IMAGE EVALUATION VEST TARGET (MT-3) y- ^/ ^4?^ « /. / 4^ 1.0 I.I 125 LiM2.B lu lU 12.2 ^ lifi 12.0 IL25 i 1.4 ik FhotogFaphic Sciences Corporation 3>^ <^ S3 Vmr MAIN STRUT WIUTIR.N.Y. USM (7U)I71-4S0I ^x^ CIHM/ICMH Microfiche Series. CIHIVI/ICIVIH Collection de mi Canadian Inatituta for Hiatorical Microraproductiona / Inatitut Canadian da micforaproductiona hiatoriquaa Tachnical and Bibliographic Notas/Notas tachniquaa at bibliographiquas Tha Instituta has attamptad to obtain tha bast original copy availabia for filming. 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Un des symboles suivants apparattra sur la dernlAre image de cheque microfiche, selon le cas: ie symbols — »> signifie "A SUiVRE", le symbols ▼ signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure ere filmed beginning in the upper left hand corner, left to right end top to bottom, as many frames as required. The following diegrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmAs A des taux de rAduction diff Arents. Lorsque le document est trop grand pour Atre reproduit en un seui clichA, il est fllmA A partir de I'engle supArieur gauche, de gauche A drolte, et de heut en bas, en prenant ie nombre d'images nAcessalre. Les diagrammes suivants illustrent la mAthode. rrata o >alure, I A 3 32X 1 2 3 1 2 3 4 5 6 BOUBINOrS (SIB J. G.) Canadian Manual of Procedure. — ^At meetings of Municipal Gonncils, sliareholders and directors of companies, synods, conventions^ societiies and public bodies generally, with an intrp^ dttctory review of the rules and usages of Parliament that govera public aasemblies in Canada. By Sir J. G. Bourinot, C.M.G., Uijy.y D.C.L. Clerk of the House of Commons, etc. 1894. onlj aurch ^ 8AILE ffASROff i Dr. J Urlana i Parliami th» comt they rel« pal, comj poMicatli who d«il gatherini •r-THe En ThteJ nent, ad. oonntry < dteal pn^ Tenant, i ■hould gi 20.1894. Thlal to Canad In all pU to dlapea Largt o( proeed the Metb with coni the hlKhi prlneiplei tion of dl Special a municipal valuable ; Canada, llgent un( 3-»-l-10M-8-4&-47322 unen- ae on les of lether unld- y the teraon 18B of profit. tmge- 1 this letho- I con- I that April apted order kftord aodei es ot urch, V9 of Iding ROlU- turei. other , and ee of Intel- Irhere Ib there to be found such a unique manual for guidance as this one. It has special value from the fact that on all questions here considered, and the range is very largo, it will be re.garded as a flnal authority for Canadians. There is an extensive analytical index which makes reference very easy. — Knoie College Monthly, January, 1896. The above is only a small fraction of the excellent notices given of Dr. (now Sir) Bourlnot's Procedure at Public Meetings. The C»r»well Co.* I^lmlled, Pabllahera, Toroat«« U^ » 4 .1' 'H. 4 ;^lJ ! I ».. en ot ^ NV BOYS (JUDGE) ON CORONERS.— A Practical Treatiee on the Office and Duties of Coroners in Ontario, and the other Provinces, and the Territories of Canada, and in the Colony of Newfoundland, with Schedules of Fees, and an Appendix of Forms. By William Fuller Alves Boys, LL.B., Junior Co. Ct. Judge, Co. Simcoe. Third edition. 1893. • Cloth, $3.50; half-calf, $4. > 100 Coroners' Forms, assorted, sufficient for three inquests. $1. To coroners In Canada the woric known popularly as "Boys on Coroners *' must almost of necessity form their yad^ mecum. It Is a work which Is eminently useful In every respect, giving tuUest .particulars as to the various laws existing not only In Ontario but the other provinces. The former editions were Intended for use In the Province of Ontario, this edition Is, however, adapted to all the provinces and territories of the Dominion, and the colony ot Newfoundland.— Can. Journal of Medicine, etc., January, 1898. This work Is one without which no c*roner can expect to properly fulfil his duties. It Is a standard and sine qua non to every medico-legal practitioner. — Dominion Medical Monthly, October, 1895. This Is the third edition of Judge Boys' work, and in It are noted all the changes in the law which bring It up to date. The work has also been amplified so as to cover the whole Dominion and the colony ot Newfound- land, A new chapter has also been added, containing a programme ot the ordinary proceedings at an Inquest, in consecutive order, with many ot the forms required as the inquest proceeds, printed in their proper places, th6 others referred to by their number in the appendix. There is no doubt the work will be of great value to coroners throughout the country. The principal cases are also referred to. The work is divided into two parts, the first dealing with the office and duties of coroners generally and re- ferring to tX.s appointment, authority, Jurisdiction, rights and ItabiUtlea of coroners, while the second deals with their office and duties In particu- lar, treating of the offenders, parties and accessories, crimes, poisons, antidotes, wounds and bruises. There are also chapteria dealing with various tests, evidence, the coroner's court and its organization and pro- ceedings. There is also a schedule ot fees.— JfoaJreoI Oaxette, December 22, 1898. CLARKE'S (S. R.) MAGISTRATE'S MANUAL.— Third edition founded on the Criminal Code, 1892, and the various Acts.relating to the RightS) Powers and Duties of Jus- tices of the Peace, with a summary of the Criminal Law. By S. R. Clarke, Barrister-at-Law, author of " The Criminal Law of Canada," etc. Half-calf, $5. Extract from Preface.— In the preparation ot this third edition It has been necesF'ary to re-write or alter more than half the book. A large number of cnses have been decided by the courts both in England and Canada since the publication of the last edition. These have all beea noted in the text with numerous changes in the statute law.— Besides "The Crlminnl Code, 1892," remodels and materially alters this branch of our Jurisprudence. . . . It Is a volume, too. ot great service to practitioners, as It throws n Becrch-light on the whole ground that Is to be traversed by pro- ceedings before a magistrate or J. P.. and contains every needful Instmo- tion. with authorities and cases. — Empire, October 24, 1898. The C«r»well €•., litmlted, PabllshM«« Toroal*. ''a Jii rr-^. fji U'%. t! -,v«5 . ■■*-i-r'-'^^.i^'ji.*fV".Jc^ m'' THE Canadian Lawyer, A HANDT B(X>K OF THE LAWS AND OF LEGAL INFORMATION FOR THE USE OF BUSINESS MEN, FARMEBS* MECHANICS AND OTHERS IN CANADA If J J" CONTAINING PLAIN AND SIMPLE INSTRU0TI0N8 TO ALL CLAHB88 POR TKAK8A0TINO BD8INI88 ACCORDINO TO LAW, WITH LEGAL FORMS FOR DRAWING NECKSSARV PAPERS. \ COM PILED BY A BARRISTER-AT-LAW. THIRD BOITION— RBYI8ED AND BMLAROBD. 24118 ■■■ss TORONTO : THE CARSWELL CO. Limitku 18M. ^ j'."' , ■ ..,i':ii*r> w Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred and ninety-nine, by Thb CARswBLt. Co. (Limited), in the office of the Minister of Agriculture. fiS PRINTED BV Thb Oarswbli, Co. liiMrrRD SO Adblaidb 8t. Eaht. TOROSTO. W ■ PREFATORY. r one ited), rpHIS little manual ia 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 law pre- vail. It is printed as a ready reference guide for commercial men, farmers, merchanics and others in the every day business transactions of life. It does not pretend to make its readers lawyers, or to enable them to dispense entirely with the ad,- vice of the legal profession when matters of real difficulty arise. But it does pretend to furnish, upon the subjects of which it treats, information which will enable an ordinary business man to solve for himself a large proportion of the legal questions which are met with in his business, without t|^ necessity of his applying to a lawyer. A busy man has neither the time r - the money to refer to a solicitor every day for advice. Casts frequently arise, 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 pre- vious edition of this work, and the ready sale of that large edition, encouraged the publishers to lose no time in re- sponding to the general demand for a third edition. In doing IV PREFATORY. 80, it was thought best to enlarge the work — many portions of which have, for the present edition, been entirely re- written — and to employ the best professional talent to make it what they desired, a key to the laws. t)f the immense value of a well-prepared manual of this nature, there can be no question. Wrongs are suffered and money lost every day because people generally are unac- quainted with their legal rights, or means of redress. One half of the law suits which come before the Courts are brought about because some person was ignorant of a simple fact of law which he should have known; and it h undeni- able that an acquaintance with the elementary principles of law would enable many a man to steer 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. Throughout the book technical terms and expressions 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. * SAINTE - CUNEGONOE THE CANADIAN LAWYER. ADMINISTRATORS. An administrator (or, if a female, administratrix,) is a person appointed by a Surrogate Court, or other proper au- thority, to take charge of 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. If the will names no executor, an administrator with the will annexed, must be appointed; if there is but one executor and he die before the estate is wound up, or refuse to act, an administrator of the goods not administered may be ap- pointed. Also, if a single administrator die, an administrator of the goods not administered must act. Where administration is sought by different persons, the laws of the various Provinces will be found to establish the order of preference between them. Administration 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 ad- minister 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 of deceased may obtain them if they all disclaim, or any other proper person in the discretion of the Court. Before Letters of Administration are granted, proof must be filed in the Surrogate or other Court granting them, veri- fying the death, that search has been made for a will and none found, and that none is believed to exist; that the de- ceased has personal property within the jurisdiction of the Court; and that the applicant has a right to demand the administration. In most 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 / THE CANADIAN LAWYER. 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 admin- istrator is to take into his custody the personal property, books and papers of the deceased, and ascertain 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 re- alized 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 in the books, or of which the administrator is ignorant, exist, these should be advertised for by the administrator, to protect 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, an administrator who advertises for debts, may distribute, after a reasonable time, having reference only to claims of which he has notice. Should other claims be sent in after his distribution, he cannot be sued for them. The debts being paid, together with the funeral expenses and expenses of administration (which form a first charge upon the assets), the estate may then be divided among the widow and next of kin. The administrator may then pass his accounts before the Court which appointed him. The authority of the administrator does not extend be- yond the jurisdiction of the Court which appoints him. If assets exist beyond such Jurisdiction, he, or some other per- son, 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 oi his death. The other administrations are called ancillary. In Ontario, by " The Devolution of Estates Act," R. S. 0. 1897, c. 127, 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 chat' tels real, notwithstanding any disposition by will, devolve upon and become vested in their legal personal representa- tive, subject to the payment of their debts; and, so far as not disposed of by deed, will, or contract, are to be distributed as personal property, subject to the provisions of the Act. Under this statute, where a general administration is applied ADMINISTRATORS. 8 for, the application, or petition, and the affidavit in support of it, must show the particulars of the real estate of the deceased, and its value, or probable value; and the 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 de- ceased. The administrator, or other legal personal repre- fientative, 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. As to the duties of administrators in regard to the pay- ment of Succession Duty the chapter on that subject should be consulted. But where there are no debts, and persons beneficiallly do not concur in the sale, or are infants or lunatics, the con- sent of the Official Guardian is necessary to make the sale valid as against them. Beal estate not disposed of by the administrator within 12 months of the death of the testator, vests without any con- veyance by the administrator in the persons beneficially en- titled to it, unless the administrator registers a caution that it may be necessary for him to sell the lands in the Land Titles or Registry Office where the land is situate. A form of caution is given below. When such a caution is registered the land does not vest in the heir or devisee until 12 months from the time it is registered or from the time of the re- gistration of the last of such cautions, if there are more than one registered. Where the administrator has omitted through oversight to register a caution within the 12 months, the Act provides a special method of doing so, either by con- sent of the adult heirs or devisees affected, or by an order signed by a High Court or County Court Judge, or a certi- ficate of the Official Guardian. Before the expiration of the 12 months the administrator may file a certificate withdrawing the caution or withdrawing it as to a specified parcel of land. A form of this certificate is given below with the necessary affidavit. In Manitoba, lands are now to be treated, as regards de- scent, as chattels real; and the pass to the executor or ad- ministrator of the person dying seized, as personal estate. The forms appended are those in common use in Ontariio. Usually, printed forms of all necessary administration papers may be obtained of the Court to which application for the Letters is made. ' , in th» THE CANADIAN LAWYER. FORMS. Petition for Letters of Administration. Unto the Surrogate Court of the Count of The petition of of the of Count of , humbly sheweth: That (name of intestate) late of the of in the Count of , deceased, died on or about the day of in the year of our Lord one thousand eight hundred and at in the Count of , and that the said deceased at the time of his death had fixed place of abode at the in the said Count of That the said deceased died without haviLg left any Will, Codicil or Testamentary Paper whatever, and your Petitioner is ^ and next of kin of the said deceased. That the value of the whole property of the said deceosed which h in any way died possessed of, or entitled to, is under dollars. That the value of the Personal Estate and Effects is under dollars, and of the Real Estate is under dollars, and that full particulars and nn appraisement of all said property are exhibited herewith and verified upon oath. Wherefore your Petitioner pray that administration of the Property of the said deceased may be granted and committed to by this Honourable Court. Dated the day of , A. D. 18 Administration Bond. Know all men by these presents, that we (names and additions of administrator and his sureties) are jointly and severally bound unto (name of Surrogate Judge), the .Tudge 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 doy of in the year of our Lord one thousand eight hundreil and The condition of this obligation is such that if the above named (nome of administrator) the administrator of all the personal estnte and effects, rights and credits of (name of intestate) late of the of in the County of , deceased, (who died on the day of , in the year of our Lord one thousand eight hundred and ) do, when lawfully called on in that behalf, make or cause to be made a true and perfect In.ventory of all and singular the personal estate and effects, rights and credits of the said ('■jceased which have or shall come into the hands, possession or knowledge of the said (administrator) or into the hands and possession of any other person or persons for him, and the /«ttme so made do exhibit or cause to be exhibited unto the Registrar of the Surrogate Court of the County of whenever required by law so to do; And the same jiersonal estate and effects, rights and credits, and all other the personal estate and effects, rights ADMINISTRATORS. 6 And credits of the said deceased at the time of his death, which at any time after shall come into the hands or possession 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 persons entitled to the same, all moneys and assets to be received by him for or in consequence of theexercise 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 Parliament now in force, or that may hereafter 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) bemg 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.] CD. [L.S.] E.F. [L.S.1 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, 1880, intestate, are requested on or before the 10th day of July, 1886, to send in to ^ Agreement for the Sale of Freeholds. Articles of agreement made and entered into this day of 18 , Between A. B., of etc. (vendor), of the one part, and C. D., of, etc. (pnrrhaser), of the other part. The said A. B. and C. D. do hereby respectively for themselves, their respective heirs, executors AGREEMENTS OR CONTRACTS. 15 and administrators agree with each other. That the said A. B. shaU sell to the said G. D., and that the said C. D. shall purchase, All That, etc. (here describe the premises), with their appurtenances, and the freehold and inheritance thereof in fee simple in possession free from all in nmbrances, 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 G. D. shall, on and from that day, have actual possession of the said premises, all outgoings up to that time being discharged by the said A. B. That the production and inspection of any deeds or other documents not in the possession of the said A. B., and the firocuring and making of all certificates, attested, office or other copies of or extracts from any deeds, wills or other documents, and of all declara- tions or other evidences whatsoever, not in his possession, which may be required, shall be at the expense of the said G. D. That on pay- ment of the said sums of $ and I at the respective times specified for the payment thereof as aforesaid, the said A. B., and all other necessary parties (if any) shall execute a proper conveyance of the said premises with their appurtenances, and the freehold and inheritance thereof in fee simple in possession, free from all incum- brances unto the said G. 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 G. D. shall pay interest at the rate of per cent, on the said residue of the purchase money from that day till the completion of the purchase. In witness whereof the parties hereto have here- unto set their hands. Signed by the said A. B. and G. D., \ in the presence of \ E. F. ) A. B. G. D. 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 G. D., of, etc. (lessee), of the other part os follows, namely: The said A. B. hereby agrees to let, and the said G. D. hereby agrees to take. All, etc. (here describe the premises), for the term of yea'-* to be computed from the day of next, at the yearly rent of $ payable quarterly, on the day of the day of , the day of , and the day of , in every year, the first of such paymen's to be made on the day of next. The said A. B., his heirs .or assigns will, at the request of the said G. D., his execu- tors, administrators, or assigns, execute a lease of the said premisfs to the said G. D., his executors, administrators or assigns, for the term at the rent aforesaid, to be payable as aforesaid. In the said lease to be granted as aforesaid, shall be contained covenants on the part of the said G. D., his executors, administrators and assigns. to pay the said yearly rent as the same shall become duo, and also all present and future taxes, rates, assessments, a'^.A other outgoings whatsoever in respect of the said premises. And also to repair and keep in repair at his and their own expense, during the whole of the said term, the said premises so agreed to be demised. And also at the like expense to insure the said premises against loss or damage by fire in tb« name or names of the said A. B., his heirs or assigns, 16 THE CANADIAN LAWYER. in Bome public olflce to be approved of by the said A. B., in the sum of $ at least, and to keep the same so insured during the continuance of the said term, and at all times when required, to pro- duce the policy or policies of insurance and the receipt for the prer miums 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, during 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 heirs or assigns, into the said premises on non-payment of the said yearly rent, or any part thereof, for the space of twenty-one days, or in case the said G. D. 'lis executors or administrators shall become bankrupt or insolvent, or shall permit the said lease to be taken in execution, or on breach of all or any of the covenants so to be contained on the part of the . 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 G. D., his executory 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 heira or assigns, shall and will take for the purchase thereof the sum uf $ , and shall and will, upon payment of the same sum. at the costs and charges of the person or persons requiring the san^e, convey and assure the freehold and. inheritance in fee simple in possession or expectant on the determination of the said term of years (as the case may be), in the same premises unto the person or 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 G. 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 arid conditions agreed to be thereby respectively reserved and contained, shall, as nearly as circumstances will per- mit, 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. P. C. D. Agreement for Sale by wa^f 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 C. D., of, etc., of the second part. Whereas, the said party of the second part both contracted with the said pnrty of the first part for the purchase, in fee simple, of all and singular the lands, tenements, hereditaments, and premise? 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 AQREEMBNTS OR CONTUACra. 17 set their the fee simple auU inheritance thereof, so soon as the principal sura shall hei fully and faithfully paid on the days and times and la manner after mentioned (all and singular other the covenants and UKieemeuts 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, according to the true intent and meaning of 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 de> mise, 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 [here 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 thereuntQ 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 th?nce text ensuing, and fully to be completed ond «-nded. 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, tlie yearly rent or sum of $ of lawful money of Canada, in even and equal half yearly payments on the day of and day of in each and every year during the said term, without any deduction, defalcation, or abatement thereof, or out of any part thereof, for or in respect of any taxes, rates, levies, charges, rents, assessments, statute 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 th^se presents, their or either of their heirs, executors, administrators, or assigns, or any of them in respect thereof, or any part thereof, by authority ot 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 poyment of any instalment or instalments of the principal sum hereinafter specified according to the covenant hereinafter contained, for payment thereof, and the true intent and meaning of these presents, the said rent hereby reserved shall from thenceforth be proportionably reduced, so as at no time to exceed the annual interest on such part of the c.L. — Sbded. 2 18 THE CANADIAN LAWYER. aaid principal sum as shall from time to time remain due and owing after the piyment of such instalment or instalments re8i)ectively ; 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 tinieM licreutier be behind and unpaid for the space of thirty days next after any or cither of the days on which the same or any part thereof ought to be paid, is 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 under- lease the said demised premises, or any part thereof, or in any other manner, part with the possession of the same, to any person or persons ivhomsoever, for all or any part of the said demised term, without the siM.>cial license or consent 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 continuance 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 cases, it sh ill and may be lawful for the said party of the first part, his heirs or. assigns, into the said demisetl premises or any part thereof, in the name of the whole, to re-enter, and out of the same to eject, expel, i'emove 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 es- tate; 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 mu-'h thereof as shall be then unexpired, and these presents, and every clause, matter and thing therein contained, shall cease ni.d determine, and forever thereaiter be null and void to all intents and purposes whatsoever, anything herein containetl to the con- trary thereof in any wise not A'lthstanding. And the said party of the second part doth hereby for himself, his hoirs, executors, admin- istrators and assigns, covenant, promise and agree, to and with the said party of the first part, his heirs and assigns, in manner fol- lowing, thnt 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 [vaid unto the said party of the first part, his heirs, executors, administrators and assigns, the said yearly rent on the days and times and in manner hereinbefore mentioned, for payment thereof, according to the true intent and meaning of these presents. And also that he the said party of tlie second imrt, his heirs, executors, administrators or assigns, or some of them, shall and will, during the said term hereby d^niisiHl, pny, do, and perform nil taxes, rates, levies, charges, rents, assessments, statute labour, or other imposition above men- tionetl, lawfully charged or to ba 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 thenHif, or on any person or itersons in respect thereof, or any part thereof, as aforesaid; And also thnt he the said |>arty of the second part, his executors, ndministrn- tors or nssigns, or any of them, shall not nor will nt any time or times during the said term hereby demised, assign or set over, under- let or underlease, the inid demised premises, or any pnrt thereof, or in nny other mnnnor pnrt with the possession of the same or nny pnrt thereof during iiiiy pnrt of the said demised term, without snch si)e.^ial license nnd consent ns Is heri>inbefore specified, ns aforesaid: And nlso thnt he the snld party of the second part, or AOUEEMENTS OR COMTUAGTS. la any one acting under or claiming from him, sliall not at any time, during the continuance of these presents, commit, or suflfer to be committed, any waste or destruction to any of the timber upon the same land, for any other purpose than bringing the land into culti- vation; And also that he the said party of the second part, his heirs, executors, administrators or assigns, or some of them, shall and will well and truly pay or cause to be paid, unto the said party of the first part, his heirs, executors, administrators or assigns, the full and just sum of $ of lawful money of Canada, on the days and times and in manner following, that is to say [here set forth the terms and manner in which the purchase money is to be paid]. And the said party of the first part, doth hereby for himself, his heirs, executors, administrators and assigns, covenant, promise and agree, to and with the said party of the second part, his executors, administrators, and assigns, in manner following, that is to say, That upon the due and faithful payment, performance, and fulfilment by the said party of the second part, his executors, 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, Ms heirs or assigns, shall and will, at the expiration or other sooner determination of the said term hereby demised, upon the request of the said party of the second part, his executors, administrators or assigns, made to him the said party of the first part, his heirs, executors, administrators or assigns, or any of them, but at the proper costs and charges in the law of the said party of the second part, his executors, administrators or assigns, well and sufficiently convey and assure, or cause to be well and 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 secotad 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 sad party of the second part, his executors, administrators or asHlgns 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 reserva- tions, limitations, provisoes ond conditions 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, ur of the punhaso money shall remain unpaid for the space of months after the same shall have fallen due, the l>arty 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 reasonablv got for the same, nnd thereby utterly extinguish nnd bar all craim, in- ter«>st. and title of the party of the second port, and all claiming under or by him in the same land— such re-sale to be either for cash or upon credit os the party of the first part, his heirs or assigns, ma.y determine. And that the party of the first part, his heirs or assigns, may in the first place pay himself the expenses of such r»-siiU.. mill the whi.!.' of the claim due. or tc become due by the party of the second part.or any one claiming by or under him, out of the proceeds of such re-sale, and pay the balonce (if any there l»e) when collected, over to the party of the second part. 'or the 2d ' THE CANADIAN LAWYER. person entitled thereto; And that the party of the second part, oe those claiming by or under him, shall be answerable to ffie 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 thep due and to become due, under these pres^its, to the pmrty 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^ f,et their hands and seals, the day and. year first above written. Signed, settled and delivered in the presence of ' B. F. A. B. CD. LUS.] [L.B.] [NoTEt^The above instrument being a contract or agreement by speoia ty requires to be sealed as well as signed.] Agreement to build a House, etc., the Materiala to le provided by th« Builder. . Articles of agreement made and entered into the day of ', 18 , Between A. B. (builder), of, etc., of the one part, and C. D.. (proprietor), of, etc, of the other part. The said A. B. [builder], doth hereby for himself, his execute. » and adrainistratorM, covenant, promise and apree to and with the said C. D. [proprietor], his executors, administrators and aBsign>-v that he the said A. B. [builder], his executors or administratori',. shall and will for the consideration hereinafter mentioned, within the space or time of (six calendar months) from the date of these pre- sents, erect, build and completely cover in and finish upon the pre- mises, of the said C. D. [proprietor], at aforesaid, a dwel- ling house and buildings according to the plan and elevation set forth in the schedule hereunder written. And also do, pefform, nnd execute, or cause and, procure to be done, performed nnd executed, all and singular other the works mentioned in the schedule here- under written, according to the plan nnd elevation therein tnentionod or contained, the same to be done within the time aforesaid, and iq a good workmanlike nnd substantial manner to the sntisfacti' n of E. F. (surveyor or architect), of, etc., (insert name and re6idenci> of architect or surveyor), or any other surveyor or architect whom the said A. B. [builder], nnd C. D. [proprietor] shall for that pur- IK>se by some writing under their hands appoint; such sntisf action to be testified by a writing or certificate under the hand of the said E. F. [surveyor or nrchitect], or such other surveyor or nrchitect as aforesaid. And also Hhall and will find and provide such good, proper and sufiioient materials of all kinds whatsoever as, together with nnd in addition to the ninterinls now lying on the said premises, shnll be proper and sufflcient for erecting the said dwelling houses and buildings, nnd completely finishing the said works. And it is further agreed hy nnd between the said parties that If the said A. B. [builder], his executors or administrators, shall in any man- ner neglect or be guilty of any delay whatsoever, in building nnd completely finishing the snid dwelling house, buildings nnd works ns aforesaid, and the said E. F. [surveyor or nrchitect], or sucR other surveyor or nrchitect ns nforesnid, shall certify the same by writing under his hand, nnd the said C. D. [proprietor] . shall give or leave notice in writing of such neglect or delay at the place of nlwde of him the snid A. B. [builder], his executors or ndminlstrn- tors, nnd the snid A. B. [builder], his executors or administrators. AOUliSUMfiNTS VH CONTUACT8. 21 ent by speoia'ty rovlded by the shall not according to the direction of the said E. F. [surveyor or architect], or such other surveyor or architect as aforesaid, proceed to complete the said buildings and works within the fipace 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. [proprietor], his execu- tors or administrators to purchase proper and sufficient materials, and also to employ a sufficient number of workmen to finish and complete the said dwelling house, buildings and works, and also that the said C. D. [proprietor], his executors, administrators or as- signs, shall and may deduct and retain to himself and themselves the costs of such materials, and all such sums of money as he or they shall pay to such workmen for the completion 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 pre- vent, 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 admiuis'trators, that be 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, fbe sum of $ of lawful money of Canada, in manner following, that is to say, the sura 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 fas, the said E. F., Is possrssed of a piece of ground situate «t (describe the premises) upon which he is desirous of erecting a AGREEMENTS OR CONTRACTS. 23 dwelling house and offices according to the elevation, plans and specifications prepared for that purpose by W. M., architect and surveyor, and under the direction and to the satisfaction of the said W. M., or other architect or surveyor for the time being of the said E. F., his executors, administrators or assigns; which said elevation, plans and specifications, are marked with the letters A, B, C, D, E, F, and G, and are signed by the said A. B., C. D. and B. F., and the said specification is contained in the schedule hereunder written, or hereunto annexed; and the said A. B. has proposed to rrect and complete the said dwelling-house and offices, and to make and exe- cute all other works mentioned and specified in the said elevation, plans and specifications, within the time hereinafter limited for that purpose, and according to the stipulations and agreements herein- after contained, at or for the price or sum of $ ; which proposal the said E. F. hath agreed to accept on the said A. B., together with the said C. D., as his surety, entering into the agree- ments hereinafter contained Now it is hereby witnessed, That the said A. B. and C. D. do, for themselves, their heirs, executors and administrntors, and each and every one of them doth for himself, his heirs, executors and ndiuin- istrators, hereby agree with and to the said B. F., his executors, administrators and assigns, in manner following: that is to say. That he, the said A. B.. shall, at his own cost and charges, foitli- with, erect and complete, make and execute, with all proper and necessary materials, workmanship, and labour, of the best kind in every respect, and in the most substantial and workmanlike man- ner, upon the said piece of ground, a dwelling-house, and offices behind the same, with the appurtenances, and all other works, matters and things mentioned and specified in the said elevation, plans and specification, under the direction and to the satisfaction of the said W. >I.. or other the architect or surveyor for the time Iving of the said E. F., his executors, administrators or assigns; and for that purpose shall find and provide all proiK>r and necessary materials, implements and machinery; and shall make good all damages which may be occasioned either to the said dwelling- house, offices and works, or any of them, or to adjoining buildings, by the execution of the same works or any of them; and shall cleanse all drains and cess-jiools in or abo'it the premises, and cart and (li-ar away at siu-h times and in such manner as shall or may be directed by the said W. M.. or other architect or surveyor as aforesaid, oH siirplus earth and waste or iiseless materials, imple- ments and machinery, which may from time to time remain during the execution of the same works, or at the completion thereof; And shall at his own costs and charges from time to time, until the said dwelling-house, offices and works shall be erected, completed, made, and executed, insure or cause to be insured, in the joint names of the said E. F., his executors, administrators or assigns, and of the ■aid A. B., his executors o; administrators, and for the sum of $ , ail and singular the erections and buildings for the time being standing on the said piece of ground, to the full value thereof, in some public insurance office to be approved of by the said E. F., and shall deliver the jwlicy of insurance to the snid E. F.. his executors, administrators or assigns, and shall produce and show to the said E. F.. his executors, administrators or assigns, the receipts for the premium of insurance, when requested so to do; and that In «*ase of fire, all the nmneys to be recovered by virtue of such insur- ance shall forthwith be applied in re-instating the premises, under the direction and to the approbation of the said W. M.. or other 24 THE CANADIAN LAWTER. architect or surveyor as aforesaid; and that the said A. B., shall well and sufficiently cover in or cause to be covered in, the dwelling- house and offices so to be erected as aforesaid, before the day of , and shall complete, make and execute, or cause to be completed, made and executed, all and singular the 8aid~dwel)ing- house, offices and other works, in manner aforesaid, and according to the true intent and meaning of these presents, before the day of ; and that if the said A. B., his executors or admin- istrators, shall not so well and sufficiently cover in the said dwelling- liouse and offices before the said day of , or shall not so complete, make and execute, the said dwelling-house, offices and works before the said day of , then, the said A. B., and C. D., their executore and administrators shall pay to the L^id E. F., his executors, administrators and assigns, the sum of $ , for every week during which the said dwelling-house and offices shall remain uncovered in after the said day of and the like sum for every week the said dwelling-houae, offices and works shall remain unSnished after the said day of ; which sums may be recovered as liquidated damages, or may be deducted from the sums payable to the said A. ~B., his executors and administrators, under (his agreement, provided al- ways that in case the said E. F., his executors, administrators or assigns, or his or their surveyor or architect, shall require any extra or additional works to be done, or shall cause the works to be de- layed in their commencement or their progress, the said A. B., his executors or administrators, shall be allowed to have such addi- tional time for covering in and finishing the said buildings and works, beyond the said day alrave fixed, as shall have been necessarily consumed in the [lerformance of such extra or additional works, or as shall have been lost by the delay caused by the said E. F., his executors, administrators or assigns, or his or their surveyor or architect as aforesaid; and the said payments for delay shall not become payable until after the expiration of such additional time or times. And the said A. B. and C. D., for themselves, their executors and administrators, do hereby further agree with the said E. F., his executors, administrators and assigns, that in case the said W. M - or other architect or surveyor as aforesaid, shall be- dissatisfied with the conduct of any workman employed by the said A. B., his execu- tors or administrators, in the said works, or with any materials used or brought upon the said premises for the purpose c being used in the said works, and shall give notice tbereof in writing under his hand to the said A. B., his executors or administrators, he, the said A. B., his executors or administrators, will forthwith discharge such workman from the said works and remove the said materials; and that in case the said A. B., his executors or admin- istrators, shall not, in the judgment of the said W. M., or other architect or surveyor, as aforesaid, employ a sufficient number of workmen in the execution of the said works, or have on the premises a sufficient quantity of materials or implements of proper <\uality for the said works, and the said \V. M., or other architect oiP sur- veyor as aforesaid, shall, by writing under his hand, require the ■aid A. B., his executors or administrators, to employ an additional mimbor of workmen, or bring upon the premises an additional quantity of materials or implements of proper quality, and shall specify in such notice the number and description of additional workmen to be eupplied, the said A. B., his executors or adminis- trators, shall forthwith employ in the said works such edditional number of workmen, and shall forthwith bring upon the premises AGREEMENTS OR CONTRACTS. 25 fiuch additional quantity of materials or implements for the said works; and that in case he shall refuse or neglect for the space of seven days to comply with any such notice or request, it shall be lawful for the said W. M., or other architect or surveyor as afore- said, to dismiss and discharge the said A. B., his executors or ad- ministrators from the further execution of the said works, and for the said E. F., his executors, administrators or assigns, to employ some other person to complete the same; and that in such case the sum agreed to be paid to such other person to complete the said works (such sum being ai^roved by the said W. M., or other archi- tect or surveyor, as aforesaid), shall be deducted from the said sum of $ , and the balance after making any other deductions which the said E. F., his executors, administrators or assigns, shall he entitled to make under this agreement, shall be paid by the said E. F., his executors, administrators or assigns, to the said A. B., his executors or administrators, in full for the work done by him or them, at the expiration of two months after he or they shall have been so discharged as aforesaid: And it is hereby further agreed by and between the parties hereto, that all the materials brought upon the said piece of ground for the purpose of being used in the said buildings, except such as shall be disapproved of by the said W. M,, or other architect or surveyor as aforesaid, shall, immediately they shall be brought upon the said premises, become the property of the said B. F., his executors, ad^.'nistrators or assigns, and shall be used in the said works. And the said E. F. doth hereby, in consideration of the works so agreed to by the said A. B., agree with the said A. B., his executors, administrators and assigns, that he, the said E. F., his executors, administrators or assigns, will pay to the said A. B., his executors, administrators or assigns, the said sr.m of $ , in manner fpylluwing, that is to say: the sum of $ within one week after the said W. M., or other architect or surveyor as aforesaid, shall have certified in writing to the safll E. F., his executors, administrators or assigns, under his hand, that work to the value of $ has been done under this agreement, and the further sum of $ within one week after the said W. M., or other architect or surveyor shall have certified as aforesaid, that further work to the value of $ has teen done under this agreement, and so on shall pay $ for every $ worth of work so certified as aforesaid, until the whole of the said works shall be finished, and shall pay the balance remaining unpaid within one month after the said works shall have been completed and finished to the satisfaction of the said W. M., or such other architect or surveyor, and the said W. M., or such other architect or surveyor, shall have certified to the said E. F.. his executors, administrators or assigns, that tho said works have beeii completed and finished to his satisfaction. Provided always, and it is horoby further agreed by the parties hereto, and particularly by the said A. B., and C. D., that if the said E. F.,. his executors, irOtninistrators or assifms, shall at any time be desirous of making any alterations or additions in the erection or execution of the said dwelling-house, offices and other works, then and in such case, the said A. B., his executors or administrators, shall make and execute sucli alterations and addi- tions to the satisfaction of the said W. M., or such other orchitect or surveyor; and the sum or sums of money to be paid or allowed between the said parties in respect of such alternitions and additions shall be settled nnd oscertained by the said W. M., or such other architect or surveyor, whose determination shall be final. Provided always, and it is hereby further agreed, that in the settling and iti THB CANADIAN LAWYER. ascertaining th« said sum or earns of money, the said W. M., or such other architect or surreyor, shall not include any charge for day work unless an account thereof shall have been delivered to the said E. F., his executors, administrators or assigns, or the said yV. M., or such other architect or surveyor, at the end of the week in which the same shall have been performed. Provided also, and it is hereby further agreed, that no such alteration or addition shall release the said A. B. and G. D., their executors or administrators, or any or either of them, from the observance and performance of the agreements herein contained on the part of the said A. B., his executors or administrators, to be observed and performed, so far as relates to the other parts of the said dwelling-house, ofBces and works; but that the same agreements shall in all respects be ob- served and performed in like manner as if no such alteration ^r addition had been directed. Provided also, and it is hereby agreed, that if the said W. M. shall die, or cease to act as the surveyor and architect of the said E. F., his executors, administrators or aissigns, and the said A. B., his executors or administrators shall be dissatisfied with the surveyor or architect for the time being, appointed by the said E. F., his executors, administrators or assigns, in the room of the said W. M., then it shall be lawful for the said A. B., his executors or administrators, at his own expense to employ a surveyor or architect on his behalf in the adjustment of the ac- counts to act with the surveyor or architect for the time being of the said E. F., his executors, administrators or assigns; and in case of disagreement between such two surveyors or architects, they shall be at liberty to nominate a third; and the said three surveyors or architects or any two of them, shall and may exercise all the lowers and discretion which the said W. M. could or might have exercised under or by virtue of these presents if he had lived or continued to act as the surveyor or architect of the said E. F., his executors, administrotors and assigns. And it is hereby further agreed' that if the said A. B., his executors or administrators, shall so employ a surveyor or architect on his or their behalf, be shall be nominated within ten days after the said A. B. shall be informed of the appointment of the surveyor or architect so appointed by the said E. F., his executors, administrators or assigns, and notice in writing of such nomination by the said A. B., his executors or ad- ministrators, shall forthwith be given to the said E. F., his execu- tors, administrators or assigns. In witness whereof the parties to thes,» presents have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered | A. B. rL.s.] in the presence of > CD. [l.s.] Y. Z. ) B. F. [i^.g.] THE SCHEDULE ABOVE REFERRED TO. (Here copy the Specification). • Suh-Contract hefwrm a BuiMer and a Carfienter. An agreement made thp dnv of 18 . Between Jk,. B.. of. etc.. (Builder) and O. H.. of. etc.. (Carpenter). AQREEMENTO OB 0ONTBACT8. 17 Whereas, the said A. B., hath entered into a contract with B. F., of, etc., to erect a dwelling-house and offices accor '"''<; to certain plans, elevations and specifications referred to in tht id contract, under the superintendence of W. M., or other surveyor of the said B. F., which contract is dated the day of ; Now it is hereby agreed that in consideration of the sum of $ to be paid by the said A. B., his executors or administrators, to the said G. H., his exaentons or administrators, as hereinafter mentioned, the said G. H., his executors or administrators, will do all the car- penter's work necessary to be done for the completion of the sait^ contract in the manner, within the time, and according to the plan» and specifications mentioned and referred to in the said contract, and will provide all materials and implements necessary for the per- formance of such work, and will in all things abide by, perform, fulfil and keep the terms and stipulations of the said contract, so far as the same are applicable to such carpenter's work. And it is further agreed that in case Uie said A. B., his executors or adminis- trators, shall become liable under the said contract to pay any damages or penalty by reason of the default or delay of the said G. H., his executors or administrators, in the performance of the work agreed to be performed *iy him, then that the said G. H., his execu- tors or administrators shall pay to the said A. B., bis executors or administrators, ihe amount of such damages or penalty, and that in case that the said W. M., or other surveyor appointed to superin- tend the works under the said contract shall disapprove of the work done by the said G. H., his executors or administrators, or tbr> materials used by him or them, or the manner in which such work is done, or in case the said G. H., his executors or administrators, shall refuse or neglect forthwith on request by the said W. M., or othpr architect, as aforesaid, to re-execute such work with the material! and in the manner required by the said W. M., or other architect, as aforesaid, it shall be lawful for the said A. B., his executors or administrators, to dismiss and discharge the said G. H., his executors, or administrator8 from the further performance of such Work, an'l employ some other i>erson to complete the sume, and to deduct the costs of such completion from the sum which would otherwise hn payable to the said G. H., his executors and administrators, under this agreement. In consideration whereof the said A. B. agrees to pay to the said G. H., his executors or administrators, the sum of. $ in manner following, that is to say: 75 per cent, of tb«» contract price for the M'ork done by the said G. H., his executors or administrators, during any week, on the Saturday in every week during the continuance of the said works, and balance within onn month after the completion of the said dwelling-house and offices. 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 i a n r a i in the presence of - ^' "' l^***' Y. Z. j G. H. IU9.1 [NoTK.— Thin form of snb-oonr'-^.cr may be ndopted to any particular work on a buildiuK, as bricklayer's paii- . r o, utc] An agreement made the of. etc., and C.D„ of, etc. Contmet to do Repairs, etc. day of 18 , Between A. B., 28 THE CANADIAN LAWTBU. X The said A. B. agrees to do all the works hereunder specified in the best and most workmanlike manner, and to provide for such works all necessary materials and things Of the best quality, and to complete and finish the said works on or before the day of next, and in case the said works shall not be finished dn^ or before the said day of , to pay or allow to the said ' C> D., out of the monies payable under this agreement, ibe sum of $ , for each day during which the said works shall remain unfinished after the said day of , and in case the said O. D. shall require any. additions or alterations to be -made to the works hereunder specified, to execute such additions and alterations in the best and most workmanlike manner, with material of the best . quality. And it is hereby agreed that in case any additional works shall be required by the ^edd G. D. or in case the said C. D. shall delay the execution of the said works, the said A. B. shall have sucb additional time for the performance of the said works after the said day of , as shall be equivalent to the time con- sumed in the execution of such additional works, or to the time dur ing which the said G. D. shall have delayed the said works, and that the payments for non-completion as aforesaid, shall not be payable until after the expiration of such additional time. And it is hereby further agreed that materials brought upon the pttmises of the said O. D., for the purpose of being used in the said e the property of the said G. D. And the said C. D. agrees to pay to the said A. B., for the said works, the sum of $ within one week after the same shall be finished. Witness the hands of the said parties. Signed in the presence of Y. Z. A. B. G. D. Agreement for Bole of Merohant'8 Stock. This agreement made the day of 18 , Between A. B., of, etc., merchant, of the one part, and G. D., of, etc., merchant, of the other part. The said A. B. agrees to sell, and the said C. D. agrees to buy, all the stock of goods, wares and merchandise, now being in and upon the store occupied by the said A. B. at aforesaid, at the in- voice price thereof (or at the sum of $ , or otherwise as agreed upon) an account of such goods, wares and merchandise being taken by the parties hereto in the presence of each other. [And it is hereby agreed that any of the said goods, wares or merchandise, which may be damaged, shall be appraised and valued by three dis- interested persons, each of the parties hereto selecting one of such persons end the two so selected appointing the third, and that the price set upon such damaged goods, wares and merchandise, by the said three persons, or any two of them, shall be substituted for the invoice price thereof, and that within ten days after the value of the said goods, wares and merchabdise, shall have been ascertained av aforesaid, the said G. D. shall pay the amount thereof to the said A. B.] And the said A. B. agrees to make, execute and deliver unto the said G. D., a good and sufficient bill of sale of the said goods, Wares and merchandise, and to give to the said 0. D. quiet and Deaceable possession thereof upon payment to him, the said A. B., AQREpfKNTSl, OR OO^THACTS. IP by the said G. D., within the time before specified of the invoiced [or aiq;>raised] value as aforesaid. Witness, etc. (complete as in last form). [If desired, ttae clause for appraiaing damaged goods can be made applioable to the entire stook. The otaase between brackets will be left out if a flxcd snm ia agreed on.] .-'.''.- Agreement for 8til0 of Chrain.' Memorandum of agreement .n^ade the day of ,, 18 , Between A. B., of, etc., of the one part, and C. D., of,, etc., of the other part. The said A. B. agrees to sell to the said G. D. five thousand bushels of wheat, of. the grade Ichown as , to be delivered to the said G. D., at [ ] on or before the first day of January next, free of all charges, at the price or snm of per bushel. And the said G. D. agrees to purchase the said wheat, and to pay therefor at the rate aforesaid, upon delivery as aforesaid. And the said A. B. hereby guarantees and warrants the said wheat to be good, clean and merchantable grain. Witness the hands of the said parties. Signed in the presence of < . A. B. Y. Z. , , O. D. ,.(,••. > r, . 1 ..'■^v' 'i; ■ ■■;':, ..: , \,'i ■■ '"f / If- ".(i ao l^n CAlTAIHAir LAWYER. V. APPRENTICES. An apprentice is one bound in due form of law to a master, tp be taught by him the handicraft, art, trade or business which the master professes or follows. The law relating to this subject is a branch of the general tew relating to Master and Servant, which will be found more fully treated of in a subsequent chapter. The dis^ tinctive feature of apprenticeship is that the master agrees to teach as well as employ. The contract of apprenticeship is usually entered into by a deed containing the specific terms of the agreement, as well as covenants for due performance of its obligations on the part of both parties. This is called an Indenture of Apprenticeship, general forms of which are appended. As it is usually entered into during the minority of the appren- tice, whose services may by law belong to his parent or guardian, and who, being under age cannot, save under statutory provisions, contract, the parent or guardian is, as a rule, necessarily a party to it. It continues no longer than the minority of the apprentice. By virtue of the contract, it is the Master's duty to fully instruct the apprentice in all details of the handicraft, trade or business in question. He is supposed to stand toward the apprentice in somewhat the relation of a parent, and is ex- pected to watch over his morals and conduct, to correct him, when necessary, with kindness and moderation, and to afford him such friendly counsel and advice as the youth and inex- perience of the apprentice may appear to require. He must not abuse his authority, either by harsh or cruel treatment, or by keeping the apprentice employed in menial occupa- tions wholly distinct from the trade or business which he is indentured to learn. He cannot annul the contract by dis- missing the apprentice, save for a sufficient cause, and then only by proper application to a Justice of the Peace, or such other authority as the statute law of the Province may pro- vide. The roaster usually covenants to take the apprentice into his service and teach him the art or trade he himself exercises or carries on; to find him in meat, drink and lodging and some- times with wearing apparel, washing and all other neces- saries, during the term. The sickness of the apprentice, or his incapacity to serve and to learn by reason of ill health, or ■roTide8 that where a minor over the age of sixteen, who has no parent or legal guardian, or who does not reside with such parent or guardian, enters into an engagement, written or verbal, to perform any servKje or work, such minor shall be liable upon the same, and shall have the benefit thereof in the same manner as if of legal age. A parent, guardian or other person having the care or Change of a minor, or any charitable society authorized by the Lieutenant- Governor to exercise the powers conferred by the Act, and having the care or charge of a minor, may with the minor's ^ 32 THE CANADIAN LAWYER. consent, if the minor is a male not under the age of fourteen years, or is a female not under the age of twelve years, and' without such consent if he or sh^ is under such age, constitute, by indenture, to be the guardian of the child, any respectable trust- worthy person who is willing to assume, and by indenture or other, instrument in writing does assume, the duty of a parent towards the child; but the parent remains liable for the performance of any duty imposed by law in case the guardian fails to perform it. The guardian then possesses the same authority over the child as he would have if the ward were his own child, and is bound to perform the duties of a parent towards the ward. Where the father df an infant child abandons and leaves the' child with the mother, the mother, with the approbation of two Justices of the Peace, may bind the child as an apprentice until the child attains twenty-one if a male, or eighteen if a female. The mother and the Justices must sign the indenture. No child fourteen years old or upwards is to be so 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 apureuticeship. If a master of an apprentice dies, the apprentice, if a male, by operation of law, and without any new writings, becomes transferred to the person (if any) who continues the waster'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 appren- tice, and who carries on the same kind of business. Every master must provide to his apprentice suitable board, lodging and clothintr or such eerly teach and instruct him, or cause him to be taught and instructed, in his trade or calling. Every apprentice must faithfully serve his master, obey all his lawful cduunands, and not absent himself from his service, day or night, without consent. A master convicted before any Justice, Mayor or Police Magis- trate, un the complaint of the apprentice, of any ill usage, cruelty or refusal of nocessnry provisions, is liable to a fine not exceeding twenty dollars and costs, and to imprisonment in default for a term not ex- ceeding one month. An apprentice convicted of refusal to obey lawful commands, or of waste or damage t-} property, or of any other Improper conduct, may be imprisiHied for a term not exceeding three months. An apprentice absenting himM>lf before the time of service ex- pires may be compelled to make good the loss by longer service tir pecuniary satisfaction; and if he refuses or neglects to do so, may be committed to gaol for a term not exceeding three months; but the master must proceed to enforce such service or satisfaction within three years after the expiration of the term for which the appren- fice contracted to serve. Persons harbouring or emploving an absconding apprentice, are liable to pay the full value of the apiirentice's labour. The apprenticeship indenture n.ay be cancelled If the apprentice becomes insane, or it convicted of felony, or is sentenced to the Central Prison, Provincial Reformatory or Penitentiary, or absconds. The master must, within one month, give notice in writing to the APPKENTICES. 33 other iMirties to the indenture of his intention to cancel the indenture, which notice must be served on the parties, or published in *' The Gazette," or in a local county or city paper. Masters or a"iren*^ices 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 guarian, the consent of the minor must be obtained and signified in the written indenture, which is made out in duplicate and executed by the minor, as well as by the other parties. The minor is entitled to the full amount of money, or other return, given for his services. The statvtte imposes a duty on the parties binding minors as apprentices to see that they are properly treated. Cora- plaints are heard before two Justices, subject to appeal to the Supreme Court of the Province. Apprentices guilty of misconduct may be punished by imprisonment, 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 c^se of his death or incompetency, by their mother or other legal guardian; if thev have no parent comitetent to net and no guardian, they may bind themselves, with the assent of two Justices. Minors above fourteen not having parents or guardians comiietent to act may be bound in the same manner, with their consent, to be i'XpresHeoslted with the Town Clerk 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 to Iw declared in the presence of a Justice, and certified by him in writing. Provision shall l)e 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 ond other in- struction; and such other benefit or nllowancf to the minor os may be agreed upon; and, in casw of sickness, for medical attendancA iHiard and care. c.L. — 3rd Kn. 8 84 THE CANADIAN LAWYER. Before any indenture is executed, tlie parties shall go before a Justice of the Peaces who shall examine whether the apprentice has any just objection thereto, and shall certify thereon accordingly; and no indenture shall be deemed executed without such certificate. All considerations of money, etc., shall be paid or secured 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 120; and if by a master of a vessel. $40. PRINCE EDWARD ISLAND. The more specific provisions of the law of this Province upon this subject, enacted by 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 ^arent 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 Anprenticeship 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 cuildren, abandoned by their i>arents. If an apprentice desert his employment, one Justice may issue a warrant to arrest him, and may commit him to gaol. The harbouring of deserting apprentices is punishable. Complaints in such matters, and as to ill-treatment, wages, etc., are disposed of before three Justices of the Peace. MANITOBA. The law in Manitoba may be said to be nearly identical with that in Ontario, the statute, cap. 40, B. S. M., being in large jmrt a copy of the Ontario Statute. FORMS. Apprentioethip Indenture. This Indenture, ninde the fourth day o'" June. 1888. Between William .Tones, of ('hntlinm, in the County of !<««♦. .Tewpllor, of the first part. Henry JonoH. hln mm, now of the a»r.^ of sr ' wjteen years, of the ip.'cond part, and Thomas Mnson, of the same place, printer, APPRENTICES. 35 by a fine of 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, exdcutors 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 give 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 co.iduct himself in a sober, temperate, honest man- ner, and as a good and faithful apprentice ought to do, during all the time aforesaid. 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, his executors and administrators, shall and will teach and instruct, or cause to be taught and instructed, the Raid Henry Jones, in the art, trade and mystery of a Printer, and shall and will find and provide for thfi snid apprentice sufficient meat, drink, npparel, washing and lodging during the said term; and at the expiration thereof shall and will give his said apprentice two suits of apparel (any other special terms may be here inserted); and the said Thomas Mason further agrees to pay to the said William 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 hundred 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 r >\tained, the said parties bind them- selves each unto the other, Joii. ly by these presents. 