; intervening. Messuage. The legal term for a house. Misfeasance. A wrongful act. Mittimus. A precept, under the hand and seal of a magistrate, for the imprisonment of an offender. Mutatis mutandis. Changing what ought to be changed. Mystery. Ad art, trade, craft or occupation. Ne exeat provincia. a writ to arrest a debtor about to abscond from the province. Neminb contradicbnte. None dissenting. Nisi frius. A court where actions are tried before a judge and jury. Nolle prosequi. A discontinuance of further proceedings in criminal cases. NoN EST inventus. The return of a sheriff endorsed upon a sum- mons or subpoena where the party is not found in his bailiwick. Nudum pactum. A contract invalid at law. Onus probandi. The burden of proof. Overt. Open, public. Oyer and terminer. To hear and to determine ; Superior Courts for the trial of criminal offences. Paraphernalia. The wearing apparel, jewels, etc., of a wife or widow, which she is entitled to retain at her husband's death in addition to her dower and jointure. Parol. By word of mouth, verbally; not under seal. Party wall. A wall used jointly by two tenements which it separates. Per capita. " By the heads ;" share and share alike. Per SB. By himself, or itself. Plough bote. The right of a tenant to cut sufficient timber to make and repair implements of husbandry. PZiURiES. •• Very often ;" a third writ, after two have issued against a defendant. Posse comitatus. A body of citizens summoned by the sheriff to assist him in maintaining the public peace, or enforcing the law. PosTBA. " Afterwards ;" the endorsment of the verdict upon the record. Post mortem. After death. Prima facie. At first glance. Prochbin ami. The next (or nearest) friend. Prohibition. A writ whereby a Superior Court stays proceedings in an inferior. DICTIONABT OF LAW TERMS IN COMMON URE. 401 i'hich is for. :nt of a duty. magistrate, iged. It to abscond a judge and oceedings in upon a sum- bis bailiwick. iperior Courts ( of a wife or ler husband's !nts which it »nt timber to issued against the sheriff to Juforcing the :ict upon the proceedings Pro rata. According to the proportion or allowance. Pro tanto. For so much. Puisne. A name applied to judges of Superior Courts who are not chief justices. Pur autre vie. For the life of another. Purview. The preamble to a statute. Putative. Suspected. QuAMDiu SE BENE GBSSERiT. During good behaviour. Quantum meruit. As much as he has earned. Quantum valebat. As much as it is worth. Quare clausum fregit. " Why he broke the close ;" the name of an action brought for trespass to land. Quash. To set aside ; to nullify. Qui tam. A proceeding by an informer to recover a penalty imposed upon, or reward given by a penal statute. Quo animo. With what intent. Quorum. The number of persons whose presence is required before a legislative or corporate body can proceed to act. Quo warranto. By what authority ; a writ to determine the right or ownership of a franchise or office. Realty. Real pro]3erty ; lands, houses, etc. Record. A copy of the pleadings in an action at law preserved in Court for reference. Relator. An informer. Remainder. What is left of an estate in fee of lands after a smaller estate has been granted out of it. Remanet. a cause left undisposed of at an assize. Res INTEGRA. An entire matter. Scintilla. A spark; a very small quantity. Scire facias. " That you declare ;" a writ commanding a party to show cause why a certain thing should not be done. Seisin. Possession. Sequestration. A process employed by Courts of Equity for enforcing obedience to their decrees, wLereby the delinquent party is deprived of his entire estate. Set-off. The mutual liquidation of opposing demands. Severalty. An estate in severalty is one held by a single person independent of any claim thereto by another. Severance. The cutting and carrying away of grain. Sine die. Without day ; where no day is, at the adjournment of a meeting, appointed for its reassembling, it is said to adjourn sine die. Ss. (scilicet). To wit ; namely. Specialty. A contract under seal. Spinster. Any unmarried woman. Subpoena. A writ to compel witnesses to attend a trial. 2G I i 402 THE OANADIAN LAWTEfi. Sui GENERIS. Of its own kind. Summons. A mandate from a justice of the peace to an accused pers'.n, requiring the appearance of the latter. Supersedeas. A writ to stay proceedings. Tender. An offer of money to be accepted in full of a claim. Tenement. A house dwelling. Tbrre tenant. The person having actual possession of land. Tort. A wrong or injury independent of contract. Trover. An action at law to recover goods or their value. 'Usance. Interest; usury. Venditioni exponas. A writ of execution. Vendor. A seller. Vendee. One to whom a thing is sold. Venire. A writ directing a sheriff to summon jurors. Venue. The place from which the jury are summoned. Vice versa. On the contrary. v Vi ET ARMis. By force and arms unlawfully. Viva voce. Verbally. Voire dire. A witu' ss who is suspected of being incompetent to give evidence at a trial, as by reason of partiality or other- wise, may be examined upon the voire dire before being examined in chief. Waiver. The omission to avail one's self in proper time of a legal right or claim. Warrant. A written authority or precept under the hand and seal of a justice of the peace, empowering a constable to make an arrest, search for stolen goods, etc. INDEX. ADMINISTRATORS, i ; definition of terms, i ; priority in grant- ing letters, i ; proof required, 2 ; duties of administrators, 2 ; authority of administrators, 3 ; statutory provisims of vari- ous Provinces, 4; petition for letters of administration, 4; administration bond, 5 ; notice to creditors, 6, 7. AFFIDAVITS AND DECLARATIONS, 8; nature of. 8; form and requisites, 9 ; before whom made, g ; duties of commis- sioners, 10; general form of affirmation, 11 ; form of statu- tory declaration, 12 ; form of certificate, 12 ; for marksman, 12 ; form of oath, affirmation, and declaration, 13. AGREEMENTS OR CONTRACTS, 14 ; nature of, 14 ; considera- tion, 14; effect of statute of frauds, 15, 16, 17, 18; signature to agreement, 18; fraud afifecting, 19; general requisites, 19; agreement for sale of freeholds, 20 ; agreement for lease with right to purchase, 20 ; agreement for sale by way of lease, 22 ; agreement to build a house, 27, 31 ; sub-contract be- tween a builder and a carpenter, 37 ; bond of builder to per- form his contract, 39 ; contract to do repairs, 40; agreement for sale of merchant's stock, 41 ; agreement for sale of grain, 42. APPRENTICES, 43; definition and nature of the contract, 43; duties of maf ter, and of apprentice, 44 ; determination of the contract, 45 ; statute law in Ontario, 45 ; law in Nova Scotia, 47; law in New Brunswick, 48; law in Prince Edward Island, 49 ; law in Manitoba, 50 ; apprenticeship indenture, 50 ; indenture for girl to learn housework, 51 ; assignment of indenture, 52. ARBITRATIONS AND AWARDS, 54; nature and advantages of arbitration, 54 ; form of submission, 55; making award order of Court, 55 ; setting aside award. 55 ; revocation of submis- sion, 56 ; witnesses, how attendance compelled, 56 ; time for making award, 56, 57 ; procedure on arbitrations, 57 ; nature ! xr 404 HfiE oANibtAi^ tAWveft. and requisites of awards, 58; enforcing award, 59; author' ity and duties of umpire, 59; table of fees to witness. Co, 61 ; Trades Arbitration Act, 62 ; general form of submission, 62, 63; arbitration bond, 65: appointment of umpire, 66; enlargement of time for making award, 66, by ; appointment of additional arbitrator, 67 ; oath of witness, 67 ; appoint- ment by arbitrator ; general form of award, 63 ; award where submission was by bond, 6g; award where submission was by agreement, 70 ; useful clauses for awards, 70. 71 ; affidavit of execution, 71. ASSIGNMENTS, 72 ; general nature of, 72; assignment of agree- ment to purchase, 73 ; assignment of bond by endorsement, 75 ; Ontario Crown Lands assignment, 77 ; affidavit of exe- cution, 77 ; assignment of lease, 78, 81 ; by administrator, 82 ; assignment from trader to secure debt, 83 ; assignment of judgment, 85; assignment of mort^^ige, 87, 89; assignment of debts, 89, 92 ; assignment of policy of fire insurance, 93 ; assignment by bill of sale, 93, 95. AUCTIONS AND AUCTIONEl RS, 97; general law governing the subject, 97 ; powers of auctioneer, 97 ; how auction sales should be conducted, 97, 98 ; sales of land by auction, 98 ; auctioneer's memorandum of sale, 98 ; purchaser's memoran- dum, 99; conditions of sale of goods, 99; conditions of sale of lands, 99 ; standing conditions of High Court in Ontario, lOI. B BILLS OF EXCHANGE, PROMISSORY NOTES AND CHEQUES, 102; definition and nature of note, 102; joint and several notes, 103 ; stamps no longer necessary, 103 ; law relating 10 accommodation notes, 103 ; transfer of notes, right of parties upon, 104 ; interest on notes, 104 ; effect of gen- enil endorsement, 106; days of grace, 106; what are bank holidays, 106 ; law as to presentment, 107 ; how demand should be made, 108 ; protest and notice of dishonour, 108, 109; nature of bills of exciiange, 109, no; inland and foreign bills, no; acceptance and presentment of, in; protest of bills. III ; acceptance for honor, in ; endorsement, in, 112 ; date of bill unnecessary, 112; contradiction between figures and words. 