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 WILLIAM JONES. Il.s.I R. JOHNSON. HENRY .TONES. [l.s.] THOMAS MASON, [l.b.] Indenture of Appmtioenhip for a OM to learn Houtetcork, etc. This Indenture, made the tenth day of May, 1R8B, 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 game place, Farmer, of the third part. Witnesseth that the said Sarah Franks, by nnd with the consent of the said Mary Franks, her mother, testified by her 36 THE CANADIAN LAWYER. V execution of these presents, hath bound and put herself, and by these presents doth bind and put herself apprentice to the 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 her said master faithfully shall and will serve in nil 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 to be taught to her the said apprentice, together with reading, writing and the other usual branches of a common school education; and shall and will during the said term find, provide and allow her sufiScient meat, drink, clothing, lodging, washing, and all other necessaries; and at tlie 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.8.1 ROBERT HOLDEN. Tub.] Aatignment of an Indenture of ApprenUoeahip. (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 case may be), parties to the within Indenture, testified by their signing and sealing these presents, for divers good causes and considerations, have assigned and set over the within Indenture, and the said James- Jackscn, the apprentice within named, unto John Travers, of Milton, 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. 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 pelrform toward him all and singular the covenants within mentioned on my part to be kept and performed. And I, the said John Travers, do for myself, my executors and administrators, covenant to perform all and singular the covenants within mentioned on the part of the said Samuel Moore to be kept and performed. Signed, sealed and delivered, etc. AKBITUATiOXS AND AWARDS. 37 ARBITRATIONS AND AWARDS. An arbitration is the reference and submission of a mat- ter in dispute to the decision of one or more persons called arbitrators. The findings or decisions of arbitrators in euch 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 arbitration to lawsuits in trade, or business dis- putes, as involving more certainty 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 bliall arise it shall be referred to the determination of two indifferent i>erson8 as arbitrators, or of their umpire, who is commonly required to be chosen by the arbitrators. It is also a common practice of all Courts where the Eng- lish law is administered, to order the submission of intricate matters of account to arbitrators appointed by such Courts. So, also, many statutes require particular matters in dispute between parties to be settled in this manner. 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 particular 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. By the Arl)itration Act (R. S. 0. 1897, cap. 63), a " sub- mission " is defined to l)e a written agreement to submit l)resent or future differences to arbitration whether an arbi- trator is named therein or not. Such submission, unless a contrary intention is expressed in it, is irrevocable, except by order of the Court or of a Judge and has the same effect in all respects as if it had been made an order of Court. A sul)mi8sion, unless a contrary intention is expressed, is deemed to include the following ])rovi8ions so far as they are apjtlicnblo to the reference under the sul)mission, viz.: 38 THE CANADIAN LAWYER. (a) If no other mode of reference is provided, the refer- ence shall be to a single arbitrator. (b) If the reference is to two arbitrators, the two arbitra- tors may appoint an umpire at any time within the period during which they have power to make an award. (c) The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time for making the award. (d) If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire, a uotice in writing, stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. (e) The umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award. (f) The parties to the reference, and all persons claiming through them respectively, shall subject to any legal objec- tion, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall subject as aforesaid, produce before the arbitrators or umpire all books, deeds, papers, accounts, writings and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitra- tors or umpire may require. / (g) The witnesses on the reference shall, if the arbitra- tors or umpire think fit, be examined on oath or affirmation. (h) The award to be made by the arbitrators or umpire shall be final and binding on all the parties and the persons claiming under them respectively. (i) The costs of the reference and award shall be made in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may award costs fo be paid as between solicitor and client. If any party to a submission commences legal proceed- ings Against any other party in respect of any matter agreed to be referred, on application to the Court after entry of appearance and before delivery of any pleadings, a stay of ARBITRATIONS AND AWARDS. 39 proceedings will be granted if there is no sufficient reason why the matter should not be referred and the applicant was and remains v illing to do everything necessary to the proper conduct of ths arbitration. The arbitrators, unless a contrary intention is expressed in the submission, have power to administer oaths or to take affirmations of the parties and witnesses appearing, to state an award in the form of a special case for the opinion of the Court and to correct in an award any clerical mistake or error arising from any accidental slip or omission. In proceeding in the business of the arbitration, the arbitrators are bound to require the attendance of the par- ties, for which purpose notice of the meetings of the arbitra- tors 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 evi- dence the arbitrators are at liberty to proceed in any way they please, if the parties have due notice of their proceed- ings and do not object before the award is made; but in order to obviate any objection, they ought to proceed in the admission of evidence according to the regular rules of law. The award should be signed by the arbitrators in each other's jiresence, 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 sura the bond should be. If the arbitrators be empowered to 'Ipcide all matters in difference between the parties, the award will not necessarily be wanting in finality for not deciding on all such matters, unless it appear to have been required that all such matters should be determined by the awaid, 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 fa- vour 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 par- ties 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 40 THE CANADIAN LAWYER. V 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 arbitration, the arbitrators may make an award according to what they believe to be the justice of the case, irrespective of the law on any particular point. The Courts have power to set aside the award for cor- ruption or other misconduct on the part of the arbitrators, or if they should be mistaken in a plain point of law or fact. The application to set aside the award must, however, be made within six weeks after the publication of the award, but the Court or Judge may, under special circumstances, allow the application to be made after this time. If the sub- mission 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. Some- times the Court will refer the matter back to the arbitrators for further examination, in the event of any application being made to the Court on the subject of the award. 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, be makes an award before the expiration of the time given to the arbi- trators to make their award, such award will be valid. The umpire must be chosen by the arbitrators in the exercise of their judgment, and must not be determined by lot, unless all the parties to the reference consent to his appointment by such means. In order to enable him to form a proper decision, he ought to hear the whole evidence over again, unless the parties should be satisfied with his deciding on the statement of the arbitrators. And the whole matter in dif- ference must be submitted to his decision, and not some particular points only on which the arbitrators may disagree. An award for the payment of money creates a debt from one party to the other, for which an action may be brought in any Court of law. But when the award is made a rule of (^ourt, its performance may be enforced by execution. It often happens that the matters to be referred are of too complicated a nature to admit of successful carriage without the intervention of a professional man. The fore- going observations are not intended to apply to such matters: they are meant for plain and simple cases only. ARBITRATIONS AND AWARDS. 41 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 all adjournn»euts of the proceedings made at their request or by 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 barristers, solicitors, engineers, architects, or Ontario land surveyors:— For every meeting where the cause is not proceeded with, but an enlargement or postponement is made at the request of any party, not less than ¥ 2 00 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 sitting not extended to six hours (fractional parts of hours being excluded) where the arbitration is actually proceeded with, for each uour occupied in such proceed- ings, at the rate of not less than 1 00 Nor more than 1 50 Where the arbitrator is such professional person — For every meeting where the cause is not proceeded with, but an enlargement or postponement is made at the request of any party, not less than 4 00 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 00 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 proceed- ings at the rate of not less than 2 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 Trade Disputes Act/' R. S. 0. 1897, c. 158. FORMS. (General Form of Submission to Arbitration. This Indenture, made the A. B., of, etc.. of the one part, and Whereas, certain differences have and the said C. D,. respecting, etc., 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 day of 18 . Between C. D., of, etc., of the other part, arisen between the said A. B. [here state concisely the subject- 42 THE CANADIAN LAWYER. 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 G. 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 th'& matters referred, nominate and appoint. Now this indenture witnesseth that they the said A. B. and G. D., do, and each of them for himself, severally and respectively, and for his several and respective heirs, executors and administrators, doth covenant, promise and agree with and to each other, his executors and administrators respectively, that the said differences .or all matters in difference] between the said A. B. and C. D., be forthwith referred to the award, order, arbitrament, final end and determination of the said U. V. and X. Z. ; and in case they disagree about making an award, or fail to make an award before the day of next, then to the award, umpirage, final end and determina- tion 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: so as the said arbitrators or umpire do make and publish his or their award or umpirage in writing under his or their hands of and concernin([ the premises, ready to be delivered to the parties or to either o'f 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 G. 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 refer- ence and of the said award shall be in the discretion of the said arbitrators or umpire, who shall direct and award by whom and to whom and in what manner the same shall be paid; And, further, that the said A. B. and C. D., and each of them, shall and will produce unto and deposit with the said arbitrators or umpire, all deeds, books, papers, evidences and writings, touching or relating to the matters in difference in their respective possessions or power as the said arbitra- tors or umpire shall think fit: And that each of them shall and will submit to be examined upon oath, if thought necessary, by the said arbitrators or umpire, and will, as far as in them lies respectively, do all such other acts and things as the said arbitrat'ors 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 y prevent the said arbitrators or umpire from making an award by affected or wilful delay, or by not attending after reasonable notice, and without such excuse as the said arbitrators or umpire shall be 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 AUBITRATIONS AND AWARDS. 48 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 witnesses 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.b.] E. F. O. D. [L.8.] Another Form. This Indenture, made the day of 18 , Between A. B., of, etc., of the first part, and C. D., of, etc., of the second part. Whereas disputes and differences have arisen and are now de- pending, between the said parties of the first and second parts in reference to [state matters m 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 end and determina- tion of U. v., of, etc., and X. Z., of, etc. arbitrators indifferently chosen, by and on behalf of the said parties respectively: And in the event of the said arbitrators hereby appointed not being able to agrre within one month from the date of these preseris upon their said award, then it shall and may be lawful for them to appoint some fit person as third arbitrator, by a memorandum, in writing, under their hands, to be endorsed on these presents; and the award of any two of them shall be final and conclusive, both at law and in equity, upon both of the said parties hereto; such award to be made in writing on or before the day of next. Now this Indenture witnesseth, that the said parties hereto do, and each of them doth, each for himself severally and respectively, and for his and their respective heirs, executors and administrators, covenant and agree, well and truly to stand to, obey, abide by, observe, perform, fulfil, and keep the award, order, arbitranifnt and final determination of the said arbitrators hereby appointed; or, in the event of it having been necessary to appoint such third arbitra- tor as aforesaid, to stand to, obey, abide by. observe, perform, fulfil and keep the award, order, arbitrament, and final determination of any two of them of and concerning the premises aforesaid or any thing in any manner relating thereto, so as such award be made in writing, under their hands, or under the hands of any two of them (in the event of any such appointment as aforesaid), on or before the day of next. And it is hereby agreed, that the said arbitrators shtfU 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 thev shall think fit. And also, that all the costs and chartres 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, or any of them so making their award as aforesaid, and shall be paid and satisfied pursuant to their award. And olso, that these presents may be made a rule of Her Majesty's <^ourt of , at [ ] 44 THE CANADIAN LAWVKlt. And for the full performance of the said award so to be made ad aforesaid, the said parties hereto bind themselves, severally and respectively, their several and respective heirs, executors and" admin- istrators, each to the other of them respectively, in the penal sum of [ ] lawful money of Canada, firmly by these presents. In witness whereof the said parties to these presents have here- unto set their hands and affixed their seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] E. F. C. D. ti'.s.l Submiasion by Bond. Know all men by these presents. That I, A. B., of, &c.. am held and firmly bound to C. D., of, &c., in the penal sum of [ ] of lawful money of Canada, to be paid to the said C. D., or to his 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 , 18 . Whereas, disputes and differences have arisen, and are now pending, between the above-bounden A. B. and the said C. D., touch- ing and concerning [state subject-matter in dispute as in submission.] And whereas the above bounden A. B., and the said C. D., have agreed to refer such disputes and differences, as well as all actions, suits, controversies, accounts, reckonings, matters, and things in any wise relating thereto, to the award, arbitrament and determination 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., and who have consented and agreed to accept the burthen of the said arbitration. Now, the condition of the above-written bond or obligation is such, that if the above-bounden A. B. do and shall well and truly submit to, abide by, and perform, the award, arbitrament and deter- mination of the said arbitrators so nominated, appointed and chosen as aforesaid, touching and concerning the matters in dispute between the above-bounden A. B. and the said C. D., and so referred to them the said arbitrators as aforesaid (provided such award be made in writing under the hands and seals of the said 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 be void, other- wise to be and remain in full force and virtue. And it is hereby agreed between the said parties in difference, that these presents and tKe submission hereby made of the said matters in controversy, may be made a rule of the High Court of Justice, pursuant to the statute in that behalf,; and that nil books, papers, vouchers, entries or memoranda in the power, custody or possession of the said parties shall be produced to the said arbitra- tors or umpire; and that all witnesses produced to the said arbitra- tors or umpire shall be sworn by them; and that all costs and charges attending on the drawing of these presents and of the said arbitration and award shall be in the discretion of the said arbitrators or umpire. Signed, sealed and delivered in the presence of A. B. [l.s.]. E. F. [SoTE.— A similar bond must be executed by C. D., substituting C. D. for A. B. whenever the name occurs ] ARBITRATIONS AND AWARDS. 4ft Appointment of an Umpire. We, the within-named U. V. and X. Z., in pursuance of the powers given us by the within written agreement do hereby nominate and appoint U. U., of i 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 , 18 . U. V. Witness, W. W. X. Z. INoTR.— Tuefureitoing appointtneut should be eiidora«d on the arbitratiou d ;ed 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 malting our award until the day of next, on or before which said day our award in writing of and concerning the matters in difference within mentioned and referred to us shall be made and published. In witness whereof, we have set our hands the day of , 18 . Witness, A. B. W. W. C. D. [Note.— The obBervations appended to the last form app^y to this and the two next formf>.] Enlargement 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 eubmission was by bond or deed, say, "our hands and seals"], the day of 18 . Signed, (or Signed, Sealed and Delivered) in the presence of A. B. [l.b.] W. W. C. D. [L.8.] Appointment of Third Person as Additional Arbitrator. We, the within-named U. V. and X. Z., do by this memorandum under our hands (made before we enter or proceed on the arbitration within mentioned) nominate and appoint Mr. X. Y., of . the third person or arbitrator, to whom, together with ourselves all matters in difference between the said parties within mentioned shall be referred, according to the tenor and effect of the within sub- mission. Witness our hands this day of , 18 . Signed in the presence of U. V. Y. Z. X. Z. 46 THE CANADIAN LAWTEK. Oath to be Adminiatertd by Arbitrator to a Wittieaa. You shall true answer make to all such questions as shall be asked of you by or before me touching or relating to the matters in difference between A. B. and C. D. referred to my award (or> " to th« award of myself and 6. 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. Appointment by Arbitrator for Attendance before him. In the matter of an arbitration between A. B. and C. D. , the day of nest, at noon, at , for proceeding in this day of 18 . A. A. To Messrs. A. B. j.nd C. D.,) ,_. . .^ * , , ^ *u and their respective attorneys L (The arbitrator s signature, or the or agents, and all other whom j it may concern. ' I appoint o'clock in the reference. Dated the signature of one or more of them, if more than one.) Peremptory Appointment for the same purpoae. In the matter of an arbitration between A. B. and C. D. I appoint the day of instant (or " next ") 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-attendance of either party, I shall nevertheless proceed, and immediately make my award. Dated the day of 18 . E. F., Arbitrator. To MesHrs. 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 como, I. A. A., of, etc., send greeting; (etc., proceed to recite the instrument by which the parties referred to arbitration, and so much of its terms as may be esNential to show the outhority of the arbitrator or umpire with respect to the •ubject-mntter of reference, onrt the time, jwwer of enlargement, and manner of making the award. Thus, If it be by indenture, tfio recltnt may be as follows: Whereas by an Indenture bearing date, etc., and. made between, etc.. reciting that varinnn differences had Arisen, etc.. so stating all that, mav be material to warrant the following award, and then oropoed thnu): Now know ye that I, the said A. A., having taken npon mvnelf thr> burthen of the said orbltration, and havinar honrd and dulv onnsldered all the allesratlonH nnd ovidonfe of the snid respective nnrt".->s of and concerning tlie said matters In difference so referred as aforesaid, do make this my award In wrltinst ARBITRATIONS AND AWARDS, 47 of and coQcerniuK the safd matters in difference so referred, and do hereby award, order, determine and direct that (etc., conclude with a distinct statement of the arbitrator's decision on all fhe 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. Award where' the SuhtniaaUm was by Mutual Bonds. To all to whom these presents shall ' ome, I, A. A., of, etc., send greeting; Whereas on , by a bond made and sealed with the seal of C. D., of, etc., he became held and firmly bound unto A. B., of, etc., in the penal sum of I : 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 G. D., in the like penal sum, with conditions written under the said several bonds that the said A. B., 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. B., as the above bounden C. D., to arbitrate, award, order, judKe and determine of and concerning (etc., 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, do in pursuance of the said submission make and publish this my award of and concerning the said premises in manner following, that is to say: I do award, etc. In witness, etc. (as in last form.) Signed in presence of W. W. A. A Award where the Submiaaion waa bv agreement, and atating an aaamt to an enlargement. To all to whom these presents shall come, we A. A., of, etc., and T. A., of, etc., send greeting: Whereas, by a certain agreement in writing under the hands of A. B., of, etc., and C. D., of. etc., bearing date on or about the day of lant reciting that (etc., here set out such parts of the agreement as boar uintn ilic award): And whereas by an endorsement on the said agreement, bear- ing date on or about the day of last under the hands of nil the said parties to the said agreement they the said parties niutunlly and reciprocally consented and agreed tlint the time for the said arbitrators making the said award sh'onld he enlarged t6 the day of then next, and that they would In all other respects nbhle by the terms of tlie said agreement. Now know ye that we. the said arbitrators, having taken upon us tlie burthen of the said reference, and having examined nil Huch wit- iioBses as were produced before us by the snld imrfles resiiectlvely. 48 THE CANADIAN LAWYER. 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 ia the presence of ■^- ■^• W. W. T. A. Clauses which may be inserted in an Award tchtfre they suit the cirtmmstancea. 1. I award that C. D. do pay to A. B. the sum of $ within days aff;er 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 $ , and that the said A. B. do, upon such payment, deliver to the said 0. D. a good and sufflcieut conveyance in fee simple, free from incumbrances, of all and singular, etc., (describe lands). 4. I award and direct that the said A. B. do pay to the said C. D. the sum of $ , and that thereupon the said A. B. and C. D. do execute and deliver the one to the other good and suflScient re- lenses of all claims and demands which they may have one against the other. 5. I award iha^. the costs of the reference and award be paid by C. D. to A. B. G. I award that each party bear his own costs of the refereno«, and that the costs of the award be paid by the ^aid A. B. (or C. D.» or in equal portions by the said A. B. and C. D.) 7. I award and direct that the Haid V. I), do pny to the naid 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 amomit, ndd the following words), and I assess the amount of the said costs of the said A. B. at $ , and the costs of my award at $ 8. And I further award and direct that the said A. B. and CD. do each bear his own costs of the reference, and pay one-half tile I'oHts of the award; and if either party shall, in the first instance, pay the whole or more than half of the costs of the award, tBe ')thpr party shall repay him so much of the amount as shall exceed til.- half of the said costs. 0. 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 Affidavit of e»eeutioH of ArhttratlOH Bond. County of , ) to wit: f I, Y. Z., of, etc.. make oath and say, 1. That I was present and did see the annexed Arbitration Bond duly signed, sealed and delivpre. 4 ■^ii ^ ^iii i timmi^iMii 50 THE CANADIAN LAWYER, V Aasignmmt of Agreement to Purchase. (To be endorsed upon or annexed to the Original.) vWhereas, the within named C. D. hath duly paid to the withiu named A. B. the sum of $ , being the amount of the first two instalments of the purchase money within mentioned, together with all interest upon such purchase 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 $ only, by equal annual instalments of $ each, with interest from the day of last. And whereas, the said C. D. hath contracted and agreed with E. F., of, etc., for the sale to him of the within-mentioned premises (and the improvements thereout and all his right and title thereto and estate and interest therein under or by virtue of the w'.thin-written agreement, at the price or sum of $ , but subject nevertheless to the payment by him, the said E. F., his heirs, executors or administrators unto the sail A. B., his eyccuturs or administrators, of the said sum of $ residue of tl.e original purchase money aforesaid, and interest there- en from the ))eriod aforesaid, at the times and in manner withiu mentioned. Now thesr nt any time hereafter growing due thereon, and generally to do all and every such further nnd other lawful acts and things, as &t THE CANADIAN LAWYjiR. V. well for the recovering and receiving as also for the releasing and discharging of all and singular the said hereby assigned bond, moneys and premises, as fully and effectually to all intents and purposes as he, the said C. D., his executors, administrators or assigns, could or might do if personally present and doing the same. And the said C. D. doth hereby, for himself, his executors and, ad- ministrators, covenant and agree with the said E. F., his executors, administrators and assigns, to ratify, allow and confirm all and whatsoever the said E. F., his executors, administrators or assigns, shall lawfully do or cause to be done in or about the premises by virtue of these presents. And the said C. D., for himself, his executors and administrators, doth further covenant,, promise and agree to and with the said E. F., his executors, administrators an«l assigns, by these presents, in manner following, that is to say: that the within mentioned sum of $ remains justly due and owing upon the said bond, and that he, the said C. D., hath not received or discharged all or any of the said moneys due or to grow due on the said bond, nor shall or will release, non-suit vacate cr 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 theim, with- out the license of the said E, F., his executors, administrators or assigns, first had and obtained in writing, nor shall or will revoke, invalidate, hinder, or make void these presents, or any authority or power hereby given, without such license as aforesaid. In witness whereof the said C. D. hath hereunto set his baud and seal the day of , 18 . Signed, etc., c. D. [us.! W. W. Aaaignment of Bond by Endorsement, (Concise Form.) Know all men by these presents, that I, A. B., of the of in the County of and Province of Ontario, iu consideration of the sum of of lawful money of Canada to me in hand paid by C. D., of, etc., at or before the sealing of these presents (the receipt whereof is hereby acknowledgel), have sold, assigned, transferred and set over, and by these presents doth sell, assign, transfer and set over unto the snid C. D., his executors and assigns, the within bond or obligation, and nil principal and interest thereby secured, and now due, or horen'^or *o become due thereon, and all benefit and advantage whatever to bo had, made or obtained by virtue thereof, and all the right, title, interest, claim, property, and demand whatsoever of me the snid A. B., of, into or out of the said bond and moneys, together with the said bond. To have, hold, receive and enjoy the said bond and moneys unto the said C. D., his executors, administrators and assigns, from henceforth for his and their own use and benefit for ever. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . Signed, sealed and delivered A. B. in the presence of Y. Z. ASSIGNMENTS. 53 Aasignment {Ontario Crown Lands.) Kno^ 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 $ , 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 estate, title, interest, claim and demand whittuoover, both at law and in equity, of, in and to thnt 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, being composed of Lot number in the Concession of the Township of aforesaid [insert if necessary, " subject to the condi- tions, as to settlement and otherwise, of the Crown Lands Depart- ment, which are to be periormed."] To have and to hold the same with all and every the benefit that may or can be derived from the said acres of land, unto the said C. D., his heirs and assigns forever. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . Signed, sealed and delivered in the presence of A. B. [us.] Y. Z. At/ldavit of Execution. County of , to wit: I, Y. Z., of the Township of in the County of , make oath and say: That I was person- ally present and did see the within named A. B. duly sign and seal, and as his act and deed deliver, the within Assignment on the day of the date thereof, and that I, this deponent, am a subscribing wit- ness thereto. Sworn before me at ,\ -v v this day of 18 i ^' ^' A. B. A Commissioner for taking affldavits in and for said County. Aa$iffnment of Lea»e. This Indenture made the day of , one thousand eight hundred and , Between A. B.. of, etc.. 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. etc.. of the one part, and the said A. B., of the other r rt. the said J. K. did demise and lease unto the said A. B. the U-hsee therein named, his executors, administratorM ftnd assigns, all and singular that certain parcel or tract of land 54 THE CANADIAN I.AWYER. V and premftes, situate, lying and being, in tlie, etc. To hold the same, with the appurtenances, uuto the said lessee, his ex€eutois, admin- istrators 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'* covenants and agreements in the said Indenture of Lease reserved and contained. Now this Indenture Witnesseth, that in consideration of the sum of $ , of lawful money of Canada, now paid by the said party of the second part to the said party of the first part (the receipt whereof is hereby acknowledged), he the said party of the first part doth hereby grant, bargain, sell, assign, transfer and set over unto the saiid party of the second part, his executors, administrators and assigns. All and singular the said parcel or tract of land, and all other the premises comprised in, and demised by, the said herein- before in part recited Indenture of Lease, Together with the said Indenture of Lease, and all b^aefit and advantage to be had or derived therefrom: To have and to hold the same, together with all houses and other buildings, easements, privileges and appurtenances thereunto belonging or in any wise appertaining, unto the said 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 covenants 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, adminis- trators 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 asrdgn^, to enter into and upon and hold and enjoy the said premises for th(> 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 first part, his executors, administrators or assigns, or any other persons claiming under him or them, and that free and clear, and freely and dearly acquitted, exonerated, and discharged or otherwise, by ond at the expense of the said party of the first part, his heirs, executors and administrators, well and effectually saved, defended and kept harmless, of. from and against all former and other gifts, grants, bargains, sales, leases and other incumbrances iT ASSIQNMEN'l'S. 55 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 said premises, under. him or them, shall and will, from time to time, and at ali times hereafter, at the request and cost of the party of the second part, his executors, administrators or assigns, make, do, and execute, or cause and procure to be made, done and executed, all such further assignments and assurances in the law of the sni3 premises for more effectually assigning and assuring the said premises for the residue of the said term, and any renewal thereof (if my), as by the said party of the second part, his executors, udministravors, or assigns, or his or their counsel in the law, shall be reasonably advised or required. And the said party of the second part doth hereby, for himself, his heirs, executors, administrators and assigns, covenant, promise ani agree, to and with the said party of the first part, his executors and administrators, that he or they, the said party ot the second part, his executors, administrators or assigns, shall and will, from time to time, during all the residue of the said term granted by the . said Indenture of Lease, pay the rent, and perform the lessee's covenants and agreements therein respectively reserved and contained, and in- demnify and save harmless the said party of the first part, his heirs, executors and administrators therefrom, and from all actions, suits, costs, losses, charges, damages, 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 Y. Z. Received, on the date hereof, the sum of $ consideration above mentioned. Witness, Y. Z. A. B. [L.8.] C. D. [L.S.J being the full A. B. AsBiijnment of Lease. (Shorter Form.) This Indenture, made the day of , one thousand eight hundred and . Between A. B., of, etc., of the first part, iind C. D., of, etc.. of the second part, Witnesseth, that in considera- tion of the sum of $ now paid to the said party of the first part, the receipt whereof is hereby acknowledged, he the said party of the first part, doth hereby assign unto the said party of the second part, his executors, administrators and assigns. All and singular the premises comprised in and demised by a certain Indenture of Lease bearing date the day of , one thousand oight hundred nnd , and made between, etc.. which said premises nre more particularly known nnd described as follows, that is to sny: All and singular that certain parcel or tract of land and premises situate, l.vinjr. and boinp, etc., together with the appurtenances. To hold the same unto the said party of the second part, his executors, adminis- trators and assigns, henceforth for and during the residue of the term of yearp from the day of , 18 , thereby 56 TUE CANADIAN LAWYER. V 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, execu- tors, and administrators, doth hereby covenant with the said party ot the second part, his executors, administrators and assigns, that not- withstanding any act of the said party of the first part, he hath now power to assign the said premises in manner aforesaid. And that subject to the payment of .the said rent, and the performance of the said lessee's covenants, it shall be lawful for the said party of the second part, his executors, administrators and assigns, peaceably and quietly to hold and enjoy, the said premises hereby assigned durinjE the residue of the term granted by the said Indenture of Lease, with- out any interruption by the said party of the first part, or any other persons claiming under him, free from all charges and incumbrancer whatsoever of him the said party of the first part. And that he, the said party of the first part, and all .persons lawfully claiming under him will, at all times hereafter, at the 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 assigns, 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, executors 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. B. [l.s.] Y. Z. C. D. [L.s.] r 1 Assignment of Lease by Administrator. Know all men by these presents, that I. A. B., of, etc., 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 $ , lawful money of Canada, to me in hand \ye\\ and truly paid by E. F., of, etc., at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained, sold, assigned, transferred and set over, and by these presents do bargain, sell, assign, transfer, and set over, unto the said E. F., his executors, administrators and assigns, all and singular the parcel or tract of land and premises comprised in the within- written Indenture of Lease, and all the estate, right, title nnd in- terest, which I, the said A. B., as administrator of the said C. D. as aforesaid, or otherwise, now have, or at any time hereafter shall or may have, claim, challenge or demand, of, in, or to. all or any of the said premises, by virtue of the said Indenture of Lease or otherwise, as administrator of the said C. D. To have and to hold the said parcel or tract of land, and all and singular other the premises, with ASSIGNMENTS. 67 their and every of their appurtenances, 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 $ in and by. the said Indenture of Lease reserved and contained, and to become due and payable, and to all and every the covenants, clauses, provisoes and agreements therein contained. And I, the said A. B., for myself, my heirs, executors and administrators, do hereby covenant and declare to and with the said E. F.. his executors, administrates and assigns, that I, the said A. B., have not at any time heretofore made, done, committed, or executed, or wittingly or willingly permitted or suffered, any act, deed, matter, or thing whatsoever, whereby or wherewith, or by means whereof, the said parcel or tract of land and premises herel)y assigned, are, is, can, shall, or may be any ways impeached, charged, affected, or in- cumbered in title, estate or otherwise, howsoever. In witness whereof, I, the said A. B., have hereunto set my hand and seal the day of , 18 . Signed, etc., A. B. [l.8.] Assignment from Trader to secure Debt. This Indenture, made the day of , one thousand eight hundred and , Between A. B., of. etc., of the first part, C. D., wife of the said A. B., of the second part, and E. F., of, etc., of the third part. Whereas, the said party of the first part is justly and truly in- debted unto the said party of the third part in the sum of or thereabouts, and hath agreed to execute unto the said party of the third part an assignment of all his estate and interest in the real and personal estate and effects hereinafter mentioned, for the purpose of paying thereout or securing the payment of such indebte'dness. Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of the suni of one dollar of lawful money of Canada, to the said party of the first part paid by the said party of the third part, at or before the execution of these presents (the receipt whereof is hereby acknowledged), he, the said party of the first part, hath granted, bargained, sold, released, conveyed, 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 hoirs, executors, administrators and assigns. All and singular the real estate siiecified 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, speci- fied in the Schedule to these presents, marked B; the greater part of which are now in and upon the premises upon which the said party of the first part now carries on hi« said busness, and wmch said goods are forthwith, upon the execution of these presents, to be delivered into the possession of the said party of the third part, or his agent or agents in that behalf; and all reversions, remainders, rents, issues and profits, and all the right, title, interest, trust, possession, property, claim ond demand whatsoever, at law or in equity, of him the said party of the first part, of, in, to, out of, or upon the same 58 THE CANADIAN LAWYER. real and personal estate, goods, chattels, effects and property, tfe- spectively. Together with the appurtenances, and tosetber -WitL. all books, writings, deeds, bills, notes and receiyta, papers and vouchers, touching or cuueernlns the said premises hereby assigned, or any VBrt1keK«f. 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 ussigns. 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 nevertTieless, 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 lu C3at 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 con- tract, 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 suflBcient discharges for the same; and do and shall receive, collect and get in all and singular the credits and sums of money hereby assigned or intended so to be, and apply the said moneys to arise by such sale or sales, and to be received or collected as 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 thepayment and liquidation in full of the said indebtedness of the said party of the first parf to the said party of the third part, and after such pay- ment do and shall pay the residue and surplus, if any, to the said party of the first part, his executors, administrators or assigns, or as he or they shall direct. And for the better carrying out of tTtese 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 that for the purposes aforesaid it shall be lawful for the said party of the third part, his servants and agents, to continue in and to occupy the said premises now in the occupation of 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. .48SIQNMENT8. 59 And the said party of the second put, wife of the said party of the tirst part, iu vouMideratiuu of one dollar to her luiid by the suid party of the third part, hereby releases unto the said party of the tliird 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 tirst above written. Signed, sealed and delivered in the presence of A. B. [us.] Y. Z. C. D. [L.S.J E. F. Il-s.] Aasignment of Jvdgtmnt, 18 , Between of, etc., of the second This Indenture, made the day oi' A. B., of, etc., of the first part, and C. D., part. Whereas, the said party of the first part, on or about the day of , one thousand eight hundrc'd and , recover, i a judgment in the Court of , for Ontario, at Toronto, fo <^he Bum of $ against And whereas, the said party of the first part hath agief^J to assign the said judgment, and all benefit to arise ther'-^'rom, either «it law or in equity, unto the said party of the second cirv. in manner hereinafter expressed. Now this Indenture witnessetb, 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 here'n- befpre mentioned judgment, and all benefit to be derived therefrom, either at law or in equity, or otherwise howsoever. To hold, receive and take the same, and all benefit and advantage thereof, to and for his and their own proper use, and as and for his and their own proper moneys and effects, absolutely. And the said party of the first pt." hereby constitutes and ap- points the said party of the second pi^i,. his executors and adminis- rators, to be his true and lawful attorney und attorneys, at the propei costs ond 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, w/iich the said party of the second imrt, his executors or administra^ors, shall hereafter consider advis- able in reference to the sai«i 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, executora and administrators, of and from all damages, 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 presonce of A. B. Tl-s'' Y. Z. CD. [L.s.l 60 THE CANADIAN LAWYER. Autgnntent of Mortgage cue thousand , ill the of the first and Province , This Indenture, made the day of «ight hundred and , Between A. B., of the County of and Province of Ontario, part, and C. D., of the , in the County of aforesaid, of the second part. Whereas, by nn Indenture of Mortgage bearing date the day ot , one thousand eight hundred and , and made between E. F., of, etc., of the first part, ond the said A. B. of the second part, it is witnessed, that in consideration of the num of ^ , of lawful money of Canada, to him the sn.d E. F., paid by the said A. B., He, the said E. F., did grant, bargain, sell, alien, release, eufeoflf, convey and confirm unto the said A. B., his heirs iind assigns, all and singular that certain parcel or tract of land nnd 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, Subj»»ct, nevertheless, to a proviso therein contained for redemption upon payment by the said E. F. to the said A. B. of the sum of $ » f lawful money aforesaid and interest, on the day and time and in manner therein mentioned. And whereas, the sum of $ is now owing to the snid A. B. on the said in imrt recited security, nnd the said A. B. hnth agreed to Bell and assign the snid lands nnd premises, and nil the •iioneys thereby secured, ns well as the said Indentur<» of Mortgage, nnd all his interest therein, unto the said C. I), for the consideration here- inafter mentioned. Now this Indenture witnesseth, that the said party «>f the fir^t part to tills Indenture, in cousiderntinn of the sum of $ .of lawful money of Canada aforesaid to him by the said party of the second part to tills Indenture in hand paid, the receipt whereof he. the said party of the first part, doth hereby acknowledge, and of and from the same, nnd every part thereof, ncquit, release and dis- charge the snid party of the second pnrt, his heirs, executors, ad- ministrators and assigns, forever; He, the said party of the first part, hath br>rKainenrty of the first part of, in. to, or out of the sold premises or any part thereof, or the siifd prlncipnl and interest monies. To have nnd to hold, receive and take, the snid princiiml sum of I nnd interest, and all and singular other the premises here- by assigneil, and every part ther»M»f, unto the said party of the «ecou<^ pnrt, his heirs, executors, administrators or assigns, to and f(.r hs jnd their own proper mtueys, cecurities, and efToets absolutely; And, for the more effectually enaldiiig the said party of the second part, his exwutors, administrators and assigns, to recover and receive and snid principal sum of $ and interest, and to have nnd take the benefit of the security for the same, he, the sail iwirty of the first pn.'t. hath made, ordained, constituted, and appolntetl the snid party of the second pnrt, his executors, ndministrntors nnd iSSIQNMEKTS. Gl asBigns, bis true and lawful attorneys, to ask, demand, sue for, recover and receive from the said E. F., his executors, adminlstratoni or assigns, or any other person or persons liable to pay the same, the said sum of $ and int. rest, and to commence and prosecute any action, suit or other proceeding, either at law or in equity, for the recovery of the same, and on receipt of the said principal moneys and interest, or any part thereof, to give sufficient receipts and dis- charges; And to make, do and execute all or any other act, matter or thing, for recovering and receiving the said principal sum and in- terest; And the said party brreto 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 sum of $ is now owing to him, the said party hereto of the first part, under the said security, and that he has done no act or thing whereby the said principal sum of ^ is or has been received, released, discharged, or incumbered. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [us.] Y. Z. C. D. [L.S.1 A$8ignm€nt of Mortgage. (By Indorsement.) This Indenture, made the day of , one thousand eight hundred ond , Between C. I), within named, of the first part, and E. F., of. etc., of the second part, Witnesseth, that the party of the first part, in considerntinn of the sum of $ , to him paid by the party of the second part, the receipt whereof in 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, <'laiin nml deuinnd whatsoever of him, the party of the first part, of, in and to the lands and tenements mentioned and de8Pribe same, as fully to all intents and purposes as he, the party of the firHt part, now boUlH 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 nnd delivor«>d in the presence of C. D. [un.} Y. Z. As«ignmcnt of firbta. This Indenture made the day of , IS , Between A. B., of, etc., of ll.e one part, and C. 1»., of. etc., of the other part; Whereas, the said A. B. hath, for some time past, rarried on the business of a Tailor, nt . aforesaid, nnd in the course of such business the several persons whose nanies are mentioned in the scIkmIiiIo hereunder written, liavt> become indebted to liini in the several sums of money set opposite to their respective names In such selu'dule, and be hnth contracted with the said i\ D. for the absolute sale of the same debts for the sum of j^ 62 THE CANADIAIJ LAWYEU. ! Now this Indenture witnesseth that in consideration of $ , to the said A. B., imid 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, AH and singular the several debts iind sums of money mentioned in ihe schedule hereunder written, which are now due and owing to the said A. B. from the several persons whose names ure 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 toke the said debts, sums of money and i 'emises hereby assigned unto and to the said 0. 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 api)oint the said C. D., his executors, administrators and assigns, the true and lawful attorney and attorneys, of him the said A. B., his executors or administrators in his or their name or nnnies, 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 dubts, sums of money and premises hereby assigned, or any of them; and when the jame respectivly, or any part thereof, shall be received, to give dis- charges for the same. And generally to perform all acts whatsoever -.-hich shall be requisite in order to give complete effect to the nssign- ment hereby made, and to np|)oint a substitute or substitutes for all, or any of the puriioses aforesaid, and such substitution at pleasure to revoke; the said A. B. hereby ratifying and confirming and agreeing to ratify and confirm whatsoever his said attorney or attorneys, or his or their substitute or substitutes, shall lawfully do in the premises. And the said A. B. doth hereby for himself, his heirs, executors and administrators, covenant with the said C. D., his executors, administrators ond assigns, that the saiu 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 here- after revoke the pfresentH, 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 confirm nil such matters and things, process and proceed- ings, as the said C. D., his executors, administrators or assigns, or any other iierson or persons, by or through his or their direction or procurement, shall in pursuance of the power hereinbefore contained, do, commence, bring or i)rosecute upon, or by reason or means of the said debts and preniises; and further that he, the said A. B., his executors nd adniinistrntors, will nt all times hereafter on the re- quest, and «t the costs of the said C. !>., his executors, administra- tors or assigns, make, do and execute all such further ossignments, letters of attorney, acts, deeds, nmttj'rs and things, for the more effectually assigning and assuring \into the snld ('. O.. his executors, administrators and assigns, the said several debts and premises, and enabling liim or them to recover and receive the siune respectively, for his and their own nimolnte use and benefit in manner aforesaid, according to the true intent and meaning of these presents, as by the said <^. I>.. his e- cutors. administrators or assigns, shall be reasonably required. ,\nd the said C. D. doth I'-reby for himself, his heirs, executors, administrators and assigns, covenant with the snid A. B., his executors nnd administrators, that he, the said ASSIGNMENTS. Q'S O. D., Ids 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 proceetling, 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 herein- before contained, or otherwise by reason or in consequence of the same iwwer or authority, or in relation thereunto. In witness, etc., Signed, etc., A. B. [l.b.] Y. Z. C. D. [L.S.] The Schedule to which the a ^^ove- written Indenture refers. Name of Debtor. Amount of Debt. Name of Debtor. Amount of debt. John Smith William Jones John uHCobs •100 00 «160 00 9200 00 Henry Bastion 9118 25 Received on the day of the date of the above-written Indenture of the above named C. D., the sum of $ , beinj; the considera- tion money above mentioned to be paid by him to nie. Witness, A. B. Y. Z. MoTK.— Inall cftses, where the conBideration for a deed la money paid by the one party to the other, a receipt, in the above form, Bhould be written upon the InBtrument, and signed and wltueased. Attother 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 acknowledge^!) do hereby sell, assign and transfer, unto the said C. D., his executors, administrators and assigns, all my claims and demands against E. V,, of, etc., for debt, due to me and all actions against the said K. F., now i>ending in my favour and all causes of action whatsoever against him. And I do hereby nominate and appoint the said C. P., his execu- tors, administrators and assigns, my attorney or ttttorneys irrevoc- able, and do give him and them full iMiwer and authority to institute any suit or suits against the said E. E., and to prose<-ute tlie same, and any suit or suits which are now iH>nding, for any cauKe or causes of action in favour of me, against the snid E. F., to tiniil Judgment and execution; and such execution to cause to lu- satisfied by levy- ing the same on any real or personal estate of the said K. 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 tlint all such acts and procee be at the proper costs and cbarges of the said ('. 1)., his executors, administrators or assigns, without ex|M'iise to me. @4 THE CANADIAN LAWYER. And I do further empower the said C. D., his executors, adminis- trators and assiguf^. to appoint such substitute or substitutes as he or they shall see tii, to carry into 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, admin- istratorK and assigr ., in pursuance of the foregoing authority. Witness my hai.a and seal this day of , 18 . Signed, sealed ac' delivered in the presence of A. H. [l,.b,] Y. Z. Assignment oi 5 PaUov of Fire Inturance 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 reoeii)t whereof is hereby acknowledged) have assigned and transferred, and by tTiese presents do absolutely assign and transfer unto the said C. I>., 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 18 in the presence of A. B. [L..8.] Y. Z. AMtgnment by BtU of Sale of Goods. This Indenture made the doy of 18 , Between A. B., of, etc., (vendor), of the one part, and C. D.. of, etc., (pur- chaser), of the other part. Whereas, the said A. B. hnth contracted with the slid C. D. for the absolute solo to him of the goods, chattels, furniture and effects comprise*! in the schedule hereunder written or hereto annexed, and now on the pri'niises situate at, etf.. (tlescrilie the plnce), at or for the price or sum of ,$ Now this Indenture witnesseth, that In pursnaiice of the aforesaid agreement, and in consideration of the sum of $ . now paid to the said A. B. by the sold C. D., the rocei|»t 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 ond singular the household furniture, goods, chattels nnd effects comprised ami set forth in the schedule her'Minder written or hereunto annexed, and all the advantages there- of, and all the right, title, interest, possibility, property, claim and demand of him, the said A. B., into, out of or upon the saiil furniture, goods, (battels, and effects, and every i>urt thereof. To hitve, hold, n-ceive and take the siii(i furniture, goods, chattel tnid effects hereby assigned or expressed, or intended so to lie, tiiito the said C. n.. his executors, adndnistrators and nssigns Mbmintrly. And the said .V. B. doth hereby for liiniKcU' bis lu-irs. executors and administrators covenant with the said C. D., his executors, administrators and assigns, that he, the said A B., now liath in himself iilisohite aiitliority to asHJgn the MeveiHl prftniKes hereby assigned or expressi'd and intended so to be, unto tli«> said ('. D., his exe«'utors, aduiinTsTrators antl assigns, in manner afore- said: And that the said \. B., his executors and administrators, and ASSIQNMENIU 65 all pei-sons claiming under him and them, shall at any time or times hereafter, on the request, and at the costs and charges of the said G. D., his executors, administrators and assigns, do ana execute all such acta and assurances for more effectually assuriag 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 according to the true intent and meaning of these presents, as by him or them, or his or their counsr ! in the law shall be devised, advised anfl required. In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written. ^gned, sealed and delivered in the presence of A. B. [l.8.]. Y. Z. Tlie Schedule refeiTed to in the above written Indenture. (Here set out a full and imrtieulnr de8rrli>ti'Ui of the toi d4— they must be dc- s rtbtid wiib Huuh detail uf tu ituUci tbeiu ei!>> o; ideutiflCHtiuii.) Another Form. This Indenture, made day of 18 , Between A. B.. of, etc.. of the tirst 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 suid agreement, and in consideration of the sum of $ of lawful money of Caiiiitln, now paid by the stiid 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 enum- erate the several articles intended to be assigned with such cer- tainty as that they may be easily identified), And all the right, title, interest, prop«>rty, claim and demand whatsoever, both at law and in equity or otherwise howsoever, of him the said party of the first part, of. ill, to and out of the same, nnd every part thereof. To have and to hold the said hereinbefore assigned premises and .very part thereof, with the appurtenances, and all the right, tit!.' and interest of the said party ol' the first part. tl»er4'in as aforo- ai',1, unto and to the (i.se of the said party of the second part, his exe<'ntor.^, administrators and ossigns to and for his and their sole nnd only use forever. And the said party of the first part doth hereby, for himself, his heirs, executors and administrators, covenint. 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 first part, is now rightfully and absolutely possessed of and entitled to the said hereby assinned ))rendses and every part thereof, and that the said party of the lirst part now has in himself good right to assign the same unto the said CI. — 'ill) I I) ^ 66 Til a CANADIAN LAWYER. party of the second part, his executors, administrators ajid 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, his executors, administrators and assigns, shall and inny froiu time to time and at all times hereafter peaceably and quieily bave, hoM, possess and enjoy th<^ said hereby assigned premises and every part thereof to and for hih- and their own use and laem'tit, vit'iout ftiiy manner of hindrance, 'nterrnption, molestation, cinim or demaud whatsoever, of, from or by him, the said party of the jirst n'^rt, oi« any person or persons whomsoever; And that free imd c!t;ar aijrwise at the cofe'ts of the said party of the first part, effect \uilly indemnified from and against all former and other bait;i)n Ontario, for Sales of Lands. 1. No person shall advance less than $10 at any bidding under .$500, 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, trustees, agents, or others in a fiduciary situ- ation), shall be at liberty to bid. 4. The purchaser shall, at any time of sale, pay down a deposit in proportion of $10 for every $100 of the purchase money to tfie vendor, or his solicitor; and shall pay 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 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, J BILLS OF fiXCHANQE, ETC. 71 BILLS OF EXCHANGE, PROMISSORY NOTES AND CHEQUES. A promissory note is an unconditional promise in writing made by one person to another, signed by the maker, en- gaging to pay, on demand or at a fixed or determinable fu- ture time, a sum certain in money, to, or to the order of, a specified j)erson, or to bearer. The person who makes the note is called the drawer, or maker; the person to whom it is pay- able, 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 pos- session 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 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. Equivalent expressions may be used for both the words promise s.nd pay, if the meaning is preserved; but, to run no risks, it ia well to use the common forms and words, which are given hereinafter. 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 without regard to any defence the others might have or subsequently acquire to resist payments, it should run thus, " We jointly and severally promise;" the holder may then sue all jointly or each separately, at his election. 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. 72 THE CANADIAN LAWYER. An accommodation note is one upon which the maker receives no consideration, but which he makes for the pur- pose 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 ad- vanced upon it, even though such third person is aware that the transaction was an accommodation. If a person, at the time of taking any note (except an accommodation note), has nctice that it is void in the hands of the payee upon any legal grounds, he places himself, by such taking, in pre- cisely the same position as the payee, unless some inter- mediate endorser or transferor between him and the maker had not such notice or knowledge. 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 advan- tage is taken of the maker, or the note procured 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 pro- ceedings. But a "note given for past seduction 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 consenting to such alteration. By Dominion Statute 53 V. c. 33, s. 30, s.-s. 4, it is pro- vided that " Every bill or note the consideration of which consists, in whole or in part, of the purchase money of a patent right, or of a partial interest, limited geographically or otherwise, in a patent right, shall have written or printed prominently and legibly across the face thereof, before the same is issued, the words 'given for a patent right': and without such words thereon such instrument and any re- newal thereof shall be void, except in the hands of a holder in due course without notice of such consideration." An indorsee takes such a note subject to any defence or set-off which would have existed between the original parties. The penalty for knowingly issuing or indorsing an instrument of this kind without these words upon it, is imprisonment BILLS OF EXCHANGE, ETC. 78 ior any term not exceeding a year or a fine not exceeding $200. Where a note is transferred after it is dishonoured or is overdue, it is taken (even though value be given for it) sub- ject to all equities, or rights of set-off which would attach to it as against the original payee, and the holder can re- cover no more than the original payee could have recovered, «ave in the case of accommodation 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 payable. If payable on demand, or at sight, presentment must be made before interest will run. It 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 writ- ing his name on the back of the note; this evidences an agreement to pay the note in the event of a refusal by the maker to pay, and of prompt notification' 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 person; 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 re- course." 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 for 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 firm or partnership, 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 en- dorse; if payable to several persons, not partners, the en- dorsement must be by all of them; upon insolvency of the payee, his assignee is the proper person to endorse, and after his death, his executors or administrators. 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 discharges prior endorsers will also discharge all subsequent endorsers. To hold the en- dorser, payment of the note must be promptly demanded of the maker when the note is due, if such demand can be 74 THE CANADIAN LAWYEU. 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 administrator, 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 payment 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 tlie last day falls on a Sunday or other non-juridical day (commonly called a Bank holiday) the notf will be come due u[)on the next juridical day. Thiu 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 chances to be a Sunday,^ or other holiday, when it is due upon the twenty-seventh or next juridical day. ''n 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 Janu- ary, falls due three days after the twenty-eighth day of Keb- nuiry, or, in Jjeai)-year, the twenty-ninth. In Canada, nor-juridical days or Hank holidays, are as follows: — Sundays, New Year's Day, Good Friday, Christ- nuis Day, the day appointed to celebrate the Birthday of the reigning Sovereign, and any day ap|)ointed by proclamation for a public holiday, or for a general fast or thanksgiving throughout the Dominion; and the days next following New Year's or Christnuis, when either of these days falls upon a Sunday. Also, in the various I'rovinces, any day appointed by the Lieutenant-Ciovernor of the Province for a ])ublic holiday, or for a ])ublic fnst or thanksgiving to be observed in the particular Province. In the Province of Quebec, vari- ous other days, in addition to those abi.v? mentioned, are non-juridical days. The ])rosentment necessary to charge an endorser must be carefully attended tti, both as to place and time, and as to the ]ierson to whom presentment must be made. The note mu.st 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 ])ayment, that will be sutlicient 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 BILL8 OF EXCHANGE, ETC. 76 words be not inserted, presentment to the maker in person at any place will be suttlcient 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 reasonable hours, at his tlwelling house. If payable by a firm, a presentment to any one partner, or at the hrm'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 must still make a regular and formal demand, ten- dering a suttlcient indemnity if required by the [)urty pay- ing, to protect that party in making the payment. A lost note or draft, not yet due, should be advertised in the public press, to prevent its being transferred to an innocent holder. The denumd must be nuide upon the last of the days of 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 what is a rea- scmable time M'ill be determined by the circumstances of each case. Where payment is, upon proper [)resentment, refused, 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 verl)al or written, by the holder personally or l)y his agent, is sutticient; 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, inasjiuicb as the law provides that the pro- test and certificate of such public otticer shall be prima facie evidence of the facts therein contained. He is also respon- sible to the holder for any neglect in giving the proper no- tices. In Nova Scotia, only inland bills and notes of or be- yoiul the amount of $40 may be i)r()tested so as to render the protent prima facie evideiu'o as above. By The Bills of Kxcbange Act, 18!)0 (Canada) sec. 49, pub-scc, K. 4, it is provided as follows: — " Notice of the protest or dishonour of any l)ill payable in Canada, shall bo siilliciently given, if it is addressed, in due time to any party to such bill entitled to such notice, at his customary address or place of resi(l 80 THE CANADIAN LAWYKtt. avail themselves of the irregularity; and against them the bill, in the hands of an innocent holder for value, may be treated as a bill payable to bearer. If the bill be drawn in the name of a fictitious person,, payable to the order of the drawer, with the acceptor's know- ledge, the latter may be charged by a bona fide holder aa 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 else- where," 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 instrument 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, "I, 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 signa- ture should be in the name of the latter; or in the name of the agent, thus : " A. B." (the agent) " for C. D." (the prin- cipal); or thus: '* C. D." (the principal), "per procuration, A. Ji." (the agent). If an agent merely 8ign his own name only, a* drawer, he will become personally liable on the bill^ and the [principal will not incur any renponsibility thereon. If ther<' lie sevwal drawers, and +hey be partners either the name of the iirm may be subscribed liy one of the mem- bers 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 dii ers ijo :iot partners, each should separately sign hy himwlf or by an agt t a}»}H'intecl by him for the purpoH?. In :is ease 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 sitms. i)y his merely writing thereon " presented," )r the day of the month, or a direction to a third person to pay the amount. An acce}>tance may be in ])eni-'ii, or l)y making a mark. in lieu of a signature with intent to accept. BILLS OF EXCHAXQE, KTO. 81 A cheque is a written order, addressed to a bank, or pri- vate 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 endorsemeiit or delivery. A cheque is not entitled to dayu 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, existing between the drawer and the party from whom the holder receives it; and no de- lay on the part of the holder in demanding payment of the bank excuses the drawer from such payment^ unless he has suffered 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 cus- tomer'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 l)ank's authority to pay an outstanding cheque, but a payment in ignorance of the death would be valid. If the sum for which the cheque is drawn be fraudu- lently altered and increased, the cheque is void, and should the bank pay such increased sum, it must itself bear the loss, \mlees the drawer's careless method of writing 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 rea- sonable time. Such reasonalile time is generally considered the first, 01, at furthest, second day after receipt. Should such presen.ment be neglected, and the bank in the mean- time fail, thi holder would bear the loss, provided that funds of the drawer suificient to meet the cheque were in the hands of the bank at and shortly after its issue. An " I. 0. U." is a simple acknowledgment of a debt, in writing. It is not assignable by mere endorsement. FORMS. Negotiable note. $100. Ottawa. 1st May. 1886. Thri'c nioittlis iiftcr dntc. I prdiuiso to pny John Scnrlott. or onler. at tho Kntik of Montrenl, Toronto, tlio Hnm of ono hundred dollars, valno re-oived. THOMAS .\TKTNS. C.L. — 8RD ED. B 8^ THE CANADIAN LAWYER. Note riot negotiable. $2,000. Chatham, N. B., 15th March, 1886. Sixty days after date I pi:oinise to pay Samuel Harrison two thousand dollars, value received'. ^ENBY TURNER. Joint note. 1350. Annapous, N.S., 10th Jan., 1886. Six months after date we jointly, but not severally, promise to pay Samuel Richards, or order, three hundred and fifty dollars. H. THORNE. THOMAS BARFOOT Joint and several note. ?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 SBCORD. Note on demand. $150. Winnipeg, Man., 17th Oct., 1885. On demand I promise to pay Edward Chase, or order, one hundred and Sfty 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. Toronto. 27th May, ISO'J. To the Imperial Bank of Canada: pay to Smith & Sellry. or order, f$78.401 seventy-«^i:ht dollars forty cents. JOHN EASTON & CO. i ' Protr*t of prmm*M»rif note for mon-paitment. (The proteHted note is attBch«l) On this tenth day of July, in the year of our Lord «>ni' thousBnd eight hundred and oighty-slx, at the request of the Mnnufaotnrors* BILLS OF EXCHANGE, ETC. 8d 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 n^i 'gin, 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 office at Kingston, Ont., being the nearest post office to the plac» of the said presentment, letters containing such notices, 0Q,e of which letters was addressed to each of the said parties severally, the superscription and address of which letters are respectively copied tielow, 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 my seal of office the day and year first above written. C. STUART, Notary Public. Notice to endorsee of above. 10th 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, anf 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 to you 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. Bond of indemnity upon paying a lost note. Know all men by these oresents. that I, James Edwards, of Windsor, in the County of Essex, and Province of Ontario, farmer, nm held and firmly bound unto Simpson Talbot, of the same place. Insurance Agent, in the penal snm of one thousand dollars, lawful money of Canada, to be paid to tlie said Simi>8on Talbot, or his certain attorney, executors, administrators or assigns; for which payment, well and truly to be made, I bind myself, my heirs, execu- tors and administrators, and each nnd every of them, firmly by these presents. Sealed with my seal nnd dated this fourth day of Angust. in the year of our Lord one thousand eight hunJlred nnd elghty- lowr. i S4 THE CANADIAN LAWYER. Whereas the above named Simpson Talbot, by his promigsory 'note signed by him, and dated the first day of May, in the year one thoasand eight hundred and eighty-four, did j'ivmise to pay unto obe John Mann, or order, five hundred doUarii, tJ^ree months after the date thereof, and such note was afterv aru endorsed fJy the said John Mann, and transferred to and became the property of the said James Edwards, as the said Bdwards 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 samie, 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 Edw^ards 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 discharge 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 here- after save, defend, keep harmless, and indemnify 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, dam- ages 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 obli- gation to be void; otherwise to remain in full force and virtue. JAMES EDWARDS, [l.s.] Signed, sealed and delivered I in presence of / Simcoe Robinson. BONDS. 86 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 tltn the obligation, and, where so drawn, they are known a- igle bonds. As a rule, however, a condition is added t( effect that if the obligor per- forms some particular a' , therein specified, the ob- ligation shall be void; c ^ hat 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 reasonable under the circumstances is fixed as the penalty. The amount is imm.aterial so long as it is sufficient, for in an action on the bond, only the actual indebtedness (with interest and costs) secured, if for 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 re- Fult to the obligee in damages to a certain stipulated or 'iquidated 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 liibility. 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 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 perform- ance by the act of God, the penalty is saved. FORMS. Single Bwtd icithout condUion. Know all men by these presents, that I, A. B., of, etc., am held and firmly bound unto C. D., of, etc., in the penal sum of $1,000 of IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 I 1.25 I^IM 125 *^ lU |22 ^ lia |i2.o 114 B16 I Fhotpgraphic Sciences Corporation 4^' 3>^ \ :\ ^ c< 33 WIIT MAIN STRUT WIMTIR.N.Y. 14SI0 (71*)I73-4S03 86 THE CANADIAN LAWYER. lawful money of Canada, to be paid to tbo said G. 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 heirti, executors and administrators, and every of thraa firmly by these presents. Sealed with my seal, dated the 6th day of July, 1880. Signedi sealed and delivered in th^ presence of JL. B. [i>.B.} ' Y. Z. Money Bond. Know all men by these presents, that I, A. B., of, etc., am held and firmly bound unto C. D., of, etc., iU the penal sunk of $1,000 of lawful money of Canada, to be paid to the uuid 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 the above written bond or obligation fs such that if the above bounden A. B., his heirs, executors or iidniinistra- 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 $500 of lawful money of Canada, with intent thereon at the rate of ten per cent, per annum, on the days and times, and in the manner following, that is to say: The said principal sum of $600 on the «th day of January, 1887. und the said interest half yearly, on the 6th days of January and July in each year (the first of such payments of inter^t on the 6th day of January next) without any deduction, defalcati(Hi 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 in the presence of > . ■ . A. B. [l.s.] Y. Z. ; BonA to convey Land. ' ■ > * Know all men by these presents, that I, A. B., of, etc., am held and firmly bound unto C. D., of, etc., in the penal sum of $1,000 of lawful money of Canada, to be paid to the said G. D., or to his certain 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 bonnden A. B., tor 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 $S00 of lawful money of Canada, at the times, and in manner following, that is to say: (here •tate thA mode of payment). BONDS; 87 Now the condition of the above obligation is such that if the said C. D., his heirK, executors, administrators or assigns, shall well and truly pay, or cause to be paid, to the pbove bounden A. B., his executors, administrators or assigns, the s»m of |S00 at the time and in manner aforesaid; and if the above bounden A. B., his heirs or assigns, shall then by good and sufficient deed or deeds of conveyance in fee simple, convey and assure, or cause to be conveyed and assured, unto the said C. D., his heirs and assigns forever, the said premises hereinbefore described, free from all incumbrances; theo tbe 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.b.] Y. Z. Bond for payment of Purehase MomtH. Know all men by these presents, that I, C. D., of, etc., am held and firmly bound unto A. B., of, etc., in the penal sum of $1,000 of lawful money of Canada, to be paid to the said A. B., or to his cer- tain attorney, executors, administrators or assigns; for which pay- ment well and trujy 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 18 . Whereas, the above bounden G. 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: (here describe the lands). And whereas, the above bounden G. D. hath agreed to pay there- for the sum offBOO 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 pprchase, it was agreed that the above bounden G. 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-bc \aX. into posses- sion of the said lands and premises and receipt of the rents and profits hereof, from the day of the date hereof. Now the condition of the above written obligatiop is such that if the above bounden C. D., his heirs, ex^'utprs, administrators or assigns, shall well and truly pay or cause to be paid to the si«'rs, administrators and assigns, for the term of years from thp next ensuing (determinable nevertheless at the end of the first years of the said term, if the said G. D., his executors, admini-itra or assigns, shall give months notice thereof, in manner therein mentioned) at and under the yearly rent of $600 payable quarterly in manner as therein expressed: as by the said lease wi!! more fully appear. Now the condition of the above written obligation ij such, that if the above bounden G. D. and B. 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 quarterly payments of $125 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 fiOND& 8» the day of next); Then the above written obligation shall be void and of no effect: otherwise shall remain in full force and virtue. Signed, sealed and delivered in the presence of CD. [i..s.] Y. Z. B. F. [L.S.] Bond from a Builder and two Bureties for the due Performance of a Contract, Know all men by these presents, That I, A. B., (builder), of, etc., am held and firmly bound unto E. F., of, etc., in the penal sum of ^1,000, lawful money of Canada, and that we, O. H., (surety), of etc., and J. K. (other surety), of, etc., as the sureties for the said A. B., his executors and administrators, are severally anS respectively held and firmly bound to the said B. F., in the penal sum of $1,000 each, lawful money aforesaid, all the said several sums to be paid to the said B. F., or his certain attorney, executors, administrators or assigns, for which payment to be well and truly made by me the said A. B., I, the said A. B., bind myself, my heirs, executors and admin- istrators, and every of them, firmly by these presents, and for which several payments to be well and truly made by us, we the said G. H. and J. K., respectively, bind ourselves respectively, and our respective heirs, executors and administrators, and every of them firmly by these presents. Sealed with our seals. Dated this day of 18 . Whereas, the above bounden A. B., (builder), has entered into a contract and agreement in writing with the said E. F., dated the day of , 18 > whereby he, the said A. B., has contracted and agreed with the said B. F., to do the whole of the works in erecting and completely finishing a certain dwelling-house rr.d premises, with the outbuildings belonging thereto, in every respect agreeably to the drawings, agreements, conditions, clauses and parti- culars, mentioned, specified and contained in a certain paper writing or specification annexed to the said contract; And whereas, at the time of entering into such agreement as aforesaid, the snid A. B., and his said sureties, the said G. H. and J. K., agreed to execute the above written bond or obligation for the due performance of the several works so contracted to be done as aforesaid, according to the specification aforesaid. Now, therefore, the condition of the above written bond or obligfi- tion is such that if the above bounden A. B., his executors or admin- istrators do and shall, within calendar months from the date of the above written bond or obligation, do. perform, execute and completely finish, or cause to be done, iwrformed, executed and com- pletely finished, all and singular the several buildings and works mentioned and specified in the hereinbefore mentioned specifications, conformably to the said specification in all respects whatsoever, and in a good and workmanlike manner: Then the above written bond of obligation shall be void, but othen^'ise the same shall remain in full force and virtue. Signed, sealed and delivered in the presence of A. B. Il.s.I Y. Z. O. H. [L.B.] J. K. [L.S.] 90 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 conditional sale or transfer of the chattels therein mentioned,, 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, at;- ^i^iwd and transferred to the mortgagee, subject to twnsfcr or reconveyance upon repayment of the money loaned, etc., at the time, and in the manner specifically set forth. If the mort- gagor so repays, or otherwise performs his contract, the mort- gage 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 men- tioned with reference to the registration of chattel mortgages, is to enable creditors of the mortgagor and others about to become ci"editors, to obtain prompt notice of the transfer of his title in effects of which he remains apparently owner. In the absence of such enaictments it might lie in the po\fer of a debtor, if fraudulently disposed, to deprive confiding creditors of the fruits of an execution against him. Pur- chasers in good faith might also be defrauded. So strongly is the law opposed to such fraudulent prac- tices that it may be generally stated that any chattel mort- gage 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 the creditors or pur- chasers whose rights are infringed. Even if valuable con- sideration 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 pur- chasers 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 consider- able skill are requisite, as well as close attention to the re- quirements of the local statutes governing the transaction. CHATTEL MORTQAOVS AND BILLS OF UALE. 91 Should these requirements not be fulfilled, even although, the defects appear at first sight trivial, the instrument may be found worthless for the purpose for which it was intend- ed. This extends to matters subsequent to the first prepara- tion and registry of the instrument, such as its renewal witJiin the periods prescribed by the statute, and other duties im~ posed 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. These. 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 mort- gBgee% hams acting under written warrant signed by the mortgagee, though therein mstkang io prevent the mortgagee from taking personal possession himself. 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 sell- ing may render himself liable to the mortgagor in damages^ for trespass. Upon seizure, the mortgagee becomes absolute owner of the chattels, though a Court of Equity will, in some in- btances, allow the mortgagor to redeem, upon just terms. It is hardly necessary to state that no bar of dower is re- quired 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 and actual nature of the consideration. This is in some cases absolutely necessary, and is in all useful. It is too often overteoked by conveyancers. The chattels conveyed should also be fully and accurately described, so that no mis- take is possible. After payment of the mortgage it should be promptly discharged. 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 92^ THE CANADIAN LAWYER. of sale is generally unnecessary. But where the chattels re- main situate as before, and the change of ownership or pos- jsession is not readily apparent, a bill of sale should be de- manded, 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 bill of sale will be learnt upon persual of the following sta- tutes and forms. For the provisions as to the execution and registration of chattel mortgages and bills of sale in Nova Scotiaj'^re- ference must be had to chapter 92 of the Revised Statutes of ihat Province. ONTARIO. Following is the full text of the Act respecting Mortgages and Sales of Personal Property, R. S. O. 1897, cap. 148, all amendments to date being incorporated. BFFGCT OF RBOISTBRING OR OMITTING TO RBOISTER. 8. Every mortgage, or conveyance intended to iterate as a mort- jrage of goods and chattels, in Ontario, which is not accompanied by an immediate delivery, and an actual and continued change cf possession of the things mortgaged, or a true c<^y thereof, shall, within five days from the execution thereof, except as hereinafter ■otherwise provided, be registered as hereinafter provided, together with the affidavit of an attesting witness thereto, of the due execu- tion of such mortgage or conveyance, or of the due execution of the mortgage or conveyance of which the copy filed purports to b'- a copy, which affidavit shall also contain the date of the execution of the mortgage, 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 the affidavit of the agent shall state that he is aware of all the circumstances connected therewith, and a copy of such authority, or the authority itself, shall be registered therewith. 3. Such last mentioned affidavit, whether of the mortgagee or liis agent, or one of several mortgagees, or the agent of the mortgagee or mortgagees, shall state, in addition to what is required by section 2 of this Act, that the mortgagor therein named is justly and truly Indebted to the mortgagee in the sum mentioned in the mortgage, that the mortgage was executed in good faith and for the express purpose •of securing the payment oT 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. 4. Every such mortgage or conveyance shall operate and take «ffect upon, from and after the day and time of tli<> execution thereof. CHAITEL MOBTQAOES AND BILLS OF SALE. m 6. In case such mortgage or conTejrance and affidavits are not registered as by tliis Act provided, the mortgage or conveyance shall be absanayment •of the amount of his liability for the mortgagor, as the case u ay be, and not for the purpose of securing the goods and chattels mentioned therein against the creditors of the mortgagor, nor to prevent such creditors from recovering any claims which they may have against «nch mortgagor, and in case such mortgage is registered as by ibis Act provided, the same shall be as valid and binding as mortgages mentioned in the preceding sections of this Act. 9. The authority in writing referred to in the two next preceding sections, or a copy of such authority shall be attached to and filed with the mortgage. 10. The affidavit of bona fides required by sections 6, 7 and 8, may be made by one of two or more bargainees or mortgagees, and it made by an agent as herein provided the same shall state that he is aware of all the circumstances connected with the sale or mort- gage, as the case may be. CONTRACTS TO QIVE; MORTaAOBS, ETC, 11. Every covenant, promise or ' agreement, entered into on or «fter the 7th day of April, 1896, to make, execute or give a mortgage or conveyance intended t6 (H>erate as a mortgage of goods and chattels, in whatever words the same may be expressed, shall be deemed to be a mortgage or conveyance within the meaning of this Act,, and unless accompanied by an immediate delivery and" ah actual and continued change of possession of the goods and chattels mortgaged, the same or a true copy thereof, together with affidavits of execution and bona fides, shall be registered within the time and in the manner hereby prescribed in respect of bills of sale tind mcHTtgages, otherwise such covenant, promise or agreement shall be absolutely null and void as against creditors of the mortgagor and against subsequent purchasers or mortgagees in good faith for Taluable consideration. Is. Every covenant, promise or i^greement to make a sale of goods and chattels, in whatever words the same may be expressed, ■ahall be deemed to be a sale of goods and chattels within the meaning of this Act, and unless accompanied by an. immediate delivery, and followed by an actual and continued change of possession of the said goods and chattels shall be in writing, ond such writing accompanied "by affidavits of execution and bona fides shall be registered within the time and in the manner prescribed as respects bills of sale by this Act, otherwise the said covenant, promise or agreement, shall be absolutely void as against the creditors of the bargainor and as ugaJnst subsequent purchasers or mortgagees in good faith. CHATTEL M011T0A0E8 AMD BILLS OF SALE. 95 13. In the case of covenants, promises or agreements, made Itefore tfae-7th day of April, 1806, tlie provisions of this Act with regard to registration may be deemed tu be complied with if such registration v/as effected within three calendar months after the said date, and subject thereto this Act shall extend and apply to every auch covenant, promise and agreement, made before as well as after the said date. 14. Every verbal agreement to the effect mentioned in the three next preceding sections, and not reduced to writing, shall be absolutely null and void to all intents and purposes whatever, as against creditors or subsequent purchasers or mortgagees mentioned in such sections. > PLACB OF RBOISTRATION. 15. (1) The instruments mentioned in the preceding sections shall in counties be registered in the oflSce 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 every such Clerk shall file all such instruments presented to him for that purpose, and ahall indorse theteon the time of rec«>iviug the same in his office. (2) Where the goods and chattels mortgaged or sold are situate within the Districts of Algoipa, Thunder Bay, or Nipissing, the said Instruments shall be filed within ten days from the execution thereof in the office of the District Court Clerk in the district in which the goods are situate. (3) Where the goods or chattels mortgaged or sold are situate within the Districts of Parry Sound, M'uskbka or Rainy Itiver, the «aid instruments shall be filed within ten days from the execiltion thereof in the office of the Clerk of the First Division Court of the district in which the goods are situate. (4) Where the goods and chattels mortgaged or sold are situate within the Provisional County of Haliburton, the said instruments shall be filed within seven days from the execution thereof in the office of the Clerk of the First Division Court of the said provisional ■county. (5) Where the goods and chattels mortgaged or sold are situate within the District of Manitoulin, the said instruments shall be filed within ten days from the execution thereof in tlie office of the Deputy Clerk for Manitoulin. (6) Any bill of sale or chattel mortgage filed with the said Deputy Clerk for Manitoulin prior to the 4th day of May, 18,91, shall be as valid as if the same had been filed with the Clerk of the County Court. (7) Nothing in the two next preceding sub-sections contained shall be construed to affect any action or other proceeding pending on the 4th day of May, 1801, in which the validity of any < instrunient re- ■quired to be filed Under chapter 125 of the Revised Statutes of Ontario, 1887, and amending Acts is called in question by reason of the place of filing such instrument. (8) " Clerk of the County Court " or " Clerk," when used in this Act, shall, unless whore inconsistent with the context, include the officers mentioned in this section. 'IHE CANADIAN LAWYER^ 16. The gaid Clerks respectively shall number every such Inttru- Bient or c<^y filed in their offices, and shall enter in alphabetical order in books to be provided by them, the names of all the parties 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. 17 In the event of the permanent removal of goods and chattels mortgaged as aforesaid from the county or union of counties or territorial district in which the goods and chattels were at the time of the execution of the mortgage to another county or union of counties or territorial district, or to the said provisional County of Haliburton, or from the said provisional county to another county or union of counties or territorial district, before the payment and discharge of the mortgage, a certified copy of the mortgage, under the hand of the clerk in whose office it was first registered, and under the seal of the Court, and of the affidavits and documents and instruments relating thereto filed in such office, shall be filed with the Clerk of the County Court of the county or union of counties to which the goods and chattels are removed, or in the proper office as mentioned in section 15, in case such goods and chattels are removed to a territorial district or to the said provisional county, within two months from such removal; otherwise the said goods and chattels shall be liable to seizure and sale under execution, and in such case the mortgage shall be null and void as against creditors of the mortgagor and agtiinst subsequent purchasers and mortgagees in good faith for valuable consideration, as if never executed. RBNBWAL OF MORTOAOB8. 18. Subject to the provisions hereinafter contained as to mort- gages to companies, every mortgage, or copy thereof, filed in pursuance of this Act, shall cense to be valid, as against the creditors of the persons making the same, and against subsequent purchasers and mortgagees in good faith for valuable consideration, after the expiration of one year from the day of 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 mortgagee, his executors, administrators or other assigns, in the property claimed by virtue thereof, and shewing the amount still due for principal and ■nterest thereon, and shewing all payments made on account thereol is filed in the office of the Clerk of the County Court of the county or union of counties wherein the goods and chattels are then situate, with an affidavit of the mortgagee, or one of several mortgagees, or of the assignee or one of several assignees, or of the agent of the mortgagee or assignee, or noortgagees or assignees (as the case may be) duly authorized in writing for that purpose (a copy of which authority, or the authority itself, shall be filed therewith), that the statement is true, and that the mortgage has not been kept on foot for any fraudulent purpose. 19. The statement and affidavit mentioned in the next preceding secflon may be in the form given in schedule B to this Act, or to the like effect: Provided, that if aiiy bona fide error or mistake ^all be made in the said statement, either by the omission to give any credit or credits, or by any miscalculation in the computation of interest or otherVtTse. the said statement ond the mortgage therein referred to shall not be invalidoted, provided thot the mortgagee, his executors. CHATTEL MORTQAQES AND BILLS OF SALE. 97 administrators or other assigns, shall within two weeks after the discovery of any such error or mistake, file an amended statement and affidavit in the form given in Schedule B, or to the like effect, and referring to the former statement and clearly pointing out the error or mistake therein and correcting the same; but if, prior to the filing of such amended statement and aflMavit, any creditblr or purchaser or mortgagee in good faith for valuable consideration shall have mode any bona fide advance of money or given any valuable consideration to the mortgagor, or shall have incurred any costs in proceedings taken on the faith of the amount due on any mortgage being as stated in the renewal statement and affidavit filed, then th6 said mortgage as to the amount so advanced, or the valuable con- sideration given or costs incurred as aforesaid by such creditor, pur- chaser or mortgagee, Shall, as against such creditor, purchaser or mortgagee, stand good only for the amount mentioned in the renewal statement and affidavit first filed. 20. The statement and affidavit shall be deemed one instru- ment and be filed and entered in like manner as the instruments in this Act mentioned are, by section 10, required to be filed and entered, and the like fees shall be payable for filing and entering the same as are now payable for filing and entering such instruments. 21, Another statement in accordance with the provisions of section 18 of this Act, duly verified as required by that section, shall be filed in the office of the Clerk of the County Court of the county whereia the goods and chattels described in the mortgage are then situate within thirty days next preceding the expiration of the term of one year from the day of the filing of the statement required by the said section 18, or such mortgage, or copy thereof, shall cease to be valid as against the creditors of the persons making the same, and as against purchasers and mortgagees in good faith for valuable con- sideration, and so on from year to year, that is to say, another state- ment as aforesaid, duly verified, shall be filed within thirty days next preceding the expiration of one year from the day of the filing of the former statement, or such mortgage or copy thereof shall cease to be valid as aforesaid. 22. The affidavit required by section 18 may be made by any next of kin, executor ur administrator of any deceased mortgagee, 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 the assignee claims shall be filed in the proper office of the county in which the goods are, at or before the time of such refiling by the assignee, next of kin, executor or administrator of the assignee. Provided that nn assignment for the benefit of creditors under chapter 147 of the Revised Statutes of Ontario, 1897, or any other Act of the Province of Ontario or the Dominion of Canada relating to assignments for the benefit of creditors, or to insolvency or bank- rupti-y, need not be filed as aforesaid, provided such ossignment be referred to in such stnteniont, and notice thereof (when required), sh.iil have been given in manner required by law. C.L. — 8RD ED. 7 98 THE CANADIAN LAW7ER. MORTOAGES TO SeCURB BoNDS, EtC, OF CORPORATIONS. S3. (1) In the case of a mortgage or conveyance of goods and chattels of any company incorporated by or under any Imperial Act or charter, or by or under any Act or charter of the Dominion of Canada, or by or under any Act or charter of the Province of Ontario, made to a bondholder or bondholders, or to a trustee or trustees, for the purpose of securing the bonds or debentures of suc)> company, instead of the affidavit of bona fides required by the sec- Mons 2 and 3 of this Act, it shall be sufficient for the purposes of this Act if an affidavit be filed as thereby required, made by the mortgagee or one of the mortgagees, to the effect that the said mort- gage or conveyance was executed in good faith, and for the express purpose of securing the payment of the bonds or debentures referred to therein, and not for the purpose of prote^etiug the goods and chattels mentioned therein against the creditors of the mortgagors, or of preventing the creditors of such mortgagors from obtaining ynyment of any claim nguiust them. (2) In the case of any such conveyance or mortgage made by an incorporated company, the head office whereof is not within the Province of Ontario, such mortgage or conveyance may be filed within thirty days instead of five days, as provided in section 2 of this Act, and the same shnll be of the like force, effect and priority as if the same had been filed within such five days. (.3) Any such mortgage may be renewed in the manner and with the effect provided by section 18, and subsequent sections of this Act, upon the filing of a statement by the mortgagee or one of the mortgagees exhibiting the interest of the mortgagee or mort- gagees in the property claimed by virtue of the said mortgage, and showing the amount of the bond or debenture debt which the «ame was made to secure, and showing all payments on account thereof, which, to the best of the info: motion and belief of the i)er- son making such statement, have been made, or of which he is aware or has been informed, together with an affidavit of 'the per- son making such statement, that the statement is true to the bewt of his knowledge, information and belief, and that the mortgage has not been kept on foot for any fraudulent purpose, and such state- ment shall be filed instead of the statement required by said section 18 of this Act. (4) If any mortgage as aforesaid be made to an incorporated company, the several affidavits and statements herein mentioned may be made by the ptesident. vice-president, manager or ussistunt manager of such mortgagee company, or any other officer of the company authorized for such purpose. {T^) Where such mortgage or conveyance is made as a security for debentures, and the by-law authorizing the issue of the deben- tures, as a Hocurity for which the mortgage or conveyance was made, or a copy thereof, certifietl under the hand of the president or vice- president and secretary of the comiMiny, and verified by an affi- davit of tHe secretary thereto attacheil or endorsed thi-reon. and having the corporate seal attached thereto, is register*- 1 with the mortgage or conveyance, it shall not be necessary to renew the said mortgage or conveyance, but the same shall in siu'h case con- tinue to be as valid as if the same had been duly renewed as in this Act provided. (U) The preceding sub-section shall a|»|»ly to every such mortgMgc or conveyance made and registenMl after the Ttth day of May, 181)4, hut nothing herein contained shall affect any accrued rightit or any litigation pending on the l.tth day of April. 18t>7. CHATfEL HORTQAOES AND BILLS OF SALE. 99 PROOF OF RBQISTRATION. 24. A copy of any original instrument or of a copy thereof, so filed aa aforesaid, including huy 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 Courts, but only of the fact that the instruments or copy and statement were received and filed according to the endorsement of the clerk thereon, and of no other fact: and in all cases the original endorsement by the clerk made in pursuance of this Act, upon any such instrument or copy, shall be received in evidence only of the fa^t stated in the endorsement. DISCHARGE OF HORTOAOB8. 85. Where any mortgage of goods and chattels is registered under the provisions of this Act, such 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, in the form given in the Schedule A hereto, or to the like effect. 56. The officer with whom the chattel mortgage is filed, upon receiving such certificate, duly proved by the affidavit of a sub- scribing witness, shall, at each place where the number of the nifortgage hns been entered, with the name of nny of the parties thereto, in the liook kept by him under section 10 of this Act, or wher- ever otherwise in the said book the said mortgage has been entered, write the words, " Discharged by certificate number (stating th6 number of the certificate)," and to the said entry the officer shall affix his name, and he shall also endorse the fact of the discharge upon the instrument discharged, and shall affix his name to the endorsement. 57. Where a mortgage has been renewed under section 18 of this Act, the endorsement or entries required by the preceding section to be made need only be made upon the statement and affidavit filed on the lust renewal, and nt the entries of the state- ment and affidavit in the said book. 88. In rase a registered chattel mortgage has been assigned, the assignment shall upon proof by the affidavit of a Hul)Hcribing witness, be nuniWred nnd entered in the alphabetical chattel niprt- ^gage Imok, in the nnnie manner as a chattel mortgage, and the pr^i'eedings anthnrlKed by the next preceding three scotidns of this A?t may ond shall be hod, ui)on a certificate of the nsRignee, proved In manner aforesaid. FBB8. 89. For services under this Act the clerks aforesoid shall be entitled to receive the following fees: 1. For filing each iiiHtrunient and affidavit, and entering the same in a book as aforfsaid, fifty cents; 2. For filing an aNsignment of nny instrument and making all proper endorsements in connection therewith, twenty-five cents; 3. For filing a certificate of discharge of any instrunicnt and making all proper entries and endorsements connected therewith, twenty-five cents; 100 THE CANADIAN. LAWYEI^. 4. For a general search twenty-five cents; 5. For production and inspection of any instrument filed under this Act ten cents; 6. For copies of any document: with certificate prepared, filed under this A.ct, ten cents for every hundred words. 7. For extracts, whether made by the person who made the search, or by the oillcer, ten cents for every hundred words. MlBCELI.AN'EOUS PROVISIONS. 30. Where, under any of the provisions of this Act, the time for registering or filing any mortgage, bill of sale, instrument, docu- ment, affidavit or other paper expires on a Sunday or other day on which the office in which the registering or filing is to be made or done, is closed, and by reason thereof the registering or filing can- not be made or done on that day, the registering or filing shall, so far as regards the time of doing or making the same, be held to be duly done or made if done or made on the day on which the office shall next be open. ... 31. An authority for the purpose of taking or renewing a mort- gage or conveyance under the provisions of this Act may be a gen- eral one to take and renew all or any mortgages or conveyances to the mortgagee or bargainee. 38. All the instruments mentioned in this Act, whether for the Hale 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. 33. Ail affidavits and affirmations required by this Act may be taken and administered by any Judge, Notary Public or a Commis- sioner or other person in or out of the Province authorized to take nffldavitH in and for the High Court, or by a Justice of the Peace, and the Huni of twenty cents shall be payable for every oath thus ad- idlnistered. 34. This Act shall not apply to mortgagoH of vessels registered under the provisions of any Act in that behalf. 35. All chattel mortgages relating to property within any town- ship, city, town or incorporateart of a new county, at the date the prctclnniation forming the new county takc/t effect, shall, until their renewal becomes necessary to maintain their force against creditors. subse«inent purchasers or mortgagees in good faith, continue to be as valid and effectual in all res|>ects as they would have been if the new c«)unTy had not been formed, but in the event of a renewal of any such chattel mortgage after the date the proclamation takes effect, the renewal shall be filed In the proper office in that behalf in the new county as If the mort- gage had originally been Me*} therein, together with a certifle«I copy under the hand of the clerk and seal of the County Court, and no <-hattel mortgage in force at the said date shall lose its priority by reason of its not being filed in the new county prior t>> its rene^'nl. CHAITEL MOR • ^AGES AND BILLS OF SALE. 101 36. Every person si. l- have access to and be entitled to in- spect tlie several boolcs of the County Courts, containing records or entries of ttie cliattel mortgages and bills of sale filed; and no person desiring such access or inspection shall be required, as a condition to his right thereto, to furnish the names of the parties in respect of whom such access or inspection is sought; and all clerks of the County Courts of the Province shall respectively, upon demand or request, produce for inspection any chattel mort- gage, or bill of sale, filed in their respective offices', or of which re- cords oc entries are, by law, required to be kept in such several books of the County Courts. 37. The provisions of this Act shall extend to mortgages and sales of goods and chattels, notwithstanding that such goods and chattels may not be the property of, or may not be in the possession custody or control of the mortgagor or bargainor, or any one on his behalf at the time of the making of such mort«;age or sale, and notwithstanding that such goods or chattels may be intended to be delivered at some future time, or that the same may not at the time of the making of said mortgage or sale be actually procured or provided, or fit or ready for delivery, and notwithstanding that some act may be required for the making or completing of such goods and chattels or rendering the same fit for delivery. 38. In the application of this Act the word " creditors " where it occurs, shall extend to creditors of the mortgagor or bargainor suing on behalf of themselves and other creditors, and to any as- signee in insolvency of the mortgagor, and to an assignee for the general benefit of creditors, within the meaning of the Act respectini; Assignments and Preferences by Insolvent Persons, as well as to creditors having executions against the goods and chattels of thf mortgagor or bargainor in the hands of the sheriff or other officer. 39. The " actual and continued change of possession " mentioned in this Act shall be taken to be such change of possession as is open, and reasonably sufficient to afford public notice thereof. 40. A mortgage or sale declared by this Act to be void, or which, under the provision of section 18 has ceased to be valid, as againtoBsession. AORBEMENT8 WHERE POSBE88ION PAB8E8 WITHOUT OWNERSHIP. • 41. (1) In case of an agreement for the sale or transfer of merchandise of any kind to a trader or other person for the purpos • of re-sale by him in the course of business, the possesHion to |>ass t chattel mortgages and renewals, and discharges, and assignments for the benefit of creditors in the said returns shall be classified according to the several occupations or callings of the vendors, or mortgagors, or assignors, as stated in the instrumentH, and shall show the aggregate sums pnriHirting to be secure«1 thereby respectively. CHAITEL MORTGAGES AND BILLS OF HALE. 103 (4) The returns shall, where practicable, distinguish mortgages to secure future indorsations or future advances froL mortgages to secure an existing debt, or a present advance. SCHEDULE A. (Section 26.) FORM OF DISCHAROB OF MORTOAOB. To the Clerk of the Court of the of I, A. B., of do certify that has satisfied all money 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 mortgage has been renewed, was re-registered), in the office of the Clerk of the Court of the of . on the , A.D. , as No. (here mention the day and date of regis- tration of each assignment 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 entitled by law to receive the money; and that such mortgage is therefore discharged. Witness my band, this day of Signature of Witness, and state residence ) and occupation. \ , A.D., 18 . A. B. SCHEDULE B. (Section 10.) I Statement exhibiting the interest of C. D. in the proiierty 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 Court of the 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 snid property, ond has not assignHl the said Mortgage (or the said E. F. is the assignee of the said Mortgage by virtue of 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 snid mortgage (or the following payments, and no other, have been made on account of the snid Mortgage: 1880, January 1, Cash received - - $100 00> The amount still due for principal and Interest on the said Mort- gage is the sum of $ computed as follows: [here give the computation.] C. D. 104 THE CANADIAN LAWYER. County of > I, of the To wit: I of in tiie 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: 1. That the foregoing (or annexed) statement is true. 2. That the chattel mortgage mentioned in the said statement has not been kept on foot for any fraudulent purpose. Sworn before me at the \ •f in the • County of this f day of 18 . ) NEW BRUNSWICK. In this Province the law relating to chattel mortgages and bills of sale is now contained in the Bills of Sale Act, 1893, as amended by 60 Vic. c. 11, and 61 Vic. c. 32, the provisions of which are similar to the law in Ontario with the following exceptions. Instruments are to be filed with the Registrar of Deeds and Wills of the county where the maker resides; if he is not so resident, then with the Registrar or Registrars of the county or counties where the goods are situate, instead of with the clerk of the County Court as in Ontario. Thirty days are allowed within which to file the instruments instead of five as in Ontario. In Ontario un- less a renewal is filed within thirty days next preceding the expiration of one year from the filing of the mortgage it ceases to be valid as against creditors, but in New Bruns- wick a creditor, if the renewal is not so filed, must serve the mortgagee with a written notice requiring him to do so, and the mortgage then ceases to be valid if the renewal is not filed within thirty days as against an execution issued at the suit of such creditor. In the case of mortgages to secure repayment of future advances, or against the endorsement of bills or promissory notes in Ontario, the time of repayment or liability must not extend beyond a year from the making of the agreement, while in New Brunswick the limit is three years. THE FORMS OF DISCHARGE AND RENEWAL OF CHATTEL MORTGAGE IN USE IN NEW BRUNS- WICK ARE GIVEN BELOW. DISCHAROB OF MORTQAOB. To the Registrar of Deeds of the County of I, A. B., of do certify that has latisfled all money due on, or to grow due on a certain chattel CHATTEL MORTOAOES AND BILLS OF SALE. 105 mortgage made by to which mortgage bears date the day of , A.D. , and was regis- tered (or in case the mortgage has been renewed, was renewed) in the oflSce of the Registrar of Deeds of the County of ,ou the ,A.D. , as No. (here mention the day and date of registration of each assignment thereof, and the names of the parties, or mention that such mortgage has hot been assigned, as tlie fact may be); and that I am the person entitled by law to receive the money; and that such mortgage is therefore dis- charged. Witness my hand, this day of , A.D., 18 . One Witness, stating residence | and occupation. ) < A. B. Rbndwal. of Mortoaoe. Statement exhibiting the interest of C. D. or E. F. in the pro- perty mentioned 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 Registrar of Deeds of the County of on the day of 18 , and of the amount due for principal and interest thereon, and on all payments made on account thereof, or the amount of a'3vances made, as well as the amount remaining to be made; likewise the amount atill due for principal and interest on such advances, and showing all payments made on account thereof, or showing the amount of liability incurred, and the amount due in respect thereof, and also all payments made on account thereof. The said C. D. is still the mortgagee of the said property, (or the said E. F. is the assignee of the said mortgage by virtue of 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 following payments, and no other, have been made on account of the said mortgage: 1808, January 1, Cash received - - ^100 00) or, the amount of advances made under the said mortgage is as follows: 1898. January 1, Cash |500 00 February 1, Cash 300 00 Amount of advances remaining to be p.iid $1,0(X) 00 or, the amount of liability incurred, for which said mortgage was given as security, is as follows: Payments have been made on account thereof as follows: (Here set out the payments.) And the amount due in respect thereof '.s $ (Here set out amount.) The amount still due for principal nnd interest on the said Mort- gage is the sum of dollars, computed as follows: [here give the computation.] C. D. lOtf CANADIAN LAWYEU. County of To wit: II, of the t 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: 1. That the foregoing (or annexed) statement is true. 2. That the chattel mortgage mentioned in the said statement has not been kept on foot for any fraudulent purpose. Sworn before me at the of in the County of this day of A.D. 18 X. Y., a Commissioner, etc., ) PRiNCE EDWARD ISLAND. By the Statute 23 Vict. cap. 9, every bill of ic and chattel mortgage, and every schedule and inventor} therein^ may be filed with the Prothonotary of the Supreme Court at Charlottetown, or the deputy prothonotary of the county in which the grantor resides; if the grantor be ion-resident^ the instrument is to 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 indorsed on the instrument. The oath may be taken before the prothonotary, or deputy protho- notary, 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 ab- solute bills of sale shall be fraudulent and void, except as between grantor and grantee, unless the grantee shall, forth- with 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, al- though such possession is not taken, if registered according to '23 Vict. cap. 9; and if the grantee, or his agent, or one of geveral grantees, or the agent of all or any of them make the affidavit in Schedule A (hereunder given); which affi- davit shall be endorsed upon, or annexed to, such chattel mortgage. CBATTEL MORTGAGES AND BILLS OF SA1£. 107 The affidavit called for by this Act may be made before 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 mort- gage, 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. Dominion of Canada; \ I, of in Province of Prince Edward Island: \ County, (farmer,. County. ) as the case may be), the grantee [or one of the grantees] mentioned in the witiiin 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 i in County ' this day of | A. B. before u>e ' MANITOBA. Under statutory provisions similar to those in the On- tario 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 protect the chattels against creditors and subsequent purchasers. No specific 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 pur- chasers or mortgagees in good faith, or creditors, unless re- newed within two years from their filing. 108 THE CANADIAN LAWYER. The costs of seizure under a chattel mortgage are fixed by statute, and are given hereafter. Receipt notes, hire receipts, and orders for chattels given hy bailees of chattels, where the condition of bailment is such that the possession, but not the ownership, passes, are gov- erned by the same law as chattel mortgages. They must also be registered within sixty days from their date with the <;lerk of the county wherein the maker is residient. Their discharge may be registered. BRITISH COLUMBIA. By the Revised Statutes of British Columbia, 1897, c. 32, bills of sale and all schedules and inventories must be regis- tered in the District Registry for the city, county or place w^here the chattels dealt with are situate within twenty-one tlays from the time of making. Where the chattels are not within a Land Registry District the statute provides a special method of filing. The affidavit of an attesting witness in the form given must accompany the bill (unless made by a company having a registered head office in the Province, for which a special form is prescribed by the Act). Any defeasance or condi- tion of a bill must be written on the same paper and filed with it or it ia null and void as against creditors. Within five years from the date of registration a renewal in the form given must be filed, or the registration ceases to be effective. The result of non-registration is to render the bill void as against subsequent purchasers or mortgagees for valuable consideration. Registration has the effect of a bona fide de- livery of the goods. A registered bill takes priority over an unregistered one. When two or more are registered they liave priority as between themselves according to date. Affldavit of Eceecution, " Bills of Snie Act." I, , of , make oath and any ■as follows: — 1. That the paper writing hereunto annexed, and marked *' A," is a tnie copy of a bill of sale, and of every (or, where the original Is fikd, " is the bill of sale and every ") schedule or inventory thereto annexed, or therein referred to, and of every attestation of the execution thereof, as made and given and executed by CHATTEL MORTGAGES AXD BILLS OF SALE. 109 2. That the bill of sale was made and given by the said on the (lay of .in th& year of our Lord one thousand eiglit hundred and 3. That I ^'08 present and did see the said in the saiJ bill of sale mentioned, and whose name is signed thereto, sign and. execute the same on the said day of in the year aforesaid. 4. That the said at the time of malting and giving the said bill of sale resided, and still resides (if such be the fact), at and then was and still is (if such is the fact), [If there has been a change of residence or occupation since execu- tion of bill of sale give particulars, or, if place of business (s given alter accordingly.) 5. That the name set and subscribed as the witness attesting the due execution thereof, is of the proper handwriting of me, this deponent, and that I reside at [give number of house, street and town], and am Subscribed to and sworn before me this day of A.D. 18 Renewal of Bill of Sale. I, A. B., of, date the " Bills of Sale Act." do swear that a bill of sale, bearing day of , 18 , and made between and which said bill of sale, (or, and a copy of which said bill of sale, as the case may be), was filed in the office of the Registrar-General of Titles (or, in the office of , or, ), on the day flf , 18 , and is still a subsisting security. Subscribed ond sworn before me, this day of , 18 . A. B. FORMS. Chattel Mortgage. This Indenture, made tlie day of , 18 , Between A. B., of, etc., of the one part, and C. D., of, etc., of the other part. Witnesseth that the said porty of the first part, tor and in consideration of the sum of $100 of lawful money of Canada, to him in hand well and truly paid by the said party of the second imrt, at or before the sealing and delivery of these pr«»entH, the receipt whereof is hereby acknowledged, doth bargain, sell and assign unto the said party of the second part, his executors, administrntors and assignn, 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, etc.. and hereinafter particularly mentioned, that is to say (Here si)ecify the i-hattels: or you moy refer to a schedule, saying after the word, etc., " which are particularly speci- fied in the schedule hereunder written.") 110 THE CANADIAN LAWYER. 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 administrator? shall pay unto the said party of the .«econd imrt, his executors, administrators or assigns, the full sum of $100 with interest thereon, at the rate of 10 per cent, on the day of next, then these presents shall be void. And the said party of the first part doth hereby, for himself, his •executors and administrators, 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 w^ell and truly pay, or cause to be paid, unto the said party of the second part, his executors, administrators and assigns, the said sum of money in the above proviso mentioned, with interest for tTie 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 had and obtained in writing; then and in such case it shall and may be lawful for the said party of the second part, his executors, administrators and assigns, peaceably and quietly to re- ceive 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 thsir servant or servants, and with such other assistant or assistants upon any lands, tenements, hoiises and premises belonging to and as he may require, at any time during the day to enter into and Mn 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 pia<. a 114 THE CANADIAN LAWYER time of 8uch sale, that he, the said party o^ the first part, bis executors or administrators, shall and will forthwith pay or cause to be paid, unto the said party of the second part, bis executors or admiuistrators, 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 | c. D. [l.s.] in the preseiice of | ^ g ^^^ a j Affidavit of Mortgagee. I I, C. D., of, etc., the mortgagee in the with- / in mortgage named, make oath and say, that Ontario, County of To wit: such mortgage truly 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 of securing the goods and chattels mentioned therein against the creditors of the mortgagor, nor to prevent such creditors from recovering any claims which they may have against such mortgagor. Sworn before me, at \ the of , in the ! _ _ County of , this f ^- ^• doy of , A.D. 18 . ) B. P. J. P., or a Commissioner for taking affidavits in and for the County of Affidavit of Witfiega. Ontario, County of , to wit: I, Y. Z., of, etc., make :>nth and say, that I wos personally present and did see the annexed i.lll of sale, by way of mortgage, duly signed sealed and delivered bv A. B. and C. D.. the parties thereto, ond that I. this deponent, am n subscribing witness to the same; that the name Y. 7,., set and sub- scribed as a witness to the execution thereof, is of the proiwr hand- writing of nu', this deponent, and that the same was executed at , in the said County of on the day of , 18 . Sworn before me, nt \ the of . in the | County of , this day of . A.n. 18 Y. Z. J. P., or a Coniniissinner for taking affidavit* In and for the County of E. F. CHA'ITEL MORTGAGES AND BILLS OF SALE. J 15 Chattel Mortgage. , (To secure future advances.) This Indenture made the day of 18 , Between A. B.. of, etc., of the first part, and C. D., of, etc., 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. B. is desirous of entering into and carrying on the iJnsiness of a dry goods merchant at ine City of Toronto, and hath applied to the said C. D., to make him future advances not exceeding in the whole the sum of $5,UU0, at such times and in such sums as he, the said A. B., 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 Jp5,000 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 reimid within one year from the date of the said agreement."] 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- 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 « r 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 i)art shall advance to the said party of the first part, according to the forms of the said agreement, together with Interest thereon at the rate of per cent, iht 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 posHcssion of. the said goods and chattels or any of them, or to remove the same or any part thereof out of the City of Toronto, without the consent of the said party of the second part, his executors, administrators or assigns, to such sale, removal or disposal thereof, first had and obtained In writing: then and In snoh of iu the foregoing To wit: I bill of sale named, make oath and say:— That the sale therein made is bona fide, and for good consideration namely: the actual present payment in hand to the bargainor by the bargainee, of the sum of dollars in cash, and not for the purpose of holding or enabling me this deponent to hold the goods menrioned therein against the creditors of tne said bargainor or any of them. Sworn, etc. A Commissioner, etc. 120 THE CANADIAN LAWYER. CONSTABLES. The following sections are, with permission, selected from an excellent little work entitled The County Constables' 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 pos- session 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 tlie Court of General Sessions of the Peace, appoint a County High Constable and a sufficient number of lit and proper persons to act as constables in each township, incorporated village, police village, and place within the county, and may in like manner, from time to time, in their discretion, dismiss any constable so appointed. To prevent injurious delays arising from the long intervals be- tween the sittings of the 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 office, take and subscribe the following oath, which any Justice of the Peace may administer. Oath of Office. I, A. B. , having been appointed constable for the County of , do solemnly swear that I will truly, faithfully and impartially perform the duties appertaining to the said office, 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 take the necessary oath, or refuse to execute the office, he is guilty of a serious offence, and may be punished by fine or imprisonment. It is not necessary there should be an actual refusal, for if the party do not attend to be sworn in before the Justice, or afterwards do not execute his office, it is evidence of his refusal to do so, and "for this he may 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 may at once bind him over to the Oyer and Terminer or General Ses- sions to answer for contempt, but there is no power vested Jn Magistrates to punish by summary conviction." (Dalton, cap. 28). Arrest. An arrest is the apprehending or detaining of the person in order to be forthcoming to answer an alleged or suspected crime. The CONSTABLES. 121 constable should not merely content himself with securing the offender, but should actually arrest him, so that if he escape or is .rescued by others, he or they may be subject to the penalties oi escape or arrest. To constitute an arrest the party should, if pos- sible, be touched by the constable, who should say, I arrest you, or You are my prisoner. Bare words will not make an arrest without , laying hold of the plerson or otherwise confining him. But if an otUcer come into a room and tell the party he ar -ests him, and locks the door, this is an arrest, for he is in custody of that officer; or ii in any other way the person submit himself by word and action to be in custody, it is an arrest. (Patton). Every officer, upon demand made upon him mu»t shew the war- rant under which he arrests or distrains. (Wilson, P. 51-52). If the party snatch or take the warrant, the constable has a right to force it from him, using no unnecessary violence in doing so. Where a constable has made an arrest 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 of any unneces- sary delay he will be liable to punishment; but if the arrest be made in or near the night, or at a time 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 constable 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 is again given against any un- reasonable detention. (Fatton). In case a lock-up be found most convenient, it will be necessary to employ a constable to watch th«» prisoner at night, unless the municipality in which the lock-up is situate keep a watchman for this purpose; 32-33 Vict. cap. 31, sec. ti (Summary Convictions). It is laid down that where a warrant is issued in the first instance, the Justice issuing it shall furnish a copy or copies thereof, and cause a copy lo be served on each party arrested at the time of suth arrest. 