112; eH'ect of conditional agreement, 113; void instruments, 113, 114; uncertainty as to time of payment, 114; other causes of invalidity, Z14; fictitious signatures, 114, 115; restrictive acceptances, 115; requisites of signa- ture, 115; agency and partnership, 115, 116; requisites of valid acceptance. 116; cheques, nature and requisites of, X16, 117; refusal of bank to pay, 117; fraudulent alteration IMDBX. 405 mthor" fss, 60( lissioii, Ire, 66; Intment |ippoint- " where was by tdavit of >f agree- setnent, ; of exe- istrator. iment of ignment nee, 93 ; overning lion sales :tion, 98 ; leinoran- !ns of sale I Ontario, :S AND [02 ; joint , 103 ; law 3tes, right ;t oif gen- are bank ' demand nour, 108, id foreign protest of III, 112; en figures 113; void payment, ignatures, of signa- [uisites of lisites of, alteration of. 117; time for presentment, 117; I. O. U.'s, 117; form cf ne;{iatable note, 117; of note non-negotiable, 118; of joint note, 118; of joint and several note, 118; of demand note, bill of exchange, and cheque, 118; protest of promissory note, 118; notice to endorsee, 119 ; bond of indemnity for lost note, 119. liCNDS, 121 ; nature and varieties of, 121 ; bond without condition, 122; bond witn condition, 122; bond to convey land, 123; bond for payment of purchase money, 123; bond of indem- nity, 124; bond from a lessee and his surety to pay rent, 125. CHATTEL MORTGAGES AND BILLS OF SALE, 127: nature of chattel mortgages and object of statutory provisions, 126; good faith necessary, 127 ; requirements of valid chattel mortgage, 127; seizure and sale under, 128; bar of dower unnecessary, 128; requirements as to bills of sale, 128; statu- tory law of Ontario — Chattel Mortgage Act, 129 ; forms under Act, 135; statutory law of New Brunswick, 137; law of Prince Edward Island, 138; law of Manitoba, 140; law of British Columbia, 140; form of chattel mortgage, 141; necessary affidavits, 143 ; chattel mortgage to secure en- dorsement, 144 ; necessary affidavits on such mui tgage, 146; chattel mortgage to secure future advances, 147: alB- davit of mortgagee thereto, 150 ; bill of sale, 150; affidavit of bargainee thereto, 152. CONSTABLES, 153; appointment of constables in Ontario, and oath of office, 153; arrest, 154: breaking open doors, 155; general duties of constables, 156; coroner's constables, 157; refusing to assist a constable, 158 : search warrant, 158; arresting on warrants, 159; arresting without watrant, 160; law in Nova Scotia. 162. DEEDS, 163 ; diflerent kinds of, 163 ; dower in, 164 ; ininors joining in, 164; deeds by co.porations, 165; requisites of signature and delivery, 163; examination of title, 166; law in Ontario, 166 ; before whom to be attested in Ontario, 167 ; short forms, r68 ; powers of attorney, 168 ; quit claims, deeds poll, and trust dee Is, 169 ; law in Nova Scotia, 169 ; law in British Columbia, 170: law in Manitoba, 171 ; law i'l New F3runswiclf , 171 ; form of deed of grant, 172: deed with <]ualified covenants, 174 ; OutariQ short form under statute, 406 THB OAMADIAN LAWYER. 176; deed of gift of lands, 77; affidavit of exerution in Ontario, 177; deed of right of way, 177; release of doAwer, 17S; deed of quit claim. 179. DITCHES AND WATERCOURSES, 180; genorallaw in Ontario, 180 ; abstract of the " Ditches and Watercourses Act, 1883." 181 ; forms under the Act, 184; law in British Columbia, 186. DIVISION COURTS, 188; provisions of the statute law in Ontario and requirement! of the statute, 188; forms under the statute, 211. B EXEMPTIONS FROM SEIZURE FOR DEBT, 223; general policy of the law, 223; statute law in Ontario, 224; exemp- tions in Nova Scotia, 223; exemptions in New Brunswick, 225 ; exemptions in Prince Edward Island, 226; exemptions in Manitoba, 226; exemptions in British Columbia, 227. GUARANTIES, 228; nature and requisites of guaranties, 228; form of guarant^^ for gO'.ds to be furnished, 229; guaranty for a clerk, 229 ; guaranty lor a servant, 229. ! ! LANDLORD AND TENANT, 230; nature of the contract. 