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 resoi't?d to in extrer- e 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, ond to prevent the ends of justice being frustrated, that the law permits its officer to have recourse to this obnoxious proceeding. The officer is therefore in no case justified in breaking oi)en outer doors, or the windows or other parts of a house, until— 1. 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. — Uiion a warrant for fe' .ly or suspicion of felony, or to compel sureties of the peace, or for a breach of the peoct^, the constable to whom a warrant is directed may broak open outer doors to effect an arrest, if the party is in h 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 neces.sary, and he should take sufficient time to make a thorough search. The owner of the goods should, in all cases, accompany the constable to point out the goods, in order to prevent mistakes. The constable, in accordance with the warrant, should have necessary and proper assistance to watch outside, to prevent the goods being taken away or the accused person escaping. CONSTABLES. 125 When the goods, or any portion of them, are found, the constable 1b to bring them and 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 the goods in his memornndum book, and mark the exhibits so as to be indentified 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 guarantee that the horse shall be forthcoming. Warranta, Arretting on. When a warrant is placed in a constable's hands for execution, he should satisfy himself that it is under the hand anS 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 the county of, etc., etc." (32 and 33 Vict., cap. 30, form B.). It shall state shortly the matter of 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 otlier Justice, to answer the said charge. It need not be made '•eturnable 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 the 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 war- rant; if not he should find out from the complainant the description, personal appearance, manner, dies or any peculiarity by which h«» may be recognized, and it would he 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 nijfht as well as the day, but not on Sunday, unless the offeim^ charged includes a breach of the peace or felony. The accused should be lirought without delay before the proper Magistrate, and it is the duty of the Magistrate to make such arrangements with the officer who is entrusted with the execution of the rt-arrant. that the case be brought on to a hearing as speedily ns possible after the arrest. To detain an accused person for 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 (32-33 Vict. cap. 3^, sec. 19). or, in case of fresh pursuit, at any place in the next adjoin- me territorial division, and within seven miles of the border of the first division, without having the warrant hacked. Under 32-33 Vict. cap. 30, sec. 8, any Justice may grant nnd issue a warrant to apprehend any one charged for an indictable offence, or a search 126 THE CANADIAN LAWYEU. warrant on a Sunday as well as on any other day. It is also provided 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. Without Warrant.— S2-3S Vict., Cap. 8e€. 2. Any person found committing an offence i>unishiible either apou indictment or upon summary conviction, may be immediately appre- hended by any constable or peace offlcer without a warrant, or by the owner of the property on or with respect to which the offence is being committed, or by his servant, or any other person authorized by such owner, and shall be forthwith taken before some neighbour- ing 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 ioose, vague suspicion, either of an offence having been committed, or of its having been committed by the person arrested, but he mu«t, in the language of the law, have reasonable and probable cause for believing both of these facts. If he arrest without having reasonable and probable cause for so doing, he will be liable to answer in damages to the aggrieved party for making the arrest, but if be .arrest under justifiable circumstances, he will not be liable for 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 in- formation derived from another, he will be fully authorized in doing .so, if he had reasonable and probable cause for believing the infor- mation he hud to be correct, and he will not be liable, although, as before stated, no felony had, in fact, been committed (Wilson, 35). 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 thi-n should consider — (1) 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 i)erson. as receiver of stolen goodH, on the mere aHMertion of the principal felon. So it also follows, if he arrest on his own suspicion of the party being a felon, or upon information commnnicated to him by an other, he should not detain the party arrested after his susplcionn are, or ought to be. entirely removed, or if he discover the infonna- tlon which was given him to be false or untrustwt)rthy. (Wilson, 86). Thus, if a constalde arrest on a HnHi)lci(»n of theft, and after searching the ])arty discover nothing, and the suspicion appears to be groundless, he may discharge the party out of his custody with- out taking him bef'.o a Magistrate. A constabh* may arrest on inforniation of others that a party his coirmitted a felony, Thus, if a reasonable charge of felony is made ngninst 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, thoui^ the charge may turn out to be unfounded. CONSTABLES. 127 A coustuble uiu}' justify uu urre»t ou a reasonable charge af felouy without wurraut, although it should afterwards appoar that no felony had been committed, but a private individual cannot. A constable is justified in apprehending a person on suspicion of felouy, if he have reasonable or probable cause to believe that the party charged is the felon. Also, any person whom he finds loitering ou any highway, yard, or other place, during the night, and whom he has good cause to «uspect of having committed, or being about to commit, a felouy, and detain such person, and bring him before a Justice, before noun the following day, to be dealt with according to law. (32-33 Vict, cap. 21), 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 i)erson from another, who has been arrested by that other, for an alleged breach of the i)eace, unless at his own risk; that is, if the party taken have broken the peace, the constable will be right in 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 deliv- ered 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— (1) The constable has either seen the offence committed, or (2) Fears a breach of the iwace, or (3) Unless a warrant authorizing the arrest is delivered to him. (Wilson. 2r>). NOVA SCOTIA. In case of riot, tumult or flisturl)ance, or of just appre- hension thereof, outside of Halifax or any incori)orate(l town, three justices of the jjcace may by writing ai)point any num- ber of special constables, their appointment to continue in force for fourteen days; in case of disturbance at any ])ublic 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. Xeglcct or refusal to act incurs a penalty of eight dollars. Ordinary constables are appointed by the Municipal ('ouncil. 128 THE CANADIAN LAWYER. 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 a previous chapter, are all deeds: that is to say, they are writings sealed and delivered. The popular idea of a deed, however, is com- monly associated with the transfer of land, and it is in this sense in which we shall speak of a deed in this chapter. A deed of land, then, is a writing sealed and delivered by the parties, by which lands, tenements or hereditaments are conveyed by one person to another. It may be either written or printed, 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 abbrevia- tion or contraction. The name, residence and occupation or addition of every party to the deed should be carefully in- serted, 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 sub- sequent day Care should be used in describing the lands conveyed; an error here may entfiil considerable expense before it can be rectified. If a whole township lot be con- veyed, it will be suificient to describe it as lot number so and so, in such a concession, township and county, comprising so many acres. If a ])ortion only be conveyed, describe ac- curately the part intended; as the north or south half, or north-east or south-west quarter, as the case may be. Where the lioundaries are well known, and especially where only a ])ortion of a lot is conveyed, it will be desirable to describe the premises by metes and bounds; giving the course or magnetic bearings, and tbe length of each side. A well prepared deed should contain no alterations or interlinea- tions of any kind; they will not, bowever, invalidate the in- strument; but if necessary to be mode, the fact that the;y were so made before signature of the deed should be stated in tbe attestation clause at the foot, and the witness should l)ut his initials in the margin, opposite nil such alterations or interlineations, so that he may be the lietter able, if ever called on, to prove that they were so made before execution. When once signed and execiited, n deed must not be altered, as anv such alteration might wholly vitiate the deed. DEEDS. 129 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 Pro- vinces 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 lifetime. Land may be conveyed in such a manner as to pre- clude the wife of the party to whom it is conveyed from any right to dower on het 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 in- strument. Minors, or persons under twenty-one years of age, are incapable of making a binding disposition of their lands, unless under the sanction of an order of a Court of competent jurisdiction. The same may be said of lunatics and idiots, whose interests may be transferred only by order of a Court or by trustees or committees appointed or sanc- tioned 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 con- veyacees is usually determined by statute. With regard to marvied women, the form in which a conveyance of their lani;^ must be drawn and attested differs in the various Prov- inces, 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 con- tains some covenant on his part. The ordinary way of ex- ecuting a deed is for the party conveying to '•jn his name in his usual manner, opposite the seal at the luot, 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 ex- ecute by mark. In this case some person should write op- posite the seal the words " A. B. his mark," leaving space in the middle for the mark to be made — usually a cross: A. X B. The mark must, of course, be made by the thus: Mark. 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 o'her person for him. Before a deed is ex- ecuted by an illiterate person, or, indeed, 'ly any pereon, if he BO request*, it ought to be road over and explained, so that he may fully understand what he is doing. c.t. — Bud id. 9 i 130 THE CANADIAN LAWYER. MP :i 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 registery 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 sub- scribing witness to the deed must be made (upon the instru- ment, or securely attached to it), which, after setting forth the nanie, place of residence and addition or occupation of the witness, in full, must show the following 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 subscribing witness thereto. The affidavit is, under provisions of the Ontario statute, to be made before some one of the following persons : 1. If niiuU' in Ontario, it Hhnll be made before— Tlie Uegistrar or Deputy KegiBtrnr of the County in which the Junds lie. Or, iiefore a Judge of the Supreme Court of Judicature, Or, before a Judge of a County Court within hi8 County, Or, before a ConiniisHioner authorised by the High Court to take aftidavitu. Or, before any Justice of the Peace for the County in which the affidavit is svorn. 2. If made lu Quebec, it shall be made before— A Judjue or Prothonotary of the Superior Court, or Clerk of, the Circuit Court, Or, before a Commissioner authorized under the laws of Ontario to take. In Quebec, nflldavlts In and for any uf the Courts of Record In the Province of Ontario, Or, before any Notary Public In Quebec, certified under hlfi official seal. 8. 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, before a Judge of any of the County Courts within Ms County. Or, before the Mayor or Chief Magistrate of any City, Borough, or Town cori»orate therein, and certified under the common seal of such City, Borough or Town cor- porate. DEED8. 131 Or, before a Commissioner authorized to administer oaths in the Supreme Court of Judicature in England, or in the Supreme Court of Judicature in Ireland, 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 Province of Ontario, Or. before any Notary Public, certified under his official seal. 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 corpor- ate, and certified under the common seal of such City, Borough 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 bave 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 for any of the Courts of Record of the Provinc" of Ontario. 5. If made in any Foreign Country, it shall be made before — The Mayor of any City, Borough or Town corporate of such country, and certified un«ler the common seal of the City. Borough or Town corporate, Or. liefore a Consul, Vice-Consul, or Consular Agent of Her Majesty, resident therein. Or, before a Judge of a Court of Record, or a Notary Publici certified under his official seal, Or, l»efore a Commissioner authorized l)y the laws of Ontario to take, in such country, affidavits in and for any of the Courts of Record of the Province of Ontario. "R. S. O. 1887, c. 114, s. 41; 53 V. c. 30. s. 2. 0. When an affidavit of execution is required to be made out of the Province before any of the officers mentioned in clauses 2, 3 and 4, of this section, and the officer has not an official seal, it shall be sufficient for him so to certify The fees for registering a deed are $1.40 where the docu- ment does not exceed 700 words in length: if it exceeds that number, then fifteen cents for every additional 100 words up to 1,400, and ten cents for each 100 words over 1,400. If the instrument embraces diflPerent lots or parcels of land situate in difTcront localities in the same county, then the registrar is entitled to 40 cents for the necessary entries and certificates, and fifteen cents for every 100 words up to 1,400, 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 officer, as Mayor, Pre- sident, etc. No affidavit is necessary to prove the execution 132 THE CANADIAN LAWYER. ^'i of a deed by a corporation; the seal alone is sufficient evi- dence. Where land is cpnveyed to a corporation, the word "successors" should be used in place 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 which are given an amplified meaning therein fully set forth. The object of enactments of this nature is to save unnecessary expense or 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 ordinary conveyance of real property. The forms given are with absolute cove- nants 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 possessing some interest in the land, releases all the interest which tjie grantor has in the land, whatever it may be. A deed poll is made by one party only, as in the case of tt 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 any consideration, they may be set aside in favour of the creditors of the 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 deeds is proved either on the affidavit of a subscribing witness, or on the personal acknowledgment of the parties under oath. Such oath is administered, in DEEDS. 133 the Province, by the Kegistrar, or any Judge of the Supreme Court of the Province, or Justice of the Peace; out of the Province, it is administered by any Commissioner appointed to take affidavits without tie Province, a Judge of any Court of Record, Mayor of a cit ^, Justice of the Peace, or Notary Public, acting where the deed is proved; or any Counsel or Vice-Counsel of Great Britain. If all the witnesses to a deed registered upon sufficient proof of the handwriting of any are dead, or absent from the Province, the deed may be 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 pro- vided by the Registry Act, and the fact of such acknowledg- ment or proof must be certified by endorsement upon such deed or instrument. The acknowledgment or proof of ex- ecution of instruments, if made within the Province, may be made before — 1. The Registrar, District or Deputy Registrar; 2. Any Stipendiary Magistrate or Justice of the Peace of the Province, or of any town, city, or district thereof; 3. Any Judge or Registrar of a Court having a seal; 4. Any Notary Public practising within the Province. If acknowledged or proved without the Province, and within British Dominions, it may be made before — 1. Any Judge of a Court, Clerk or Registrar of any Court, having a seal; 2. Any Notary Public; 3. Any magist-'ate 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 of Ontario. The affidavit of execution must be made as follows: (1) If made In Manitoba— befor»> any person authorized by " The Oaths Act," to take affidavits in the Province; the Registrar or De- puty Registrar of the Countv in which the lands lie; or, any Justice of the Peace for the Province. (2) If made In any other Province of the Dominion, or in Great Britain or Ireland— before a Judge of any of the Superior Courts of Law or Equity therein; or a Judge of any of the County Courts, within his district; or before the Mayor or Chief Magistrate of any City, Borough, or Town corporate therein 134 THIS CANADIAN LAWfER. i and certified under the common seal of such City, etc. ; or any Notary i'ublic certified under his otticial seal, or before a Commissioner for taking atUdavits outside the Province to be used therein. (3) If made in the N. W. Territories or Keewatin— before a Judge of any Court, or Police Magistrate, or a Commissioner authorized to take affidavits,, or before any J. P. or N. P., certified under his official seal. (4) Or if made in the British Possessions in India — before any Magistrate or Collector certified to have been such under the hand of the Gover- nor of such Possession. (5) If made in any British Colony or Posses- sion — be_fore a Judge of a Court of Record; the Mayor of any City, Borough or Town corporate, and certified under the common seal of such City, etc., or any Notary Public. (6) If made in any foreign country — before the Mayor of any City, Borough or Town corporate, of such Country, and certified under the common seal of such City, etc.; or before any Consul of Her Majesey resident therein; or a Judge of a Court of Record, or Notary Public. 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 this Province, and within three years from such death if the same occurs out of the Province. All conveyances must be registered, as well as leases of more than three years' duration. FORMS. Deed of Grant. (Absolute Covenants). This Indenture made (in duplicate) the day of , 18 ^ Between A. B., etc., of the first part, C. D., wife of the said party of the first part, of the second '^art, and G. H,, of, etc., of the third part; Witnesseth, that the said party of the first part, in considera- tion of the sum of $5u0, of lawful money of Canada, to him, Tiy 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, hereditaments, 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, n?.'ertheles8, to the reservations, limitations, provisoes and condi- tions expressed in the original grant thereof from the Crown. And this Indenture further witnesseth, thnt the said porty 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 UEEOH. 185 consideration of the premises, and also in consideration of the tj 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 avkuowledgcr't, bath granted and releaseu, and by these presents doth grant an<.' ^^lease, unto the said party of the third part, his heirs and assigns, all dower, and all right and title thereto, which she, the said party of the second part now hath or in the event of surviving her said husband might or would have in, to or out of the lauds and premises hereby conveyed or intended so to be. And the said party of the first part doth hereby, for himself, bis heirs, executors and administrators, covenant, promise and agree with and to the said party of the thirJ part, his heirs and assigns, in manner following, that is to say; That 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 thflt it shall be lawful for the said party of the third part, his heirs and ass gns, from time to time and at ail times hereafter peaceably and quietly to enter upon, hav( hold, occupy, possess and enjoy the said lands and premises hereby conveyed or intended so to be, with their and every of their appurtenances, and to have, receive and take the rents, issues and profits thereof, and of every part theriMjf 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 h's 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 ever?' 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 part, his heirs, executors or administrators, and all and every other person whomsoever having or claiming, or who shall or may hereafter have or claim, any estate, right, title or interest whatso- ever, 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, n|)on 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 wo to be, and every iwirt thereof, with their appurte- nances, unto the said party of the third part, his heirs and assigns, in manner aforesaid, as by the said party of the third part, his heirs and assigns, his or their counsel in the law, shall be reasonably devised, advised or required; so as no person who shall be required to make or execute such assurances shall be comp»^llable. for the making or executing thereof, to go or travel from his usual place of ab)de. 136 THE CANADIAN LAWYER. 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 | a. B. [l.s.] in the presence of [ j* ^ r , E. P. j C. D. [I..8.] Received, on the day of the date of the within Indenture, the sum of $500, of lawful money of Canada, being the full consideration thwein mentioned. A. B. Witness, E. F. Same with Qualified Covetianta. This Indenture, made (in duplicate) the day of IS Between A. B., of, etc., of the first part, G. D., wife of the said party of the first part, of the second part, and G. H., of, etc., of the third part: Witnesseth, that the said party of the first part, in consider- ation 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 beforu the sealing and delivery of these presents (the receipt whereof i^' hereby acknowledged), doth grant unto the said party of the third part, his heirs and assigns, All and singular that certain parcel o> tract of land and premises situate, lying and being in the (here de- scribe the lands). Together with the appurtenances: To have and fo 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, 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 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, ii 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 these presents (the receipt whereof is hereby acknowledged), hnth granted and released, and by these presents doth grant and release, unto the said party of the third part, his heirs and asisigns. oil dower, and all right and title thereto, which she, the said party of the second part, now hath, or in the event of surviving her said husband might or would have in, to or out of the lands and premises hereby conveyed or intended so to be. And the said party of the first part doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree M'ith and to the said party of the third part, his heirs and assigns, in manner following, that is to sny: That for and notwithstanding any not, deed, matter or thing by the said party of the first part done, executed, committed or knowingly or wilfully permitted or suffered to the contrary, he, the said party of the first part, now hath in hin^- 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 aforesaid, and according to the true intent DEEDS. 137 of theHe 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, possess and enjoy the said lands and premises hereby con- veyed, or intended so to be, with their and every of their appurte- nances, 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 ol the first part, or his heirs, or any person claiming or to claim by, from, under or in trust for him, them or any of them: And that free and clear, and freely and absolutely acquitted, exonerated and 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, 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 any of them: And lastly, that he, the said party of the first part, his heirs, executors or administrators, and all and every other person whom- soever 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 ro to be, or any of them, or any part thereof, by, from, under or in trusL 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 mide, done or executed, all such further and other lawful acts, deeds, things, devices, conveyances and assurances in the law whatsoever, for the better, more perfectly and absolutely conveying and assuring the said lauds and premises hereby conveyed or intended so to be, and every part thereof, with their appurtenances, unto the said party of the third part, his heirs and assigns, in manner aforesaid, as by the said party of the third part, his heirs and assigns, his or their counsel in the law, shall be reasonably devised, advised or required, so as no such further assurances contain or imply any further or other covenant or warranty thin against the acts and deeds of the person who shall be required to make or execute the same, nnd his heirs, executors or administrators only, and so as no iierson who shall be r(«quired to make or execute such assurances shall be com- pellable, for the making or executing thereof, to go or travel from his usual place of abode. In witn^>s8 whereof, the said parties to these presents have hon* unco set their hands and afiixed their seals, the day and year first above written. Signed, sealed and delivered | o p FlsI in the presence of r . „ r , B. F. i A. B. [L.8.] Received on the day of the date of the within Indenture, the sum of $.W0, of lawful money of Canada, being the full consideration therein mentioned. Signed in presence of E. F. A. B. 138 I THE CANADIAN LAWYEU. Ontario Short Form under Statute. This Indeuture, made (iu duplicate) the day of 18 , in pursnuiice ot lUe Act rewiwctuig iSbort Forma of Oouveyancea: Betweeu A. B., of, etc., of the first part, C. D., wife of the said party of the first part, ot the second part, and E. F., of, etc., of the third part: Wituessetb, that m consideration of $500 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, iu tee simple. 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 tsaid party of the third 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 lirst 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 irossession 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 uiwn the said lands; And the said party of the second part, wife of the said party of the lirst 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 | 4 g fLs.l in the presence of r r^'r^rlt Y 2 I CD. [L.S.] Received on the day of the date of this Indenture from the said party of the third part, the sum of $500 being the full consideration therein mentioned. A. B. Witness, Y. Z. Deed of Gift of Lands. This Indenture, made (in duplicate) the day of 18 , Between A. B., of, etc., 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.. as well for and in consileration of the natural love and affec- tion which he hnth and benreth unto the said C. D.. as also for th-? better maintenance, support, livelihood, and preferment of him the said C. D., hath given, granted ond conveyed and 1 y these presents doth give, grant and convey unto the said C. D., his heirs and assigns. All that parcel or tract of land, etc., [describing the premises], together with all and singular the appurtenances to the said parcel DEEDS. 13» or tract of lund and premises belonging or in any wise appertaining. To have and to hold the said parcel and tract of land, and all and singular other the premises hereby granted, unto and to the only proper use and behoof of the uaid C. D., his heirs and assigns, for- ever. 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.8.] Y. Z. Affldavit of Execution of Deed. County of ) I, Y. Z., of, etc., [state here the name, in full, of To wit: f the witness; his place of residence and occupation} make oath and say:— 1. That I was personally present and did see the within instru- ment and duplicate duly signed, sealed and executed by and the irarties thereto. 2. That the said instrument and duplicate were executed at the of 3. That I know the said parties. 4. That I am a subscribing witness to the said instrument and duplicate. Sworn before me afk in the county of [ this day of f 18 . ) : • A Commissioner for taking Affidavits, etc. Deed of Right of Way. This Indenture made this day of 18 , between A. B, of, etc.. and C. D., of, etc. Witnesseth that the said A. B. for and in consFderation of the sum of $ lawful money of Canada to him in hand well and truly paid, the receipt whereof is hereby acknowledged, hath granted, bargaine>9 land he occupif;S, it is his duty immediately to notify the owner., failing in vhieh he is liable for all damages suffered by such owner hv reason of his neglect. It is the engineer's duty upon receiving from the clerk a copy of the requisiiiori, 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 idjourn 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 necessary, he is to make his award in writing, within thirty days from his receipt of the requisition, speci- f ing clearly the location, description and course of the drain, its points of commencement and termination, the portion 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 av^'ard is in he form prescribed, or to the like effect, and is to be filed by the engineer with the clerk, who there- upon notifies each of the persons affected thereby of such filing. Any interested person dissatisfied with 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 the same manner as municipal taxes. DITCHES AND WATERCOURSES. 145 Provision is also made for the inspection of the work by» the engineer after the time limited in his award for its com- pletion; should he then find the same not completed in ac- cordance with the award, he may let the same in sections, after giving four clear days' notice in writing of his inten- tion. The extra costs attending this proceeding, together with ten per cent, added, if not paid By the party liable, are placed in the collector's roll as before. The drain may be continued* into an adjoining munici- pality. No unauthorized pf**8on shall use a ditch or drain constructed under the Act, save pursuant td its provisions. All notices under the provisions of the Act are to be served personally, or by leaving the same at the place oi abode of the owner or occupant, with a grown up person residing thereat; and in case of non-residents (who are per- sons residing out of the municipality in which the lands are situate) then upon the agent of the owner, or by registered letter addressed to the said owner at the post-office neareict 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 ordi- nary Division Court fees. FORM " A.' By-lau} for Appointment of Engineer. \. by-law for the appointment of an engineer under The Ditcbes anu Watercourses Act. Finally passed 189 . The municipal council of the of in the County of enacts as follows: 1. Pursuant to the provisions of section 4 of The Ditches and Watercourses Act, ( name of person) of the town (or township of in the County of is hereby appointed as the engineer for this ouiuicipality to carry out the provisions of the said Act. 2. The said •»njrlpcc-r shall be paid the following fees for services rendered under ihe said Act (or as the case may be). 8. This by-law shall take effect from and after the final passing thereof. Reeve. Cltrk. I [L.S.] e.t,— 3iiD ID. 10 146 THE CANADIAN LAWYER. FORM " B." Declaration' of Ownership. In the matter of The Ditches nud Watercourses Act, and of a ditch in the township (or as the case may be), of in the County of I, of the of in the County of do solemnly declare and affirm that I am the owner within the meaning of The Ditches and Watercourses Act, of lot (or the sub-division of the lot, naming it), number in the concession of the township of , being (describe the nature of ownership). Solemnly declared and affirmed \ before me at the of [ in the County of I A.D. 18 . ) a Commissioner, (,T.P. or clerk.) FORM "C. Notice to Oicners of Lands affected bu Proposed Ditch. To 8ir. Township of (date) 18 I am within the meaning of The Ditches and Watercourses Act, the owner of lot (or the sub-division as in the declaration) number in the concession of , and as such owner I require n ditch to be constructed (or if for reconsideration of agree- ment or award to deepen, widen or otherwise improve the ditch, state the object) for the draining of my said land under the said Act. Tiie following other lands will be affected (here set out the other parcels of land, lot, concession and township, and the name of the owner in each case; also each road and the municipality controlling it). I hereby request that you, as owner of the said (state his land), will attend at (state place of meeting), on , the day of , 18 , at the hour of o'clock in the noon, with the object of agreeing, if possible, on the respective portions of the work and materials to be done and furnished by the several owners interested and the several portions of the ditch to be •"«'n- tained by them. ,, Yours, etc., (Name of owner.) FORM " D." Agreement by Otrnfrs. Township of (date> 18 Whereau it is found necessary that a ditch should be constructed (or deepened, or widened, or otherwise Improved) under the provisions I DITCHES AND WAT£UCOUlt8ES. 147 of The Ditches and Watercourses Act, for the drainage of the following lands (and roads if any): (here describe each parcel and giT« name of owner us in the notice, including the applicant's own land, lot, concession nud township, and als6 roads and by whom con- trolled. Therefore we the owners within the meaning of the said Act of the said lauds (and if roads proceed and the reeve of the said municipality on behalf of the council thereof) do agree each with the other as follows: That a ditch be constructed (or as the case may be), and we do hereby estimate the cost thereof at the sum of $ , and the ditch shall be of the following description: (here give point of commencement, course and termination, its depth, bottom und top width, and other particulars as agreec! upon, also any bridges, culverts or catch basins, etc, requiretl). 7 owner of (describe his lands) agree to (here give portion of work to be done, or material to be supplied) and to complete the i)erformance thereof on or before the day of A.D., 18 .1 owner of, etc., (as above, to the end of the ditch). That the ditch when constructed shall be uaintained ns follows: I owner of (describe his lands) agree to maintain the portion of ditch from (fix the point of commencement) to (fix the point of termination of his portion). I owner of (describe his lands) agree to maintain, etc., (as above, to the end of the ditch). Signed 'n presence of (Signed by the parties here). FORM " E." Requtaltion for ExaminaHon by Engineer, Township of (ilflte) 18 To (name of clerk). Clerk of (P. O. address). Sir,— I am, within the meaning of The Ditches and Watercourses Act, the owner of lot (or sub-division as in the declaration) number , in the concession of and as such I require to construct (deepen, widen or otherwise Improve as needed), a ditch under the provisions of the said Act, for the drain- ing of my said land, and the following lands and roads will be affect- ed: (here describe each parcel to be affected ns in the notice for the meeting to agree and state the name of the owner thereof), and thg said owners having met and failed to agree In regard to the same, I request that the engineer appointed by the municiptility for the pur- noses of the said Act, be nsked to np|H)int n time and pince in the locality of the proposed ditch, at which he will attend and examine the premises, hear nny evidence of the parties and their witnesses, and make his award under the provisions of the said Act. (Signature .>f the porty or p-irties). 14b THE CANADIAN LAWYER. FORM "P." Notice of Appointment fo: Examination by Engineer. Township of (date) 189 To (Name of owner). (P. O. Address). Sir,— You are hereby notified that the engineer appointed by the municipality for the purposes of The Ditches and Watercourses Act, has, iu answer to my requisition, fixed the hour of o'clock in the noon of day, the day of to attend at (name the place appointed) and to examine the premises and site of the ditch required by me to be constructed under the provisions of the said Act (or as the case may be), and you, as the owner of lands affected, are required to attend, with any witnesses that you may desire to have heard, at the said time and place. Yours, etc., (Signature of applicant). BRITISH COLUMBIA. Under " The Drainage, Dyking and Irrigation Act, R. S. B. C. cap. 64, a majority in interest and number of the pro- prietors of any marsh, swamp or meadow lands, mfny select one or more commissioners (who are officers appointed under the Act by the Lieut.-Govemor) to carry on any work for reclaiming such lands by draining, dyking or irrigation. The commissioners may require the proprietors of such lands to furnish men, teams, tools and materials to build or repair any dykes or weirs necessary to prevent inundation, to dam, flow, irrigate or drain such lands, or to secure the same from brooks, rivers, or the sea, by flood-gates or break-waters, or in any way they may think proper; and in case of neglect, the commissioners may perform the work at the expense of the proprietors. The owners or occupiers are assessed for necessary expenses incurred, save where they have not agreed to the performance of the work, in which case the land alone is liable for the assessment. The provisions of the British Columbia " Line Fences and Watercourses Act," R. S. B. C. cep. 76, are in great part identical with those of th.^ Ontario Statute. D1V1»IUN COURTS. 149 DIVISION COURTS. ONTARIO. These Courts have been established in every county in Ontario for the recovery of small debts. For the recovery of larger claims, the High Court of Justice and County Courts exist. The number of Division Courts varies in different counties; but there must never be less than three nor more than twelve; and there must be at least one Court in every city or county town. They are presided over by the County Judge, or, in some larger counties where Junior Judges have been appointed, by such Junior Judge; or by a deputy Judge; or, in Territorial Districts, by a Stipendiary Magis- trate. In case of the illness or absence of a Judge, a bar- rister may be appointed to hold them. The authority of these Courts is derived from the Act, R. S. 0. 1897, cap. 60, as amended by subsequent Acts. Courts are holden in each division once in every two months (or oftener, in the disci;p- tion of the Judge) at such times and places within the divi- eion as the Judge may appoint. Where, however, it appears inexpedient that they should be holden so often, they ma/ be holden as the Lieut.-Govemor appoints. Division Courts have jurisdiction in the following cases: 1. All personal actions where the amount claimed does not exceed sixty dollars; 2. In 'any personal action if all the parties consent thereto in writing and the amount claimed does not exceed one hundred dollars; 3. All claims and demands of debt, account, or breach of contract, or covenant, or money demand, whether payable in money or otherwise, where the amount or balance claimed does not exceed one hundred dollars. 3. All claims for the recovery of a debt or money demand, the amount or balance of which does not exceed two hundred dollars, where the amount, or original amount of the claim is ascertained by the signature of the defendant, or of the person whom, as executor or administrator, the defendant represents. Interest accumulated upon any claim of this class since the amount or balance was ascertained by the signature of the defendant or of the person whom he represents shall 150 THE CANADIAN LAWYER. not be included in determining the question of jurisdiction, but interest so accumulated may be recovered in a Division Court in addition to the said claim, notwithstanding the in- terest and the amount of the claim so ascertained together exceed the sum of two hundred dollars. 4. Claims combining, (a) A cause or causes of action in respect of which the jurisdiction of the Division Cou"rt8 is, by the fore- going sub-sections of this section, limited ix) aixty dollars, which causes of action are hereinafter de- signated as class (a), and (6) A cause or causes of action in respect of which the jurisdiction of the said Courts is, by the said sub- sections, limited to one hundred dollars, which causes of action are hereinafter designated as class (6), (c) A cause or causes of action in respect of which the jurisdiction of the said Courts is by the said sub- sections limited to two hundred dollars, which causes of action are hereinafter designated as class (c), may be tried and disposed of in one action, and the said Courts shall have jurisdiction so to try the same; provided, that the whole amount claimed in any such action in respect of class (a) shall not exceed sixty dollars; and that the whole amount claimed in any action in respect of classes (a) and (b) combined, or in respect of class (6), where no claim is made in respect of class (a), shall not exceed one hundred dollars, and that the whole amount claimed in respect of classes (a) and (c) or (6) and (c) combined, shall not exceed two hundred dollars, and that in respect of classes (6) and (c) combined, the whole amount claimed in respect of class (6) shall not exceed one hundred dollars. The finding of the Court upon the claims, when so joined as aforesaid, shall be separate. These Courts have no jurisdiction in the following cases: 1. Actions for any gambling debt; or 8. For spirituous or malt liquors drunk in a tavern or ale-house; or 4. Actions for the recovery of land or actions in which the right or title to any corporeal or incorporeal heredita- ments, or any toll, custom or franchise comes in question; or 5. In which the validity of any devise, bequest or limita- tion under any will or settlement is disputed; or 6. For malicious prosecution, libel, slander, criminal con- versation, seduction or breach of promise of marriage ; or DIVISION COURTS. 151 \ I 7. Against a Justice of the Peace for anything done by him in tlio execution of his office, if he objects to such juris- diction. No «ction may be brought in the Division Court upon a judgment for the payment of money made by the High Court or County Court where execution may issue upon such judg- ment. Upon a contract for payment of a sum certain in labor or in any kind of goods, or commodities, or in any other manner than in money, the Judge, after the day has passed on which such goods or commodities ought to ha^e been delivered, or the labor or other thing performed, may give judgment for the amount in money, as if the contract had been originally so expressed. Minors (or persons under twenty-one years of age) may sue in a Division Court for wages not exceeding $100, in the same manner as if of full age. A claim will not be allowed to be divided into two or more parts, so as to bring it within the jurisdiction of a Di- vision Court; nor can any sum greater than be re- covered in an action for the balance of an unsettled account. Where the unsettled account in the whole exceeds $400, no action can be brought in these Courts. But where a sum for principal and also a sum for interest thereon is due and payable to the same person upon a mortgage, bill, note, bond or other instrument he may sue separately for every sum as due. Ordinarily a suit must be entered and tried in the Court of the divisioli where the cause of action arose (that is, where the debt was contracted), or in that where the defendant or one of the defendants resides or carries on business; but a suit may also be entered in the Court nearest to the defend- ant's residence, irrespective of the place where the cause of action arose. By leave of the Judge before whom the action is to be tried, a suit may be entered at the Court of the divi- sion adjacent to that in which the defendants or one of them resides, if the Judge be satisfied on oath or by affidavit, that it will be more convenient for the parties. Where the defendant is a corporation not having its head office in the province, and the cause of action arose partly in one division and ])artly in another the plaintiff may bring his action in either division. Where the debt or money demand exceeds one hundred dollars, and is made payable by the contract of the parties at any place named therein, the action may be brought thereon in the Court holden for the division in which such place of payment is situate, subject, however, to the place 152 THE CANADIAN LAWYER. of trial being changed to any other division in which the Court holden therein has jurisdiction in the particular case. An order may be obtained by the defendant for such change from the Judge of the county in which the action is brought, upon an application therefor made within, eight days from the day on which the defendant who makes the application was served with the summons, on a ten days* service; or within twelve days after service, where the service is required to be fifteen or more days before the return. Where the debt or money payable exceeds one hundred dollars, and is by the contract of the parties made payable out of Ontario, the action may be brought in any Division Court, subject to being changed by Judge's order as afore- said. Upon consent of all parties, the trial may be had in any Division Court. Where, by mistake or inadvertence, the action is entered in the wrong Court, it may be trans- ferred to the right one by the Judge's order. The first process in the Division Court is a summons. Summonses are of two kinds: ordinary and special. The former may be used in every case; the latter can only be used where the action is for a debt or money demand; and where the particulars of the plaintiff's claim are given with reason- able certainty and detail. There is also a summons in re- plevin, used in actions of that nature. When a suit is to be entered at any Division Court, the first thing for the plaintiff to do is to hand to the clerk a written claim and particulars, which should show the names in full, and the present or last known place of abode of the j)arties. When the defendant's Christian name is unknown, he may be described by his initials, or by such name as he is generally known by. The claim must, in every claim admitting thereof, show the particulars in detail; and in other cases must contain a statement of the particulars, or the facts constituting the claim, in ordinary and concise lan- guage, and the sum claimed in respect thereof. Where J;he plaintiff desires to sue the defendant in the Court nearest to his residence, he must add the following words to his claim, " and the plaintiff enters this suit and claims to have it tried and determined in this Court, because the place of sitting thereof is the nearest to the defendant's residence." If the plaintiff's claim is beyond the jurisdiction of the Court, he may abandon the excess; but he must do so in the first in- stance and on the claim. In case the defendant does not reside, or in case none of the defendants, if there be more than one, reside in the DIVISION COUllTS. 153 county in which the action is brought the summons must be served fifteen days at least before the return day thereof. If -a defendant served with a special summons disputes the plaintiff's claim, he must leave with the clerk of the Court a rotice to that effect, within eight days after service, when the summons is returnable on the eleventh day; and within twelve days in other cases. If he does not do so, judgment will be entered by default on the return of the summons, and execution may be at once issued. The Judge, however, has a discretion to let a defendant dispute the claim at any time before judgment entered, although notice may not have been given; and he may set aside a judgment and permit the cause to be tried on sufficient grounds being shown. Judgment by default must be entered with n one month after the return of a summons, and cannot be entered after. Where a special summons has been issued against several defendants, but all have not been served, the pla'ntiff may take judgment against those served: in which case his claim against the others will be lost. If he does not wish to abandon those not served, he must proceed in the ordinary way. An ordinary summons with a copy of the account, or of the particulars of the claim or demand, attached, requires to be served ten days at least before the Court day. When the claim exceeds fifteen dollars, the service must be personal on the defendant; but where the amount does not exceed fifteen dollars, the service may be on the defen- dant, his wife or servant, or some grown person being an inmate of the defendant's dwelling house, or usual place of abode, trading or dealing. The bailiffs of the Court serve and execute all summonses, orders, warrants, precepts and writs, and so soon as served return the same to the clerk of th« Court of which they are bailiffs. The clerk prepares the affidavit of service oi rnuimons, stating how served, the day of service, and the distance the bailiff necessarily travelled to effect service, which is an- nexed to or indorsed on the summons, l.'ut the Judge may require the bailiff to be sworn in hi? presence, and to answer such questions as may be put to him touching any service or mileage. In case of a debt or demand against two or more persons, partners in trade, or otherwise jointly liable, but residir.g in different divisions, or one or more of whom cannot be found, one or more of such persons may be served with pro- cess, and judgment may be obtained and execution issued 154 THE CANADIAN LAWYEU. against the person or persons served, notwithstanding others jointly liable have not ueen served or sued, reserving always to the person or persons against whom execution issues, hift or their right to demand contribution from any other person jointly liable with him. Whenever judgment has been obtained against any such partner, and the Judge certifies that the demand proved was strictly a partnership transaction, the bailiff, in order to satisfy the judgment and costs and charges thereon, may seize and sell the property of the firm, as well as that of the defendants who have been served. On the day named in the summons, the defendant must, in person, or by some person on his behalf, appear in the Court to answer, and, on answer being made, the Judge without further pleading or formal joinder of issue in a sum- mary way tries the cause and gives judgment; and in case satisfactory proof is not given to the Judge entitling either party to judjiment, he may nonsuit the plaintiff; and the plaintiff may, before verdict in jury cases, and before judg- ment pronounced in other cases, insist on being non-suited. The Judge may also non-suit in a jury case. When a plaintiff is non-suited, he is at liberty to bring his case again into Court on a new summons; but if a judg- ment against him be given, he cannot. If on the day named in the summons the defendant does not appear, or sufficiently excuse his absence, or if he neglects to answer, the Judge, on ])roof of due service of the summons and copy of the plaintiff's claim, may proceed to the trial of the cause on the part of the plaintiff only, and the order, verdict or judg- ment thereupon will l)e final and absolute, and as valid a* if both parties had attended. The Judge may adjourn the hearing of any cause in ordet to permit either party to sunnnon witnesses or to produce further proof, or to serve or give any notice necessary to enable such i)arty to enter more fully into his case or defence; or for any other cause which the Judge thinks reasonable; upon such conditions as to the payment of costs and admis- sion ot evidence or other equitable terms as to him seems meet. If the defendant desires to plead a tender, l)ef(>re lution brou^iit, of a sum of money in full satisfaction of the plain- tiff's claim, he n>ay do so on filing his plea with the clerk of the Court before which he is summoned to appear, at least six days before the day appointed for the triwl of the cau«»e, ard at the sanie time p»»ying into Court the amount of the money mentioned in such ])\Qa. DIVISION COURTS. 155> Such sum is to be paid to the plaintiff, less one dollar, to be paid over to the defendant for his trouble, in case the plaintiff does not further prosecute his action; and all pro^ ceedings in the action are to be stayed, unless the plaintiff, within three days after the receipt of notice of such payment, signifies to the clerk of the Court his intention to proceed for his demand, notwithstanding such plea; and in such case the action will proceed accordingly. If such signification is given within thd three days, but after the rising of tlie Court at which the summons is return- able, the case will be tried at the next sitting of the Court. K the dneision thereon be for the defendant, the ])laintiff pays the defendant his costs, to be awarded by tlie Court, and the amount thereof may be paid over to him out of the money so yia'id in with the plea, or may be recovered from the plaintiff in the same manner as any other money payable by a judgment of the Court; but, if the decision be in favor of the plaintiff, the full amount of the money paid into Court will be applied to the satisfaction of his claim, and a judg- ment may be pronounced against the defendant for the balance duo and the costs of suit. The defendant may, at any time not less than six days before the day appointed for the trial, pay into Court such sum as he thinks a full satisfaction for the plaintiff's demand, together with the plaintiff's costs up to the time of such pay- ment. The sum so paid in is to be paid to the ])buntiff, and all proceedings in the action stayed, unless within three days after the receipt of the notice the plaintiff shall signify to the clerk his intention to ]>roceed for the remainder of the demand claimed; in which case the action will proceed as if ))rought originally for such remainder only. if the plaintiff recovers no further sum in the action than the sum paid into Court, the |)laintitf ))ays the defemlant all costs incurred by him in the action after such paynu-nt, and such costs nuiy l)e duly taxed, and recovered by the «lefendant by the same means as any other sum ordered to be paid by the Court. When a roper, to be recovered as provided for in other cases under the Act; and in default of any special direction, the costs will abide the event of the action, and execution may issue for the recovery thereof in liKe manner as for any debt tidjudged in the Court. Any BailitT or Clerk, before or after action commenced, may take a confession or acknowledgment of debt from any DIVISION COURTS. 159 debtor or defendant desirous of executing the same. The confession must be in writing and witnessed by the bailift or clerk at the time of taking it. Either party may require a jury in actions in tort (i.e., for damages, not for breach of contract), or in replevin, where the sum or value of the goods sought to be recovered exceeds twenty dollars; and in all other actions where such amount exceeds thirty dollars. In case the plaintiff requires a jury to be summoned to try the action, he must give notice thereof in writing to the clerk one week before the day appointed for the sitting of the Court at which the case is to l)e tried, and at the same time deposit with the clerk towards costs in the cause, the proper fees for the expenses attending the summoning of such jury; and in case tlie defendant requires a jury, he must, within five days after tlie day of service of the summons on him, give to the clerk, or leave at his office, the like notice in writing, and at the same time dejwsit with the clerk the proper fees as aforesaid; and thereupon, in either of such cases, a jury will l)e summoned. Either of the parties to a cause is entitled to challenge jurors, as in other Courts. Five jurors are empannelled and sworn to do justice be- tween the parties whose cause they are required to try, ac- cording to the best of their skill and ability, and to give a true verdict according to the evidence; the verdict of every jury must be unanimous. The Judge may, if he thinks proper, have any disputed fact in a cause tried by a jury; and in any case, if the Judge is satisfied that a jury cannot agree, he may dischargt them find adjourn the cause to the next Court: unless the parties consent to his pronouncing a judgment. If there be cross judgments ])etween the parties, the party only who has obtained judgment for the larger sum can have execution, and then only for the balance over the smaller judgment; anu if both sums are equal, satisfaction will be entered upon both judgments. In case the .uulge makes an order for the payment of money, and in case of default of payment of the whole, or of any part thereof, the party in whoso favor such order has been niade may sue out execution against the goods and chattels of tiie party in default. In case any [)erson against whom a judgment has lieen entered up removes to another county without satisfying the judgment, the County Judge of the county to which such party has removed may, upon the production of a copy of 160 THE CANADIAN LAWYJflR. V the judgment duly certified by the Judge of the county in which the judgment has been entered, order an execution for the debt and costs awarded by the judgment to issue against such party. If the party against whom an execution has been awarded pays or tenders to the clerk or bailifE of the Division Court out of which the execution issued, before an actual sale of his goods and chattels, the debt and costs, or such part thereof as the plaintiff agrees to accept in full of his debt, together with the fees to be levied, the execution will therei.pon be superseded, and the goods be released aud restored to such party. The ekrk, upon the application of any plaintiff or defen- dant (or his agent) having an unsatisfied JudgmeiU in his favor, will prepare a transcript of the entry of such judg- ment, and send the same to the clerk of any other Division Court in the eanie or any other county, with a certificate at the foot thereof signec hy tb'.^ clerk wbo gives the same, and sealed with the seal of the (;oiirt of which he is clerk, and addressed to the clerk of tli. Court to whom it is intended to be delivered, and staling the amount unpaid upon such judgment and the date at which the same was recovered; and the clerk to whom such certificate is addressed, on the receipt of such transcript and certificate, will enter the tran- script in a book to be kept in his office for the purpose, and the amount due on the judgment according to the certificate; ani! iiU proceedings may then be taken for the enforcing and collef'ting the judgment in such last-mentioned Division Court l)y the officers thereof that could be had or taken for the like jmrpose upon judgments recovered in any Division Court. In case of the death of either or both of the parties to a judgment in any Division Court, the party in whose favor the judgment has been entered, or his personal representative in case of his death, may revive the judgment against the other party, or his personal representative in case of his death, and may issue execution thereon in conformity with any rules which apply to the Division Court in that behalf. In case an execution be returned nulla bona, and the sum remaining unsatisfied on the judgment under which the execution issued amounts to the sum of forty dollars, the party in whose favor the judgment was entered may sue out an execution against the lands of the party in default, and the clerk of the Court in which it was obtained will, at the. request of the party prosecuting the judgment, issue under the seal of the Court a writ of execution against the lands of the party in default to the sheriff of the county in which V. DIVISION COUR'l'S. 161 the return of nulla bona was made, or to the sheriff of any other county in this province in which lands of the party in default are situate; and the sheriff, on receipt of such execu- tion acts on it and it has the same force and effect against the lands of the party in default as .if the writ of execution had issued from the County Court. In case any Bailiff employed to levy an execution against goods and chattels, by neglect, connivance, or omission, loses the opportunity of so doing, then upon complaint of the party aggrieved, and upon proof by the oath of a credible witness of the fact alleged to the satisfaction of the Court, the Judge may order the bailiff to pay such damages as it appears the plaintiff has sustained, not exceeding the sum for which the execution issued; and the bailiff shall be liable thereto; and upon demand made thereof, and on his refusal to satisfy the same, payment may be enforced by such means as are provided for enforcing judgments recovered in the Court. Goods taken in execution are not to be sold until the expiration of eight days at least next after the seizure thereof, unless upon the request in writing under the hand of the party whose goods have been seized. In case the Judge is satisfied upon application on oath made to him by the party in whose favor a judgment has been given, or by other testimony, that such party will be in danger of losing the amount of the judgment, if om- pelled to wait till the day appointed for the payment thereof before any execution can issue, such Judge may order an execution to issue at any time, as he thinks fit. A party having an unsatisfied judgment or order in a Division Court, for the payment of any debt, damages or costs, may procure from the Court wherein the judgment has been obtained, if the defendant resides or carries on his business within the county in which the division is situate, or from any Division Court into which the judgment has been removed and within the limits of Avhich Division Court the de- fendant resides or carries on his business, a summons in the form prescribed, and the summons shall be served personally upon the person to whom the same is directed, requiring him to appear at a time and place therein expressed, to answer such things as are therein named, and if the defendant appears in pursuance thereof, he may be examined upon oath touching his estate and effects, and the manner and circumstances under which he contracted the debt or incurred the damages or liability, which formed the subject of the action, and as to the means and expectation he then had, and as to the e.L.~8RORO. 11 162 UHE CANADIAN LAWYER. property and means he still has of discharging the debt, dam- ages or liability, and as to the disposal he has made of any property. If the party so summoned (1) does not attend as required by the summons, or allege a sufficient reason for not attend- ing, or (3) if he attends and refuses to be sworn or to make answer to such questions as may be put to him, and which in the opinion o-f the Judge are proper questions; (3) if it ap- pears to the Judge, either by the examination of the party or by other evidence, that the party obtained credit from the plaintiff or incurred- the debt or liability under false pretences, or by means of fraud or breach of trust, or has made or caused to be made any gift, delivery, or trunsfer of any property^, or has removed or concealed the «jame with intent to defraud his creditors or any of them; or (4) if it appears that the judgment debtor had when or since judgment was obtained. against him, sufficient means and ability to pay the debt or damages or costs recovered against him, either altogether or by the instalments which the Court in which the judgment was obtained has ordered, without depriving himself or his family of the means of living, and that he has wilfully refused or neglected to pay the same as ordered, the Judge may, if he thinks fit, order such party to be committed to the common gaol of the county in which the party so summoned resides or carries on business, for any period not exceeding forty days. The Judge, before whom such summons is heard, may rescind or alter, any order for payment previously made against any def^dant so summoned before him; and may make any further or other order, either for the payment of the whole, of the debt or damages recovered, and costs, forth- with, or by any instalments, or in any other manner that he thinks reasonable and just. In case the defendant has been personally served with the summons to appear, or personally appears at the trial, and judgment be given against him, the Judge at the trial may examine the defendant and the plaintiff, and any other person, touching the several things before mentioned, and may commit the defendant to prison, and make au order in like manner as in case the plaintiff had obtained a judgment summons. . . No imprisonment under the Act will extinguish the debt, or protect- the defendant from being summoned anew and imprisoned for any new fraud or other default, or deprive the plaintiff of any right to take out execution. • We have stated in the foregoing pages the. substance of the enactments of the Division Courts Acts, so far as they DIVISION COURTS. 