230; requirements of leases, 230; leases by implicati n, and tenancy from year to year, 231 ; notice to quit, 232; remedies for non-payment of rent, 232 ; distress for rent, 233 ; break- ing open doors 234 ; removal of goods liable to distress, 234 ; upon what goods distress can be levied, 235 ; manner of making distress, 236; costs of distress in Ontario, 236 ; action for rent. 237; repairs, 237; length of notice to quit, 239; tenant's right to quit, 239: overholding tenant, 239; lodgers, 240; law in Manitoba, 240; law in British Columbia, 241; form of lease of house, 241 ; form of lease of land; 243 ; lease of house and farm, 245; Ontario statutory lease, 248; dis- tress warrant, 249 ; inventory and notice, 249 ; notice of distress of growing crops, 250 ; tenant's request for delay, and notices to quit by landlord and tenant, 251. LINE FENCES, 252 ; general law as to line fences, and provisions of the Ontario Line Fences Act, 252 ; schedule of formt to Act, 2^6 ; law in Manitoba, 2^8. IMDBZ. 407 [tton in dower, )ntario, |. X883." Ilumbia, J Ontario Ider the general exemp. [unswick, imptions 227. ies, 228; iranty for MASTER AND SERVANT, 260; nature of the contract, and law as to verbal hiring, 260: notice to terminate the engaf^e- ment, a6i ; wages, 261 ; servant, where tenant, 262 ; duties of servant, 262 ; master's right of dismissal, 263; obligations of master to servant, 263 ; master's liabilities to servant, 264 ; domestic servants, 264; discharge of servants, 265 ; statu- tory law of Ontario, 266 ; statutop' law of Manitoba, 268 ; statutory law of Prince Edward luland, 271. MECHANICS' LIENS, 272 ; general review of the law as to, 272 ; Mechanics' Lien Act, Ontario, 273; forms under Act, 279 ; Amending Act, 279 ; formb under Amending Act, 282 ; Act to further amend, 283. MORTGAGES OF LAND, 285 ; various kinds of mortgages, 285 ; how evidenced, 286; redemption and reconveyance, 286; release of equity of redemption, 2S7 ; remedies of murtgngee, 287 ; discharge, 288 ; foreclosure and sale, 288 ; custody of title deeds, 289; law in New Brunswick, 289; law in British Columbia, 289; law in Prince Edward Island, 289; power of sale, 290 ; Ontario statutory short form of mortgage, 292 ; affidavit of execution, 293 ; statutory discharge, 293 ; assign- ment of mortgage, 294 ; mortgage of lease, 296. N •act, 230; iti n, and remedies 1; break- ess, 234 ; anner of 6 ; action uit. 239; lodgers, bia. 241: )3 ; lease 248; dis- lutice of )r delay, ovistons forms to NATURALIZATION AND ALIENS, 299; definition of terms, 299 ; The Naturalization Act, 300 ; forms to Act, 309. PARTNERSHIP, 318 ; nature of the contract, 318 ; general, special and limited p irtnerships. 319 ; power of partner to bind the firm, 320; dormant and secret partners, 321 ; dissolution of trading partnership, 322; administrator continuing business, 322 ; notice of dissolution, 323 ; good faith in partnership dealings, 323; law of Ontario and British Columbia, 323; limited liability and registration of partnerships, 324 ; law in Manitoba, 324 ; law in Prince Edward Island, 325 ; form of partnership deed, 326; dissolutionof partnership, 328: notices of dissolution, 329. PATENTS OF INVENTIONS, 330: rights of Canadian inventor 330; for what patents will issue, 331 ; necessary preliminaries to obtain patent, 331 ; working models, 332 ; extent and dura- tion of patent, 333 ; error in specification, 4iow rectified, 333 ; ' usignment and infringement of patents, 333 ; table of fees T" 408 TUK CANADIAN LAWTEB. payable, 334: caveats, 335; notes given for purchase o( patent rights, 335 : form of petition for pateat, 335 ; speci- fication and oath. 335; surrender of patent, for re-issue. 337; disclaimer, 337 ; assignment, 338. POWER OF ATTORNEY, 339: revocableand irrevocable powers' . 339; extent of authority conferred, 339; signature under power, 339 ; registration and revocation of power, 340 ; law of British Columbia, 340 ; form of general power, 340 ; general forms in common use, 341 ; form of revocation of power, 342. PROTECTION OF GAME, 343 ; statute law of Ontario, 343 ; forms under Ontario Act, 346 ; close season in Nova Scotia, 347 ; close season in New Brunswick, Prince Edward Island and British Columbia, 348 ; law in Manitoba, 349. R RECEIPTS AND RELEASES, 351 ; general law upon the sub- ject, 351 ; various forms of receipts, 352 ; mutual release in partnership accounts, 353 ; general release of oil demands, 353> STRIKES AND BOYCOTTING. 354 ; definitions, general remarks, and statute law of Canada upon these subjects, 354. THE TORRENS SYSTEM OF LAND TRANSFER. 357; introduction of the system into Canada, and change in the law affected by it, 357 ; system in Manitoba, 358 ; system in Ontario, 358; how mortgage or lease efiiected under the system. 360; how mortgage discharged, 361; how title passed. 