163 apply to proceedings for the collection of an ordinary debt, Wt.now proceed to notice the mode of action where the debtor has abao^nded or attempts to abscond. If any person indebted in a sum not exceeding one hun- dred dollars (or oiot exceeding two hundred dollars, where the claim is for the recovery of a money demand not exceeding that amount, and the claim is ascertained by the signature of the defendant, or the persoik he, as executor or administrator, represents), nor less than four dollars, for. any debt or dam- age^ or upon any judgment, (1^ absconds from the Pro- vince, leaving personal property liable to seizure under execu- tion for debt in any county in Ontario, or (3) attempts to remove ■ such personal property out of Ontuio or from one county to another therein, or (3) keeps- concealed in any county of Ontario to avoid service of process; any creditor on making an affidavit or affirmation in the form given a(t the end of this chapter, and filing the same with the clerk of any Division Court, can obtain a warrant, directed to the bailiff or to any constable of the county, commanding such bailiff or constable to attach, seize> take and safely keep nil the personal estate and effects of the absconding, removing or concealed . person within such county liable to seizure under execution, for debt, or a sufficient portion thereof, to secure the sum mentioned in the warrant with the costs of the action. - Any County Judge, or a Justice of the Peace for the county,' may takethe affidavit and issue the warrant. If the person against whose estate or effects an attach- ment has issued, at, any time prior to the recovery of judg- ment in the cause, executes and tenders to the creditoit who sued , out . the attachment, and files in Court, a bond with good sureties, to be approved of by the Judge or clerk, bind- ing the obligors, jointly and severally, in double the amount claimed, that the debtor will, in the event of the claim being proved and judgment recovered, pay the same, or the value of the property taken, to the claimant, or produced the prop- erty whenever required, the clerk may supersede the attach- ment, and the property attached will be restored. If within one month from the seiiiure, the party against whom the attachment issued, or some one on his behalf, does not appear to give such bond,i axecution may issue as soon as judginent has been obtained, and the property seized upon the attachment," or erioiigh thereof to satisfy the judgment and costs, may be sold for the satisfaction thereof; or if the property has been previously sold as perishable, enough of the proceeds thereof may b6 apj)iied to 'satisfy the" jildgment and costs. ' ' 164 THE CANADIAN LAWYER. If horses, cattle, sheep or other perishable goods have been taken upon an attachment, the bailiff of the Court may, at the request of the plaintiff, sell the same at public auction to the highest bidder. Provision has also, in the Act, been made for the attach- ment of debts, the effect of whiph may be shortly stated as follows: If a debtor against whom a judgment has been obtained in the Division Court is himself a creditor of some third party, the judgment creditor, who is called the primary creditor, may obtain an order attaching the debt due by such third party to the judgment debtor, who is called the primary debtor: and thereupon proceedings, called garnishee proceed- ings, may be taken to enforce payment by the third party to the primary creditor of the debt so due , or so much thereof as may be sufficient to satisfy the primary creditor's claim. The form of affidavit required will be found at the end ol the chapter. Besides the uidinary proceedings in a Division Court for the collection of a debt, proceedings may be taken to determine the right of property seized in execution. Such proceedings are termed interpleader. And if goods are illegally distrained for rent, or if goods are wrongfully detained from the owney, a replevin summons may be issued. Before the bailiff will replevy the goods, he wHl require a bond to produce the goods replevied if judgment is given against the party re- plevying, or to pay the value thereof, and to pay all costs. A jury may be required by either party in any interpleader issue. Special provisions are made by the Act with reference to the Territorial Districts, and in the rules with reference to proceedings by and against executors and administrators, and other matters; but it would swell the limits of this work beyond due bounds if we were to notice them in detail: be- sides which it will always be found advisable to consult a professional man whenever the matter in dispute is at all out of the ordinary and common course. We subjoin a few forms which will be found useful in the progress of a suit. They are the forms appended to the new Division Court rules. FORMS. UndertaMng by newt friend of infant to he rcBponaibUi for defendanft eoata. In *he Division Court in the County of I, [lie undersigned B. F., being the next friend of A. B., who i« an infant, and who is desirous of entering a suit in this Court DIVISION COUHTS. 165 againeit G. 1... of, etc., hereby undertake to be responsible for the costs of the baid C. D., in such cause, and that if the said A. B. fail to pay the said G. D. all such costs of such cause as the Gourt shall direct him to pay to the said G. D., I will forthwith pay the same to the clerk of the Gourt. Dated this day of , 18 . (Signed) B. F. Witness Affldavit for leave to aue a party residing in cm adjoining Division. In the Division Gourt in the Gounty of I, A.B., of , yeoman (or I, E. F., of , yeoman, agent for A. B., of, etc.), make oath and B&y — 1st. That I have a cause of action against G. D., of yeoman, who resides in the Division of the Gounty of (if by agent, " That the said A. B. has a cause of action against G. D., of , yeoman.") 2nd. That I (or the said A. B.) reside in the Division, in the Gounty of 3rd. That the distance from my residence (or from the said A. B.'s residence) to the place where this Court is held is about miles, and to the place where the Court is held in the Division in the Gounty of is about miles. 4th. That the distance from the saTd G. D.'s residence to the place where the Gourt is held in the Division where he resides, is about miles, and to the place where this Gourt is held about miles. 5th. That the said Division and this Division adjoin each other, and that it will be more easy and inexpensive for the parties to have this cause trie 1 in this Division than elsewhere. Sworn, etc. A. B. (or E. F.) Affidavit for leave to sue in a Division adjoining one in which debtors reside, where there are several. In the Division Court in the Gounty of I, A. B., of , yeoman, make oath and say (or E. F., of , yeoman, agent for A. B., of, etc., make oath and say):— 1st. That I have (or that the said A. B. has) a cause of action respectively against each of the debtors named in the first column of the Schedule on this affidavit indorsed. 2nd. That the columns in the said Schedule, numbered respec- tively, 1st, 2nd, 3rd, 4th, 5th, 6th and 7th, are truly and correctly filled up, according to the best of my knowledge and belief. 3rd. That the Divisions named in ihe second and third columns of the said Schedule, opposite each debtor's name, respectively adjoin each other. 4th. That it will be more easy and ineypensive for the parties to have the said causes, respectively, tried in this Division, than else- where. Sworn, etc. A. B. (or B. F.) 1^6 THE CANADIAN LAWYER. 5 9 a s o H CQ P o " ' t^ztz*. . .i llsss-i , , _, • Number of fromde reside~n where C held in sion wl debtor tei ■ ^ .' « ' Number of miles from debtor's resi- dence to where Court held in Di- vision where suit to be commenced. "> ■ a... t mUes itor'B 1 where InDivi- ch Buit enced. ■ ^■gsisaa • ■ • ■■ ■• ■■ ' ' 5 mSsim t* ■ a •a ambe from c residen Court li sion in tobecc . .. ' S5 1 e tor's B to held I in r re- 4 r of E I credi denci Conrt i vision idebto M . s * Nnmbe fron . resi where in D Bides. k ■ ■ li. ; .9^ 1 ^1 |l vision No. 1 County of worth. 0$ 6 B iS ■ s 11 •Ssl II J *t a^ § s §1 g§ S-aa •|S ► ^ s Q ' ill . n Doe. of Salt- fl e e t, in the County of Went" worth, yeoman. .0 . . 1 place of denoe and i tion. hard Hoe Mono, Co of Kimcoe, quire. • ■s o c > 4 s < DIVISION COURTS. 167 by me (or the said A. B.) to the said C. D. " Afflthwit l9r Attachment, (If made after suit commenced, insert style of Court and. cause). I, A. b1, of the in the County of , (qr I, E. F., of, etc., agect for the said A. B., of, etc.,) mal^" oath and say:— ' Ist. That C. D.. of (or late of) . ici 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 pay- ment of dollars and cents, made by the said C. D., payable to me (or the said A. B.) at a day now past: Or for goods sold and delivered \ Or for goods bargained and sold Or for crops bargained and sold Or for money lent Or for money paid for the said C. D. / Or for and in respect of my (or the said A.- B.) having relin- quished 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 provided 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 safd 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 dependine 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 ♦be same in ordinary and concise language.) 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 Dominion of Canada, which heretofore constituted the Province of Canada, leaving personal property liable to seizure under execu- tion 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 168 THE CANADIAN LAWYER. V attempted to remove his personal property liable to seizure under ♦execution for debt from the County of to the County of , in this Troviuce; or the said C. D. keeps concealed in in the County of , in this Province to avoid service of pro- cess) with intent and design to defraud me (or the said A. B.) of my (or his) said di>bt. 3rd. That this affidavit is not made by me, nor the process there- on to be issued, from any vt>xatious or malicious motive whatever. Sworn, etc. A. B. it. Replevin. Affidavit to obtain Judge s order for writ of replevin. T the Division Court in the County ot County of , to wit: I, A. B., of , make oath and say: Ist. That J. am the owner of (describe property fully) nt 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 trustee for E. F.) (or as the case may be), at present in the po.ssession of C. D. 2nd. That the said goods, chattels, and personal proi)erty are of the value of dollars, and not exceeding $rsonal property were on the day of last, dis- trained or taken by the said C. D., under color of a distress for rent, allp;j»d 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 D'.vlsion Court in the County of ), {ov that the said goods, chattels and personal property wore distrained), (or taken and detained), (or detained) at , within the limits of tiie Division Court of the County of Sworn, etc. A. B. Affldartt to obtain tn-it iHthout order in firat intitancf. fThe first four sections may be as above, and the following must he stated In addition:] .'th. That the said personal property was wrongfully taken, (or fraudulently got) out of my possession within two calendar months before the making «)f this nftidnvit, that Is to say, on the day of last. rtth. I am advised and believe that I am entitled to an order for the writ of replevin now andied for. and 1 have good reason to DIVISION COURTS. 169 apprehend, and do apprehend, that unless the said writ is issued without waiting for an order, the delay will materially prejudice my just rights in resiiect 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 3rd 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 may be), and still doth detain his goods, chattels and per- personal proi)erty, that is to say (here set out the description of pro- perty) whirh 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. B. Partlcularg in cases of contract. A. B., of , claims of C. D., of , the sum of $ , 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. I), promised (here state shortly the promise) which undertaking the said C D. hath not performe«ll or. lor that the said C. D. by deered by the said A. B. to the said C. D.; or, for that the said 0. D., by warranting a hi.rse to be th'u sound and quiet to ride, sold the saiti h(»rHe to the said A. B., yet the said horse was not then soiind and (piiet to ride: or, for that the said (>. I>., in consideration that the said A. B. would sunnly E. V. with goods on credit, promised the said A. B.. that lie, the said C. I), would be answrable to the said A. B. for the snme. that the said C. I), did ncconlingly su|»|>ly the said E. V. with g(K)ds to the price of .$ and upwards, on credit, that HUch credit has exi»ir»>d. yi-t neither the said E. V. nor the said C. I), has as yet paid for the siiid (roods; or, for that the said A. B. let to the saitl ('. 1>. a Imhihc for seven years to hold from the day of , A.D, , at $ a year, payable (luarterly. of which rent qiiartfrs are due and unpaid. (The above forms iin' given nu'rely as fxaniples of Httitcnu'nts of ciiuses of action. an*l th*- <'laini must show such further particulars as tile faets of the case rcqiiiret. Particulars in cnars of tort. A. B., of , states that C. !».. of . did. on or about the day of , .\. P. 18 ; nt the Town.-*liip of , \4 170 THE CANADIAN LAWYElt. unlawfully [take aud convert one eow and one calf, the i>roperty of the said A B..; or, break and injure a waggon of the aaid A. B.; or, falsely represent L. O. as fit to be trusted, the said G. D., at- the said time knowing .that the said L. O. was insolvent, whereby the said A. B. was induced to giv€> him credit: or, assault tmd beat the said A. B. (or as the case may he, pta,ting the tort . sued for in concise language);] The said A. B. hath sustained thereby damages to the amount of , and claims the same of the said C. D. A. B. Landlord's claim for rent. Whereas, I have been informed that you have seized the goods of C. D., of . on his premises at , to satisfy a certain judgment of the Division Court in , against the s^.id 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 $ for rent now in arrear, being for one quarter (or as the case may be), and I re case may be)j or, Take notice that I dispute the claim of the Plaintiff in full (or here siM>cify nil or any of the groandp of defence.) Dated the day of , A.D. 18 Yours, etc., C. D., Defendant. To the Plaintiff (or to the Clerk of the s.ild Court.) The severol grounds of defence may be stated as follows where they meet the circumstances: 1. I dispute the folhiwing items of. your claim, vii., (here spwify the items), and admit the residue. Or '2. I will on the trial claim n set-off iigainst your demand, anve Plaintiff or Defendant) make oath and nay: Ist. That the several ixTsons whose names an- mentioned in the first column of the schedule at the foot hereof were necessary and material witnesses on my behalf lor on behalf of the said Plaintiff or Defendant) and attended at the sittings of this Court on the day of as witnesseN on my behalf (or on behalf of the said Defendant or IMaintiff) and that they did not attend ns witnesses in any other cause; (if otherwise, state the facts.) 2nd. That the fald witnosses necessarily travelled in goiniu; to the iiaid Court, the number of miles res|H'otively mentioned in fignrps in the H«»«'«>nd column of the saiil schedule t».i{)otdte to tlie names of «ach of the said witnesses respectively. DIVISION COURTS. na 3rd. That the several and respective sums of money mentioned in figures in the third column of the said schedule opposite to the names of the said witnesses respectively, have been paid by me (or by the Plaintiff or Defendant) to the said witnesses respectively an in the said schedule set forth for their attendance and travel a» witnesses in this cause. A. B. Sworn before me at this day of 18 X. Y.. Clerk. Schedule referred to in the foregoing Af9davit. Names of WitnesBes. Miles. Sums Paid. ■ In the A/fldavit for revival of Judgment. Division Court in the County of Between A B , Plaintiff, AND -D — 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 nnd sny as follows: Ist. On the day of . A.D. 18 ,1 recovered a judgment of this Court against the above named Defendant for $ , debt, and $ , 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 t« the residue of the said moneys ro 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 uf $ ) as I verily believe. Sworn, etc. I 174 THE CANADIAN LAWYER. i I EXEMPTIONS FROM SEIZURE FOR DEBT. The policy of exempting from seizure for debt certain jgoods 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 permitted by law to strip his debtor of all the j»implest necessaries of life, leaving the latter altogether dep 'ijaf lit upon charity, no commensurate good would be accuinplished, while the result would be prejudicial to the int'i'- i^. of the community at large, and even opposed to the coraiiionest sentiments of humanity. Seizures are generally ()£ >v.' ,• kinds: one under landlord's warrant of distress for '^ feiduc rent, and the other under warrant or wrt of execu- tior > ? judgment debts. Exemptions from seizure under the fire- -briA 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) ('bat- tels not belonging to the tenant but happening to be upon the premises to be attended to, repaired or 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 ware- houseman for safe keeping, (iii) Chattels actually at the time in use by some [jerwon, as the liorse a man is riding, the coat he is wearing, etc. (iv) Goods belonging to guests at an inn. (v) (ioods in cnstfxfv of tb<> law. (vi) Wild animals, fvii) Any [>eri«hable articl» , sucfi as butchfr's meat. The foregoing ar*' absolutely privileged from seizure. Ortain other chattel.** are said to be < onditionally privileged, that is, they may not l)e seizor) if any other sufficient distress is found available on tlx- pren i '!8. -lacb are, beasts of t^e plow, instrimiente of husband: v, and the imp' n»ents or In- ^struments o* h man's trade o' T)rofes8ion. With re^wrd to the secom. class, namely, seizures under writ« of e,vecution, the exem])tions in the various Province;* .arc! as follows: ONTARIO. The exemptions from seizure under execution, as set •out in the Revised Statutes, cap. 77, are as follows: EXEMPTIONS FROM SEIZURE FOR DEBT. 175 2. The following chattels shall be exempt from seizure under any writ, 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 (including a cradle), in or- dinary 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, orit 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 washstaud 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 attachments in domestic use, thirty volumes of books, one axe, one saw, one gun, six traps, and suo'i fishing nets and seines as are In common use, the articles in this jub-divieion enumerated, not exceed- ing in value the sum of $150. 4. All necessary fuel, meat, fish, floiir and vegetables, actually provided for family use, not more than sufBcient 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 fpod therefor for thirty days, and one dog; 0. Tools and implements of or chattels ordinarily used in the debtor's occupation, to the value of $100. But if a specific article claimed as exempt, be- of a value greater than $100, and there are not other goods sufllcient to Jiatisfy the execution, such article may be sold by the sheriff, who shall pay $100 to the debtor out of the net proceeds* But no sale of such article shall take place unless the amount bid therefor shall exceed the said sum of $100 and the costs of sale in addition thereto. 7. Bees reared and kept in hives to the extent of fifteen hives. 3. The flebtor may in lieu of tools and implements of or chattels ordmarily used in his occupation referred to In clause 6 of section 2 of thi^ Ji.yt elect to receive the proceeds of the snle thereof up to $100, ip w 'iich case the oftcer executing the writ shall pay the net proceeds oi' sjich sole if the same shall not exceed $10f>, or, if the same shall e^xceied $100, shall pay that sum to the debtor in satis- faction of the debtor's right to exemption under said sub-division 0, and the sum to which a debtof shall be entitled hereunder shall be exempt from attachment or se lure at the Instancf of a creditor. 4. The chattels so exempt from seizure n» against a debtor shall after IdA death, be exempt from the claims of creditors of the de- reased, ntod the widow shall be entitled to retain the exempted' goods for the benefit of herself and the family of the debtor, or. If there Is no widow, the family of the debtor shall be entitled to the exempted goods. i 17,6 THE CANADIAN LAWYER. 5. The debtor, hia widow or family, or, iu the case of infants, their guardian, may select out of any larger number the several chattels exempt from seizure. 6. Nothing herein contained shall e:cempt any article enumerated in sub-divisions 3, 4, 5, 6 and 7 of section 2 of this Act, from seizure in satisfaction of a debt contracted for the identical article. 7. Notwithstanding anything contained in the preceding sections, the various goods and chattels which were, prior to the first day of October, 1887, liable to seizure in execution for debit shall, as respects debts which have already been or shall be contracted prior to the said day, remain liable to seizure and sale iu execution pro- vided that the writ of execution under which they are seized has en- dorsed upon it a certificate signed by the Judge of the Court out of which the writ issues, if a court of record; or, where the execution issues out of a Division Court, by the Clerk of the Court, certifying that it is for the recovery of a debt contracted before the date here- inbefore mentioned. The Landlord and Tenant's Act. B. S. O. 1897, 0. 170. 30.— (1) The goods and chattels exempt from seizure under exe- cution, shall not be liable to seizure by distress by a landlord fur rent in respect of a tenancy created" after the first day of October, 1887, except as hereinafter provided. (2) In the case of a monthly tenancy the said exemption shall ^nly apply to two months' arrears of rent. (3) The person claiming such exemption shall select and point out the goods and chattels as to which he claims exemption. 31.— (1) A landlord shall not distrain for rent on the goods and chattels the property of any person except the tenant or person who is liable fur the rent, although the same are found on the premises, but this restriction shall not apply In favor of a person claiming title under or by virtue of an execution against the tenant, or in favour of any person whose title is derived by purchase, gift, trans- fer, or assignuieiii from the tenant, whether absolute or in trust, or by way of mortgage or otherwise, nor to the interest of the tenant in any goods on the premises in the possession of the tenant under a contract for purchase, or by which he may or is to become the owner thereof upon performance of any condition, nor where goods have been exchanged between two tenants or persons by the one burrowing or hiring from the other for the purpose of defeating the ciaini of or the right of distress by the landlord; nor •shall the restrietion app'y where the property is claimed by the wife, hus- bnnd, (utughter, son, daughter-in-law, or son-in-law of the tenant, or of iMiy other relative of his, in case Mich other relntive lives on the premises as a member of the tenant's family, ur by any person whose title is deriv»^! by purchase, ctft, transfer or assignment, from any relative to whom such restriction doe* not apply. (2) Nothing in this sei'tion contained shall ' trolled by an agent or clerk for the owner of such goods or mer- chandise when such olerk or agent is aUu the traant and in default and the rent is due in respect of the store or shop and premisMi rented therewith and thereto belonging, when such goods would have been liable to seizure but for this Act, EXEMPTIONS FKOM SEIZURE FOR DEBT. 177 (3) Subjei't to sectioDH 39 and 40 of this Act the word " tenant " In this section shall extend to and include the sub-tenant and tho assigns of the tenant and any person in actual occupation of the premises under or with the assent of the tenant during the cur- rency 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. 32.— (1) A tenant who is in default for non-payment of rent and claims the benefit of the exemption to which ho is entitled under this Act, must give up possession of the premises forthwith, or be ready and offer to do so. (2) Tile offer may be made to the landlord or to his agent; and the person authorized to seize and sell the goods and chattels, or hav- ing the custody thereof for the landlord, shall be considered an agent of the landlord for the purpose of the offer and surrender to the landlord of the iK)ssession. (3) Where a landlord desires to seize the exempted goods, he shall, after default has been made in the payment of rent and before or at the time of seizure serve the tenant with a notice which shall inform the tenant what amount is claimed for rent in arrear, and that in default of puyment, if he gives up possession of the premises to the landlord after service of the notice, he will be entitled to claim exemption for such of his goods and chattels as are exempt from seizure under execution, but that if he neither pays the rent nor gives up iMtssession his goods and chattels will be liable to iieizure, and Mill be sold to pay the rent in arrear and costs, (4) The notice may be in the following form or to the like effect: Take notice that 1 claim ,i» fv)r rent due to me in respect of the i)remises which yremises after the service of this notice, I am by law entitled to s«'ize and st'U, tind I intend to seize and sell all your goods and chattels, or such i)art thereof as may be neces- sary for the payment of the said rent and costs. This notice is given under the Act of the Legislature of Ontario, respecting the Law of Landlord and Tenant. Dated this day of A.D. (Signed) A. B. (landlord), To 0. D. (tenant.) (."») The surrender of possession in pursuance of ihe notice l)y the landlord shall be a determination of the tenancy. (<») Service of papers under this Act shall be mode either person- ally or by leaving the snnu' with some grown person being in and apparently residing 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 ui» of the paper on some conspicuous part of the premises, shall be deemed good service. (S) No pro.'eeding under this section shall be deemed defective or renderwl invalid l)y any objection of form. c.L. — 3nn Ki). ^^ 178 THE CANADIAN LAWYER. 33«— (1) A tennut may set-off ngtiiust the rent due a debt due to him by the landlord. (2) The set-otf may bi' I)y a notice in the form or to the effect following, and may be given botore or after the seissure: Take notice, that 1 wish to set-off against ri-nt due by me to you, the debt which you owe to me on your l)romissory note for dated (or for eight months' wages at $20 per month, $160), (or as the case may be). (3) In case of such notice the landlord shall only be entitled to distrain for the balance of rent after deducting any debt justly due by him to the tenant. 34. (1) In case of an assignment for the general benefit of credi- tors the prefen-ntitil lien of the landlord for rent shall be restricted to the arrears of rent due during the period of one year last previous to, and for three months following, the execution of such assign- ment aud from thence so long as the assignee shall retain possession of the premises leased. (2) Notwithstanding any provision, stipulation or agreement in any lease or agreement contained, in any case of an assignment for the general benefit of creditors, or in case an order is made for the winding up of an incorporated company, being lessees, the assignee or liquidator shall \v^ at liberty within one mouth from the execution of such assignment or the making of such winding up order by notice in writing under his hand given to the lessor to elect to retain the premises occni)ied by the assignor or company as afore- said at the time of such assignnient or winding up, for the unexpired term of any lease under which the said premises were held, or for such portion of the said term as he shall see tit, upon the terms of such lease and paying the rent therefor provided by said lease. Re-en trt of Landlord. 35. Where a liiujll'ir! hn^ by law a right to enter for non- payment of rent, it shall .ot'be necessary to demand the rent on the day when due, or witli the i^trictness ree 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 EXEMFnONS FROM SEIZUUE FOR DEBT. 179 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. Applicatian of Certain Sections. 38. Sections 30, 31, 32 and 33, shall apply only to tenancies on or after the tirst day of October, 1887. Protection of Ooods of Lodgers from Distress. 30. If a superior landlord shall levy or iiuthorize to be levied a distress on any furniture, goods or chattels of any boarder or lodger, for arrears of rent due to the superior Intx'' rd by his imme- diate tenant, the boarder or lodger may servo uiK'rior landlord, or the bailiff or other person employed by hi y the distress, with a declaration in writing made by the bo lu.lger setting forth that the immediate tenant has no rigb '•ty, or bene- ficial interest in the furniture, goods or chu , -^trained or threatened to be distrained upon, and that sm li luruitun-, goods or dijittels are the property or in the lawful possession of such boarder or lodger; and also setting forth whether any and what amount by way of rent, board or otherwise is due from the boarder or lodger to the said immediate tenant; and the boarder or lodger may pay to the superior landlord, or to the bailiff or other person employed by him as aforesaid, the amount, if any, so due as last aforesaid, or so much thereof as shall be sufficient to discharge the claim of the superior landlord; and to such declaration shall be annexed a correct inventory, subscribed by the boarder or lodger, of the furniture, goods and chattels, referred to in the declaration. 40. If a superio"' landlord, or a bailiff or other person employed by him, after being served with the before mentioned declaratii/n and inventory, and after the boarder or lodger shall have paid or tendered to the superior landlord, bailiff or other person, the amount, if any, wb'.ch, by the last preceding section, the boarder or lodger is authorized to pay, shall levy or proceed with a distress on the furniture, goods or chattels of the boarder or lodger, the superior landlord, bailiff or other person, shall be deemed guilty of an illegal distress, and the boarder or lodger may replevy such furniture, goods or chattels in any Court of comi)etent jurisdiction and the superior landlord shall also be liable to an action at the suit of the boarder or lodger, in which action the truth of the declaration and inventory may likewise be inquired into. 41. Any payment made by a boarder or lodger pursuant to section 31) of this Act shall be deemed a valid payment on account of the amount due from him to the immediate tenant mentioned in the said section. 47. The declaration hereinbefore referred to shall be made un- der and in accordance with The Canada Evidence Act, 189S. By "The Free Grant and Hoinesteads Act," R. S. 0. 1897, cap. 29, the lands located under such free grants are exempt from seizure as follows : 25. Xo land located as aforesaid, nor any interest therein, slinll in any event be or become liable to the satisfaction of any debt or h r ^^^o. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 I4&I21 |2.5 I" lU |2.2 :; lis 12.0 IL25 i 1.4 I m 1.6 Photographic Sciences Corporation c^ '^ «■ ^\ V '^ ""^^^ O^ «>. 33 WIST MAIN STRUT WIUTIR.N.Y. MSIO (71*) •73-4503 H ^ 180 THE CANADIAN LAWYER. liability contracted or incurred by the locatee, his widow, heirs or devisees, before the issuing of the patent for the land. 2. After the issuing of the patent for any land, and while the land or any part thereof, or any interest therein, is owned by the locatee or his widow, heirs or devisees, such land, part or interest, shall during the twenty years next after the date of the location be exempt from attachment, levy under execution, or Kale 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, save and except a debt secured by a valid mort- gage or pledge of such land made subsequently to the issuing of the patent. 31 Vic. c. 8, s. 14. 21. Nothing in this Act shall be construed to rxempt the land from levy or sale for rates or taxes heretofore or hereafter legally imposed. NOVA SCOTIA. The exemptions from seizure under execution, as set out in the Revised Statutes, 1884, cap. 104, Ord. XL., sec. 40, are as follows: 40. The necessary wearing apparel and lidding 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 H. S. N. B., cap. 47, s. 24, exemptions are as fol- lows : The wearing a|H>arel, bedding, kitchen utensils, nud tools of his trade or calling, to the value of one hundred dollars, of any debtor, dhall l>e exempt from levy or sale under execntitm. The interest of the allottee in frei> grant lands, before the issue of the patent, can not be taken in extH'Ution. PRINCE EDWARD ISLAND. By the Revised Stat., 30 Vict. ca|). 18, exemptions are as follows: The neceHsary wearing apparel and bedding of the debtor and his family, and the tMils and instruments <»f his trade or calling, tire pounds in money, and his last cow, an- exemptu'd frtim execution. MANITOBA. The following personal and real estate are declared by R. S. M. 18})1, c. 53, s. 43, exempt from seizure by virtue of all writs of execution issued by any Court in the Province, na of religious services; (h) The land upon which the judgment debtor or his family actually resides, or which he cultivates either wholly or in part, or which he actually uses for grazing or other purposes; Provided the 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 encumbrances thereon; (i) The house, stables, barns and fences on the judgment debtor's farm, subject, however, as aforesaid. (/) All the neceHsury seeds of various varieties or roots for the proper seeding and cultivation of thirty acres. {k) The actual residence or home of any person, other than a farmer, provided the same does not exceed the value of fl.5UU; and if the Hiinie does exceed the value of i^l,r»00, then it may be otToied for sale, an«l, prorideil a huui greater thnn |1,.'t00; and (il) Provl«led, further, that n«» such sale be carried out or |iosH«'HHion given to any (ktsuu thereunder, until such time as the nniouiit of th(> exemption shall have been paid over to the debtor eutltltni to such exemption. The ju«lgnu'nt debtor is entitled to a choice from the greater tinan- tity of the same kind of property or articles exempted from seizure. 182 THE CANADIAN LAWYER. BRITISH COLUMBIA. The following personal property is by statute (R. S. B. C. 1897, e. 93, s. 17) 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, at the option of such debtor, or if dead, of his personal representative, to the value of five hundred dollars; Provided that nothing herein contained shall be construed to exempt any goods or chattels from seizure in satisfaction of a debt contracted for or in respect of such identical goods and chattels; Provided further, that this section shall not be .ponstrued so as to permit a trader to claim as an exemption any of the goods and mer- chandize which form a part of the stock in trade of his business. A homestead registered in pursuamo of the provisions of c. 03, R. 8. B. C. 1897, is free from forced seizure or sale by any process, for or on account of any debt or liability incurred after such regis- tration, provided' it be of a value not greater than $2,300; and if of greater value, the excess only is liable to seizure. GUARANTIES. 183 GUAKANTIES. A guaranty is a promise or agreement to answer or be responsible for the payment of 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 guar- anty, 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 guaranteed need not necessarily appear on the writing, although it is proper that the instru- ment be fully and carefully worded. As a rule, it is best to mention in the written guaranty the consideration upon which it is given, though in Ontario this is, by statute, no longer necessary. FORMS. CHtaranty for goods to be fumUhed. In considerntion that A. B. will furnish dry goods and millinery to a value not exct'oding one thouHand 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 me. This guaranty to continue in force 'one year and no longer. E. F. Oiiaranty 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 us such, duly accounting for nil 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 dishonestly. (hiaraniy for a ttervant. To Mr. John Edwards, Burlington. Ont.: Sir.— If you will engage Pntri<'k 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 s»»«ce of six months. Simon Strkbt. 184 THE 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 con- tract 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 specified time in consideration of the payment of a stipulated sum of money called rent. A lease may be made for the life of either the landlord or the tenant, or it may be made for any number of years, or it may be at will — ^that is, determinable at any moment at the will, 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 years in dura- tion 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 for a lease for the term specified. Leases in writing should be made in dupli- cate, one copy for each party; and it is prudent in all cases that the lease should be in writing; a written lease contain- ing all the terms agreed upon tends to prevent disputes and litigation. A letting and hiring of land for a year or any less period may arise, by implication of law, from the relative situations of the parties and the silent language of their actions and conduct, as well by express words and stipulations. Whenever the house or land of one man has been occupied and used by another, the presumption is that the use and occupation are to be paid for, and the landlord is entitled to maintain an action to recover a reasonable hire and reward for the use of the land, unless the tenant can show that he entered into possession of the property under circumstances fairly lead- ing to an opposite conclusion. A landlord, on the other hand, who has permitted a tenant to occupy property, and has received rent from the latter for such use and occupation, will be bound l)y his own acts, and cannot afterwards treat such tenant as a trespasser, and turn him out of possession, without a proper notice to quit. /' LANDLORD AND TENANT. 18& Leases may be made to commence from a da- tht.t i» past, or from a day to come, as well as from the day of the making of the lease. If a tenant holds over after the expiration of his lease, and the landlord receives from him rent which has accrued due after the expiration of the lease, the former 'becomes a tenant from year to year upon the terms of the original demise. A tenancy from year to year is ordinarily implied from the payment and the acceptance of rent; but this prima facie presumption may, of course, be rebutted by showing that the money was paid or received by mistake. If an annual rent is reserved, the holding is from year to year, although the lease or agreement provides that the- tenant shall quit at a quarter's notice. Such a contract differs only from the usual letting from year to year in the agreement by the parties to reduce the ordinary six months' notice to quit to three months. But if it is expressly agreed that the tenant is always to be subject to quit at six months'" notice, given him at any time, this constitute i a half-yearly tenancy, and the lessee will be presumed to hold from six months to six months, from the time that he entered as tenant. If he is to hold till one of the parties shall give to the other three months' notice to quit at the expiration of such notice, the tenancy will be a quarterly tenancy. The landlord's remedy for the non-payment of rent is either by action or distress. Where the rent reserved is a fixed ascertained rent, the landlord may distrain. But if no> certain ascertained rent has been reserved or covenanted or agreed to be paid, there is no right to distrain: the landlord can only recover a fair compensation for the use and occupa- tion of the premises in an action at law. It is essential to the lawful exercise of the power of distress that the distrainor be the immediate landlord or owner of the estate. If after the making of the lease the landlord has sold and transferred his estate or interest to some third party, the former has no- right or power to distrain. A landlord cannot distrain twicfr for the same rent, unless the distress has been withdrawn at the instance or request of the tenant, or unless there has- been some mistake as to the value of the things taken. When an annual rent is reserved, it may be made pay- able monthly or quarterly, or at any period of time that the parties may think fit to apj)oint, whatever may be the dura- tion of the term of hiring. It may also be made payable in advance, so as to entitle the landlord to distrain for it at the commencement, instead of at the end of each quarter. 186 TUE CANADIAN LAWYEll. V, I There may be a yearly tenancy with an annual rent, payable quarterly; or there may be a quarterly tenancy with a quarterly rent, payable weekly or monthly, or at any suc- cessive periods of time. A distress by the landlord after tender of the rent to him or to his bailiff or agent authorised to distrain^ without a fresh demand on the tenant, is illegal; and if the landlord distrains before the rent has become due, the tenant may resist the entry and seizure by force, and, after a seizure has been made, he may rescue his goods at any time before they have been impounded; but when once the goods have been impounded they are in the custody of the law, and the tenant cannot then break pound and retake them. As soon as the bailiff or distrainor has made out and delivered to the tenant, or has left upon the premises, an inventory of the goods he has taken, they are said to be impounded. Distress must be made within six months after the de- termination of the lease, and during the continuance of the landlord's title or interest, and during the possession of the tenant from whom the arrears became due. The tenant has the whole day on which the rent becomes due to pay such rent; and a distress, therefore, cannot be made until the day after the day appointed for the payment of the rent. Unless the rent is made payable at some par- ticular specified place, the tenant is bound to seek out the landlord and pay or tender him the money. A landlord or his bailiff cannot lawfully break open gates or break down inclosures, or force open the outer door of any dwelling-house or building, in order to make a distress: but he may draw a staple or undo fastenings which are ordinarily opened from the outside of the house. A distress cannot be made in the night, or after sunset, or before sunrise, nor upon land which does not form part or parcel of the demised premises, and from which the rent reserved does not issue, unless the goods of the tenant have been removed thereto from the demised premises within sight of the distrainor coming to distrain, or unless they have l)een fraudulently removed thereto by the tenant to avoid distress. If the tenant fraudulently or raiser or 'more, two cents in the dollar on the value of the goods. 4. If any printed advertisement, not to exceed in all 1 00 5. Catalogues, sale, and commission, and delivery of goods, live cents in the dollar on the net produce of the sale. Every bailiff or other, person who makes any distress is bound to give a copy of his charges, and of all the costs and charges of the distress, signed by him, to the person on whose goods and chattels any distress shall have been levied, although the rent demanded may exceed the sum of eighty dollars. When the rent distrained for exceeds eighty dollars, the costs are not, in Ontario, limited to any particular amount or fixed scale of charge; but they must be fair and reasonable. Wben, in consequence of the rent not being fixed and as- certained, the landlord has no right to distrain, his only remedy is by action at law, in which he can recover from the tenant a proper compensation for the use and occupation of the premises. With regard to repairs, it may be remarked generally, that in the absence of an express covenant or agreement to repair, there results from the demise and acceptance of the lease by the tenant an implied covenant or promise to use LANDLOltD AND TENANT. 189 the property demised in a tenant-like and proper manner ; to take reasonable care of it, and restore it, at the expiration of the term for which it is hired, in the same state and con- dition as it was in when demised, subject only to the deterio- ration produced by ordinary wear and tear, and the reasonable nse of it for the purpose for which it was known to be re- quired. A landlord is not bound to repair, unless by special agreement. Where a tenant covenants unconditionally to repair, he must restore the premises, even though they should be damaged, or even consumed, by fire. Hence the risk of an unqualified covenant to this effect on the tenant's part, for the latter would be not only bound to rebuild, but would be liable for the rent meanwhile. When a lease is determinable on a certain event or at a particular period, no notice to quit is necessary, because both parties are equally apprised of the determination of the term. If, therefore, a lease be granted for a term of years, or for one year only, no notice to quit is necessary at the end of the term. In the case of a tenancy at will, no notice to quit is necessary, but there must be a formal demand of pos- session, or notice of the determination of the will, on the part of the landlord, before any action of ejectment can be brought. The tenant at will, too, in order to discharge him- self from his liability for rent, or for a reasonable compensa- tion for use and occupation, must give notice to the landlord of the fact of his abandonment of the possession, and of his election to rescind the contract and put an end to the tenancy. If the holding is a general holding for a year, and onwards from year to year so long as both parties please, a half-year's notice must be given by one party or the other in order to determine the yearly hiring and tenancy; and this notice may be given in the first as well as any subsequent year of the tenancy. The notice may be in writing or by word of mouth, but it is best to have it in writing and signed by the party serving it; a copy should be preserved, endorsed Avith a memorandum of the date and mode of service. In the case of a yearly tenancy, it must be a full six months' notice, to expire at the period of the year corresponding with the period at which the tenancy commenced. It is better that a written notice to quit should be served upon the landlord or tenant (as the case may be) personally; but it is sufficient if served upon the wife or servant at the dwelling house of the party to be served. Where a furnished house is let, there is an implied agree- ment that it is reasonably fit for habitation at the time let, and the tenant may vacate it upon his discovery that it is 190 THE CANADIAN LAWYEll. X not. But in the case of an unfurnished house, the fact that the premises are in an unsanitary state by reason of im- perfect drains, cesspools, etc., will not justify the tenant in refusing to pay rent; though if the landlord have specially represented the premises habitable and healthy, he may be liable to the tenant in an action for damages for injuries suffered. If defects are suspected by the tenant, he should, before entering into possession, obtain the landlord's writteij agreement to put the house in repair. A tenant may underlet, or assign his lease, unless for- bidden by the lease; but he will remain liable to the landlord for rent and upon his covenants unless he be discharged therefrom in writing signed by his landlord. At the expiry of the term of lease, the tenant should give up possession. Should he refuse, the landlord has no right to gain possession by putting the tenant out by force, though where the premises are vacated by the tenant, though locked up, the landlord may break in to regain possession. Where the tenant refuses to give up possession, the landlord's only remedy is by action of ejectment, save in those Provinces where, as in Ontario, New Brunswick and Manitoba, a sum- mary remedy is provided by statute, under order of a Judge or Justices. LODGERS. The rules of law as to lodgers are in the main similar to those respecting other lessees. The letting of apartments generally includes the right to use the door-bell, or knocker, entry, water closet, etc. In the Provinces of Ontario and Manitoba, lodgers' goods are protected from seizure for rent due the superior landlord. MANITOBA, The costs of distraining are fixed by R. S. M. 1891, c. 46, as follows: — 1. Levying distress, $1. 2. Man in possession, per day, '$1.50. 3. Appraisement, whether by one appraiser or more, two cents in the dollar on the value of the goods up to $1,000, and one cent in the dollar for each additional $1,000 or portion thereof. 4. All reasonable and necessary disbursements for advertising. 5. Catalogue, sale, commission and delivery of goods, five per cent, on the net proceeds of the goods up to ^l^lpOO, and two and one half per cent, thereafter. C. Mileage in going to seize, fifteen cents per nile one way. X, LANDLORD AND T£NANT. 191 7. All uecessary and reasonable disbursements for removing and storing goods, and removiug and keeping live stock, and all other dis- bursements which, in the opinion of the Judge before whcHU any Questiok >in to the amount of the fees to be allowed under this Act may come for decision, are reasonable and necessarj'. No other or more costs or charges may be taken from the pro- ceeds of the goods, or from the tenant whose goods are Hcized. No charge shall be made except for what is actually done. Any viola- tion of this provision is visited on the offender in treble the amount of the overcharge. The same tariff applies to goods seized under chattel mortgage. Where a distress is made, a copy of the diemand and of all costs and charges of the distress, signed by the person making the distress, must be given the person on whose goods the distress is levied. Where the goods of boarders or lodgers are seized, the boarders or lodgers may serve a statutory declaration on the landlord, stating their claim and the amount of rent they then owe, and on payment up to such amount, they may release the goods. Overholding tenants may be proceeded against under an Act similar in its terms to that in force in (intario. BRITISH COLUMBIA. The costs of levying distress are fixed by R. S. B. C. 1897, cap. 61, as follows: Levying distresses under $100 $1 50 over $100 and under $300 1 75 over $300 2 00 Man keeping possession per diem 2 00 Appraisement, whether by one appraiser, or moie, 2 tents in ihe dollor on the value of the goods. Catalogues sale and commission, and delivery of goods:— On the net produce of the sale, if under $100— ten cents in the dollar; if over $100 and under $300— eight cents; and if over $300— six cents. A copy of the demand and costs of the distress signed by the person making it must be servrnl on the debtor, and the penalty for overcharge is the same as provided in Manitoba. FORMS. Ltaae of House. This Indenture, made the day of , 18 , between ^' ^"«?/' ***^' "' ***® *'''^* P"""*' ""'* ^- ^" °'' ****•• **^ *^^ second part, Witnesseth. that in consideration of the rents, covenants and ngreenients hereinafter reserved and contained on the part of the 192 THE CANADIAN LAWYEll. ■Raid iMirty of the second part, his executors, administrators and assigns, to be paid, observed and performed, he, the said party of the first part, hath demised and leased, and by these presents doth demise and lease, nnto the said party of the second part, his execu- tors, administrators and assigns, all that messuage or tenement situate, lying and being, etc., (here describe the premises) together with all houses, out-houses, 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 computed from the day of , 18 , and from thenceforth next ensuing, and fully to be completed and ended. Yielding and paying therefor yearly and every year during the «aid term hereby granted unto the said imrty 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 3tate the days of payment) the first of such payments to become due and be made on the day of next. I'rovided always, and these presents are upon this express cou- •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 siiid party of the first part, his heirs, exe- cutors, administrators or assigns, into and uimn the said premises, «r 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 iK'en executed. And the said party of the second part, for himself, his heirs, executors, administrators and assigns, doth hereby covenant, pro- mise and agree to and with the said party of the first part, his heirs, executors, administrators and assig'is, in manner following, that is to say: That he, the said party of the second imrt, his executors, admin- istrators and assigns, shall and will well and truly pay, or cause to be paid, to the said imrty of the first part, his heirs, executors, administrators or assigns, the said yearly rent hereby reserved at the times and in manner hereinbefore api>ointed for payment thereof. And also shall and will, from time to time, and at all times dur- ing the said term, keep in good and sufllcient repair the said pre- mises hereby demised (reasonable wear and tear and accident by fire excepted), and the same s<» kept in repair shall and will, at the end. expiration or other sooner determination of the said term, peaceably and (|iiietly 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 |>ay, or cause to be paid, all taxes, rates, levies, duties, charges, assessments and impositions whatsoever, whether parliamentary. ItM-al. or otherwise, which now are, or which during the continuance of this demise shall at any time be rated, tax«>d or imiswed on, or in res|H>ct 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, exe<>utors, administrators and assigns, and their agents resitectlvely. either alone or with workmen or others, fmni time to time at all reasonable times in the daytime, during the said term, t() enter upon the said demised premises, and every part thereof, to view and examine the state and «'ondltion theroof; and in I'ase any want of reparation or amendment be found on any such LANDLORD AND TENANT. 193 examination, the said party of the second part, his executors, admin- istrators or assigns, shall and will from time to time cause the same to be well and sutUciently repaired, amended, and made^ ;Kood, within one month next aiter notice in writing shall have been given to them or left at or upon the said demised premises for that pur- pose. And if the said party of the second part, his executors, ad- ministrators or assigns, fail in making the necessary repairs in manner hereinbefore described, that it shall be lawful for the said party of the first part, his heirs, executors, administrators and assigns, and their agents, to enter into and upon the said hereby demised premises, and have the same 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 made, to sue for the same in any Court of Law having jurisdiction over the same. And the si>id party of the second part, his executors, administra- tors or assigns, shall not, nor will at any time or times during the continuance Of this demise, sell, assign, let or otherwise part with this' present lease, or the said premises hereby demised, or any part thereof, to any person or persons whomsoever, for the whole or any part of the said termi, 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 party 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 ho, the said party of the second i)art, his executors, administrators and assigns, well and truly paying the rent hereinbefore reserved, and observing, performing and keeping the covenants hereinbefore con- tained, shall and may, from time to time, and at all times during the said term, peaceably and quietly enjoy the said premises hereby demised, without molestation or hindrance. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above written. Signed, sealed and delivered | in the presence of Y. Z. C. D. lL.s.] A. B. tL.B.] il Leaae of Land. This Indenture, made the day of , 18 , between A. B., of, etc.. of the first port, and C. I>., of, etc., of the second iMU't. WitnesHcth, that in considertition of the rent, covenants, and agree- nients hereinafter reserved and contained, and to be paid, observed und i>erformed by the said party of the second part, his executors, odmlniRtrators and assigns. He, the said party of the first part, Hath demised and leased, and by these proseiits Doth demise and lease, unto the said party of the second part, his executors, adminis- trntors and assigns, All that certain parcel or tract of land and preniises sitnate, lying and lieing (here describe the londs). To have and to hold the said jmrcel or tract of land, with the api)urtenanceH, iinto the said party of the second part, his exertitors. adniinistrotors nnd nsRlgns, fronr the day of , 18 , for the term of C.L.— Srd ki<. 18 194 THE CANADIAN LAWYER. , from thcuce next ensuing, and fully tn be complete and ended, Yielding and paying therefor, unto the said party of tbe tirst part, bis executors, administrators and assigns, the yearly rent or sum of $ , 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 ,' next ensuing the 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 party of the second part, his executors, administrators and assigns, shall and will well and truly pay, or cause to be paid, to the said party of the first part, his executors, administrators or assigns, the said yearly rent here- by reserved, at the times and in manner hereinb<.>fore mentioned for payment thereof, without any deduction or nbatement whatso- ever thereout for or in respect of any rates, taxes, assessments, or otherwise: And also shall and will, on or before the day of , now next, at his own costs and charges, fence in the premises here- by demised in a good and substantial manner, (add here such coven- ants as to the mode of cultivation, etc., as may 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- chase the fee simple of the land hereby demised, he shall be allowed to do so by paying the sum of $ , 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 first iwirt, three mouths 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 there- of, shall l»e in arrear and unpaid for the space of thirty days after any of the days or times whereon the same ought to be paid, as aforesaid, then it shall 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, nnd the same to sell nud dispose of, either by public auction or private sale, as to him or them may seeni best, without the let. hindrance or denial of him the said party of the HtHoud part, his h«'irs, extvntors, ailminiKrtnt(»rs and assigns; And further, that the non-fnltilment of the covenants hereinbefore mentioned, or any of them, on the part of the lessee or lessees, shall operate as a forfeiture of th«>H»» presonts, and the same shall be con- sidered null and void to all intents and pun^oses whatsoever; And also, that the said party of the swond imrt, his executors, adminis- trators and assigns, shall not, nor will, during the said term, grant or demise, or assign, transfer, or set over, or otherwise by any act or «leed. pr«K'ure or cause the said preniiseH hereby ileniistMl, or intended HO to be, or any part thereof, or any estate, term, or interest therein, to Ik« Ki'anted, nHHiKucd. tnuisfernMl, or net over, unto any person or persoiiM whatsoever, witliont Hie coiiHent in writing of the snid party of the tirst part, his luirs or aHsigns. first had and obtained. .>LORD AND TENANT. 195 In witness whertor, the said i>arties to these presents have here- unto set their hands and seals, the day and year tirst above written. Signed, sealed and delivered \ in the presence of [ A. B. [U8.] Y. Z. ) c. D. [L.8.] ^1 Lease of a House and Farm. 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, Wituesseth, that for and in consideration of the rents, covenants, conditions and agreements hereinafter reseived and con- tained, and which, on the part and behalf of the said C. D., his executors, administrators and assigns, are or ought to be paid, done and performed, the said A. B. hath demised, leased, set and to farm l«>t, and by these presents doth demise, lease, set and to farm let, unto the said C. D., his executors and administrators. All that parcel or tract of land, etc., (describing the lot) together with the frame dwelling house, barns, stables, and other out-houses thereupon erected, standing and being, together with all ways, paths, passages, waters, watercourses, privileges, advantages, and appurtenances whatsoever, to the same premises belonging, or in any wise api)ertaining. To have and to hold the said parcel or tract of land, dwelling-house, buildings and premises hereby demised unto the said C. D., his executors, administrators and assigns, from the day of the date of these presents, for, and during, and until the full end and term of years from thence next ensuing, and fully to be complete and ended: Yielding and paying therefor yearly, and every year during the said term hereby granted, unto the said A. B., his heirs and assigns, the yearly rent or sum of $ , of lawful current money of Canada by two equal half-yearly payments, to be made on the day of , and the day of in each and e%'ory year during the said term, without any deduction or abatement thereout for or upon any account or pretence whatso- ever. Provide., of, etc.. of the second \ul»er. and that tlu> said (lessor) may enter and view the state of repair; and that the said (lessee) will repair according to notice, in writing, reasonable wear and tear, and damage by tire, liKhtninK and tempest only ex- cepted; and will not assign or sub-let without leave; and that he will leave the premises in good repair, reasonable wear and tear and damage by fire, lightning and temjiest only excei)ted. Provided that the lessee may remove his fixtures. Provided that in the event of fire, lightning, or tempest, rent shall cease until the premises iire re- built. Proviso for re-entry by the said (lessor) on non-paynient of rent, or non-iK>rformance of covenants: The said (lessor) covenants with the said (lessee) for quiet enjoyment. In witness whereof, the said parties have hereunto set their hands and seal& Signed, sealed and delivered ) A. B. Fls.! C. D. [L.8.] in the presence of Y. Z. Dtatreas Warrant. 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. for on the premises in his possessionl. situate at . in the county of , for dollars, being one year'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 , 18 . J. S. (Landlord). Inventory finrf Xotice. An inventory of the several goods nnd chattels distrninod by me, J. S. for if as Bailiff, say A. B.. ns Bailiff to Mr. J. S.], this day of , in the year of our Tx)rd, IS , in the dwelling- house, ont-houses and lands fas the case may bel <>t C. P.. situate LANDLOKD AND TENANT. 19» at , iu the county of , [and if as Bailiff, say, by tlie autliority and on the behalf of the said J. S.], for the sum of dollars, being one year's rent due to me [or to the said J. 8.] lor the snid houses and premises on first of May last, and as yet in arrear and unpaid. 1. In the Dwelling-house. (Kitchen) Two pine tables, six old chairs, five copper sauce-pans, etc., etc. (Parlor) One large pier looking-glass, two sconces in gilt frames, two mahoguny card tablt-s, etc., etc. (Dining Room) Six hair-bottom chairs, mahogany frames, etc., one set of dining tables, etc., etc. (Out-houses) 2. In the Barn. Six sacks of wheat, six hurdles, etc., etc. [And so on, describing the things as correctly as may be accord- ing to the place from which they are taken. At the bottom of the inventory subscribe one of the following notices to the tenant according as the case may be.] Mr. C. D. Take notice that I have this day distrained (or that I, as Bailiff to J. S., your landlord, have this day distrained) on the premises above mentioned, the several goods and chattels specified in the above inventory, for the sum of dollars, being one year's rent due to me (or to the said J. S.), on first of May last, for the said premises, and that unless you pay the said arrears of rent, with the charges of distraining for the same, or replevy the said goods and chattels within five days from the date hereof, the said goods and chattels will be appraised and sold according to law. Given under my hand the day of , 18 . J. S. (Landlord.) or A. B. (Bailiff.) Notice of Diatreaa of grotting crop$. Mr. C. D., Take notice that I have this day taken and distrained (or that as Bailiff to J. S., your landlord, I have taken and distrained), on the lands and premises known as lot number one in the township of etc., etc., th" 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 Majr last, for the said lands and premises; and unless yon nreviously 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 and dispose of the snme towards satisfaction of the said rent, and of the charges of such distress, npprnisement and sale, according to the form of the statute in such case made and provided. Given under my hand the day of , 18 . J. S. (Landlord.) or A. B. (Bailiff). A true copy of the above Inventory was this day of , delivered to the above mentioned C. D., in the presence of us. O. H. J. K. 200 THE CANADIAN LAWYER. Tenanta requeat 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 will pay the man for keeping the said possession. Witness my hand this day of , 18 . C. D. Witness, R. S. Notice to quit by Landlord. To C. D. (Tenant). I hereby give yon notice to quit and deliver up tl premises which you now hold of me, situate nt (here describe the premises) on the day of , 18 . Dated the day of , 18 . Yours, '^tc, A. B. (Landlord). Notice to quit hy Tenant. To A. B., (Landlord). I hereby give you notice that on the day of next I shall quit and deliver up to you, the peaceable and quiet possession of the premises now held by me, with the appurtenances situate nt , in the township of , in the county of , in this Province. Dated this day of , 18 . Yours, etc., C. D. (Tenant). LINE FENCES. 201 LINE FENCES. ONTARIO. The provisions of the law upon the subject of the erectioir and maintenance of line fences are very similar in the Pro- vinces of Ontario, New Brunswick, Prince Edward Island,. Manitoba and British Columbia, in all of which special sta- tutes have been enacted governing the subject. It is thought necessary only to give the exact statutory law of one Pro- vince, namely, Ontario, which is concisely embraced in the R. S. 0. 1897, cap. 284. The expression " occupied lands," where it occurs below does not include so much of a lot, parcel or farm as is unenclosed, although a part of such lot, parcel or farm is enclosed and in actual use and occupation^ The Act is as follows: An Act reitpecting lAne Fences. 1. This Act may be cited as 1887, c. 219, s. 1. ' The Line Fences Act." R. S. O. 2. (1) In this Act the expression " occupied lands " <*hall uot include so much of a lot, parcel or farm as is unenclosed, although a part of such lot, parcel or farm is enclosed and in actual use and occupation. (2) Where, within the meaning of section 4 of this Act, there is any dispute between owners or occupants of lands situate in different municipalities, the following words or expi r'^dions in" this Act shall have the meaning hereinafter expressed, namely: - < (fl) " Fence-viewers " shall mean two fence-viewers of the municipality in which is situate the land of the owner or occupant notified under clause 1 of section 4 of this Act, and one fence- viewer of the municipality in which is situate the land of the person giving the notice; except that in case of a disagreement having- occurred within the meaning of clause 4 of said section 4, the said phrnse " Fence-viewers " shall mean fence-viewers from either or both municipalities. (6) The expression "in which the lands are situate," and the expression " in which the land lies," shall mean in which are situate the lands of the owner or occupant so notified under said clause 1 of section 4, R. S. O. 1887, c. 219, s. 2. 