36a; equitable mortgage, 363; trusts not recognized, 364; registration under system, 365; assignment of mo^^t- gages or leases, 367; transmission, 367; loss of certificate. 368; new certificates. 369; forms under Acts, 369. VESSELS, 379 ; bill of sale of vessel. 379 ; mortgage of vessel, 381 ; transfer of mortgage, 381 ; discharge of mortgage, 38a. INDEX. 4U9 w W LLS, 383 ; who may maVe a will, 383 ; what will revo!<9 a will, 383 ; formalities relating to the execution of wilh, ^84; con- tents of wills, 385 ; devise in lieu of dower, 385 ; statutes of mortmain, 385 ; how will construed, 385 ; alterations, 386 ; nuncupative will, 386 ; codicils, 386; selection of executors, 387; proving the will. 388; executor's duties, 388; payment of deots, 388; advertising for creditors, 389; distribution upon intestacy, 389 ; administration, 391 ; colicils, 391 ; appointment by will of guardian for children, 391 ; law cj Manitoba and other Provinces, 392 ; forms of wills, 393. 27 EXKMPTION FROM SEIZURE. 411 An Act relating to Exemptions from seizure under Execution. 18S7) Her Majesty, by and with the advice and consent of the Legislative Assembly, of the Province of Ontario, enacts as follows : — I , Section 2 of The Act respecting Writs of Execution is hereby repealed, and the following substituted therefor : 2. The following chattels are hereby declared exempt from seizure under any writ, in lespect of which this Province has legislative authority, issued out of any Court whatever, in this Province, namely : 1. The bed, bedding and bedsteads (including a cradle), inordi- nary use by the debtor and his family ; 2. The necessary and ordinary wearing apparel of the debtor and his family ; 3. One cooking stove with pipes and furnishings, one other heat ing stove with pipes, one crane and its appendages, one pair of andirons, one set of cooking utensils, one pair of tongs and shovel, one coal scuttle, one lamp, one table, six chairs, one washstand with furnishings, six towels, one looking-glass, one hair brush, one comb, one bureau, one clothes press, one clock, one carpet, one cupboard, one broom, twelve knives, twelve forks, twelve plates, twelve tea cups, twelve saucers, one sugar basin, one milk jug, one tea pot, twelve spoons, two pails, one wash tub, one scrubbing brush, one blacking brush, one wash board, three smoothing irons, all spinning wheels and weaving looms in domestic use, one sewing machine and attach- ments in domestic use, thirty volumes of books, one axe, one saw, one gun, six traps, and such fishing nets and seines as are in com- mon use, the articles in this subdivision enumerated, not exceeding in value the sum of $150. 4. All necessary fuel, meat, fish, flour and and vegetables, actually provided for family use, not more than sufficient for the ordinary consumption of the debtor and his family for thirty days, and not exceeding in value the sum of $40. 5. One cow, six sheep, four hogs, and twelve hens, in all not exceeding the value of $75, and food therefor for thirty days, and one dog ; 6. Tools and implements of or chattels ordinarily used in the debtor's occupation, to the value of $100 ; 7. Bees reared and kept in hives to the extent of fifteen hives. See Rev. Stat. c. 96, s. 2. I ]A 412 THE CANADIAN LAWYER. 2. The debtor may in lieu of tools and implements of or chattels ordinarily used in his occupation referred to in subdivision 6 of section 2 of said Act elect to receive the proceeds of the sale thereof up to $100, in which case the officer executing the writ shall pay the net proceeds of such sale if the same shall not exceed i^ioo, or, if the same shall exceed ^100, shall pay that sum to the debtor in satisfaction of the debtor's right to exemption under said subdivision T), and the sum to which a debtor shall be entitled hereunder shall be exempt from attachment or seizure at the instance of a creditor. 3. Section 6 of the said Act is hereby repealed, and the following substituted therefor : 6. Notwithstanding anything contained in the next preceding four sections, the various goods and chattels which are now liable to .seizure in execution for debt shall, as respects debts which have already been or shall be contracted prior to the first day of October, 'S87, remain liable to seizure and sale in execution provided that the writ of execution under which they are seized has endorsed upon it a certificate signed by the Judge of the Court out of which the writ issues certifying that it is for the recovery of a debt contracted before the date hereinbefore mentioned. 