3. Owners of occupied adjoining lands shall make, keep up and re- pair a just proportion of the fence which marks the boundary between them, or if there is no fence, they shall so make, keep 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 repairine; THE CANADIAN LAWYER. «uch proportion, and in that respect shall be in the same position as it their laud had been occupied at the time of the original fencing, and shall be liable to the compulsory proceedings hereinafter men- tioned. R. S. O. 1887, c. 219, s. 3. 4. In case of dispute between owners respecting such proportion, the following proceedings shall be adopted: 1. Either owner may notify (Form 1) the other owner, or the occupant of the land of the owner so to be notified, that he will, not less than one week from the service of such notice, cause three Fence-viewers of the locality to arbitrate in the premises. 2. The owners so notifying shall also notify (Form 2) the Feuce-viewers, not less than one week before their services are required. 3. The notices in both cases shall be in writing, signed by the person notifying, and shall specify the time and place of meeting for the arbitration, and may be ser^'ed by leaving the same at the place of abode of such owner or occupant, with some grown-up person residing thereat; or in case of tne lands being untenanted, by leaving the notice with any agent of such owner. 4. The owners notified may, within the week, object to any or all of the Fence-viewers notified, and in case of disagreement, the Judge hereinafter mentioned shall name the Fence-viewers who are to arbitrate. R. S. O. 1887, c. 219, s. 4. 5. 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 damages caused to the owner by such neglect. R. S. O. 1887, c. 219, s. 5. 6. The Fence-viewers shall examine the premises, and if re- quired by either porty, they shall hear evidence, and are authorized to examine the parties and their witnesses on oath, and any one of them may administer an oath or affirmation for the purpose as in Courts of Law. R. S. O. 1887, c. 219, s. 0. 7. (1) The Fence-viewers shall make an award (Form 3) in writing, signed by any two of them, respecting the matters so in dis- pute; 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 in what proportion the same shall be paid. 2. In making the award, the Fence-viewers shall regard the nature of the fences in use in the locality, the pecuniary circum- stances of the persons between whom tliey 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 «treams 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 afifect the title to the land. 4. If necessary, the Fence-viewers may employ an Ontario Land Surveyor, and have the locality described by motes and Imunds. R. S. O. 1887, c. 210, s. 7. LINE FENCES. 203 8. 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; and notice of its being made shall be given to all parties interested. R. S. O. 1887, c. 219, s. 8. 9. (1) The award may be enforced as follows: The person desiring to enforce it shall serve upon the owner or occupant of the adjoining lands a notice in writing, requiring him to obey the award, and if. the award is not obeyed within one month after service of the notice, the person so desiring to enforce it may do the work which the award directs, and may immediately take proceedings to recover its value and the costs from the owner by action in any Division Court having jurisdiction in the locality; but the Judge of the Division Court may, on application of either party, extend the time for making such fence to such time as he may think just. R. S. O. 1887, c. 219, s. 9; 59 Vic. c. 65, s. 1. (2) Instead of requiring execution to be issued upon such judg- ment the party entitled to enforce the judgment may obtain a certificate from the Clerk of the Division Courr of the amount due for debt and costs in respect of such judgment, and shall be entitled upon lodging the same with the clerk of the municipality to have the amount so certified placed upon the collector's roll, and the same may be collected in the same manner as taxes are collected, and shall, until so collected or otherwise paid, be a charge upon the lands liable for the payment thereof, and in such case execution shall not thereafter issue on such judgment. 59 V. c. 65, s. 1. 10. (1) The award shall constitute a lien and charge upon the lands re8i)ecting which it is made, when it is registered in the Registry Office of the County, or other Registry Division in which the lands are. (2) Such registration may be in duplicate or by copy, proved by affidavit of a witness to the original, or otherwise, as in the case of any deed which is within the meaning of " The Registry Act." R. S. O. 1887, c. 219, B. 10. 11. 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 mentioned in this Act. 2. The appellant shall also deliver a copy of the 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 sufficient 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 monner herein- before provided for the service of other notices under this Act. 204 THE CANADIAN LAWYEll. 4. The Judge ahall hear and determine the appeal, and set aaide» alter, or affirm the award, correcting any error therein, and he may examine parties and witnesses on oath, and, if he so pleases, m«y Inspect the premises; and may order payment of costs by either party, and fix the amount of such costs. 6. 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. tJ. The practice and proceedings on the appeal, including the fees payable for subpcenas and the conduct money of witnesses, shall be the same, as nearly as may be, as in the case of suit in the Division Court. R. S. O. 1887, c. 219, s. 12. 12. (1) The Fence-viewers shall be entitled to receive $2 each for every day's work under this Act. Ontario Land Surveyors and witnesses shall be entitled to the same compensation as if they were subpoenaed in any Division Court. R. S. O. 1887, c. 219, s. 11. (2) The municipality shall at the expiration of the time for appeal, or after apiteal, as the case may be, poy to the Pence- viewers their fees, and shall, unless the same be forthwith repaid by the person awarded or ad judged to pay the same, place the amount upon the Collector's roll as a charge against the persim awarded or adjudged to pay the same, and the same shall there- after be placed ujion the Collector's roll and may be collected in the same manner as ordinary municipal taxes. 52 V. c. 48, s. 1; 58 V. c. 53, n. 1. 13. (1) In case the Judge inspects the premises he shall be en- titled to be paid the actual expenses incurred by him, and he shall, in the order setting aside, altering or affirming the award, fix the a mount of such expenses and the person by whom the same shall be paid. 53 V. c. 67, s. 1, 2. (2) The Judge shall be paid by the municipality the amount so fixed by him, and the same shall be collected by the municipality in the same manner as is provided in respect to the fence-viewer's fees by section 12 of this Act. 53 V. c. 67, s. 3. 14. 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. R. S. O. 1887, c. 219, s. 13. 15. (1) The owner of the whole or part of a division or line fence which forms part of the fence enclosing the occupied or im- proved 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 hia intention to the owner or occupier of such adjacent enclosure; (6) 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 determined as provided in section 7 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 section 7 of this Act. (2) The provisions of this Act relating to the mode of deter- mining disputes between the owners of occupied adjoining lands: the manner of enforcing awards and appeals therefrom; and tKe sche- dules of forms attached hereto, and all other provisions of this Act, so far as applicable, shall auoly to proceedings under this section. R. S. O. 1887. c. 219, s. 14. LINE FENCES. 16. (1) If any tree i» thrown duwu, by accident or otberwiue, acr< u line or diviHiou fence, or in any >Miy in uud upon tlie pro- perty adjoining tliat upon wbicii huoIi tree utuod, thereby cauHing damage to tlie crop upon hucIi proi)erty or to hucIi fence, it siiall be the duty of the proprietor or occupiint of the [McniiHeH on which auch tree theretofore stood, to remove tlit name forthwith, and also forth- with to repair the fence, and otherwiHc to malce good uny damage caused by the fulling 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 malce good the fence so duniagt'd, and may retain such tree to renmnerate him for such removal, and may also recover any further amount of damages l)eyond the value of such tree from the party liable to pay it under this Act. (3) For the purpose of such removal the owner of such tree may enter into and upon such adjoining premises f6r the removal of the same without being a trespasser, avoiding any unnecessary siioil or waste in so doing. (4) All disputes arising between parties relative to this section, and for the collection and recovery of all or any sums of money bcicoming due thereunder, shall be adjusted by three Fence- viewers of the municipality, the decision of any two of whom shull be bind- ing upon the parties. R. S. O. 1887, c. 219, s. 15. 17. The forms in the Schedule hereto shall guide the parties, being varied according to circumstances. R. S. O. 1887, c. 211), s. 16. SCHEDULE OF FORMS. FORM 1. (Beetien 4.) NOTICE 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 l>etween our properties, being Lots (or parts of Lots) one and two in the Township of , in the County of Dated this day of To C. D., Owner of Lot 2. ,18 A. Concession of the B., Owner of Lot 1. FORM 2. (Section i). NOTICE TO FENCE-VIEWBRS. Take notice, that I require you to attend at on th* day of , A.D. 18 , at o'clock a.m., to view and arbitrate 206 THE CANADIAN LAWYER. on the line fence between my property and that of Mr. Lots (or parts of Lots) Nos. One and Two in the of the Township of , in the County of Dated this day of , 18 A. B., , being Concessiou Owner of Lot 1. FORM 3. (Section 7.) AWARD. We, tlie fence-viewers of (name of the locality), having beeu nominated to view and arbitrate ui)on the line fence between of (name and description of owner who notified, and (name and description of owner uotifieilt, which fence is to be made and maintained Ix^tweeu (describe properties), and having examiueil 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 , aiid that part thereof which conmieuces at and ends at (describe the points) shall be fenced, and the fence maintained by the said . The fence shall lie of the following de> scription (state the kind of fence, height, material, etc.,) and shall cost at least per rod. The work shall be conira*nced 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 prouortion.) Dated this day of , A.D. 18 (Signatures of fence-viewers.) FORi* 4. [Section 14.) AORBBMENT. We, and , owners resjKH'tively of Lots (or parts of Lots One and Two in the Concession of the Township of , in the County of . do ajtree that the line fence which divides our said properties sliiill be matle and main- tained by us as follows: (follow the sanu' form as award.) Dated this day of , A.D. 18 iSigtintures of parties.) MANMTOn.V. By the 1?. S. ^r. 1S!>1, nip. ^'2, An .Vet rosapoctinjr Tloimd- arv Lines and Line Kenees, it is provided tlint in ease the owner of land reipiires to have any hoiindnry Hn*-' surveyed. LINE FENCES. 207 he shall give notice thereof in writing to all parties interested, and in one month thereafter may employ a duly qiialifietf surveyor, who shall survey the said line, and each party in- terested shall pay his proportionate share of the expenses of the survey. No line fence shall he removed without the consent of all parties interested, and whenever any owner of land erects a line fence, the owner of the adjoining land sliall, 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 com- pensation may he determined hy arhitration if not otherwise agreed on. Each of the parties occupying adjoining tracts of land shall make, keep up, and repair, a just proportion of the divi- sion or line fence on the line dividing such tracts, and equally on either side thereof. The owner of the whole or ]iart of a division or line fence which forms ])art of n fence enclosing the occupied or im- proved land of another person, shall not take down or re- move any i)art of such fence without giving at least twelve months' notice of his intention so to do to the owner or oc- cupier of such adjoining enclosure, nor unless the latter, after demand in writing, refuses to pj,y therefor such sum as three fence viewers, or a nuijority of them, in writing, determine to he a reasonahle value therefor. All disputes relating to line fences are determined hy three fence viewers, or a majority of them, who make their award in writing. This award is transmitted to the clerk of the County Court of the Judicial District where the land is situate. If any party neglects or refuses to appoint a fence viewer to act for him, the latter nuiy l)e appointed hy a justice of the j)eaco, who is, for such appointuient, eutitlero])ared, in order that the contract may not MAS'I'ER AND SEUVANT. 209 be construed as one Qf partnership, with all its incidents, Buch 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 me.r^ fa?t 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 law presumes that the service has been rendered in ful- filment of a contract of hiring or service, and if nothing has been said about wages, the law jjresumes that the parties agreed for such wages as are 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 i)resumed by the law, but must be expressly proved to support a claim for wages; for such services are often render- ed as acts of charity or kindness, and are not presumed to be paid for unless a special agreement 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 thj^reby become a tenant, requiring due notice to quit before being legally required to give up the premises occupied. The ques- tion 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 premises be taken into account in 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 iv^o agreed; and must serve during the period specified, or until the con- tract 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 of one in his class of employment, m such as he has specially agreed to perform; but cannot bo required to go beyond this, or serve in a capacity not origin- ally contemplated. He must be faithful, obedient and honest in liis employment. His failure in these respects may subject him to dismissal or an action for breach of con- tract on the part of his master. If the service in which he is employed is one requiring a certain amount of skill, the fact of his entering voluntarily upon the employment is C.L.— 8ro rd. U 210 THE CANADIAN LAWYER. taken 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 destruc- tion of the master's property, he is yet responsible for negli- gence causing loss, more especially if repeated. Wilful disobedience, habitual neglect of just and reason- able orders, repeated absence without leave, or refusal to per- form work, on the ])art of the servant, justifies the master in dismissing him without the usual notice. The servant is also responsible 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 would justify him in immedi- ately dismissing the servant if received. Having received him, the master must retain and employ him during tlie term stipulated, or until the contract is legally dissolved in the performance of the duties contem- plated in the agreement of hiring, and pay him his lawful Mages 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 implements, tools, machinery or engines which he sup|)lies for his servants or workmen in their em- ployment must bo in proper condition and reasonably safe to protect the workmen against unnecessary hazards. And should such be in an unsafe condition, the servant is jus- tified in refusing to work with them. If the servant, liowr ever, with full knowledge of the defect of the implement or machine, chooses voluntarily to work with it, the master will not be resjjonsible for injuries occasioned the servant through such defects. A servant or workman has a right to expect that his fellow workmen employed by his nuister to assist him in any M(>rk are reasonably conj|)etent 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 com])elent, he would be liable for injuries arising through their ignorance or unskil- fulness. lUit otherwise a master may be said to be not liable for injuries sustained by the k.tter through the negligence of a follow servant; but he will Ik? responsible for any acci- dent which occurs to a servant through I he master's own l)ers()nal negligeiu'o. MASTER AND SERVANT. 211 •0 A servant who is aware of the risks incident to his em- ployment, 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 dam- ages to another person, he is entitled to call upon his master to protect and indemnify him from any loss sustained. But if the servant, in obedience to an order, knowingly performs a criminal act, he cannot seek such indemnity. In regard to domestic servants, it is impliedly 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 ])ay for medicines or medical attendance. Where the servant falls ill or is temporarily incapaciltited for work by hurt or accident in his master's ser- vice, no deduction of wages for the time lost should be made. A 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 punishment may be resorted to in case of a child who is a servant or appren- tice, for sufficient cause, as continued and wilful dis- obedience. In the absence of stipulation, the servant is entitled to such wages as are fair, or usual for the class of work per- formed 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 poyable ac- cording to the terms of the contract of hiring. The death of either servant or master concludes the con- tract, 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 assumed breach of the contract by the servant himself. It implies the right of the uujster 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 |)ut off by force. Tlio law relating to Apprentices is separntely dealt with in n former cha])ter. Strikes and Boycotting are treated hereafter in a separate chni)ter. 212 THE CANADIAN LAWYER. ONTARIO. By the provisions of Revised Statute, chapter 157, 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. Dis- putes with respect to the terms of the agreement, or any- thing pertaining thereto, misusage of a servant, non-pay- ment of wages, etc., are determined before a Justice of the Peace. Any agreement or bargain, verbal or written, ex- press or implied, made between any person, and any other person not a resident of Cpnada, with reference to the em- ployment 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 ])erbon, void and of no effect. "Rwt this does not apply to the em- ployment of skilled foreign workmen upon new industries, or at any industry where skilled workmen cannot otherwise be obtained; nor to teachers, professional actors, artists, lec- turers or singers. Special classes of workmen are also, in this Province, affected by the provisions of " The Railway Accidents Act," R. S. 0. 1897, c. 366; " The Ontario Fac- tories Act," R. S. 0. 1897, c. 25, " The Workmen's Compen- sation for Injuries Act," R. S. 0. 1897, c. 160, the first named of which requires certain safeguards to be taken by Railway Companies in the interests 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 defective ma- chinery and appliances, or the co-employment of incompetent overseers or workmen. An extended notice of these statutes IB not in this place necessary, inasmuch as reference to the very words and terms of the Act is indispensable to all affected by them. By R. S. 0. 1897, c. 156. upon any assignment for the general benefit of creditors, or upon winding up of joint stock companies, the wages or salary of employees who were such at the date of the assignment 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 MASTER AND SERVANT. 213 creditors. Employees of execution debtors are similarly pro- tected. The Act applies to wages or salary, whether the em- ployment in respect to which the same is payable be by the day, by the week, by the job or piece, or otherwise. No tavern-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. (R. S. 0. 1897, c. 157, 8. 6.) A|)plication 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, and may direct the payment to him of any wages found to be due, not exceeding forty dollars, to be levied with costs against the master, if not paid in eight days. I- MANITOBA. Contracts of hire for personal service for a period longei; than a year must be in writing and signed by the party charged therewith, and no voluntary contract of service is binding on either party for a longer term than nine years from its date. Any hired clerk, journeyman, apprentice or servant, or labourer, who is guilty of ill-behaviour, drunkenness, refrac- tory conduct, or idleness, or of deserting service or duties, or absenting himself without leave of his employer, or re- fusing or neglecting to {^erfotm his duties, or to obey the lawful commands of his nin.stcr or mistress, or who is guilty of dissipating the property of his master or mistress, or of any unlawful act injuriously 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 any domestic ser- vant, journeyman or labourer, who deserts or abandons his ttervice or job. or who neglects or refuses to perform the job or wurk for which he or she was engaged, before the time agreed upon, or before the comi)letion of the agreement. Persons knowingly harbouring or concealing a servant or ap- 214 THE CANADIAN LAWYER. prentice who has abandoned the service of his master or mistress, or instigating any servant or apprentice to abandon such, are liable to the same penalty. Suits for wages up to $100 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" (see page 215), showing the names and wages or price of the work of such workmen; and every payment 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 proprietor may 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 timelo 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 of the con- tract price, equally liable with the builder or contractor to the workmen directly for such amounts owing, and 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 one action, and where the money recovered is less than the full amount of their claims, it must be divided rateably among them. Workmen furnishing labour or materials have a right to insj^ect 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 contrac- tor makes an assignment for the general benefit of creditors, the overdue wages or salary of all persons employed within one month prior to the assignment, not exceeding three months' wages or salary, is paid as a preferential claim. Such employees are also entitled, on sale of the property of a debtor under execution, to be paid by the sheriff their over- due wages or salary, not exceeding three months' wages or salary, in priority tc the claims of other creditors, upon de- livering to the sheriff or bailiff a claim under oath, as in Schedule " B " (see page 215). MASTER AND SERVANT. 215 SCHEDULE "A." Pay-list of the workmen employed by A. B. (name of the con- tractor) upon the works being contracted for by C. D. (name of the proprietor). Name of Workman. No. of Days. Wages per Day. Nature o( Job. Price of Job. Total Amount due. Receipt Signature of Workman. Signature of witness. SCHEDULE " B." (li. S. M. c. 53). A. B. Claimant C. D. V. Defendant. I. A. B.. of in the County of , moke 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. PRINCE 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 confinement in gaol for any term not exceeding one calendar m^nth. Similarly, masters convicted before two justices of li {-treating servants may be punished by fine. Any j)erson 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. 216 THE CANADIAN LAWYElt. MECHANICS' LIENS. A mechanics' lien is the right which any mechanic, ma- chinist, buildei", miner, labourer, contractor or other person, doing work upon any building, erection or mine, or furnish- ing materials to be used in its construction, alteration or re- pair, or erecting, furnishing or placing machinery of any kind in, upon, or in connection with it, has to claim an in- terest in what his labour and materials have contributed to make valuable, as though he were a part owner; his right being limited to tlte just price of such work, materiaJs or ma- chinery. 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 me- chanic, or person furnishing labour or materials upon the building or erection, and the lands upon which it stands, or on the mine. The statutes generally 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 agains'. le- Btruction 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 Ontario, 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 amendments to date, is given below. The Nova Scotia statute is .cap. 85 of the Revised Statutes of that 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 subject in Prince Edward Island, the statute being the 42 Vict. cap. 8, amended by the 45 Vict. cap. 11; and of the law in force in Manitoba, which is cap. 97 of the R. S. M. 1891, amended by the Act 58 & 59 Vict. c. 28, and the Act of 1896 (59 Vict. c. 14). The statutory requirements must be strictly complied with. Tl, mechanics' L1EN8. 217 Ontario. U. S. O. Chaptor irsS. 1. This Act inny bo cited as " The Mechanics' and Wage Earners' Lien Act." 2. Wiiere the following words occur in this Act, or in the ischedules hereto, they shall be construed in the manner heroiuafttr mentioned, unless a contrary intention appears:— (1) " Contractor " shall mean a person contracting with or employed directly by the owner or his agent, for the doing of work or placing or furnishing materials for any of the purposes mentioned in this Act; (2) " Sub-contractor " shall mean a person not contracting with or, employed directly by the owner or his agent for the purposes aforesaid, but contracting with or employed by a contractor, or under him by another sub-contractor; (3) " Owner " shall extend to and include any person, firm, asso- ciation, body, corporate or itolitic, including a municipal corporation and railway company, having any estate or interest, legal or equit- able, in the lands upon or in respect of which the work or service is done, or materials fire placed or furnished, at whose request and upon whose credit, or on whose behalf, or with whose privity or con- :sent, or for whose direct benefit any such work or service is per- formed, or materials are placed or furnished, and all persons claim- ing under him or them, whose rights are acquired after the work or service in respect of which the lien is claimed is commenced, or the materials furnished have been commenced to be furnished. (4) " Person " shall extend to and include a body corporate or politic, a firm, partnership or association; (5) " Material " or " materials " shall include every kind of move- able property. (<>) " Wages " shall mean money earned by a mechanic or labourer for work done, whether by the day or as piece work; (7) " llegistry office " shall include land titles office. 3.— (1) Every agreement or bargain, verbal or written, express or implied, which has heretofore been made or entered into, or which may hereaftcT be made or entered into, on the pirt of any work- man, servant, labourer, mechanic, or other person employed in any kind of manual labour intended to be dealt with in this Act, by which it is agreed that this Act shall not apply, or that the remedies provided by it shall not be available for the benefit of any person entering into such agreement, is and shall be null and void and of no effect as against any such workman, servant, labourer, mechanic or other person. (2) This section shall not apply to any foreman, manager, officer or other person whose wages are more than $3 a day. 4. Unless he signs an express agreement to the contrary, and in that case subject to the orovisions of section 3, any person who [MTforms any work or service upon or in respect of, or places or 218 TUii: CANADIAN LAWYER. fnrniHhcs any material to be used in the malting, constructing, erect- ing, fitting, altering, improving or repairing of any erection, building,, railway, land, wharf, pier, bulkhead, bridge, trestlework, vault, mine, well, excavation, or fence, sidewalk, paving, fountain, fish- pond, drain, sewer, aqueduct, roadbed, way, fruit and ornamental trees, or the appurtenances to any of them, for any owner, con- tractor or sub-contractor, shall by virtue thereof have a lien for the price of such work, seivicc or materials upon the erection, buildins,. railway, land, wharf, pier, bulkhead, bridge, trestlework, vault, mine, well, excavation, fence, sidewalk, paving, fountain, fishpond, drain, sewer, aqueduct, roadbed, way, fruit and ornamental trees, and appurtenances theretu, and the lands occupied thereby or en- joyed therewith, or upon or in respect of which the said work or metmkae m performed, or upon which such materials are plated, or furnished to be used, limited however in amount to the sum justly due to the person entitled to the lien and to the ^uita justly owing, (except as herein provided) by the owner. be 6. Where work or service is done, or materials are furnished upon or in respect of the lands of any married woman . with the privity and consent of her husband he shall be conclusively pre- sumed to be acting as well for himself and so as to bind his own interest, and also as the agent of such married woman fur the purposes of this Act, unless the person doing such work or service or furnishing such materials shall have had actual notice to the contrary before doing such work or furnishing such materials. 6. No agreement shall be held to deprive anyone otherwise^ entitled to a lien under this Act, and not a party to the agreement, of the benefit of the lien, but the lien shall attach notwithstanding such agreement. 7. — (1) The lien shall attach upon the estate or interest of the owner as defined by this Act in the erection, building, railway, land, wharf, pier, bulkhead, bridge, trestlework, vault, mine, well, excavation, fence, sidewalk, paving, fountoin, fishpond, drain, sewer, aqueduct, roadbed, way, fruit and ornamental trees, and the appur- tenances thereto, upon or in respect of which th. work or service is. performed, or the materials placed or furnished to be used, and the lands occupied thereby or enjoyed therewith. (2) In cases where the estate or interest charged by the lien is leasehold the fee simple may also, with the consent of the ownor thereof, be subject to the said lien, provided such consent is testi- fied by the signature of such owner upon the claim of lien at the time of the registering thereof, and duly verified. (3) In case the land upon or in respect of which any work or service is performed, or upon or in respect of which materials are placed or furnished fo he used, is incumbered by a prior mortgage or other charge, and the selling value of the land is increased by the work or service, or by the furnishing or placing of the materials, the lien under this Act shall be entitled to rank upon such increased' value in priority to the mortgage or other charge. 8. Where any of the property upon which a lien is given by this Act is wholly or partly destroyed by fire, any money received by reason of any insurance thereon by an owner or prior mortgagee or chargee, shall take the place of the property so destroyed, ond shalf. MECHANICS LIENS. 21^ be Bubject to the claims of all persons for liens to the same extent as if snob monej's were realized by a sale of such property in an action to enforce a lien. 9. ^ave as herein provided the lien shall not attach so as ta make the owner liaMc for a greater sum than the sum payable by the owner to the contractor. 141. Save as herein provided where the lien is claimed by any other peraon than the contractor, the amount which may be claimed in respect thereof shall be limited to the amount owing to the contractor or sub-contractor or other person for whom the work or service has been done, or the materials have been placed or furnished. 11. — (1) In all cases the i)erson primarily Table upon the cm- tract under or by virtue of which a lien may arise under the pro- visions of this Act, shall, as the work is done or materials are fumtcihed under the contract, deduct from any payments to be made by him in respect of the contract, and retain for a period of thirty days after the completion or abandonment of the contract twenty per cent, of the value of the work, service and materials aetually done, placed or fui.iished as mentioned in section 4 of this Vet, and such values shall be calculated on the basis of the price to be- paid for the whole contract; Provided that where a contract ex- ceeds $15,000, the amount to be retained shall be fifteen per cent, instead of twenty per cent, and the liens created by this Act si.alL be a charge upon the amounts directed to be retained by this sec- tion in favor of sub-contractors whose liens are ntract price directed to bo retained by section 11 of this Act, to which the contractor or sub-contractor through whom such lien is derived is entitled, and all such mechanics and labourers shall rank thereon pari passu. (2) Every wage earner shall be entitled to enforce a lien in respect of the contract not completely fulfilled. (3> In case of the contract not having been completely fulfilled when the lien is claimed by wage earners, the percentage aforesaid shall be calculated on the work done or materials furnishtMl by the contractor or sub-contractor by whom such wage earners are employed. (4) Where the contractor or sulncontractor makes default in completing his cr satisfaction of any claim of any kind against the contractor or sub-contractor. (.') Every d«'vice by any owner, contractor or sub-<'on tract or Adopted t<» defeat the i)riority given to wage earners for their wages by this Act, suull, as respects such wage earners, bo null and void. 15. Nothing in this Act contained shall apply to make legal any payment matle for the purpose of (lefeating or impf^ltri»K n <-laim for a lien arising or existing under this Act, anrt all anch payments shall be taken to le null aud void. MECHANICS LIEXS. 221 16.^(1) During the continuance of a lien no portion of the materials affected thereby shall be removed to the prejudice of the lien, and any attenii>t at such removal may be restrained on application to the High Court, or to a Judge or otHcer having power to try an action to realize a lien under this Act. (2) The Court, Judge or otlicer to whom any such application is made, may make such order as to the costs of and incidental to the application and order as he deems just. (3) When any material is actually brought upon any land to be need in connection with such land for any of the puri»oses enumer- ated in section 4 of this Act, the same shall not lie subject to exe- cution, or other process to enforce any debt (other than for the purchase thereof) due by the person furnishing the same. 17.— (1) A claim for lien applicable to the case may be regis- tered in the registry otHce for the registry division, t the time hereinbefore limited for the registration thereof, tmlesa in the meantime an action is commenced to realize the claim, or in which the < laim uniy be realized, under the provisions of this Act, and a certil'cate tlier«'of according to Form (5 in the schedule hereto. slgm>d by the proper officer of (he Court, is duly registered in the Uegistry Office of the Uegistry IMvislon. or where th«' land is regis- teri'd under the Land Titles Act. In the Land Titles office «»f the locality, wherein the lands in respect of which the lien is cinimed are sltuite. 24. (1) Every lien which has been didy registered Hndoi* the provisions of this Act shall absolutely cease to exist after the ex- piration of idnety days after the work or service has been completed MECHANICS LIENS. 223 or uiuterialH have been furnisht'd or pliced, or the expiry of the period of credit, where such period is mentioned in the claim of lien rejristered, unless in the meantime an action is commenced to realize the claim under the provisions of this Act, or an action is commenced in which the claim may be realized under the provisions of this Act. and a certificate registered as required by the next preceding section. (2) The registration of a lien shall cease to have any effect at the expiration of six months from the registration thereof unless the lien shall be again registered within the said period, except in the meantime, proceedings have been instituted to realize the claim and a certificate thereof has been duly registered in the proi)er registry or laud titles office. 25. If there is no i)eriod of credit, or if the date of the expiry of the period of credit is not stated in the claim so registered, the lien shall cease to exist upon the expiration of ninety days after the work or service has been completed, or materials furnished or placed unless in the meantime an action shall have been com- menced and a certificate registered as required by section 23 of this Act. 26. In the event uf the death of a lien-holder his right of Hen shall puss to his personal reitresentatives; and the right of a lion- hulder nuiy be assigned by any instrument in writing. payment, and verified shall be numbered and meiits, but need not be enter against the entry 27. (1) A Hen may be discharged by a receipt signed by the clainuint, or his agent duly authorized in writing, acknowledging by affidavit, and registered; such receipt entered by the registrar like other iustru- copied in any book, but the registrar shall of the lien to which the dis«'harge relates the word " discharged," and stote the registration number of such discharge; the fees shall be the same us for registering u cluini of lien. (2) I'pon ap|)licatlon the court or judge or other olllcer having power to try an action to realize a lien, uuiy receive security or payment into court in li(>u of the amount of the claim, and may thereupon vacate the registration of the lien. (3) Tlie Court or such Judge or other o it may vacate the said registration upon any other ground. (4t Where the certifit-ute retpilred by section 23 or section 24 of this .\ct hus not been registered within the time limited, und un apiilication Is made to vacate the registration of a lien after the time for registration of the certlficnte reciuired by sections 23, 24 Mild 2r> of this Act, the applicant shall not be required to give notice ttf the application to the person claiming the lien, and the order vacating the lien nuiy be made ex parte upon production of the certificate of the proper registrar certifying the facts entitling the applicant to such order. 28. The taking of any security for, or the ut-ceptimce of any promissory ni>(« fur, or 'he taking of any other icknowledgnient of the claim, or the giving of time for the payment of the claim, or the taking of any proceedings for the recovery of the claim or the recovery of any personal judgment for the claim, shall not merge waive, pay. satisfy, prejudice or dcBtroy any lien created by thli 224 THE CANADIAN' LAWYEU. I Act, unless the lien-holder agrees in writing that it shall have that effect; provided, however, that a pi'£me:it. or the amount due or unpaid thereon, and if the person claiming the Hen shall sustain loss by reason of su(h refusal or neglect or fal.-e statement, the said owner shall be liable to him in an action there- for to the amount of such loss. 30. The Court or Judge, or other officer having power to try an action to realize a lien, may on a summary application at any time before or after any action is commenced for the enforcement of such lien, make an order for the owner or his agent to produce and allow any lien-holder to inspect any such contract, and may make such an order as to the costs of such application and order as may be just. 31.— (1) The liens created by this Act may be real'zed by actions in the High Court according to the ordinary procedui'e of that Court, excepting where the same is varied by th's Act, (2) Without issuing a writ of summons, an action under this Act shall be commenced by filing in the proper office a statement of claim, verified by affidavit (Form 5). (3) The rttatement of claim shall be served within one month after it is filed, but a Judge or other officer having power to try the action nmy extend the time for service thereof, and the time for delivering a statement of defence (Forms 7 and 8) shall be the same as for entering an appearance in an action in the High Court. (4) It shall not be necessary to make any lien-holders purtie:^ defendant to the action, but all lien-holders served with the not'ce of trial shall for all purposes be treated as if they were parties to the action. 38. Any number of lien-holders, claiming lit'ns cin the snme pro- perty, may Join in an action, and any action brought by a lien- holder shall be taken to be brought on behalf of all other lien-holders on the property in question. 83. An action to enforce a lien may be tried by the Master in Ordinary, a Local Master of the High Court, an Official Referee, MECHANICS LIENS. 225 or a Judge of the County Court, in any county or judicial district in which the lauds are situate; or by a Judge of the High Court of Justice at any sittings of that Court for the trial of actions. 34. The Master in Ordinary, the Local Masters, Official Keferees, and the County Judges, shall have, in addition to their ordinary powers, all the jurisdiction, iiowers and authority, of ih>.' High Court or a Judge thereof, and of the said Master in Ordinary, to try, and otherwise completely dispose of, an action to r. aize a lien, and all questions arising in such action, including the giving or. refusing of the costs hereinafter provided. ,* r 36.— (1) After the delivery of the statement of defeute where* the plaintiff's claim is disputed, or after the time for del. very of defence in aU other cases where it is desired to try the action other than at the ordinary sittings of the High Court, either party may apply to a Judge or other otticer who has the power to try the action, to fix a day for the trial thtrc-of, and the said Judge, or other officer, shall give an appointment lixng the day aaid place of trial, and en the day fixed, or on such other day to which the trial may be adjourned, !n-holder the carriage of the proceedings, nnd such lien- holder shall for all purposes tberenfter be the plnintiff in the action. 39. — (1> In nil actions where the total amount of the claims of (he plnintiff and other persons dniniing liens is !|>1(M) or less, the judgment shall be finni, binding, and without aipeal. except, that the Judge or officer who tried the same may, upon applicntion within fourteen dnys after, judgment is pronounced, grant n new trial. (2) In nil actions where the total amount of the claims of the plaintiff nnd other persons clnimiiig liens is n-ore thnn $100, and nof more thnn !|i:i(KK any person affected thereby mny nppeni there- from to n DivislonnI Court, whose judgment shall be final nnd bind- ing on the apitellant, but the respondent may nppeni therefrom to the Court of .\ppenl, whose juilguieiit slinll be final and binding on all parties. (^t) In nil other < nsi s nn nppeni mny be lad in like manner and to the same extent as tvoni the decision of n .Tudge trying an action in the Hi"h Court witliout a jury, 40. Xo fees in stamps or money shall be payable fo any .Tm'ge or other officer in my nction brought to renli/.e n lien und<>r this A«t, nor on any filing, order, record (»r judgment, or other proceed- ing in such nction, exce|)ting thnt every person, other thnn wage earner, shall, on filing his statement of claim where be is a pla'n- tiff. or on filing his clnini where he is not n plnintiff, pny in stamps one dollar on every one huntlrcd dollnrs, or frmtiou of one hundred dollars, of the amount of his <'lnim up to one thousand dollars. mechanics' liens. 287 41. The costci of the action under this Act awarded by the Judge or otUcer trymg the action, to the plaintiff's and successful lien-holders, shall not exceed in the aggregate an amount equal to twenty-five per cent, of the t mount of the judgment besides actual disburM-ment^-, and shall be iu addition to the amount of the judg- Uieui, and shall be apiKtrtiontd and borne in such prouirtioa as the Judge cr other officer who tries the action may diroct. 42. Where the costs are awarded against the plaintiff or other persons claiming the lien, such costs shall not exceed an amount in the aggregate equal to twenty-five per cent, of the claim of the Itlaintiff and other claimants, besides actual disbursements, and shall lie apportioned and borne as the Judge or said other oiHoor may direct. 43. In case tiie least expensive course is not taken by a plain- trff under this Act, the costs allowed to the solicitor shall in n.) case exceed what would have been incurred If the least expensive course had been taken. 44. Where a lien is discharged or vacated under section 27 of this Act, or where in an action, judgment is given in favour of or Against a claim for a lien, in addition to the costs of an action, the .Tud<'e or other officer may allow a reasonable amount for costs of drawing and registering the lien or for vacating the registration o' the lien. 45. The costs of and incidental to all applications and orders made under this Act, .and not otherwise provided for, shall be in the discretion of the Judge or officer to whom the application or order is made. 46.— (1) Excepting in actions tried by a Judge of the High Court, the Judge or other officer who tries the action shall, where money has been paid into Court, and the time for payment out arrives, forward a requisition for cheques with a certified copy of his judgment, and (when one Is made) of the report on sale, to the Accountant of the Supreme Court of Judicature who shall, upon receiving the said requisition and copy of the judgment and report (if any), make out and return to the said Judge or oHlcer cheques for the amounts pajable to the persons specified in the requisition, jiinl the said Judge or officer on receipt of said cheques shall dis- triliiite them to the persons entitled. (2) No fees or stamps shall be payable on any cheques or pro- ceedings to pay money Into Court or obtain money out of Court, in respect of a claim of lien, but sufficient postage stamps to prepay a return registered letter shall be enclosed with every reqtdsitlon fi r ciiefnies. 47. All judgments In fnvo«ir of llen-Tuilders shall adjudge that till' person or persons personally liable for the amount of the judg- ment, shall pay any deficiency which may remain after siilo of the Iii'i>l>erty adjudged to be sold, and whenever on a sale of any pro- perty to realize a lien under this Act sufficient to satisfy the judg- ment and costs is not realized therefrom, the deficlenfy may l)e rcctivered by executiiui against tlu' property of such piTi^on or IHTSdllS. 228 CANADIAN LAWYER. 48. Whenever in an action brought under the provisions of this Act any claimant shall fail for any reason to establish a valid lien, he may nevertheless recover therein a personal judgment against any party or parties to the action for such sum or sums ns may appear to be due to him and which he might recover in an action oil contract against such party or parties. 49. The forms in the schedule hereto, or forms similar theret •, or to the like efltoct, may be adopted in all proceedings undtr this Act. 50. This Act shall not sipply to liens arising before the 7th day of April, 18!)(}, excepting that where no action has been com- menced or proceeding instituted to realize a lien arising before tl.e sai-i day the procedure herein directed shall be adopted to real y.e the same. « 51.— (1) Every mechanic or other person who has bestowed money or skill and materials upon any chattel or thing in the altera- tion and improvement in its properties, or for the purpose of im- parting 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 Ten exists, but not afterwards, in case the amount to which he is entiiled remains unpaid for three months after the same ought to have been paid, have the right in addition to all other remedies provided by liw, t > sell by auction the chattel or thing in respect of which the lien exii»ts, 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 newspaper published in such municipality, thin in a newspaper published nearest thereto, stating the name of the person indebted, the amount of the debt, a description of the chattel or thing to be sold, the time and place of sale, and the name of the auctioneer, and leaving a like notice in writing at the last known place of residence (if any) of the owner, if he be a resident of such municipality. (2) Such mechanic or other person shall apply the procteds of the sale in payment of the amount due to him and the costs of adver- tising and sale, and shall upon application pay over any surplus to the person entitled thereto. 52. The provisions of this Act s-o far as they affect railways under the control of the Dominion of Canada are only intended to apply so far as the Legislature of the Province has authority or jurisdiction in regard thereto. SCHEDULE. Form 1. (Section 17.) Claim of Lien for Rtgistrotion. A. B. (name of claimant) of (here state residence of claimant), (if fto, as assignee of, stating name and residence of assignor), under The Mechanics' and Wage Earners' Lien Act claims a lien upon MECHANICS LIENS. 229 the estate of (here state the name and residence of the owner of the land upon which the lien is clain^'ed), in the undermentioned land in respect of the following work (service or materials) vhat is to say (here give a short description of t^ - nature of the work done or materials furnished and for which .ne lieu is claimed), w^hich work (or service) was (or is to be) done (or materials were furnished)' for (here state the name and residence of the person upon whose credit the work is done or materials furnished), on or before the day of The amount claimed as due (or to become due) is the sum of $ The following is the description of the land to be charged (here set out a concise description of the land to be charged suflScient for the puriMJse of registration). When credit has been given, insert: The said work was done (or materials were furnished) on credit, and the period of credit agreed to expired (or will expire) on the day of , 18 . Dated at this day of , A.D. 18 . (Signature of claimant). Form 2. (Section 17.) Claim of Lien for Wages, for Re^i^ration, A. B. (name of claimant) of (here state residence of claimant), (if so, as assignee of, stating name and residence of assignor), under The Mechanics' and Wage Earners' Lien Act claims a lien upon the estate of (here state the name and residence of the owner of land upon which the lien is claimed) in the undermentioned land in respect of days' work performed thereon while in the employment of (here state the name and residence of the person upon whose credit the work was done) on or before the day of The amount claimed as due is the sum of $ The following is the description of land to be charged (here set out a concise description of the land ro be charged suflBcient for the purpose of registration). Dated at this day of (Signature of claimant). Form 3. (Section 18.) Claim of Lien for Wages bg Several Claimants. The following persons under The Mechanics' and Wage Earners* Lien Act claim a lien upon the estate of (here state the name and residence of the owner of land uiwn which the lien is claimed), in the undermentioned land in resiiect of wages for labor performed thereon while in the employment of (here state name and residence, or names and residences, of employers of the several persons claim- ing the lien). 230 THE CANADIAN LAWYER. A. B., of (residence) $ for days' wages. C. D., ** $ for days' vvages. J. E. F., " $ for days' wages. The following is the description of the land to be charged (here set out a concise description of the land to be charged sutQcient for the purpose of registration). Dnted at this of (Signatures of the several claimants). Form 4. (Section 17.) AfUdavit Verifying Claim for Registration. I, A. B., named in the above (or annexed) claim, do make oatb that the said claim is true. Or, We, A. B. and G. D., named in the above (or annexed claim,^ do make oath, and each for himself says that the said claim, so far as relates to him, is true. (Where affidavit made by agent or assignee a clause must be added to the following effect: — I have full knowledge of the facts set forth in the above (or annexed) claim). in the f Sworn before nie at County of , this day of A.D. 18 . Or, The said A. B. and C. D. were severally sworn before me at the County of , this of . A.D. 18 Or, The said A. B. was sworn before \ me at , in the County of , V this day of . A.D. 18 . ) vere \ , in (^ day r Form 6. (Section 31.) Affidavit Verifying Claim in Commencing an Action. (Style of Court and Cause). I, , make oath and say, that T have read, or hoard read, the foregoing statement of claim, and I say thnt the facts therein set forth are, to tfie best of my knowledge and belief, triie, and the amount cloimed to be due to me in respect of my lien is the just and true amount due and owing to me after giving credit for all the sums of money or goods or merchandise to which (naming the debtor) is entitled to credit as against me. MECHANICS LIENS. 231 re , ' ; Form 6. (Sections 23 and 24.) Certificate for Eeiiistration. (Style of Court and Cause.) (Date .) I certify that the above-named plaintiff h&s commenced aa action in the above Court to enforce against the following land (describing it) a claim of Mechanics' Lien for $ Form 7. ' (Section 31.) Defence. (Style of Court and Cause.) A. B. disputes that the plaintiff is now entitled to a mechanic's lien on the following grounds: (Setting forth the grounds shortly). (a) The lien has not been prosecuted in due time as required by statute. (b) That there is nothing due to the plaintiff. (c) That the plaintiff's lien has been vacated and discharge*'. (d) That there is nothing due by (the owner) for the satisfaction o( the plaintiff's claim. Delivered on the day of , by A. B. ia person, whose address for service is (stating address within two miles of the Court house), or Delivered on the day of , by Y. Z., soHcitora for the said A. B. Note. — If the owner does not dispute the lien entirely, and only wishes to have the accounts taken he may use Form 8. Form 8. (Section 31.) Defence where there are no matters disputed: or where the mittcrs in dispute arc matters of Account. (Style of Court and Cause.) A. B. admits that the plaintiff is entitled to a lien and claims that the following is a just and true statement of the account ii question : — Amount of contract price for work contracted to be per- formed by E. F. as plumber on the lands in question herein $500 00 Amounts paid on Account. June 1st. 1889, paid E. P .$200 00 July Ist, 1880. paid G. H. and I. K., sub-contractors of E. F 100 00 I 300 00 Balance admitted to be due .$200 00 232 THE CANADIAN LAWYER. For satisfaction of lieu of plaintiff and other lien holders (aa the case may be) A. B., before action tendered to the plaintiff $ in payment of his claim, and now brings into Court $ , and submits that that amount is sufflcient to pay the plaintiff's claim, and asks that this action be dismissed as against him with costs. Delivered, etc. Form 9. (Section 49.) ; Affidavit of Owner V:rifyi)i appearing ut the trial (if so, and the following persons nut having appeared set out names of non-api)earlng per- sons), and upon hearing the evidence adduced and what was alleged by counsel for the plaintiff and for C. D. and E. F. and the defen- dant (if so, and by A. B. appearing in person). 1. This Court doth declare that the plaintiff and the several persons mentioned in the first schedule hereto are respectively en- titled to a lieu under the Mechanics' and Wage Earners' Lieu Act, upon the lands described in the second schedule hereto, for the amount set opposite their respective names in the 2ud, Srd and 4th columns of the said 1st schedule, and the persons primarily liable for the said claims resi)ectively are set forth in the 5th column of the said schedule. 2. (And this Court doth further declare that the several persons mentioned in Schedule 3 hereto, are also entitled to some lien, charge or incumbrance u0ou the said lauds for the amounts set opiH>site their respective names in th.' 4th column of the said Schedule's, according to the fact). 'A, And this Court doth further order and adjudge that upon the defendant (A. B., the owner), paying into Court to the credit of this action the sum of (gross amount of liens in Schedules 1 and 3, for which the owner is liable), on or before the day of next, that the said liens in the said 1st Schedule mentioned be and the same are hereby discharged (and the several persons in the said 3rd Schedule are to release and discbarge their said claims and assign and convey the said premises to the defendant (owner), and deliver up nil documents on oath to the said defendant (owner), or to whom he may appoint), and the said moneys so paid into Court are to be paid out in pay- ment of the claims of the said lien holders (if so, and incum- brancers). 4. But in case the said defendant (owner), shall make default in iMiyment of the said moneys into Court as aforesaid, this Court doth order and adjudge that the said lands be sold with the appro- bation of the Master of thiw Court at , and that the i»ur- vhase money be paid into Court to the credit of this action, and that all proper parties do join in the conveyances as the said Master shall direct. r>. And this Court doth order and adjudge that the said pur- chase money be applied in or towards payment of the several claims in the said Ist (and 3rd) schedule (s) mentioned as the said Muster shall «iirect. with snlme(|uent interest and subseiiuent costs to be computed and taxed by the said Muster. 0. And this Court <-laimK of liens respectively registered by them against the lands mentioned in the said 2nd Schedule be and the same are hereby discharged, according to the fact). MECHANICS LIENS. 235 SCHEDULE 1. Names of ]ien hold' era entitled to mechanic's liens. Amount of debt and interest (if any.) Costs. Total. Names of prim- ary debtors. (Signature of Officer issuing Judgment). SCHEDULE 2. The iHuds in question in this matter are (Set out by a description sufficient for registration purposes). (Signature of Officer issuing Judgment). SCHEDULE 3. Names of persons entitled t< incumbrances other than mechanics' liens. \moimt of debt and interest (if any) Costs. Total. (Signature of Officer issuing Judgment). w ! I •ti 236 THE CANADIAN LAWYER. Form 14. (Section 27.) Certificate Vacuting Lien. (Style of Court and Cause.) Date 1 certify that the defendaut A. .H, (the owner), has paid into Court, to the cretlit of this cause, all money due aud payable by him for the satisfaction of the liens of the plaintiff, and B. F., G. H., I. .T. and K. L. and theip liens are hereby vacated and di«- charsfcd so far as the same affect tlie following lands (describe lauds). (Signature of Master or Referee.) Form 15.) (Section 27.) Certificate Vacating Lien. (Style of Court and Cause.) Date I certify that I have inquired and hnd that the plaintiff is not entitled to a mechanics' lien ujkui the lands of the defendant A. B. (the owner), and his claim of Tien is hereby vacated and discharged 80 far as the same affects the following lands (describe lands). (Signature of Master or Referee.) MORTGAGES OF LAND. 237 MORTGAGES OF LAND. to >y 3. tie A mortgage is a pledge of lands as security for a debt, whereby the debtor, or pledgor, or, as he is commonly called, the mortgagor, conveys 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 the 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 legij^lative enactment. It may be said generally that all kinds of property in land which may be absolutely sold, may be the subject of a mortg»" e, unless prohibited by specific legislation. 1-'*' • ' 'es may be legal or equitable. A 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 contract, or in two separate instruments, the first a conveyance in the form of an ordin- ary deed of grant, and the second a meuiorandum or state- ment of the conditions upon the performance of which the conveyance is to be defeated, or rendered void: the latter is called a defeasance, and though its ui-e was common in ancient times it is now rarely seen. An equitable mortgage is not in writing, but is evidenced by some act whereby the owner of land manifests an inten- tion to pledge the same as security for a debt, as by deposit- ing his title deeds with his creditor, at the saine tinie con- cluding a verbal agreement with him to effect the charge. Courts of Equity, whose rule it is to regard the sub- stance of contracts rather than the form which parties may adopt to express them, will sometimes hold an absolute written conveyance of property to be a mortgage only, if Buch is established by evidence to have been the intention of the parties. Assuming the mortgage to have been drawn in the usual form, with a proviso that on pnyment of the debt and interest the mortgage should be void; upon payment at the tinu» upecified in the instrument, the j)roperty will revest in the 238 THE CANADIAN LAWYER. mortgagor without any deed or instrument of re-conveyance. In practice, however, it is usual to take a discharge of mort- gage, which also operates as a re-conveyance. If the debt be not paid on the day named, the land, at law, becomes the absolute property of the mortgagee, and he may proceed to take possession of it; quietly, if he can; if not, by means of ejectment. A Court of Equity will, however, give the mort- gagor liberty to redeem, at any time within twenty (in On- tario ten) yeai"s, on payment of what is due for principal and interest. When the debt is paid after the appointed day, a re-conveyance or discharge of mortgage is requisite in order to re-vest the property in the mortgagor. In Ontario a mortgagee may take a release of the mort- gagor's interest (called a release of the equity of redemption) from the mortgagor, without thereby losing the right to hold the lands against any person uaving a claim on them subse- quent to the n>ortgagee's, until his debt and interest be paid; and if such subsequent creditov should afterwards take legal proceedings t' foreclose his mortgage, he will only be allowed to do so subject to the rights of the mortgagee who has so acquired the equity of redemption. Mortgages shvonld be executed in duplicate, and one part left in the Registry Office, as in the case of a deed of land. A mortgagee has several remedies if his mortgage money be not paid when it is due. He may l)ring an action at law to obtain payment of the amount of princi[)al and interest due ujion the mortgagor's covenant, or he may bring an action of ejectment (called in Ontario an action to recover the land) and obtain possession of the premises by judgment of the Court: in which case he will be entitled to hold the lands until tlu* full amount of principal and interest has been disclinrged out of the rents and profits; or he may bring suit to hjivc the mortgage foreclosed: in which case he will acquire an al)s,)lute title to the lands discliarged of all equity of re(lein])iion; or to have the lands sold: in which case the premises will be sold under the direction of the Couit, .md the debt due i)aid out of the proceeds, is sufficient: and if insuffieiont. tlie mortgagor Mill be ordered to pay the de- ficiency. If the mortgage contains a power of sale, the lands may l)e sold without going to tlio Court. In Ontario, all mortgages are declared by legislative enactment to include l)o\vor of sale. When a registered mortgage is jiaid off, a discharge should be signed nnd registered: it will then be marked as dis- charged in the books of the T^egi^try Offioo. A dischnrgo must be signed by tlie mortgngpo. or. if the mortgage has '! n. HORTOAOES OF LAND. 289 been assigned, by his assignee, or by his executor or adminis- trator, if he be dead. Where a mortgage has been made in favour of a married woman, both husband and wife should properly sign the discharge. One witness to the signature is sufficient, and he must make and subscribe the usual affi- davit of execution. It is a good practice to have all payments by the mort- gagor, whether of instalments of principal or interest, re- ceipted by the mortgagee under a full written memorandum upon the back of the original mortgage itself. When a mortgage i-* paid, care should be taken that it is at once properly discharged and the discharge registered. Courts of Equity are indulgent in assisting mortgagors who may not repay the mortgage money at the stipulated time, and who are hence subject (according to the strict letter of their contract) to lose their estate; and if the land is of greater value than the amount of the money due the mortgagee, they will interfere and ])erniit the mortgagor, within a reasonable time, to redeem his land upon paymert of the full amount due the mortgagee. In further proi ac- tion of mortgagors who are unfortunate, Courts of Equity will sometimes, upon proper terms, require that the mort- gagee should bring the lands to sale instead of foreclosing them, so that any balance of tlie purchase money remaining over after payment to the mortgagee of his debt and costs should be ])aid over to the mortgagor. Where, upon default of payment, the mortgagee takes possession of the ))ropcrty under his mortgage, the mortgagor is Itaried of all claim after the expiry of ten years, unless the mortgagee has acknowledged in writing the mortgagor's ri^iht during that time. The mortgagee is entitled to the custody of all deeds and documents of title until he is paid off, and he shoidd be care- ful to enquire for and secure them. lie should also register liis mortgage jjromptly. If the wifo of the mortgagor does not join with him in executing the mortgage to bar her dower claim, the mortgage will be subject to it. In New Brunswick, by statute 1."