4. This Act shall take effect on, from and after the first day of October, 1887. An Act respecting Distress for Rent and Taxes. (1887). Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario enacts as follows : — I , — (i) The goods and chattels exempt from seizure under exe- cution, shall not be liable to seizure by distress by a landlord for rent in respect of a tenancy created after this Act comes into force, except as hereinafter provided ; nor shall such goods be liable to seizure by distress by a collector of taxes accruing after this Act comes into force, unless they are the property of the person actually assessed for the premises, and whose name also appears upon the collector's roll for the year as liable therefor. 2. The person claiming such exemption shall select and point out the goods and chattels as to which he claims exemption. 2. A landlord shall not distrain for rent on the goods and chat- tels the property of any person except the tenant or person who is liable for the rent, although the same are found on tl.e premises ; but this restriction shall not apply in favor of a person claiming title under or by virtue of an execution against the enant, or in favour of any person whose title is derived h ' any purchase, gift, RENT AND TANKS. 4l:i of iof bay (or, in lion lall Itor. zing [four |e to lave )ber, t the I it a writ acted of transfer, or assignment from the tenant, whether absohile or in trust, or by way of mortgage or otherwise, nor to goods on the pre- mise.s in the posse.ssion oi the tenant under a contract for purchase, or by which ne may or is to become the owner thereof upon per- formance of any conditicm, nor wliere gjods have been e.xchanged between two tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of or the right of distress by the landlord ; nor shall the restriction apply where tht; property is claimed by the wife, husband, daughter, son, daughter- in-law, or son-in-law of the tenant, or of any other relative of his, in case such other relative lives on the premises as a member of the tenant's family. 2. Nothing in this section contained shall exempt from seizure by distress goods or merchandise in a store or shop managed or con- trolled by an agent or clerk for the owner of such goods or mer- chandise when such clerk or agent is also the tenant and in default and the rent is due in respect of the store or shop and premises rented therewith and thereto belonging, when such goods would have been liable to seizure but for this Act. 3. The word " tenant " in this section shall extend to and include the sub-tenant and the assigns of the tenant and any person in actual occupation of the premises under or with the assent of the tenant during the currency of the lease, or while the rent is due or in arrear, whether he has or has not attorned to or become the tenant of the landlord. 4. In case of an assignment for the general benefit of creditors the preferential lien of the landlord for rent is restricted to the arrears of rent due during the period of one year last previous to the execu- tion of such assignment, and from thence so long as the assignee shall retain the premises leased. 3, A tenant may set-off againts the rent due a debt due to him by the landlord. 2. The set-off may be by a notice in the form or to the effect fol- lowing, and may be given before or after the seizure : Take notice, that I wish to set-off against rent due by me to you, the debt which you owe to me on your promissory note for , dated {or for eight months' wages at I20 per month, $160,) (or as the case may be). In case of such notice the landlord shall only be entitled to dis- train for the balance of rent after deducting any debt justly due by him to the tenant. 4, A tenant who is in default for non-payment of rent and claims the benefit of the exemption to which he is entitled under this Act, must give up possession of the premises forthwith, or be ready and offer to do so. 2. The offer may be made to the landlord or to his agent ; and the person authorized to seize and sell the goods and chattels, or having 414 THE CANADIAN LAWYER. ■J the custody thereof for the landlord, shall be considered an agent of the landlord for the purpose of the offer and surrender to the land- lord of the possession. 3. The surrender of possession in pursuance of the landlord's notice shall be a determination of the tenancy . 