> Vict. cap. 14, where nn_y mortgage of realty contains a power of sale recjuiring nnfieo (f the iime and place of such sale to be given, such notice may be registered at full length in the Registry Office of the ])ro))er registration division: but before such registrn- fion the signature of the j)erson giving such notice must be 1 roved in the usual way. as well as the publication of thr« The prodtu-tioti of the notice, with the certifiento noli ce. 240 THE CANADIAN LAWYER. of proof of the execution of the same, and of the said regis- tration, is declared to be prima facie evidence of such facts in all Courts . In British Columbia the Short Forms Act (R. S. B. C. 1897, c. 143) is nearly identical with the Ontario statute. In Prince Edward Island, by the provisions of 43 Vict, cap. 7, where, upon the death of a mortgagee, his executor or administrator has become entitled to receive the moneys due upon the mortgage, then, upon default of payment, and if the heirs or devisees of the mortgagee are minors, or are otherwise incapable of disposing of the real estate, the ex- ecutor or administrator may exercise any power of sale con- tained in the mortgage, and upon sale may convey the land as fully and effectually in all respects as the mortgagee could have done if alive. The administrator or executor may also execute a discharge of a mortgage, or a release of any part of the mortgaged premises. Most mortgages, as now drawn, contain what is called a power of sale. This is a provision or stipulation whereby tlie mortgagee, or his assigns, upon default of payment of interest, or of principal, for a certain specified time, may have the right to sell and absolutely dispose of the property, upon giving proper notice, but without any proceedings in a Court, recouping themselves the amount of the debt and costs out of the proceeds of the sale, and accounting to the mortgagor or his representatives for the balance. In On- tario, it is provided by statute that such power of sale shall by implication, be inserted and contained in every mortgage where no express power is found therein. The provisions of the power of sale with regard to the length and kind of notice to be given the mortgagor, or his representatives or assigns, must be strictly adhered to. It notice be required, but no length of time specially stipulated for it, a reasonable length of notice must be given. The notice may be served upon an infant or a lunatic, if such be persons required by the terms of the power to. be served, and the service upon them will be a proper service; thov.p,!. it is best in such case to serve their guardians, if any, as well. Sufficient and proper notice must, in all cases, be given; and if a sale be had without such, the mortgagee may be rendered liable to the mortgagor and his representatives, or to a sub- sequent mortgagee, in damages. The mortgagee, in exercising a power of sale, must act in such a way as to secure a fair sale of the property, so as to bring its reasonable value. He is considered in a certain I MOBTQAOES OF LAND. 241 sense a trustee for the mortgagor, and must act in a provi- dent way in the disposal of the mortgaged property, and with a due regard to the rights and interests of the mortgagor, or those entitled to the surplus after payment of the mort- gage debt. Should he act maliciously or from any improper motive, he may render himself liable for the mortgagor's loss thereby sustained. The general rule is that he should act with the same prudence as he would if his intention were to sell an estate of his own for the highest price. Where an auction sale is had, the conditions of the sale should not be such as are calculated from their stringency, or their unusual nature, to deter buyers, and hence injure the sale. Thus, to require that the purchase money of a valuable property should be paid in full in cash at the sale, would be an extraordinary and unreasonable condition, and might vitiate the sale, or render it abortive. After a valid sale, under ui power, the mortgagee conveys the property by a deed which recites the power,, and the fact that default of payment has occurred whereby the exercise of the power has become proper. The conveyance should also contain a covenant by the mortgagee that default has occurred such as would justify such exercise. The disposal of the surplus purchase money is a matter which requires care. Liens upon the land subsequent to the mortgages vxvLst be paid in the same priority as that in which they jound the premises before the sale. In this matter the ser- vices of a professional man will generally be found necessary. FORMS. Ontario statutory Short Form of Mortgage. This Indcuturo ninde the dny of , one thouRaml eight hundred imd , in pnrsnnnce of the Act respect inp Short Forma of MortKajces, between (here insert the nnmes of parties, v.nd recitals, if nny), witnesseth thnt in consideration of of hiwfnl money of Canada, now i>aid by the said mortBajree (or niort- trajrees) to the said niortpagor (or mortKa>fors> the receipt whereof i« hereby aclvnowhulRed. the said niortjiajror (or mortKagors) doth (or do) prant and niortpaRc tmto the said mortKap^e (or mortKapees) his (her or their) heirs and assigns forever all (parcels). And the said (A. B.)i wife of the said mortKapor. hereby bnrs her dower in ♦ he said lands. Provided this mortpape to be void upon payment of (amount of ]irincipal money) of lawful ujoney of Canada, with inter»'st at (here specify the rate of interest) jwr cent, as follows*, (terms of payment of |)rincipal and interest), and taxes and perform- ance of statute labour. The saiil mortgagor covenants with the said O.L.— 8np En. 1(J 242 THE CANADIAN LAWYEU. mortgagee, That the mortgagor will pay the mortgage money and in- terest, and observe the above proviso; That the mortgagor has a good title in fee simple to the said lands;. And that he has the right to convey the said lands to tLe said mortgagee; And that on default, the mortgagee shall have quiet possession of the said lands, free from all incumbrances; And that the said mortgagor will execute such further assurances of the said lands as may be requisite; And also that the said mortgagor will produce the title deeds enumerated hereunder, and allow copies to be made, at the expense of the mort- gagee; And that the said mortgagor has done no act to encumber the said lands; And that the said mortgagor will insure the build- ings on the said lands, to the amount of not less than $ cur- rency; And the said mortgagor doth release to the said mortgagee, all his claims upon the said lands subject to the said proviso. I'ro- vided that the said mortgagee, on default of payment for (three) months, may on (one month's) notice, enter on, and lease, or sell, the said lands. Provided that the mortgagee may distrain for arrears of interest. Provided that in default of the payment of the interest hereby secured, the principal hereby secured, sN ill become payable. Provided that until default of payment, the mortgagor shall have quiet possession of the said lands. In witness whereof, the said parties hereto, have hereunto set their hands and seals. A. B. [L.S.] C. D. [L.S.] E. F. [L.S.] Signed, scaled and delivered \ in the presence of .- Y. Z. Affidavit of Execution of above. County of , to wit: I, Y.Z., of, etc., make oath and say: — Ist. That I was personally present and did see the annexed (or Avithin) mortgage, (and duplicate, if any, according to the tact,) duly signed, sealed and executed by A. B., C. D. and E. F., the parties thereto. 2nd. That the said mortgage, (and duplicate, if any, according to the fact), were executed at (state here the place of execution). 3rd. That I know the said parties (or one, or more of them, according to fact). 4th. That I am o subscribing witness to the said mortgage, (and dtipHcate, according to the fact). Sworn before me at \ . in the county of , this day of - Y. Z. , A.D. 18 . L. M. I A Commissioner, etc. Ontario (Statutory Discharge of Mortgage. To the Registrar of the county <)f . I. E. F., of, etc., do certify that A. B.. of. etc.. hath satisfied all moneys dtie on, or to grow due on (or both satisfii'd the sum of $ . mentioned in), a certain mortgage made by A. B., of. etc.. to me, (or if the mortgage M0UT0AQE8 OF LAND. 243 has been assigned, to 6. H., of, etc.,) which mortgage bears date the day of A.D. 18 ; and was registered in the Registry office for the county of , on the day of A.D. 18 , at minutes past o'clock noon, in liber for , as number . [If the mortgage has been assigned, go on to say, " and which mortgage was assigned to me by indenture, dated the day of , IS , made between, etc., (stating the names of the parties to the assignment) registered in the said Registry oflice, on the day of , A.D. 18 , at minutes past o'clock noon, in liber for , as No. "; and so on, in the same manner, with reference to all assign- ments, where there are several. If the mortgage has not been as- signed, state the fact thus: " and that the said mortgage has not been assigned."] And that I am the person entitled by law to re- ceive the money, and that such mortgage, (or such sum of money as aforesaid; or such part of the* lands as is herein, particularly de- scribed, that is to say: (here set out the lands intended to be dis- charged, if a part only of the lands is to be released), is therefore discharged. Witness my hand this day of , A.D. 18 Signed in the presence of A. B. Y. Z. (One witness is sufficient) of, etc.. (here state residence and occupation). (An affidavit of execution of the discharge, unless the latter be made by a eoriwration, must be made by the witness; it will be in a form similar to that of the execution of the mortgage). Aaalgnment of Mortgage. This indenture made the day of i IS . Be ween E. F., of, etc., (hereinafter called the assignor) of the first part; and •G. H., of, etc., (hereinafter called the assignee) of the second part. Whereas, by indenture of mortgage, bearing date the day of , 18 . made between one A. B.. of. etc., of the first part; C. D.. (wife of the said A. B., and for the purpose of barring her dower) of the second part; and the said E. F., of the third part; the said A. B. did convey and assure the lands and premises here- inafter descrilx'd, unto the said E. F., his heirs, executors, adminis^ trators and assigns, subject to a proviso for redemption ou payment of $ , and interest thereon, at the rate of per cent, per annum, on the days and times, and in the manner, in the faid in- denture of mortgage mentioned. And whereas, there is now due upon the said ujortgage, for principal money, the sum of $ and for interest, the sum of $ Now this indenture wit- nesseth, that in consideration of the sum of $ , of lawful money of Canada, now imid by the said assignee to the said assignor, the receipt whereof is hereby ackuowledgtHl. He, the said assignor, doth hereby grant, assign, and transfer unto the said assignee, his heirs, executors, administrators and assigns, tlie said intlenture of mortgage, and the principal and interest nioneys thereby secured, and the lands and premisi's thereby conveyed: to wit. All and singular (here describe the premises). To have, hold, receive and take, the said indenture of mortgag*'. and the principal and in- terest moneys thereby secured, and the lands and premises thereby ■conveyed unto the said assignee, his heirs, executors, administrators 244 THE CANADIAN LAWYER. and assigns, to and for his and their sole and only use; subject nevertheless to the proviso for redemption in the said mortgage con- tained. And for the better enabling the said assignee, his executors, administrators and assigns, to recover and receive the said principal moneys ahd interest, from the said A. B., h\a executors or adminis- trators, he the said assignor doth hereby noqiinate and appoint the said assignee, his executors, administrators and assigns, to be the true and lawful attorney and attorneys of him the said assignor, his executors or administrators, for him, the said assignor, his executors or administrators, nnd in his, or their, names or nnnie, but at the cost and charges of the assignee, his executors, administrators or assigns, to sue for and recover the said principal moneys and inter- est, in any Court of Law or Equity; and on receipt or recovery, to give good and sufticient discharges; and generally to do, and exe- cute, all such acts, deeds, matters and things, as may be requisite and necessary, for the recovery of the said mortgage money and interest. And the said assignor doth hereby, for himself, his heirs, executors nnd administrators, covenant, promise and agree, to and with the said assignee, his executors, administrators and assigns, that the said indenture of mortgage is a good, valid and subsisting security, free from all incumbrances; and not discharged or re- leased; and that the principal moneys and interest hereinbefore mentioned, are now justly due and owing upon the security of the said mortgage; and that the said assignor has a good right to assign nnd transfer the said mortgage; nnd vill not at any time hereafter release or discharge the snme, without the consent of the said as- signee, his executors, administrators or assigns; and that the said assignor, his heirs, executors or administrators, will at all times, on the request, but at the costs nnd charges of the assignee, his execu- tors, administrators and assigns, execute such further assignments or assurances of the said indenture, and the moneys thereby se- cured, and the lands therein comprised, as may be necessary; and the said assignee doth hen'by, for himself, his executors, adminis- trators and assigns, covenant, promise nnd agree, to and with the assignor, his heirs, executors and ndministrators, that he the said assignee, his executors or administrators, in case he or they shall act upon the power of attorney hereinbefore contained, will save harmless, and indemnify, the snid nssignor, his heirs, executors and administrators, of and from all costs, charges and exiwnscs, to which he or they may become liable, or be put unto, in consequence thereof. In witness whereof, the pnrties to these presepts, have hereunto Kct their hnnds and senls. the day and year first above written. Signed, sealed and delivered \ in the presence of \ G. H. [l.s.] Y. Z. 1 E. F. [L.8.] Mortgage of Lease. This Indenture, made the day of . 18 , Between A. B.. of. etc., of the first part, nnd C. I)., of. etc.. of the second part. Whereas, by an indenture of Lease, bearing dnto on or nboul the day of . 18 . nnd made between, etc., The snid lessor therein named did demise and lense unto the snid lessee therein nnmed, his executors, adniinistrntors nnd assigns. All and singular that certain parcel or tract of land and premises situate, lying and /■ MOUTOAGES OF LAND. 245 being, etc., (set out the lands) To hold the same, with their appurten- ances, unto the suid lessee, his executors, administrators und as- signs from the day of , 18 , for and during the term of years from thence next ensuing, and fully to be com- plete and ended,, at the yearly rent of !p , 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 $ , of lawful money »f Canada, now paid by the said party of the second part to the said party of the first part, (the receii>t whereof is hereby acknowledged). He, the said party of the first part. Doth hereby grant, bargain, soil, assign, transfer and set over unto the ^aid party of the second iMirt, his executors, administrators and assigns, All and singular the said parcel or tract of laud, and all other the premises comprised in and demised by the said herein- before in part recited Indenture of licase: Together with the said Indenture of Lease, and all benefit and advantage to be had or derived therefrom: To have and to hold the same, with the appur- tenances thereunto belonging, unto the said uarty 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 In- denture 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 pavment of the rent, and the obser\'ance and performance of the lessee's covenants and agreements, in the said Indenture of L(>ase reserved and contained; and to the proviso for redemption hereinafter contained. Provided always, fltat if the party of the first part, his execu- tors or administrators, do and shall well and truly pay, or cause to be paid, unto the said party, of the second part, his executors, administrators or assigns, the full sum of % , with interest for the same, unto the said party of the second part, his executors, administrators or assigns, the full sum of $ , with interest for the same, at per cent, per annum, on the days and times and in manner following, that is to say, (here specify terms of payment) without making any deduction, defalcation or abatement thereout, on any account whatsoever, then these presents, and every clause, covenant, matter and thing herein contained, shall cease, determine and be absolutely void to all intents and purposes whatsoever, as if the same had never been executed. And the said party of the first part doth herebv. for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said party of the second i>art, his executors, adminis- trators and assigns, in manner following, that is to say: That he, the said party of the first part, his executors and ad- ministrators, or some or one of them, shall and will well and truly pay, or cause to be paid, unto the said party of the second part, hi's executors, administrators or assigns, the said principal sum and interest in the above proviso mentioned, at the times and in man- ner hereinbefore appointed for payment thereof, without any deduc- tion or abatement whatsoever, and according to the true intent and meaning of these presents. And that the said hereinbefore in part recited Indenture of Lease is, at the time of the sealing and delivery of these presents, a good, valid, and subsisting lease in the law, and not surrendered, for- feited or become void or voidable; and that the rent and covenants therein reserved and contained have been duly iwiid and performed by the said larty of the first part, up to the day of the date thereof. 246 THE CANADIAN LAWYER. V. And that the said party of the first part now hath in himself good right, full iwwer, and lawful and absolute authority to assign the said lands and premises in manner aforesaid, and according to the true Intent and meaning of these presents. And that in ease of default in payment of the said prindiml money or interest, or any part thereof, contrary to the proviso and covenant aforesaid, 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 first pa,rt, his executors, administrators and assigns, or any other persons whomsoever; and that free and clear, and freely and clearly ac- quitted, exonerated and discharged, or otherwise, by and at the exp'*nse of the said party of the first part, his executors and admin- istrators, well and effectually saved, defended and kept harmless of, from and against all former and other gifts, grants, bargnins, sales, leases, and other incumbrances whatsoever. And that the said party of the first part, his executors, adminis- trators and assigns, and all other persons claiming any interest in the said premises, shall and will, from time to time, and at all times hereafter, so long as the said principal sum or any part thereof shall remain due and owing on this security, at the request and costs of the said party of the second part, his executors, administrators or assigns, make, do and execute, all such further assignments and assurances in the law of the said premises for the residue of the said term, and any renewal thereof (if any), subject to the proviso afore- said, as by the said party of the second part, his executors, admin- istrators or assigns, or his or their counsel in the law, shall be reasonably advised or required. And that the said party of the first part, his executors, adminis- trators or assigns, shall and will, from time to time, until default in I)ayment of the said principal sum or the interest thereof, and until the said party of the second part shall enter into possession of the said premises as aforesaid, well and truly pay, or cause to be paid, the said yearly rent by the said Indenture of Lease reserved, and all taxes payable on the said promises, and perform and keep all the lessee's covenants and agreements in the said lease contained, and indemnify and save harmless the said party of the second part therefrom, and from all loss, costs, charges, damage^, and expenses in respect thereof. And also shall and will, from time to time, and at all times here- after, so long as the said principal money and interest, or any part thereof, shall remain due on this security, insure and keep insured the buildings erected or to be erected on the land hereby assigned, or anv part thereof, against loss or damage by fire in some Insur- ance Office, to be approved of bv the party of the second part, in the full amount hereby secured, at the least, and, at the expense of the said party of the first part, immediately, assign the policy, and all benefit thereof to the said party of the second part, his executors, administrators and assigns, as additional security for the payment of the principal money and interest hereby secured; and that in default of such insurance it shall be lawful for the said party of the second part, his executors, administrators or assigns, to effect the same, and the premium or premiums paid therefor shall be a charge or lien on the said premises hereby assigned, which shall not be redeemed or redeemable until payment thereof, in addition to the said principal money and interest as aforesaid. V. MORTGAGES OF LAND. 247 Provided, lastly, that until default in payment of the said princi- pal money and interest hereby secured, it shall be lawful for the said party of the first part, his executors, administrators or assigns, to hold, occupy possess and enjoy the said lands and premises here- by assigned, with the appurtenances, without any molestation, inter- ruption or disturbance of, from or by the said party of the second part, l^s executors, administrators or assigns, or any person or persons claiming or to claim by, from, through, under or in trust for him, them, or any of them. In witness whereof the said parties to these presents have 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.] Received on the date hereof, the sum of full consideration above mentioned. Witness, Y. Z. , being the A. B. •^«/ u 248 THE CANADIAN LAWYER. NATURALIZATION AND ALIENS. An alien is one bom outside British Dominions, or the subject or citizen of a Foreign Government or State, who has not been naturalized. Naturalization is the process whereby an alien becomes a citizen and entitled to the privileges of one native-bom. In Ontario and Manitoba, by Provincial statutes, real and personal property of every kind may be acquired, held and disposed of by an alien, in the same manner as though he were a British subject; aliens may not, however, sit upon juries, or hold municipal or legislative offices. The law upon this subject is now contained in " The Naturalization Act," K. S. C. c. 113, which came into force in the Dominion upon the -Ith July, 1883. By this statute various important clianges are made in the law theretofore existing. Expatriation takes place when a person loses his nation- ality, and abjures his allegiance to the country of his birth by becoming the citizen of another country. Under the com- mon law of England, and until a recent period, it was held impossible for a British subject, by any act of his to expatri- ate himself; but this has, of recent years, been permitted by statute, if the purpose for which it is sought is not unlaw- ful nor in fraud of his duties in the country of his origin. Ke|)atriation occurs when an expatriated person regains his original nationality. The most important clauses of the above mentioned sta- tute are as follows: II INTEHPHETATION CLAUSE. S. In tills Act, unless tho context otherwise requires,— (a) The expression " disahility " nienns the stntus of being nn infnnt, lunntlt, idiot, or married woman: (b) The expression "o.ricer in tlie Diplomutic Service of Her Mnje«t.v " meiuiH an.v Aml)ass)idor, Minister or Charufi d'Affnires, Secretnr.v of Le>,nti«>n, or any iwrson np|M)inteiplomatic Service of Her Majesty, hy tlie Act passtMl by tho Pnrlinment of the United Kinirdom. known as " The Nntnrnlijjntion Act, 1870." (r) The exprcHslon " officer in the ('onsular Service of ITer Mn- jcHty " mears and includes Consul-deneral. Vice-Consul and Con- snlar-AKcnt. anerty of any descriirtion may be taken, acquired, held and disposed of by an alien in the sanu> manner in all respects as by a nntural-born British subject; and a title to real and personal property of every description may be derived throu);Ii, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British sub- ject; but nothing in this section shall qualify an alien f(»r any oHlce. or for any municipal, parliamentary, or other franchise; nor shall innything therein entitle an alien to any right or privilege as a British subject except such rights and privileges in resjK'ct of pro- perty as are hereby e.ipressly conferred uiM)n him; 2. The provisions, of this section shall not affect any estate or interest in real or personal t>roj)erty to which any person bus or may be<'ome entitled, either mediately or immediately, in possession or expectancy, in pursuance of any disposition niade before the fourth day of July, 1883, or in pursuance of any devolution by law on the death of any i>erson dying before the said date; Nor shall the provisions of this section qualify an alien to be the owner of a British ship. EXPATRIATION. 4. Whenever Her Majesty has entered into a convention with any foreign State vo the effect that the subjects of that State who have been naturalized as British subjects may divest themselves of their status as British subjects, and whenever. Her Maj«'sty, liy Order in Council, passed under the third section of the Act jtasheil by the Parliament of the United Kingdom, known as The Xatiir- aliKatiim Act, 1870, has dedarwl that such convention has bien en- tered Into by Her Majesty, — from after the date of siu-b Order In Council, any ]>erson <»riginally a subject of the State referred to in «uch Order, who has been naturalized as a British subject with'n Canada may, within such limit of time as is ))rescribed in the con- vention, make a declaration of alienage, and from and after tl'e date of his so making such declaratiim such person shall, within Canada, Ite regarded as nn alien, and as n subjei-t of the State to whi.'h he originally belimgetl as aforesaid. 3. Any such declaration of alienage may be made before any of the jH'rsons following, that is to say;— («i) If the declarant is in the United Kingdom, in the presence of any .lustice of the I'eiicr, (ft) If elsewhere in Her Majesty's dominions in the pn-sence of any Judge of any court of civil or criminal jurisdiction, or of any Jus- tice of the IVace, or of any other ofticer for the time being anthoi> Ized by law, in the place In which the declarant Is, to admln'stet M f) f -I E i 250 THE CANADIAN LAWYER. au oath for any judicial or other legal puriwse, (c) If out of Her Majesty's doniinious, in the presence of any officer in the diplomatic or consular service of Her Majesty. 6. Any person who by reason of his having been born within the dominions of Her Majesty is a natural-born subject, but who also at the time of his birth became, under the law of any foreign State, a subject of such State, and is still such subject may, if of full age and not under any disability, make a declaration of alienage in manner aforesaid, and from and aftei' the making of such declar- ation of alienage such i)erson shall withi:^ Canada cease to be a British subject. (2) Any person who is born out of Her Majesty's dominions of a father being a British subject may, if of full age, and not under any disability, make a declaration of alienage in manner aforesaid and from and after the making of such declaration shall within Canada cease to be a British subject. REPATRIATION. 7. Any Britloh subject who has, at any time before, or at any time after the fourth day of July, 1883, when in any foreign State, and not under any disability, voluntarily l)ecoine naturalized in such State, shall, from and after the time of his so having become naturalized in such foreign State, be deemed within Canada to have ceased to be a British subject, and be regarded as an alien: but when any British subject has l»efore the fourth day of July, 1888, voluntarily luHonie naturalized in a foreign State and yet is des'rous of remaining a British subject within Canada, he may, at any time within two years after the said hist mentioned date, make a declar- ation that he is desirous of remaining a British subject, and upon such d«' be a British subject, unless he has ceased to be a subject of that State in pursuance of the laws thereof, or in pui"suance of a treaty to that effect. U. Such declaration of British nationality may be made, and the oath of.allegiance be taken before any of the i»ersons following, that is to say: (a) If the declarant is in the ITnitetl Kingdom in the pre- sence of a Justice of the Peace; (b> if elsewhere in Her Majesty's dominions in the preseme of any Judge of any court <»f civil or criminal jnrisdi<'tion, or of any Justice of the Peace, or of any other officer for the tinu' lieing' mthorized by law. in the place in which the if out of Her Majesty's dominions, in the jtresence of any oHIcer in the diplomatic or consular service of Her Majesty. NATURALIZATION. 8. An alien who. Avithin such limited time before taking the oaths or iitlirnuitions of residenc»> and allegiance and piocnring the same to be tiled (if re( onl as liereimiftcr j>rescribe(1, iis is allowed by order or regulation of the (Jovernor in C iiicil. has resided in Canada for a term itf not less tnan three years, or has Imhmi in the serv'-e of the ttovernment of Camilla, or of the Government of any of the Provinces nly read in Court; and, if '1 to have resumed the position of a liritish subject within Canada, vj all intents. 26. If the father, or the mother being a widow, has obtained a. certificate of naturalization within Canada, every cliiid of nich failier or moth(>r who dnrinp infancy has aeconie resilient with sucli fathei or mother within Caiiiida shall, within Canada, be do<'niel to be a naturalized Biitisli snbjt-ct. 27. Nothing in this Act contniiied shall deprive any married woman of any estuie or inti rest in real or personal projierty ta which she became entitled h 'f'tivf the fourth 7, 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 Princi 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; but no siich person, beinK a male, shall be entitled to the benefit of this Act, unless he takes the oaths of allegiance in the form A., and residence in the form H. in the schedule to this Act, before some .Justice of the Peace or other pe 'son authorized to administer oaths under this Act. 42. The oaths taken under the last preceding section shall be filed of record as follows: If the i^erson making them resides in the Province of Ontario, with the Clerk of the Peace of the county in whic'h he resides— if he resides in the Province of Quebec, with the Clerk of the Circuit Court of the circuit within which he resid'^s— if he resides in Nova Scotia, with the Protbonotnry of the Supreme Court — and if he resides in New Brunswick, with the Clerk of the Supreme Court — if he resides in British Columbia, with the Clerk of NATURALIZATION AND ALIENS. 257 the Supreme Court of British Columbia; if he resides in Priuce Edward Island, with the Clerk of the Supreme Court of Judicature— 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 tl.e District of Keewatin, with such person or authority as may be pro- vided by order or regulation of the Governor-General in Council. 2. Upon the oath being so filed, the person making it shall be en- titled to the benefit of this Act and of the privileges of British birth w-ithin Canada, and shall also, upon payment of a fee of twonty-five cents, be entitled to a certificate from the person with whom the oaths have been filed in the form I. of the schedule to this Act, or to the like effect; and the production of such certificate shall be piima facie evidence of his naturalization under this Act, and that he ia entitled to and enjoys all the rights and privileges of a British subject. 43. No alien shall be naturalized within Canada, except undec- the provisions of this Act. , PENALTY FOR FALSE SWEARINQ. ' 44. Every person who wilfully swears falsely, or makes any false affirmation under this Act, shall, on conviction thereof, in addition to any other punishment authorized by law, forfeit all the privileges or advantages which he would otherwise, by making such oath or affirmation, have been entitled to under this Act; but the rights of other persons, in respect of any property or estate derived from or held under him, shall not thereby be prejudiced, unless s ich persons were cognizant of the false swearing, or of the making of a false affirmation at the time the title by which they claim to hold under him was created. SCHEDULE OF FORMS. A. The Naturalization Act. Oath of Residence. I. A. B.. do swear (or. being n person allowed by law to affirm irt .iudicinl oases, do afflrmt that, in the period of years preceding this date I have resided three (or five, as the case may btO years in the Dominion of Canada with intent to settle therein, without having been, during such three years (or five years, as the oaso may be), a stated resident in any foreign country. So help me God. Sworn before me at \ on the [ A. B. day of ) c.L. — Snn ED. 17 258 THE CANADIAN LAWYER. The Naturalization Act, Oath of Bervice. I, A. B., do swear (or, being a person allowed by law to affirm in judicial cases, do affirm), that in the period of years pre- ceding 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 j- A. B. day of ) The Naturalization Act, Oath of Allegiance. I, A.I!., do sincerely promise and swear (or, being a person allowed by law to affirm in judicial cases, do (affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Victoria (or reigning sovereign for the time being), as lawful 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 be 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 swear (or affirm) without any equivocation, mental evasion or secret reservation. So help me God. Sworn before me at A. B. this day of B. The Naturalization Act. Certificate. I, C. D. (name and description of the person before whom the oaths have been taken, do certify that A. B., an alien, on the day of , subscribed and took before me the oaths (or affirmations) of residence and allegiance (or service and allegiance, as the case may be), authorized by the eighth section of " The Naturalization Act," and therein swore (or affirmed) to a residence in Canada (or service, etc.), of years, that T have reason to believe and do believe that the said A. B., within the period of years preceding the snid day. has been a resident within Canada for three or five (as the case mny be) years (or has been 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 NA'IUUALIZATION AND ALIblNS. 259 charaot !r, and that there exists, to u»y knowledge, no reason why the suid A. B. should not be granted all the rights and capacities of a natural born British subject. Dated at , the day of C. D. (If the above Certificate is applied for by a person with respect to whose nationality a doubt exists, and who desires a special Gertiticate of Naturalization under section sixteen, add the following: — " I farther certify that the said A. B. has doubts as to his nationality as a British subject, and desires a special certificate of iiaturalization under section sixteen of said Act." If the above certificate be applied for by a person, previously ti natural born British subject, but who became an alien by naturaliza- tion, an appropriate statement to that effect should be inserted iu the certificate.) the on e me and )n of to a hat T The Naturalization Act. Certificate of Naturalization. Province of Dominion of Canada, ) In the (name of Courti: Whereas, A. B., of, etc., (describing him as formerly of such a l>laco. in such a foreijiu country, and now of such a place in Canada, iind adding his occupation or addition) has complied with the several requirements of The Naturalization Act, and has duly resided in Canada for the period of (three or five, as the case miy be) years. And whereas the certificate granted to the said A. B. under the tenth 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, within Canada, entitled to all political and other rights, powers and privileges, and is subject to all obligations to which a naturiil born British subject is entitled or subject within Canada, nith this qualification that he shall not. when within the limits of the foreign State of which he was a subject (or citizen) previous to thf» da'e hereof, be deemed to be a British subject unless he has ceased to be a subject (or citizen) of thati 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 of , 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 the North-West Territories or District of Keewatin.) 260 THE CANADIAN LAWYEU. D. The Naturalization Act. Certificate of Naturalization to a person after service under Gorcrrt- ment. Whereas, A, B., of (describing him, and adding his occupation or addition) has complied with the several requirements of " The Natu- ralization Act," and has been in the service of the Government of Canada, (or as 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 tenth 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 Avheroas the Governor-General in Council has duly authorized the issue of this certificate 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, M'ithin 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 effect. Given under my hand, this day of Secretary of State of Canada. B. The Naturalization Act. Special Certifleatc of Naturalization to a person tcith respect to whose nationality a doubt exists. Follow form C. down to the sign If— then add: And whereas the said A. B. alleges that he is a person with respect to whose nationality as a British subject a doubt exists, and this certificate is issued for the purpose of quieting such doubts, and the application of the said A. B. therefor, and the issuing thereof shall not he deemed to be any admission that the said A. B. 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. NATUKALIZATION AND ALIENS. '261 The Naturalization Act. Certificate of re-admission to British Nationality. Formal part as in Form C. Whereas A. B., of (describing him as in Form C), who alleges that he was a natural born British subject, and that he became an alien by being naturalized as a subject (or citizen) of has complied with the several requirements of " The Naturalization Aft," and has duly resided in Canada for the period of three (or five, as the case may be) years; and whereas the certificate granted U the said A. B., under the tenth 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 may 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 transaction, is re- admitted to the status of a British subject— (then follow Form C. from the sign § to the end.) Form D. to be altered in a similar manner when necessary. Where the applicant is a widow, the form shall be modified accordingly, and recite that she became an alien by marriage with htr late husband L. M., a subject (or citizen) of The Naturalization Act. 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 (a Judge, Magistrate or other person, naming him) the oaths (or affirmations) of residence and allegiance required by the laws respecting the naturalization of aliens then in force in the said Province. So help me God. Sworn before me at ) on the ' A. B. day of 18 ) H. The Naturalization Act. ' I, A.B.. of , do swear (or affirm) that I had a settled place of abode in (Upper Canada, Lower Canada, Nova Scotia or New 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 July, 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 Julv. A.D. 1873), and I resided therein with intent to settle therein; and I have continuously since resided in the Dominion of Canada. So help me God. Sworn before me at ) on the 1- A. B. day of IS ) 262 . THE CANADIAN LAWYEH. I. The Naturalization Act. I hereby certify that A. B., of , has filed with me as (Clerk of the roaoe, , or as the ease may be) the oath (or atflrnintion) of which the following is a copy:— (Copy of Oath or Atfirmation). This certificate is issued pursuant to the forty-second section of " The Naturalization Act," and is to certify to all to whom it may concern that (Follow Form C.) REGULATIONS MADE UNDER THE AUTHORITY OF THE NATURALIZATION ACT. The Naturalization Act. 1. The time within which an alien's three years residence or ser- vice must be had before taking oaths or afflrmations of residence and allegiance, and procuring the same to be filed of record as provided in the tenth section of the si id Act, is liinit(>d to five years, immediately preceding the taking of such oaths or afllrmations. 2. In the North-West Territories the certificate mentioned in the t ,elfth section of the said Act shall be presented to a .Tudre of the Supreme Court of the North-West Territories, who shall take such measures to satisfy himself that the facts stated in the certifi- cat«' are true, as shall in each case apiM>ar to him to be necessary; and when satisfied that the facts state«l in the certificate are true, he shall grant to the alien a cer'.ificate of naturalisation, authenti- cated under his hand and the seal of the Court. Each .ludge of the Supreme Court shall cause to le kept liy tlie Curk of th»> Court a record of the certificates presented to and filed with him; also a record of all certificates of naturalization gianted by him, of which such .Tudge or Clerk is hereby authorized at any tine to give a certified copy. '.\. The forms of declarations of alienage made in pursuaiicc of the said Act shall be resi»ectiv.'ly as follows: — The Naturalization Act, Canada. D(cUtrtttion of Alienage by a yatvaUzed nritish Ftubject, I, A. B., of having been inituralixed as a British subject on the of , IM , dn hereby, under the provisions of the Order of the (tovernor-Cteiieral in Council of the , and of tli«' treaty between (treat Britain and C. D.. renounce my natfrnliziition as a British subject, and declare that it is my desire to resume my nationality as a sultject (or citizen) of C. D. (Signed) A. B. Made and subscribed this day of . 18 » before nie. (Signed) E. F.. Justice of the Peace, (or other omchil title). NATURALIZATION AND ALIENS. 263 The Naturalization Act, Canada. Dtclaraticn of Alienage by a Person bom within British DominioHS, but also a subfeet or citizen of a Foreign State by the laws thereof. 1, A. B., of being held by the coimuon l:iv- Britain to be a natural born subject of Her Britannic Majesty by 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 18 , before tne, (Signed) E. F., Justice of the Peace, (or other official f.te.) The Naturalization Act, Canada. Declaration of Alienage by a Person tcho is by origin a BritUih subject. I, A. B., of , having been born out of Her Britannic Majesty's Dominion;. »)f a father being a British subject, do hereby renounce my nationality as a British subject. (Signed) O. H. Justice of the Peace (or.other official title). The Naturalization Act, Canada. Declaration of British Nationality. I, A. B., of , l)riiig a natural-born subject of Her Britannic Majesty, and having voluntarily bcconie naturalized as a Bubjett (or citizen) of C. D.. on the of . IS , do hereby renounce such nnturnlization, and declare that it is my desire to be considered and treated as a "BrLish subject. (Signed) A. B. Made and subscribed this me. day of (Signed) 18 liefore B. F., .TuHtice of tlie Peace (or otlHT official title). 4. Kvery ileclnratifin. wiiether of nliennge or British nationality, made in i)urH\iaiice nf the said Act. shall lie deiiosited and r.gistered in tile office of the Secretary of State of Canada. .'. The oaths nientirmant i)artners, notice of the termination of their connection with the co- ])artnership must be given. A general notice is sufficient as to all but actual customers; these must have some kind of actual notice. If no time has been limited for ihe dissolution of a gen- eral trading partnershii), it is a jxirtnershi]) at will, and may be dissolved at anv tinu^ at the pleasure of any one or luore of the partners. If the partnership was established by deed, the renunciation and disclaimer of it by the party who with- draws from the firm ought to he made by deed. Hut if the partnership was contracted without deed, or, as it is technic- ally called. I>y |)arol, it may be rentuinced in the same n\anner. If the partners have agrwd that the partnership shall con- tinue for a definite period, it cannot be dissolved before the expiration of the term limited, except on the mutuni consent <>{' all the parties, or by the outlawry, fehuiy or death of any one or more of them, or by the decree of a Court of Kcpiity. 268 THE CASAI>IAX LAWYKIt. 1.1 i ■' The Courts will interfere to prevent gross breiulios of the partnership agreement on the part of a member, or improper conduct likely to cause great loss to the partnership, and will grant an injunction or award damages; and where these remedies appear insufficient, or other good cause exist, nu\y dissolve the i)artnership. If a partnershij) for a definite term has been created by deed, the mutual agreement of the parties to dissolve it must be by deed also. The partnership is dis- solved by the death or insolvency of one of the partners; or by an assignment by any partner of his share and interest in the business. A dissolution bv one i)artner is a dissolution as to all. An executor, administrator or personal representative, <;untinuing in the business after the death of a partner, is personally responsible as jiartner for all debts contracted. Immediately after a dissolution, a notice of the .same Mhould be publislied in the public papers, and in the official dazette, for general infonnation, and a special notice sent to every person who lias had dealings with the firm. If these precautions be not taken, each partner will still continue Viable for the acts of the othei*s to all persons Avho have had uo notice of the dissolution.. The strictest good faith, and an adherence to the highest principles of business honon' and integrity will be required of partners in all dealings between themselves. Where dilTer- ences of ojiinion arise as to the conduct of business alVairs, the voice of the nu\jority sliould be allowed to govern; but the majority cannot commit any partner to the risk of trans- actions outside tlic scope of the business contemphitod in the partnership iirtidos. It will bo found a wise course to |)ro- vide in those artu les, very carefully, as to all matters about M'hich there is Ukely otherwise to be misundorstaiuling. Eacfi i,.nrtner is lialilo to flw others !'or a breaeh of anv ex- press nant in th*' articles, and each may sue the others for any balance of jirolit aduiitted to bo due him, or upon outside transactions unconnected with tiie ]iartnership. Cpon a di!*s<.iution. .i; • vSn 'i-inf Court having eipiity juris- diction will 'Hrect th,- accounts to b(> taken by ouo of its f)ffi« chihlreu of a doooafsod |nirtnor roooiving a portion of the profits bv way of annuity, and persons* riH'oivinjj a portion of such profits in considoraticui of tiio sale of the j^ood-will of tlio business are likewise similarly protected In IManitoba similar provisions are enacted by (ho Part- nerships Act, \i. S. Al. cap. 111. In Ontario persons desirous of forminj; a limited partner- ship for the transaction of any mercantile. nu<'hanical, manu- facturing or otiier business in the Province are required by H. S. (). 1S5»:. cap. 151, to tile with the Clerk of the (^ninty Court of the county in which the principal place of buaines* of the |)arfnership is situate a certificate in the form given below sigiicil before a notary. Sui'h certilicatc n\ust eon- lain : 1. The name or lirni under whiih the imrtnership ia to be conducted; 2. The general nature of the biisiness inte idcd to bo t ran sue ted; 3. The names of all the general and special partners in- terested, distinguishing which arc general ami which arc special partners, and liieir usual places of resi- dence ; 4. The amt»unl of capital sliu-k which each special partner has contributed; and The peri()d at wliicli. the partnership is to conum'neo and the |)eri()d at wliicli it is to terminate. I'ndcr this .\ct partners are distinguislu'd as general ])artners who are jointly ami severally responsible as general partners are by law, and special partners, who contribute in actuid cash payments a speciric sum as cnpilal lo lh»^ com- mon stock, and who ire not liable for the debts of llu^ part- nership beyond the aniomits contributed by them. Oidy general partners are to be authorized (o transact business ami sign lor the partnership and bind it. No partnership is deemed to have been formed until the reipnred (n'riilicale is tiled, and if any false statement is made in the ccrlilicalo all the pers(»ns iuti-resteil in the partnership are liable for its engagements as general partners. Mvcry renewal or con- tinuance of a partnership beyond the lime oriLiinally lixetl for its duration niti t lie eerlilied and Hied in the sanu* manner as its origimd lUnialion it iliis is not done and the partnership is continued, it is deemed lo he a gener;d partnership. So also every alteration made in tlu^ tiames of the partners, in the nature of tin' business or in tlu» 270 THE CANADIAN LAWYEll. capital or shares, etc., is deemed a dissolution of the part- nership, and if carried on afterwards it is held to be a general partnership unless renewed as a special partnership. The business of the partnership must not be conducted under u name or firm in which the name of a special partner is used, if it is used with his knowledge he is liable as a general partner. A special partner cannot withdraw the sum con- tributed by him during the continuance of the partnership, but he may receive interest upon it in addition to a share in the profits, if the payment of such interest does not reduce the original amount of the capital. A special partner renders himself liable as a general partner if he transacts business for the partnership or acts as its agent or attorney. In case of the insolvency of the partnership a special partner is not allowed to claim as a creditor until all other creditors are satisfied. To dissolve a partnership a notice of dissolu- tion, must be filed in the office in which the original certifi- cate was recorded, and must be published once in each week for three weeks, in. a newspaper piiblished in the county or district where the partnership has its principal place of busi- ness, and for the same time in the Ontario Gazette. If the principal place of business of the partnership is in the Eastern Judicial District the declaration is to be filed with the Prothonotary of the Court of Queen's Bench, if in one of the other Judicial Districts, in the office of the Deputy (Uerk of the Crown and Pleas. The law as to partnership in Manitoba is further defined by 60 Vict. cap. 3-1. The registration of trading partnerships is also required by the statute law of Nova Scotia and New Brunswick, under provisions similar to the above. In all of the Provinces, limited partnerships may be formed, consisting of general and special partners, the latter of whom are not liable for the debts of the partnership lieyond tlio amount they contribute to the capital. The general partners only can transact the business, sign for the Iiartnershiji and hind the firm. A certificate in a given form must ho siumcd hy all the jmrtnors and deposited with the Regi.^trar and I'rothonotary. Tho provisions of the statutes upon these subjects should l)e carctully followed. PRINCE EDWARD ISLAND. By the statnto 30 Vict. cap. >« it is enacted th.it all per- sons cnmi)o*iTig a partnership for tho transanlain PARTNERSHIP. 271 m the name or firm of the partnership, the names and respective residences of the partners, the general nature of the business to be transacted, and the time when the partnership is to commence and terminate; to be in the form given in the schedule in the Act. No partnership is deemed to be formed until such certificate is registered in the office of the Protho- notary of the Supreme Court, in the county where the busi- ness of the partnership shall be carried on; such certificate to be proved on the acknowledgment of the several partners, or on the oath of the subscribing witness, to be made before such Prothonotary or Deputy Prothonotary, or before a Com- missioner; 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 part- ners desiring to be discharged from further liability, is registered as in the first instance, declaring such termination or dissolution, or the withdrawal of any of the partners therefrom. No dissolution (except by operation of law) can take place ixnless 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 lloyal Gazette, and in at least one other newspaper published in llie Province. When a new member is admitted, a certificate must bo filed, under the hands of the members of the firm; and no ne.v member shall be considered as l)etween himself and other members as a partner, until such certificate has been filel, although he shall be as fully liable for its debts contracted while he was connected with it. \ ,-,. FORMS. Certificate of Partnership. m. S. O. 1897, 0. 151). We, the undersigned, do hereby certify that we have enterel into co-partnership under the style or ftrni of (B., I). & Co.). as (Grocers and Commission Merchants), which firm consists of (A. B.). residing usually at , and (C. D.), residing usually at as General Partners; and (B. F.), residing nsuall.v at (G. H.). residing usually at . as Sjiecial Partners, said (E. F.) having contributed ($4.0 weekly, any sum or .' .ims. not exceeding for ach the sum of $ per annum; such sums to be duly -^barged to each of them respec- tiM'l.v, ;tu(l no greater amount to be drawn by either of the said partners, e.vcti)t !iy mutual ctuisent. ."ith. Ihat all v nt.s, taxes, salaries, wages and other outgoings, and expenses incurrtfl in respect of the said business shall be paid and borne out of the profits of the said business. (!th. That the said partners shall keep, or cause to be kept, i ro- per and correct books of account of all the partnership monej s re- ceived and paid, and all business transacted on partnership account,, and of all other matters of which accounts ought to be kept accord- ing to the usual and regular course of the said business; which said ixtoks shall be open to the inspection of all partners.' or their legal representatives: and a general balance or statement of the saitl ac- counts, stock in trade, and business, h.nd of accounts between the said partners, shall be nuide and taken on the day of , in each year of the said term, and oftener, if required. 7th. That the said partners will be true and just to each other in all matters of the said co-partnership, and will at all times duiing the continuance thereof diligently and faithfully employ themselves respectively in the conduct and concerns of the said business, and devote their whole time exdusivelj- thereto, and will not transact or engage in any other luisiness or trade whatsoever; and will not either in the name of the said partnership, or individually in their own names, draw, accept or endorse any accommodation bill or bi'ls. promissory note or notes, or become bail or surety for any pers n or persons, or knowingly or Avilfully do, commit or permit any act,. PAlllNERSHIP. 273 matter or thing, by which, or by means of which, the said partiier- ohi]} moneys or effects shall be seized, attached, or 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 the same is or are to be observed by him, then the other partners, op- any ont" or more of them, may give notice in writing to such partner offend- ing, stating in what respects he is deemed to be so in default: and in case such failure or default is not rectified by a time to be specified for that purpose in such notice, the said partnership shall thereupon at once, or at any other time to be so specified as aforesaid, be dis- solved and determined accordingly. 8th. That in case any of the said partners shall die before the expiration of the term of the said co-partii* > 'p, the said partner- ship shall thereupon cease, and the survi _ partner or partners shall within six calendar mouths after s just with the representative or represei partner, all accounts, matters and thinj: partnership. In witness whereof, the said parties have hereto set their handa and seals, the day and year first above written. Signed, sealed and delivered \ A. B. [us.] in the presence of [ C. I) [l.s.I Y. Z E. F. [L.S.] G. H. [L.8.i asc, sL'ttle and ad- • , such deceased . to the said co- in in ves Ind or not i'ir 'Is. n let,. Dissolution of Partnership. By Indorsement. We, the undersigned, do hereby mutually agree that the partner- ship heretofore r-Uisisting between us, as Wholesale Grocers, under the within nrtich 3 of co-partnership, be, and the same is hereby dis- solved, except for the purpose of the final liquidation and settlement of the business thereof; and upon such settlement wholly to cease and determine. In witness whereof, we have hereunto set our hands and seala this day of , A.D. 18 Signed, sealed and delivered] in the presence of Y. Z. •ered j r ) A. B. [L.S.] C. D [L.S.1 E. F. [L.S.] G. H. [L.S.] Notice thereof. Notice is hereby given that the partnership heretofore subsist- ing between us, the undersigned, as Wholesale Grocers has been this day dissolved by mutual consent. All debts owing to t'oe snid part- nership are to be paid to A. B., at , and all claims against the said partnership are to be presented to the said A. B., by whom the same will be settled. Dated at , this day of , A.D. 18 Witness, A. B. Y. Z. C. D. E. F. G.H. C.L. — 3rd BO. 18 ^f^"^... IMAGE EVALUATION TEST TARGET (MT-3) 1.0 Ui*2A |2.5 m Uii ||2.2 1.1 11.25 U |I4 Photographic Sciences Corporation <^ v <^ ^ 73 WIST MAIN STRUT WIISTM.N.Y. t4SI0 (7U)t73-4S03 ;\ z \ 5^ 6^ 274 THE CANADIAN LAWYER. iToNee teken fmHneat lo he oonMnnetf. Notice is hereby given that the partnership heretofore subBisting between ns, the undersigned A. B., G. D., B. F. and O. H., as Wholesale Grocers, was this day dissolTed by matual consent, so far ns regards the said A. B. All debts due to the sidd partnership Are to be paid, and thpse due from the same discharged, at , where the business will be continued by the said G. D., E. F. and O. H., under the firm of " D. & Go/' Dated at .this day of . A.D. 18 Witness, A. B. Y. Z, CD. B. F. : . G.H. (■• PATENTS OF INVENTION. 275 ins as 80 ihip and PATENTS OF INVENTION. The Patent Ofl&ce in Canada is attached to the Depart- ment of Agriculture, and the Minister of Agriculture, for the time bemg, is the Commissioner of Patents. Patents of inventions are granted by the Crown of the exclusive right to make, use and sell any new and useful art, machine, manu- facture or composition of matter, or any new and useful im- provement not known and used by others. The principal statute now in force relating to patents is the Revised Statute of Canada, c. 61, 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 art, 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 foi more than one year previous to his application in public use, or on sale, in Canada, with the consent or allowance of the in- ventor, 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 {wtent in Canada, the Canadian inventor is not, under the statute, entitled to a patent: where a foreign patent exists, the Cana- dian patent must expire at the earliest date at which any foreign patent for the same invention expires. The execu- tors or administrators, or other legal representatives, of a ■deceased inventor, or persons to whom he has assigned or bequeathed the right of obtaining 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. Ko patent will issue for an invention or discovery having an illicit object in view, nor for any mere scientific principh» or abstract theorem. Every application for a patent must be by petition, ad- onsideration of the aaid sum of dollars, by tht- said C. D. pu' i x the said A. B. at or before the sealing and delivery of these pr dents (the receipt whereof is hereby acknowledged), he, the said A. B., hath assigned and transferred, and by these presents doth assign and transfer, unto the said C. D. his executors, administrators and assigns, the full and exclusive right to the invention made by him, and secured to him by the said letters patent, together with the said letters patent, and all his interest therein or right thereto. In witness whereof, the said A. B. hath hereunto set his band and seal, this day of , A.D. 18 Signed, sealed and delivered] in the presence of A. B. [l.b.] X. Y. (A a assignment of a partial Interest moy be readily framed from the foregoing. Every assignment must be registered in the patent ofBce). 282 THE CANADIAN LAWYER. POWERS 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 executing the power, to execute a deed, or sign a cheque, or receive rents, or perform any other lawful act in his stead. It i& usually 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 empower the attorney to do any act which the principal could delegate an attorney to do, and special when limited to some specific act or acts. It is revocable at any time unless given for consideration and expressed to be irrevocable. Any person of full age may execute a power of attorney. 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 at- torney cannot bind his principal further than the power war- rants, and cannot appoint a substitute, or delegate his pow- ers, unless the instrument so provides. He should sign hia principal's name to acts done under the power, adding hi& own name with the word " attorney." A power of attorney should be executed before a witness- in the usual manner of executing deeds. Where convey- ances or mortgages of land are executed under it, it should be registered with the deed or conveyance, in the proper Registry Office. The revocation of a power is effected by the execution of an instrument of revocation. The death of the principal also effects, ipso facto, a revocation. By statute, however,, acts done by the attorney under the power before notificatiofi of the death to the parties concerned are generally pro- tected. BRITISH COLUMBIA. By R. S. B. C. c. 30, it is enacted that every power of attorney continues in force until the death, bankruptcy,^ insolvency or (if a female) the marriage of the principal, or until the tevocation of such power shall have been filed in the office of the Registrar-General of Titles; and lawful act* POWERS OP ATTORNEY. 28a done by the attorney, after such death, bankruptcy, insol* vency, marriage or revocation, 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 of such death, etc. A confirmation in writing by the principal of any con> veyance, mortgage, or other specialty, or simple contract in writing, purporting to be signed by such person, by his at- torney, or of any act of his attorney, is conclusive evidence of the attorney's authority. FORMS. Oenaral Pmcer of Attorney. -" I, A. B., of in the County of and Province of , have made, constituted and appointed, and by these presents do make, constitute, and appoint C. D. of , my true and lawful attorney for mc, and in my name and stead and on my behalf to (here state what acts the attorney is empowered to do) givins and granting unto my said attorney full 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 mig^t 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. In witness whereof, I have hereunto set my hand and seal, thia day of , A.D. one thousand eight hundred and Signed, sealed and delivered in the presence of E. F. A.B. [I..8.1 G. H. GBNBRAL. FORMS IN COMMON USB. (Formal parts as hefore.) To acll and conveu real estate: To grant, bargain and sell my -farm, known and described as follows (describe fully) or such part or parcel thereof as he shall deem advisable, for such price and upon such terms as to payment or otherwise as he may deem proper, and for me, and in my name to make, execute and deliver such good and suflScient deeds and conveyances of the same as may be requisite, with the usual covenants. To lea*e 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 S84 THE CANADIAN LAHVTER. become doe, or owing me as reut or otherwise in connection with the said lease, and to sign and deliver ■ all proper receipts and acquittances therefor. To traiufer atock: To assign, transfer and set over onto of «f stock now held by me, and in my name in the per cent, is now paid. To aeecpt droft», etc.: To accept all drafts drawn upon me in the usual course of niy business, and to sign my name as acceptor thereof. , sharlps , upon whidh SevoeaiUm 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 considerntions 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 land seal dated the day of , 18 , to C. D. of , and all powers and authorities therein expressed and delegated. In witness whereof, etc. with I and PKOTECnON OF GAME. 285 harlps nrhidh »f niy PROTECTION OF GAME. The following laws upon this subject will be found of interest to sportsmen, farmers, game inspectors and others. in th(> I good lereby make A and and ONTARIO. The law i« governed by B. S. O. 1807, c. 287, extracts of which follow: 1. This Act may be cited as The Ontario Game Protection Act. S. The expressions " gnmo animal " and " game bird " whenever the same occurs in this Act, shall mean a bird or animal protected bj the provisions of this Act XiICBNBB». 3.— (1) No person who in a resident of and domiciled in the Province of Ontario shall hunt, take, kill, wound or destroy any deer without first having obtained a license in that behalf under the provisions hereinafter set forth. (2) Every such license shall be signed by the Chief Fish and Game Warden and countersigned by the Provincial Secretary or his deputy, and shall be in force for one season only, and* the fee for such license shall be two dollars. (3) There shall be attached to each license two shipping coupons,, one of which shall be signed and detachetl by the person to whom the license is issued in the presence of the shipping agent at the point of shipment and attached to each deer or pnrt of a deer about to be shipped, and such coupon shall be cancelled by the carrier on arrival at the point of destination by writing across the face thereof "cancelled'." (4) The said license to hunt deer and the shinpinir coupons thereto attached may be in the form set forth in the schedule to this Act, and shall be printed upon strong manilla paper, and shall be issued by the Chief Game Warden and the Wardens upon application therefor. (5) Every such person shall, on request by any person whom- soever, at all reasonable times and as often as reasonably re- quested, produce and show such license to the person making the request; and if he fails or refuses to do ko he shall forfeit any such license he may possess, and shall, if found hunting, taking, pursuing, killing, wounding or destroying any deer, and on proof of such request and failure or refusal, he deemed to have violated the provisions of this section. 