4. Where a landlord desires to seize the e annpted goods, he shall, after default has been made in the payment ol V(.;nt and bef(n-e or at the time of seizure serve the tenant with a notice which shall inform tena'it v>' -lount is claimed tor rent in avrear, and that in default .' 'Ill it, if he gives up possession ot the premises to the landlord aiicf service of the notice, he will be entitled to claim exemption for such of his goods and chattels as are exempt from ;;eizurc in-'^er execution, but that if he neither pays the rent nor gives up pos^ ■'ioii ' " goods and chattels will be liable to seizure, and will be sold to pay the rent in arrear and costs. 5. The notice may be in the following form or to the like effect ; Take notice that I claim § for rent due to me in respect of the premises which you hold as my tenant, namely, {here briefly describe them); and unless the said rent is paid, 1 demand from you immediate possession of the said premises ; and I am ready to leave in your possession such of your goods and chattels as in that case only you are entitled to claim exemption for. Take notice further, that if you neither p.iy the said rent nor give me up possession of the said premises after the service of this notice, I am by law entitled to seize and sell, and 1 intend to seize and i-ell all your goods and chattels, or such part thereof as may be neces- sary for the payment of the said rent and ctjsts. This notice is given under the Act of the Legislature of Ontario, respecting distress for rent or taxes. Dated this day of A.D (Signed) A.B. (landlord), To CD. (tenant.) 6. Service of papers under this Act shall be made either person- ally or by leaving the same with some grown person being in and apparently resiamg on the premises occupied by the person to be served. 7. If the tenant cannot be found and his place of abode is either not known, or admission thereto cannot be obtained, the posting up of the paper on some conspicuous part of the premises, shall be deemed good service. 8. No proceeding under this section shall be deemed defective or rendered invalid by any objection of form. 5, Where a landlord has by law a right to enter for non-payment of rent, it shall not be necessary to demand the rent on the day when due, or with the strictness required at common law, and a demand of rent shall suffice notwithstanding more or less than the amount really due is demanded, and notwithstanding other requisites KICNT AND TAXl.S. 41'» 111. lat rm in [he lim lor ire, o.' the common law are not complied with; provided that, unless the premises are vacant, the demand be made fifteen days at least beiore entry ; such demand to be made on the tenant jiersonally anywhere, or on his wife or some other grown up memlx;r of his family on the premises. 6, When growing or standing crops, which may be seized and sold under execution, are seized for rent, they may, at the option of the landlord or upon the request of the tenant, be advertised and sold in the same manner as other goods, and it shall not be neces- sary for the landlord to reap, thresh, gather or otherwise market the same. 7, '^^"y person purchasing a growing crop at such sale, shall l)e liable for the rent of the lands upon which the same is growing at the time of the sale, and until the crop shall be removed, unless the same has been paid or has been collected by the landlord, or has been otherwise satisfied, and the rent shall as nearly as may be be the same as that which the tenant whose goods were sold was to pay, having regard to the quantity of land and to the time which the purchaser shall occupy it. 8, No costs shall be levied for or in respect of the seizure upon exempted goods when they may not be lawfully sold, and when sold no greater sum in all than $2, and actual and necessary payments for possession money, shall be levied or retained for or in respect of costs and expenses of sale of such exempted goods. 9, When the sum to be levied by distress for rent or for any penalty exceeds the sum of 98o no further charges shall be made for in respect of costs or expenses by any person making the distress or employed in doing any act in the course of such distress than such as are set forth in Schedule A of the Act entitled Ah Act respecting the costs of levying distresses for small rents and penalties, than the following, that is to say : (a) the actual expenses or outlay reasonably incurred in removing the goods distrained or part thereof when such removal is necessary ; (b) Advertisement when necessarily published in $2.50 ; but not exceeding $5.00. (c) If any printed advertisement otherwise tnan in $1.00; but not to exceed $3.00. (