4. — (1) No person not a resident and domiciled in the Pro- vince of Ontario shall be entitled to hunt, take, kill, wound or destroy any moose, elk, reindeer, caribou or other deer, otter, sable beaver, or any other game animal or bird referred to in this Act, 286 THE CANADIAN LAWYEK. •or any other bird or animal whether protected by this Act or not, without having first obtained a license in that behalf; every suca license shall be signed by the Ohief Fish and Uauie Wardien and -countersigned by the Provincial Secretary or his deputy, and shall be in force for one season only, and shall be subject to the pro- visions of the game laws in force in the Province at the time the •aid license was granted; the fee to be paid therefor shall be $25 ■and shall be payable to the Provincial Treasurer to be applied to the ■expenses incurred in carrying out the provisions of the game laws. ■Such license shall not be valid unless the signature of the person to whom it is issued is indorsed' thereon. (2) Every such person shall, on request by any person wbomso- •ever within the province at all reasonable times, and as often as reasonably requested, procure and show to the person making the re- -quest, such license, and if he fails or refuses to do so, he shall forfeit any such license he may possess, and shall, if found hunting, tak- ing, pursuing, killing, wounding, or destroying any such animal or bird, and on proof of the facts mentioned in the first sub-section hereof, and upon proof of such request and failure or refusal, be -deemed to have violated the provisions of this section. (3) Any non-resident who obtains a license to hunt in Ontario pursuant to the provisions of this section, shall, notwithstanding anything to the contrary in this Act contained, be at liberty to take with him out of the province fifty ducks or any less number, law- fully hunted and taken by him; but before so doing he shall obtain from the Chief Warden or any of the wardens a iiermit author- izing him 80 to do; and such permits shall only be granted on satis- factory evidence being furnished that the dnoks to be covered by the permit applied for were actually hunted and taken by the appli- -cant in person. (4) The Provincial Secretary may grant a permit to a guest of a resident of the province free of charge for a term not exceeding -one week. (5) If at any time it is made to appear that residents of the Province of Ontario are placed upon the same footing as residents -of the Province of Quebec, under the provisions of the laws of the Province of Quebec relating to the protection of game, the Lieuten- unt-Governor in Council may by Order in Council in that behalf exempt residents of the Province of Quebec from the provisions -of this section. GO V. c. 54, s. 4. DBBR. S. No person shall at any time hunt, pursue, kill, wound or capture any deer in the waters of 'any river or lake within the limits of the Province of Ontario, or immediately after leaving such waters; and any person carrying a rifle, carbine or shot gun, and stationed in a canoe, skifT, punt or boat of any kind, at or near any place where hunted deer are likely to enter the water during th« open season, shall prima facie be deemed to be engaged in hunting or pursuing deer within the meaning of this seotion. •.—(1) No deer, elk, moose, reindeer or caribou, shall be himted, taken or killed Iwtween the fifteenth dny of Novemlwr, nnd the first day of November of the following year, but the period hereln- liefore limited shall not. as to moose, elk, reindeer, or caribou, apply before or until the first day of Novenilter. 1000. nnd no moose, elk, reindeer or cnrlbou nhnll be hunted, taken or killed before the first ■day of November, 1000. PUOTEOTION OF GAME. 2»7 (2) 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 run at large in any locality where deer are usually found, during thi period from the fifteenth day of November to the first day of November of the following year. Any person harbouring or claiming to be the owner of such hound or dog shall be deemed to be the owner thereof; and any hound or dog found running deer between the fifteenth day of November and the first day of November follow- ing, may be killed on sight by any person, and the person killing «uch hound or dog shall not be liable to any penalty or damages therefor. (3) No one person shall, during any one year or season, kill or take more in all than two deer, elk, moose, reindeer, or caribou; but this shall not apply in the case of deer which are the private proi>- crty of any person, and which have been killed or taken by such person or by his direction, or with his consent, in or upon his own lands or premises. (4) Hunting or killing deer by what is known as " crusting," or while they are " yarding," is hereby declared unlawful. OAMB BIRDS, ETC. 7. — (1) No person shall catch, kill or destroy, or pursue with such intent: (a) Any grouse, pheasants, prairie fowl or partridge, wood- cock, snipe, rail, plover, or any other water fowl or other game bird or animal (including black and grey squirrels and bnres), not herein otherwise provided for, at any time between the fifteenth day of December and the fifteenth day of September in the following year. (h) Any quail or wild turkeys between the fifteenth day of December and' the fifteenth day of October of the following year. (o) Any swans or geese at" any time between the first day of May and the fifteenth day of September of the following year; or ((f) Ducks of all kinds at any time between the fifteenth day of Deocmlier and the first day of September of the following year. (2) Notwithstanding anything in this section contained, no wild turkeys shall be hunted, taken or killed at any time before the fif- teenth day of October, 1900, and no prairie fowl or English or Mongolian pheasants l»efore the fifteenth day of September, 1000. (8) Notwithstanding anything in this section contained, any person may at any time hunt, take or kill that species of hares commonly known in this province as the cotton tail rabbit, or an) fipeciea of rabbits. (4) The possession of guns, decoys or other Implements of shoot- ing or hunting at a time and in places where the game birds or animals above named are usually found, shall )n> prima facie evi- dence of pursuit thereof, with Intent to catch, kill «»r destroy the same. 8.— (1) No person shall kill or shoot at any bird or wild fowl protected by this Act, l»etween half on hour after sunset ond half «n hour before sunrise. 288 THE CANADIAN LAWYER. (2) No eggs of any of the birds above mentioned sliall be talcen, destroyed or liad in possession by any person at any time. (3) No person sliall have in his possession any of the said here- inbefore m<>ntioned animals or birds, no matter where procured, or any part or portion of any such animals or birds, during the per- iods in which they are so protected; provided that they may be exiwsed for sale for five days, and no longer, after such periods, and may be had in possession for the private use of the owner and his family at any time, but in all cases the proof of the time of kil- ling, taking or purchasing shall be on the person so in possession. (4) No person shall by himself, his servant, clerk or agent, ex- pose or keep for sale, or directly or indirectly, upon any pretence, or device, sell or barter, or in consideration of the purchase of any other property, give to any other person any snipe, woodcock or partridge, no matter where killed or procured, before the fifteenth day of September, IBOO, or any quail or wild turkey before the fifteenth day of October, 1900. BEAVER, OTTER, MU8KRAT8. ETC. 9.— (1) (a) No beaver or otter shall be hunted, taken or killed before the first day of November, 1000; and thereafter no bearer or otter shall be hunted, taken or killed or had in possession of any person between the first doy of April and the first day of November; nor shall any traps, snares, gins or other contrivances be set for them during such period; (b) No muskrat shall be hunted, taken or killed or had in posseHsiou of any person between the first day of May and the first day of January of the following year; nor shall any traps, snares, ginti, or other contrivances be set for them during such period ; (o) No muskrat shall be shot during the month of April; nor shall any muskrat house be cut, speared, broken or de- stroyed at any time; and any such traps, snares, gins or other contrivances so set may be destroyed by any person without such iM>r8on 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 prop- erty. (2) Nothing in this section shall be held to prevent the de- struction of muskrats by auy means, at any time, in the vicinity of dams or drniuHKe embankments where there is a probability of injury lieing caused by them to the said dams or drainage em- bnnkments. BUNDAT. 10. No person shall, on the Lord's day, hunt game animals or birds, or take, kill or destroy any game animals or birds, or use any gun or other engine for that purpose. POISONS, TRAPS AND CONTRIVANCEI. 11. No person shall kill or take any animal protected by this Act by the use of iMtismi. or poisonous substances, or expose poison, poisoned bait or other |M>iHoned substances In any place or locality where dogs or cattle may usually have access to the same. PROTECTION OF GAME. 289 i^ oae of tbe said hereinbefore mentiooed animals or birds, other t>.^n those mentioned in section 9, shall be trapped or taken by meai:i8 of traps, nets, snares, gins, baited lines, or other similar contrivances; nor shall such traps, nets, snares, gins, baited lines or contrivances be set for them or any of them at any time; and such traps, nets, snares, gins, baited lines or contrivances may be destroyed by any person without such person thereby incurring any liability therefor, if he finds them so set. 13. 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 or sunken punts, shall be used at auy time, and no wild fowl known as ducks or other water fowl shall be hunted, taken or killed from sail boats or steam yachts. TRANSPORTATION AND EXPORTATION OF OAMB, BTC. 14. — (1) No common carrier or other person shall transport or have in possession for that purpose in this province, after the same has been killed, any wild deer, or the head or the raw skin thereof, or any venison, save only from the first day of November to the twenty-second day of November in each year, unless accompanied by an affidavit that the same was hunted and taken during the open season, and unless there be attached thereto one of the ship- ping coupons belonging to the license authorising the shipper to hunt or kill deer as provided by this Act. (2) Any person not a resident and domiciled in the province who has for any year been granted a license under the provisions of section 4 of this Act, and has paid the fee therefor, shall so far as the authority of the Legislature of the Province of Ontario extends, be at liberty to export out of the province the two deer which under the provisions of this Act hct is allowed to kill. (3) Except, as aforesaid, no person shall at any time hunt, take, or kill any deer, elk, moose, reindeer or caribou, partridge, quail, woodcock, snipe, ducks of all kinds, and any other game bird or animal for the purpose of exporting the same, or export the saine out of Ontario, and in ail cases the onus of proving that any such deer, elk, moose, reindeer or caribou, partridge, quail, wood- cock, snipe, ducks of all kinds, and any other game bird or animal as aforesaid, so hunted, taken or killed is not intended to be ex- ported as aforesaid, shall be upon the person hunting, killing or taking the same, or in whose possession or custody the same may be found. This shall not apply In the case of deer which are tbe private property of any person, and which have been killed or taken by such person or by his direction, or with his consent in or upon bis own lands or premises; but the onus of proof of private owner- ship shall rest on the person exporting. TRKSPAMraiRS IN PURSUIT OF OAMB. 10.— (1) No person shall, at any time, enter into any growing or standing grain, not his own, with sporting implements about his person, nor permit his dog or dogs to enter into such growing or standing grain without permission of the owner or occupant ther«H>f. and no person shall, at any time, hunt or shoot upon any enclosed land of another, after being notified not to hunt or shoot thereon: and any person who. without the right to do so. hunts or shoots o.t.— 8bd sd. W 290 THE CANADIAN LAWYER. npon any enclosed land of another after having been notified not to hunt or shoot thereon, shall be deemed guilty of a violation of this Act. (2) The possession of guns, decoys, or other implements of shoot- ing or hunting, shall be presumptive evidence that the purpose of the trespass was shooting or hunting. (3) Any owner or occupant of land may give the notice pro- vided for in this section, by maintaining two sign boards, at least one foot square, containing such notice, upon at least every forty acres of the premises sought to be protected, on or near the borders thereof, or upon or near the shores of any waters thereon, in at least two conspicuous places, or by giving personal, written or verbal notice, and such notice firstly herein provided for may be in the form following:—" Hunting or shooting on these lands for- bidden under Ontario Oame Laws." (4) Any person who, without authority in that behalf, puts up, or causes to be put up, any such notice on any lands of which he is not the owner, or the possession of which he is not legally entitled to, or who tears down, removes, injures, defaces or interferes with any such notice, shall be deemed guilty of a violation of this Act. (5) Nothing in this section contained shall be so construed as to limit or in any way affect the remedy at common law of any such owner or occupant for trespass. BNCLOSINO MAIUm LJINDS. (6) For the purposes of this section, land, the boundary or any part of the boundary of which is a water line or line between land and water, or passes through a marsh or swamp, or any land cov- ered with water, shall be deemed to be enclosed if posts are put up and maintained on the boundary thereof or on the boun- dary of the part thereof sought to be enclosed, at distances which will permit of every post being clearly visible from the nearest post on either side thereof, and so placed that the boundaries will b0 sufflciently indicated by said posts. OFFBNCBS AND PBNALTIOB. 87. Any person being masked or disguised who carries or has in his possession a gun or any firearm, at or near any preserve or ■hooting ground, shall be guilty of an offence against this Act. 88.— (1) Any person offending against any of the provisions of sections 8 to 6 or sub-section 1 of section 14 of this Act shall be liable for each offence to a fine not exceeding ^50, and not less than 120, together with the costs of prosecution; and any person offending against any other of the provisions of this Act shall be liable for each offence to a fine not exceeding |2S, and not less than |5, together with the costs of prosecution, and in default of immediate payment of such fine and costs, shall be imprisoned in the common gaol of the county where such conviction takes place for a period not exceeding three months. (2) The .Justice or Justices shall, in any such «'onviction, adjudge that the defendant l)e imprisoned unless the penalty, and also the costs and cliarges of prosecution and commitment and of con- veying the defendant to prison, are sooner paid. •■■■■■? PROTECTION OF GAME. 291 (3) The anwuut of the costs and charges of the commitment and conveying of the defendaat to prison, shall be ascertained and stated in the warrant of commitment. (4) Each and every violation of any of the provisions of this Act, shall be a separate offence, though more than one violation of the same kind, or of a different kind, takes place upon the same day; and upon the trial of any prosecution under this Act, the Justice or Justices before whom the same is tried shall, if it appears that more than one offence of the same kind was committed on the same day, impose all the penalties in one conviction, which he or they are hereby empowered to do. 20. One-half of every fine collected uude/ the provisions of this Act shall be paid to the prosecutor or person on whose evi- dence a conviction is made, and the other half shall be paid to the treasurer of the province, to be applied in carrying out the provi- sions of this Act; but the wardens appointed under this Act shall not be entitled to any portion of fines in cases where they act us prosecutors, and in such case the whole shall be paid to the trea- surer of the province. 30. All guns, nets, decoys and ammunition found in the pos- session of violators of the law shall be confiscated, and forwarded to the Chief Game Warden, to be sold by public auction, and the proceeds thereof applied for the purpose of this Act, and in all cases confiscation of game shall follow conviction, and the game so con- fiscated shall be given to some charitable institution or purpose at the discretion of the convicting justice. But where a violation of the provisions of section 19 of this Act has taken place through bona fide mistake or inadvertence the convicting justice may relieve from the operation of this section. 81. All prosecutions under this Act may be brought and heard before any of Her Majesty's Justices of the Peace in and for the county or district where the penalty was incurred, or the offence was committed, or wrong done, or in the county or district where the violater lives or is found, and in cities, towns and incorporated villages in which there is a Police Magistrate before puch Police Magistrate, and save where otherwise provided by this section the procedure shall lie governed by The Ontario Summary Oonvictions Act. 38. The following provisionR shall have effect with respect to ■nmmary proceedings for offences, fines and penalties under thin Act: 1. The information shall be laid within three months after the commission of the offence. 2. The description of an offence in tho words of this Act or in any similar words shall be sufficient in law. 8. Any exception, exemption, proviso, excuse or qualification, whether It does or does not accompany the doscription of the offence In this Act, may ho proved by tho dofondont, but newl not be specified or negatived in the infornintlon or complaint and if so specified or negatived no proof in relation to the matters so specified or negatived shall be required on the part of the in- formant or complainant. 4. A conviction or order made in any matter arising under this Act, either originally or on appeal, shall not lie quashed for want of form. 292 THE CANADIAN I«AWTEK. V; 38* On the trial of any complaint, proceeding, matter or ques- tion under this Act, the person opposing or defending, or who is charged with any offence against or under any of the provisions of this Act, shall be competent and compellable to give evidence in or with respect to such complaint, proceeding, matter or question, and on any such trial no person, witness or party shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Grown or any other person; provided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceeding thereafter instituted against him, other than a pt' ^ecution for perjury in giving such evidence. Liemse to Hunt Deer. Province of Ontario. License No. I, , Chief Game Warden of the Province of Ontario, do hereby certify that , has satisfled me that he is a resident of the of , in the county of , and domiciled in the Province of Ontario; and I do further certify that he has paid me the sum of I , provided by law for a license for residents of Ontario, and is entitled to hunt deer in the Province of Ontario for the open season in the year 180 . He states his age to be years, has hair; eyes, and Ohief Game Warden. Countersigned, Provincial Secretary. Bhippktff Ooupona. Cou|)on No. 1, to License No. , issued by the Chief Game Warden for the Province of Ontario, for per- mit to kill and ship deer. This coupon will allow bolder to ship one deer to any point in Ontario, and said coupon must accompany it. Licensee. Chief Game Warden. Witness to signature of liioensee. Coupon No. '2, to License No. , issued by the Chief Game Warden for the Province of Ontario, for per- mit to kill and ship deer. This coupon will allow holder to ship one deer to any point in Ontario, and said coupon must accompany It. Licensee. Witness to signature of Licensee. Chief Game Warden. PROTBcmON OF GAME. 293 s f r d n h B y le il >n 1, , undendgned, do hereby declare that I have rearon to anapect, and do auapect, that game killed or taken during the close season, or furs out of season, etc., etc. (as the case may be), are at present held and concealed (describe the property, occupant, etc., and the place). Wherefore I pray that a warrant may be granted and given to me to effect the necessary searches (describe here the property, etc., as above). Sworn before me at this day of A.D. 18 . }• X. Y.. ! . I* B. J. P. le IS f ?« le ts of he »r- ny * Seareh Warrant. Province of Ontario, \ Cktunty of i [ ' To each atid every, the constables of County of Whereas, has this day declared, under oath, before me, the undersigned, that he has reason to supect that (game, or birds l^illed or taken during the close season, etc., as the case may be) are at present held and concealed (describe property, occupant, place, etc.). Therefore, yon are commanded by these presents, in the nam«> of Iler Majesty, to assist the said • and to diligently help him to make the necessary searches to ana the (state the birds or game killed or taken during the close season, or furs out of season, etc.), which he has reason to suspect, and does suspect, to be held and concealed in (describe the property, etc., as above) and to deliver, if need there be, the said birds, etc. (as the case may be), to the said , to be by him brought before me, or before any other mai^strate, to be dealt with according to law. Given under my hand and seal \ at County of L. B.. this day of 3.r. A.D. 18 . [L.S.] he ?r- ny NOVA SCOTIA. The close season is as follows: Caribou and Moose, from ISth February to 15th September. Beaver, " ISth Feb.,189« " Ist Nov., 1900. Hares and Rabbits, •• 1st February " Ist October. Mink, " 1st March " 1st November. OroQse and Partridges, Ist December " 16th September. 294 THE CANADIAN LAW7EIL No person is permitted to kill, during one season, more than two moose and two caribou; nor can these animals be himted with dogs, nor can any snai-e or trap be set for them. Fur bearing animals other than those above mentioned can- not be hunted between the first of April and the first of No-^' vember, unless they be bear, wolf, loupcervier, wild cat, skunk, raccoon, wood-chuck, otter, weazel or fox. Game birds, othc^ than those above mentioned, namely, pheasants, blackcock, capercailzie, ptarmigan, sharp-tailed grouse, woodcock, snipe, blue-winged ducks, teal and wood- ducks, can only be taken between 1st September and 1st of March, except in Cape Breton, where the open season is from the 20th August to the 1st March. NEW BRUNSW :K. The close season is as follows: MooBe, Cariboa and Deer, from 2Ut December to let Sepjbember. Mink, Fisher and Sable " let May " 1st September. Partridge, " 80th November " 20th September. Wooieook and Snipe, '* let December " let September. Wild Gtooie, Brant or Black Dnok let December " let September. Beaver cannot be taken for two years from March 20th, 1897. No person is allowed to kill more than one moose, one caribou and. onc^ deer a season. PRINCE EDWARD ISLAND. The close season is as follows: otter, Martin and Maskrat, from Hares and Babbits, '• Woodoook and Snipe, " Wild Dnok, " Bittern, " Salmon, " 1st May 1st March let January 1st March 16th April, to 1st November. " let September. " 20th August. " 25th August. •' 20th August. Ist September ** 81st December. For two years after the 14th of May, 1898, it is unlawful to shoot partridge. Shooting ducks at night with a light is prohibited. ^ BRITISH COLUMBIA. The close season is as follows: Beaver, marten or Innd otter, from 1st April to 1st November. PttOTECnoN OF GAME. 295 East of the Cascade Range: Blue grouse, ptarmigan, Franklin's or fool hen, and meadow lark, from lOth November to 31st- August, inclusive. Wild duok of all kinds, bittern, plover and heron, from 1st March to 81st August, inclusive. Throughout the Province: Caribou, deer, wai'.ti, commonly known as elk, moose, hare, mountain goat and mountain sheep, from 1st January to Slst July, inclusive. West of the Cascades: Plarmigan and meadow larks, from Slst January to 20th. August, inclusive. Wild duoks. bittern, plover and heron, from 1st March to 81 st August, inclusive. Grouse or pheasants, from 2nd January to 3Uth (September, in* elusive. Robins may be killed in orchards or gardens from 1st June to 1st September. Deer must not be hunted with dogs, and must not be killed for their hides alone, nor exposed for sale without the head. Game birds must not be caught by traps or snares. MANITOBA. The close season is as follows: Deer of all kinds from 15th December to 15th October. Urouse, prairie chickens, pheasants and partridges, 15th Novem- ber to Ist October. Woodcock, plover, snipe and sandpipers, from Ist January to 1st August. Upland plover from Ist January to 15th July. Ducks, widgeon and teal,, from 1st May to 1st September. Otter, fisher or pekan, and' sable, f.om 15th May to 1st Novcm- tier. Muskrat from lith May to 1st December. Marten from 15th April to 1st November. Beever must not be shot at, taken or killed. No person is allowed to take more than two deer a season. 296 THE CANADIAN LAWTEK. BECEIPTS AND RELEASES. A receipt is an acknowledgment in writing that the party 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 min«pre- sentation, or given under mistake of the facts, it may, as between the parties to it, be annulled or treated as invidid by a Court of Equity. Payment of money or delivery of 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 dischar^ 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 dis> charge.*' With reference to lands, or interests in lands, the release is commonly called a '^ quit-daim,'' and is a convey* ance of whatever interest the releasor may have in the prop* erty, 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 made under seal. A release of all de- mands is a bar to all actions, claims, demands, and causes of action which the party executing the same may -have against the releasee up to the date of its execution. A re- lease of one of two joint debtors is a legal release of both. One of several executors may legally release a debt due the e<(tate without the signature of the others. FORMS. Jfeoefpt tor eaah paytment on. ^e0o«n(. Kingston, Ont., January 7th, 1886. Received from A. B. five hundred dollars to be applied on account. $600.00. C. D KECEIPra AND UELEASUS. 297 Receipt in full of Account. Halifax, N.S., May 20th, 1886. Received from MesBra. B. F. & Co., serenty dollars and si:^ty*three cents, in full balance of acconnt rendered to Ist instant. $70.63. G. H. . Receipt for Promittory Note deUeered. Victoria, B.C., March Ist, 1885> Received from Messrs. B. F. ^ Oo., their note in favour of ourselves or order dated this day, pay- able four months after date at the Merchants* Qank here, for one thousand dollars, which, when paid, will be in full of all demands. $1,000.00. G. H. ft 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. Mutual Release on aetfUng Partnerthip Aeeountt. Whereas a partnership has heretofore subsisted between us. AJ 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 dissolution have been to our mutual satisfaction adjusted and balanced whereby nothing remains du^ from the one of us to the other. And whereas to ratify and cftnfirm such settlement and adjustment, and to prevent and obviate any further disputes c/ dis- agreements 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. (follow general form, each partner executing a separate general release to his co-partnor, with necessary change of names' in operative part.) ^ Qeneral Reteaee 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, ns for divers other good causes and valuable considerations me thereto specially moving, have remised, released, quit-claimed, and 298 THE CANADIAN LAWYER. forever discharged, and by these presents, for me, my heirs, execu- tors and administrators, do remise, release, quit-claim, and forever discharge, the said G. 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, reckonings, bonds, bills, specialties, covenants, contracts, Agreements, promises, variances, damages, judgments, extents, executions, claims,- and demands whatsoever, in law, equity, or other- wise howsoever which against the said G. 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.b.1 M STRIKES AND BOYCOTriNO. 29tf (co- ver an, ion ley, cts, at8, tier- ive, >an, > or of this STKTKES AND BOYCOTTING. A strike may be defined as a simultaneous and concerted 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 per- sons banded together, or with reference to the individual acts of th& employees. In the latter view, the act of quitting employment may or may not amount to a breach of contract according to the terms of the agreement under which the workman is employed, and to determine this question refer- ence must .be had to the principles enunciated in the chapter on Master and Servant, where the legal rights and remedies of the parties respectively are pointed out. Begarded further, as a joint act, for the responsibility of which each individual is answerable, the following considera- tions may be applicable. Any workman is at liberty to peaceably quit the employ- ment 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 re- gard. So long as he commits no breach of his own agree- ment of hiring, he has done no wrong. The matter is per- sonal with himself. Should, however, he interfere with, threaten or molest other workmen in the service of his for- mer employer, for the purpose of forcing them also to desert their employment^ or should he even unfairly entice them away from, or procure them to desert^ such employment, he is guilty of an improper act, and may be sued by their em- ployer in damages. There is, further, a criminal liability on the part of work- men guilty of such improper acts, as is more fully set forth in the statutes of Canada, extracts from which are ap- pended. The Criminal Code, sec. 583, provides as follows: — 583. Everyone is guilty of an indictable offence and liable, on Indictment or on summary conviction, before two justices of the peace, to a fine not exceeding i^lOO, or to three months' imprison- ment, with or without hard labor, who wrongfully and without law- ful authority, with a view to compel any other person to abstain from doing anything which he has a lawful right to do, or to do any- thing from which he has a lawful right to abstain— 300 THE CANADIAN LAWYER. I i (i) Uses violence to such other person, or his wife or cbildreu, or injures his property; or — (ii) Intimidates such other person, or his wife or children, by threats of using violence to hiia, her or any of them, or of injuring; \ his property; or — (iii) Persistently follows such other person about from place tor 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) W ith one or n. ./e other persons follows such other person iu a disorderly manner in or through any street or road; or— (vi) Besets or watches the house or other place where such other person resides or works or carries on business or happens to be — MalicioH.7 injury to wires, batteries, etc., and malicious obstruc- tion of the working of the telegraph in Canada, is made a misde- meanor punishable by imprisonment in any gaol for any term leps than two years with or without hard labour. Any person guilty of a wilful omission or neglect of duty which t>ndangers the safety of any railway passenger, or guilty of assisting therein, is liable to like punishment. Boycotting may be defined as a method of injuring or persecuting a citizen, with the object of ruining his business, or compelling him to remove from the district where he re- sides. It is generally sought to be accomplished by the con- joint agreement of a large number to 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 con- certed 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 vi- lence, merits the severest punishment. Hap- pily it is little known in Canada, and no extended reference to it is necessary. SUCCESSION DUTIES. 301 SUCCESSION DUTIES. By the Succession Duty Act, R. S. 0. 1897, c. 24, pay- ment of a succession duty is provided for in Ontario in cer- tain cases. The Act does not apply to any estate the vahie of which after payment of all debts and expenses of admin- istration does not exceed $10,000, nor to property given, devised, or bequeathed for religious, charitable or educa- tional purposes, nor to property passing under a will intestacy or otherwise to the father, mother, husband, wife, child, grandchild, daughter-in-law or son-in-law of the deceased, where the aggregate value of the property of the deceased does not exceed $100,000 in value. With the exceptions noted above, the following property is subject to succession duty: (a) All property situate in Ontario and any interest therein or income therefrom, whether the owner at the time of his death was domiciled in Ontario or not, and whether passing by will or intestacy. ^b) All property transferred in contemplation of the death of the grantor find without good consideration intended to take effect after his death. (c) Property taken as a donatio mortis causa made by any person dying on or after the 7th day of April;^ 1896, or taken under a disposition by any person so dying purporting to openate as an immediate gift inter vivos, which is not made bona fide twelve months before the death of the deceased — including property taken under any gift whenever madc^, of which bona ' fide possession is not taken by the donee immedi- ately upon the gift and thenceforward retained to the entire exclusion of the donor. (d) Any property which a person dying on or after the 7th day of April, 1896, having been absolutely en- titled to, has caused to be transferred or vested in himself andi any other person jointly so that tbe beneficial interest, or some part of it, passes by sur- vivorship to such other person. (e) Any property passing under any settlement (includ- ing any trust whether in writing or not, and if con- tained in a written instrument, whether such instru- ment was made for valuable consideration or not), 302 JHE CANADIAN LAWYKU. made by /any person dying on or after the 7th day of April, 1896, by deed or other instrument not taking effect as a will, whereby an interest in such property (or the proceeds of sale of such property for life or any other period determinable by reierence to death) is reserved to the settlor, or whereby the settlor has reserved to himself the riffht by the exercise of any power to restore to himself the absolute interest in such property (or the proceeds of sale of such prop- erty) or to resettle it or any part of it. (f) Any annuity or other interest purchased or provided by any person dying on or before the 7th day of April, 1896, either alone or with any other person to the ex- tent of the beneficial interest arising by survivorship or otherwise on the death of the deceased. The amount of the duty varies according to the value of the property and the degree of relationship in which the person to whom the property passes stood to the deceased, ranging from $2.50 to $10 for every $100 of value. But person does not exceed $200, no duty is imposed. Any portion of the estate of any deceased person (whe- then domiciled in Ontario or elsewhere at the time of his death) which is brought into Ontario to be administered, is liable to duty; but if any succession duty equal to it greater than that payable in Ontario has been paid on it elsewhere it is not liable to duty here; if a duty less than that payable here has been paid elsewhere, it is liable to the payment of succession duty here only to the extent of the difference between the duty payable here and that so paid elsewhere. If an executor or administrator to escape succession duty distributes any part of the estate without bringing it into the Province, he renders himself perb^nally liable for the amount of the duty. This does not apply to payments made to per- sons domiciled out of Ontario out of assets situate out of the Province. When an estate is subject to succession duty, an executor or administrator applying for letters or probate or of adminis- tration, must file with the Surrogate Registrar a full state- ment under oath showing: (a) A full itemized inventory of all the property of the deceased and its market value; and (b) The several persons to whom the property will pass under the will or intestacy and the degree or relation- ship, if any, in which they stand to the deceased. He must also deliver to the Surrogate Registrar a bond SUCCESSION DUTIES. 303 the in a penal sum equal to ten per cent, of the sworn value of the property of the deceased liable to suc- cession duty, executed by himself and two sureties to be approved by the Registrar, conditioned for the due payment of any duty to which the property com- ing into his hands may be found liable. When the property passes on the death of the deceased and no executor or administrator can be made accountable for the succession duty on it, every person to whom the prop- erty passes for any beneficial interest, and, to the extent of the property actually received and disposed of by him, every trustee, guardian, committee or other person in whom any interest in the property or its management is vested at any time, and every person to whom it is vested in possession by alienation or other derivative title shall be accountable for the succession duty on the property, and must within two months of the death of the deceased, deliver to the Surro- gate Registrar of the county in which the property is sitimte, and verify an account to the best of his knowledge and belief of the property. If the Treasurer of the Province is not satisfied with the value sworn to or the correctness of the inventory the Sur- rogate Registrar of the county in which the property is, at the instance of the Provincial Treasurer is to direct the sheriff of the county to value and appraise the property. An appeal may be made from the appraisement to the Surrogate Judge within 30 days from the filing of the as- sessment. His decision is final unless the value of the prop- erty exceeds $10,000, when a further appeal lies to a Judge of the High Court and from his finding to the Court of Appeal whose decision is final. The duties imposed by this Act, except in certain special cases, are payable within eighteen months of the death of the owner, and if not so paid interest at the rate of six per cent. is chargedi from the death of the deceased, and the duty and interest form a lien on the property. The administrator should deduct the duty l)efore delivering over the property. He has power to sell so much of the property as will enable him to nay the duty in the same manner as he may sell to pay debts of the deceased. The duty is to be paid to the Provincial Treasurer. Actions by or against the Province in respect of succession duties must be brought within »ix years from the time the duties or claims became payable. 304 THE CANADIAN LAWYEU. THE TORBENS SYSTEM OF LAND TRANSFEB. This system is now in force in Manitoba, the North- West Territories, and in Ontario. It is also to be adopted in British Columbia. The Torrens system was introduced into Manitoba in the jear 1885, and into Ontario during the same year. The bill for its introduction into the North- West Territortes was passed by the Parliament of Canada in the year 1886. The following statements, explanatory of the system, have been «ompiled from various sources, to enable readers to famili- 4irize themselves with its objects and methods. The Torrens system offers to the owners of land alienated from the Crown prior to the coming into operation of the Act, the opportunity of causing their lands to become sub- ject to a law which will free them forever from the old sys- tem of conveyancing by deed, while imposing upon them a •certain new procedure. Land once brought under the system cannot, in the ab- sence of special circumstances, be withdrawn from its opera- tion, 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 regai^ling real prop- ■«rty, conveyances, mortgages, etc., affecting them, continue to be drawn up in the old forms, and to be registered in the General Begistry Office. The old and new systems of Transfer and Begistration •continue, therefore, to exist side by side. In Manitoba, the North-West Territories, and parts of Ontario (namely, Muskoka, Parry Sound, Nipissing, Al- goma, Manitoulin, Thunder Bay and Bainy Biver), land granted by the Crown subsequent to the introduction of tKe 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, there- fore, cannot there be applied to land bought from the Crown after the introduction of the Torrens system, but all dealings with such land must be conducted on the system of regis- tration of title. Any other land may be" brought under the Act on the iipplication of the personH interested. The application, with the deeds, is left at the Lands Titles' Office, and the title is there investigated by the officers appointed for that purpose. If it be found that the title, although perhaps not techni- cally 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 kinds of certificates: (1) 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 claim- ing is in possession as owner subject to any defects there may be in his title prior tb registration. It is, of course, possible that the certificate of title may through error issue to the wrong person, and that injustice 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 Act, where a certificate of absolute or qualified title is granted, and one-eight of one per cent, where a possessory title. On the issue of the certificate, the old deeds, if they relate ex- clusively to the land applied for, are cancelled and retained in the office. If they relate to other property, they are re- turned, 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 thence- forth 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 Government guarantee that the title is perfect. It is indefeasible, and there is no going behind it. Any person entitled to any estate of freehold in posses- sion in land under the Act may have a certificate of title issued to him. Every certificate is in duplicate. One duplicate is given to the proprietor, the other is retained in the I^and Titles Office. The certificate in the office constitutes 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 operation 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. o.l.-Srdid. 80 THE CANADIAN LAWYER. So far, it will be said, the title is simplified, but how is this simplicity to be retained — how will future complications be prevented? This is the problem which the Act endea- vours to solve. For the purpose of facilitating transactions, forms of transfer, mortgage, lease, and other dealings are furnished in the Act, the forms ordinarily in use in Ontario being set out below. Any person of ordinary education can, with very little trouble, learn to fill them up in the more simple cases, without professional assistance. If a proprietor holding a certificate of title wishes to sell the whole of the land in- cluded in it, he fills up and executes a printed form of memorandum of transfer, which may be endorsed by the pur- chaser. The transfer is presented at the office, and a me- morial of the transfer is recorded by the proper officer on both duplicates of the certificate of title. The purchaser, by the recording of the memorial, stands in precisely the same position 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 certificate 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 free- hold 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 meet the particular circumstances of the case. This is presented at the Lands Titles Office with the certificate of title: a memorial of the transaction is entered by the proper officer on the certificate of title, and on the duplicate certifi- cate forming the register book. The entry of this memorial constitutes registration of the instrument, and a note, under the hand and seal of the pro])er officer, of the fact of such registration is made on both duplicates of the instru- ment. 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 origi- nal proprietor is entitled to the land it describes, subject to THE T0RKEN8 SYSTEM OF LAND TRANSFER. 307 the mortgage, lease, or encumbrance; while the duplicate instrument held by the mortgagee, lessee, or eneumbrancec, 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 mortgage 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 certifi- cate of title. A mortgage under the Act does not involve a transfer ofl the "legal estate," though the mortgagee is made as secure as if such transfer had taken place. The necessity, therefore, for a deed of reconvey- ance, 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 " indorsed upon it, signed by the lessor and lessee, and attest . ^ and the proper officer will note the fact that it has been surrendered, on the certificate of title. Mortgages or leases are transferred by indorsement by a simple form. The Act provides implied powers of sale and foreclosure in mortgages; and in leases, im- plied covenants to pay rent and taxos, and to keep in repair, together with power for the lessor to enter and view the state of repair, and to 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 pro- vided, which may 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 trans- feree takes it subject to recorded interests. The transfereo can, if he chooses, have a fresh certificate issued in his own name, and in that case the old certificate is cancelled, and the memorials of the leases or mortgages to which the land is subject are carried forward to the new one. If a proprietor transfers only a part of his land, his certificate is cancelled so far, a fresh certificate is issued, and memorials of out- standing interests are similarly carried forward. Memorials of dealings with leases or mortgages are noted on the dupli- cate lease or mortgage held by the lessee or mortgagee, and on the folium of the register book. The officers of the 308 THE CANADIAN LAWySR. depdrtinent, therefore, and persons searching, can see at a glance the wliole of the recorded dealings with every prop- erty; 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 that it is not the execution of the memorandum of transfer, lease or mort- gage, bui it8 registration in the Lands Titled Office, that oper- ates to shift the title. No instrument, until registered in the manner prescribed by the Act, is efiEectual 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 registration, whatever it may be, is complete. Begistration takes effect from the time of the receipt of the instrument, not from the time of the actual making of the entry. The publicity attending an ordinary mortgage is some- times avoided under the old system by an equitable mort- gage. Registration of title does not do away with this mode of charging land, but an equitable mortgage or lien upon land may be created by deposit of the grant or certifi- cate of title. The following description of the practice as regards equitable mortgage is extracted from a pamphlet recently published by Sir R. R. Torrens: — "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 instrument, with the certificate of title, is held by the creditor, who does not register, but lodges a Caveat for bid- ding the registration of any dealing with the land until four- teen 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 on the proper folium of the register. The creditor, upon receipt of such notice, or at any time, may turn his equitable mortgage into a reg- istered charge, by presenting the contract for charge with the deposited certificate of title at the Registry Office. A very important principle in the Torrens system of registration of title, and one which should be most jealously 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 declaring trusts be registered. The usual simple transfer must be registered, and the transferees, notwithstanding their fiduciary position, appear there as the registered proprietors for all intents and purposes. An THE TORBEKS SYSTEM OF LAND TRANSFElt. 309 instrument declaring the trust may, however, be d ">sited in the Registry Office for safe custody, and the rigi. ^ of the persons beneficially interested are protected by the execution by the transferees of such an instrument, which is lodged in the Registry for «afe custody and reference. A protec- tion against fraud is provided by enacting that whenever the words " No Survivorship " are written on the instrument of title held by trustees, the land in respect of which they are registered cannot be deal .; with by a less number of trus- tees than those registered, without the sanction of the Su- preme Court. A Caveat pjohibiting the registration of any dealing, except in accordance with the trusts so declared, may be lodged by any person interested in the trust prop- erty. 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 benefi^ciaries, though the Caveats provide a check upon frauds and breaches of trust, must rely mainly on the integrity of their trustees. REGISTRATION OF DEALINGS WITH LAND UNDER THE LAND TITLES 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 registered in order to give legality to the transaction. It is the registration, not the signature of the parties, which gives such a transaction its binding force, and no change in the title is effected by an unregistered instrument. The principle 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 MortjTpje. Ditto of Enc uinbrance. Ditto of Surrender of Lease. Ditto of Discharge of Mortgage. Power of Attorney. Transmission by Marriage. Ditto by Insolvency. Ditto by Will, or Intestacy. Ft. fa., or Order or Decree of Supreme Court. 310 THE CANADIAN LAWYER. TRANSFERS, LEASES, AND MORTGAGES. Of a transfer in fee, only one copy need be presented for registration; a mortgage must be in duplicate, and a lease in triplicate. iTie instruments presented for registration are received 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 witnessed and proved; also that they are accompanied by diagrams, if necessary, and by tiie . certificate of 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 compare the original and duplicate and to see that the Instrumtnt is sufficiently clear and explicit, and that the p.u'ties 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 cf it, either a new certificate declaratory of his title, or else, if he prefers it (where the whole of a holding is transfciTod), the original certificate, with a memorial recording the transfer. If the fee of part only of the land is included 'inder an existing grant or certificate of title be transferred, the trans- feree gets a certificate for the portion acquired by him, while the proprietor has the choice either of leaving in the ce the year when one through whom I claim took possession, and prior thereto the Ir.nd was in a state of nature (if possession has not always accompanied the title under which the petitioner claims, state correctly the facts as to the actual possession). 8. I am now in actual occupation of the said land (or, if a ten- ant of the applicant is in occupation, state how he claims to hold, and how he in fact holds ; if the tenancy is under an instrameut iu writing, this should be produced. If not under an instrument in writing this fact should be stated. If no one is in actual occupation state the fact). 9. To t)< best of my knowledge, information and belief this affi- davit and t.to other papers produced herewith in support of my application, and which are set forth in the schedules hereto, fully and fairly disclose all facts material to my title, and all contracts and dealings which affect the same or any part thereof, or give any right as against me. (Vary these statements according to the farts). " 1(*. There are no arrears of taxes due upon the said land, nor has the said land been sold for taxes during the past eighteen months, nor under execution during the past six months, and I do not know of any writs of execution in the hands of the Sheriff against me. or affecting the said lands. 11. To the best of my knowledge, information and belief, no person or body corporate has any right of way, or of entry, or of damming back water, or of overflowing, or of placing or maintain- ing any erection, or of preventing the placing of maintaining any erection, on, in, to or over the said land, other than myself (except, giving the names and addresses of any parties having any easement or right, and stating the particulars and nature thereof), and the said land is not subject to any right of way or to any other ease- ment or dominant right whatever (except as aforesaid). 12. The said land is not worth more than $ 13. I am married, and the name of my wife is (or I am not mar- ried). i 314 THE CANADIAN LAWYEll. 3. — Form of flrat entry of Oumerahip in the Register. LAND TITLES ACT. A. B., of is the owner in fee simple of (description of property), subject to the exceptions and qualifications mentioned in section 13 of The Land Titles Act, 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 afllxed my seal this day of , A.D. 18 (Signed) Where an easement is enjoyed with the land, say: Together with a right of way on foot, or with horses, carriages, and other vehicles, over and upon the lane adjoining the said land, at the west side thereof (or according to the fact). Where title is Possessory, say: The title of A. B. is subject to the claims (if any) which cftn be enforced to the said land by reason of any defect in the title of (name of the first registered owner) prior to the day of 18 , being the date of the first registration of said land. When the land is subject to a Life Estate, say: The title of A. B. is subject to the life estate of O. H., ot 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 $3,0(X> apd. interest at the rate of ti \wr cent., per annum from the 17th dny of July, 1»-. [If registered give particulars of registration.] Where the land is subject to a lease, say: The title of A. B. is subject to a lease, dated the day of , made by A. B. to Y. Z., for the term of ten years from the said date. 3a.— Form of Certificate of Otcnerahip. lAND TITL.BB ACT. This is to certify that A. B. is the owner (etc., in terms of the entry in the register). 4.— Certificate of Juatice of the Peace. I.AND TITLES ACT. I, C. D.. of the Town, etc., a Justice of the Peace in and for the County of do hereby certify. 1. That I am acquainted with A. B., who proposes to apply to be registered under The Land Titles Act as owner (or as the case may be), of the following lands, namely (describing the land as in the application). THE TOUUENS SYSTEM OF LAND TRANSFER. 815 2. That I believe him to be entitled to the said land as the owner thereof (or us the trustee with power to sell the same or otherwise, in accordance with the title under which applicant applice to be registered). 5.— Sheriffs Certificate. Sheriff's office, County of doy of 18 I hereby certify that I have not ot the date hereof In my office any writ of execution against the lands of (or any or either of them), nor are there any outstanding for renewol or with return of lands on hand for want of buyers or to the like effect. I further certify that I have not sold lot in the con- cession of the township of , under any writ of execution for six months preceding the date hereof. F. M.. Sheriff. 0. — Affldavit of Publication of Advertisement. LAND TITLES ACT. In the matter of the Rpplicution of £. F. I, A. B., of, etc., make oath and say: 1. The advertisement, of which a duplicate Is hereto annexed, i reaKonn for XMh belie'). 3. The said Court House is the Court House of the ('ounty In which the lands in question in this matter are situated. Sworn, etc. 816 THE CANADIAM LAWYEIt 8.~Aflldavit of pMting «p Advcrtlgemcnt at the marest Po»t Offloe. LAND TrrLBB ACT. In the matter of the application of E. F. I, A. B., of, etc., nialce oath and say: 1. I did on the day of , post up in a conspicuous place in the post otHce, in the village of , a true copy of the advertisement hereto annexed, marked I)., the copy so posted up being a cutting from the newspaper. 2. The said advertisement remained where it was posted up by me continuously for the full period of one month, as I verily believe, (state the reasons for this belief). 3. The post office in the village of < , is the post office nearest the land in question in this matter. Sworn, etc. 0. — Caution under Seetioti 75 after Regittration. LAND TITLES ACT. I, A. B., of, etc., being inten>sted in the land registered in the name of as parcel in the Register for (or in the charge registered as No. , in the name of E. F., of, etc., as owner, and being on Parcel ), the day of 18 , in the name of E. F., of, etc., on the lands, etc., (as the case may be), require that no dealing with such land (or charge) be had on the part of the registered owner until notice has been served ui)on me. My address for service of notice is lot , in the con- cession, in the County of York, and my Post Office address is Dated this day of , 18 . Signature of the cautioner or his solicitor. 10.— AfUdavit iH tupport of Caution lodged under Seetion 75. LAND TITLES ACT. I, A. B., of, etc., make oath and say as follows: 1. I am interested in the laud (or charge) mentioned in the alrave (or annexed) caution, and the iMrticulars of my interest are as follows (here state iMirticulars). Sworn, etc. 11.— C*ori;e or Mortgage. LAND TrrLBS ACT. I. A. B.. the registere) paid to me, charge such land * with the THE TOURENS SYSTEM OF LAND TRANSFER. 317 o payment to C. D., of, etc., on the day of , 18 , of the principal sum of ($2,000) with interest at the rate of per cent, per annum, and with a power of sale to be exercised after de- fault, and months' subsequent notice of tb« intention to sell (or, as the case may be). (Add any covenants which are ai^reed to and are not implied under the Act or otherwise). I, E. B., wife of the said A. B.. hereby bar my dower in the said land. This charge is made in pursuance of " The Act respecting Short Forms of Mortgages " (where it is diesired that the covenants, etc.. should operate under that Act). Dated the day of , 18 . (Signatures of A. B., and E. B. Witness, X. Y. (no seal necessary). 12.— Authority to Notify Cvs«atinn of Chartjf;. LAND TITLES ACT. To the Master of Titles: I. . of the , of in the County of , the repistered owner of charge made by to dated the tiny of 18 . and registered as No. , on the land registered in the olflce of Land Titles at us Parwl in the register for hereby authorise the Master of Titles to notify on the register the cessation of the said charge. Dated the day of A.D. 18 . Witness. AffldatHt ProHng (Signature of Ourner in Chnrgt. LAl>rD TITLES ACT. X, , of the in the County of , mahe oath and say : I am well ac<|uainted with named in the within document authorising the Mfister of Titles to notify the (vssation of the charge mentioned, and the signature purporting to Im' his signature at the f(M>t of the snid document is '.n his handwriting. The snid , Is. as I verily believe, the owner of the said chargr. he Is of the age of 21 years or over. Is of sound mind, and signed the said document voluntarily at in the County of in the Proviuc*' of Ontario. I nm a subscribing witness to the said signature. Sworn before me at the of\ in the County of [ this day of A.D. 18 . ) A Commissioner, etc. 818 THE CANADIAN LAWYEU. 13.— Transfer of Charge or Mortgage, UKKD TITLES ACT. I, C. D., the registered owner under the Land Titles Act of the charge dated the day of , 18 , »iade by A. B., etc., and registered as number , charging the land registered as parcel G, Township of York (or as the case may be), nuder the above number, in consequence of ($2,000) paid to me, transfer such charge to E, F., of., etc., as owner. Dated the day of 18 . (Signature of registered owner). Witness, (no seal necessary}. X. Y. 14.— Transfer of Freehold or Leaisehold Land. LAND TFTLES ACT. I, A. B., the registered owner of the land (or leasehold land) registered in the oHice of the Land Titles at , as I'arcel (!, Township of York (or as the case m:\y be), in consideration of (5^3,000) paid to me, transfer such land to C. I)., of, etc. Dated the day of 18 . (Signature of registered owner). Witness, X. Y. 15. — Transfer of Freehold or Leasehold Land in Parcels. LAND TITLES ACT. I, A. B., the regisfered owner of the freehold (or leasehold) land reuistered In the ottlce of Land Titles at , as Parcel . in the Register for North-West Toronto, in consideration of (n.-lOO) paid to me. transfer to C. D., of. etc.. the land hereinafter particularly descrllied, namely (describe portion transferred), being part of the said imrcel. And I, B. B., wife of the said A. B., hereby bar my dower in the said land. Witness. Signatures. X. Y. IG.— Transmission of Registered Oienerithlp on death of Owner. Appli' cation under Sections i7 or i9. LAND TITLES ACT. A. B., the reglHtered <)wner o* the leasehold land, registered im Parcel (or charge, dated the day of . IS , on the land, etc., as the case may be, giving the number in the register)^ THE TOKRENS SYSTEM OF LAND TKANSFElt 319 died ou the day of . 18 , (or otherwise, as the case may be, within section 60 of the Act): C. D., of, etc., is entitled to 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 herewith). The address of the said C. D. is (here give address). Dated the day of , 18 . (Signature of G. D., or his solicitor). 17 — TraHtitti$$ion of Registered Ownerahip. Application under Sections 59 and til. LAND TITLES ACT. A. B., the registered owner of the land entered in the register for , us Parcel , died on the day of , 18 . (or otherwise, as the case may be); C. D., of, etc., being interested in the said luud, applies to be registered (or to have E. F., of, etc., registered), as owner of the said land. The interest of the said G. D., (or B. F.,) and the existing rights of the several other persons interested in the said land, are stated in the affidavit* of the said G. t). and 6. H., of, etc., the solicitor of the said G. D., filed herewith. The other evidence in support of this application is left herewith, and consists of (here state of what evidence consists). The address of said G. D. is (here g've address). Dated the day of . 18 . (Signature of G. D. or his solicitor). 'Affidavit, etc., tu be left with applioatiou. 18. — Affidavit attesting EiKcutUm of Instrument, uhcn Bar of Dower, and Identifying Parties. LAND TITLBS ACT. I, (}. H., uf, etc., a Solicitor of the Supreme Gourt of Judicature, make onth and say. I am well aciinainted with A. B. nud i\ !>., named in the within document, and waw them sign the nnid docMunent, iind the siiinatures purporting to be their respective signatures at the foot of the Haid document are in their handwritinir. The said A. B., is, oh I verily believe, the owner of the land within mentioned, and the said G. B., is reimrted to Ih>, and is, as I verily believe, his wife. The said A. B. ond C. B. are each of the age of 21 years or over, are each of Houml mind, and signed the sn'd document voluntarily at , in the Gounty of , in the Province of . I am tt Hubscribing witness to the said document. Sworn, etc. $20 THE CANADIAN LAWYER. 19.— Form of Power of Attorney to make Transfers. LAND TITLES ACT. I, A. B., do appoint C. D. my attorney to transfer to E. F. abso- lutely (or by way of mortgage, as the ease may be) all my lands as entered and described in the register for the Township of , in the office of Land Titles at , as parcel , and my estate therein. Dated this day of Witness (as above.) X. Y. ,18 A. B. (If such is the intention, add, this power shall not be revoked by the death of the said A. B., and the exercise of the same after ihis death shall be binding on his representatives). 20.— Form of Revocation of Power. LAND TITLES ACT. I, A. B., of , hereby revoke the power of attorney given 1)V me to , dated the day of In witness whereof, I have hereunto subscribed my name this day of • (Signature of A. B.) Witness (as above). VBSB5U8. 321 tso- aa , in ate iced Iter VESSELS. Under this head it is not judged necessary to introduce more than such forms as are in most general demand among those engaged in maritime pursuits; the special forms con- nected with the various departments of Custom House busi- ness being all of them individual in their nature, and easily procured at the several ports as needed. FORMS. ven this 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 or vessel called " The Ariadne," of the burden of four hun- dred tons or thereabouts, now lying at the Port of Kingston, Ontario, for and in consideration of the sum of five thousa.id dollars of law- ful money of Canada, to him iHtamcnt of inc. A. B.. of, otc made thin diiy of , in tlic yenr of our Lord ont> thonaand right hundred nnd . hh followR: I give, devine nnd tM>qu«>ath all ni.v niPHsungcB, landH, tenements and liereditanientR, nnd nil my houHehcdd furniture, ready money, Reeurities for mon«'v. money Hecured by life nHHUrnnee, goodn nnd eiiattels, nnd nil other my reni and t)erm>nal entnte nnd efFeetn whnt- Roever and whereRoover. unto V. !».. hiH heirR. exeeutorH. ndminis- tnitorH nnd nRRitinR. to nnd for hiR nnd their own nliRolute urp nnd luMiefit, neeordinv to the nnture nnd qunlity ther«H)f reRpectivoly; Rul»je<-t only to the pnyment of my Jupt ilei>tR, funeral nnd testa- mentary expemreR, nnd the ehnrgefl of proving nnd regiRter.ng thia WILLS. 381 my will. And I appoint P. F., of . executor of this n»y will; and hereby revoking all other wills, 1 declare this only to be my last will and testament. In witness whereof, I have hereunto set my baud 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 presence of each other, have hereunto subscribed our navies, as witnesses to the due execution thereof. R. S. X. Z. A. B. [L.8.] Otneral form of a Will dispoaing of Real and Personal Estate, in Legacies. I, A. B., of . in the County of , gentleman, being of sound and disposing mind and niemorv. do make niid publish this my last will and testament, hereby revoking all former wills by me at any time heretofore made iHt. I hereby constitute and appoint my wife. E. T., to be sole execmrix of this my last will, directing my said executrix to pay all my jubt debts and funeral expense, an«if 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 pad to each of them as soon after my decease, but within one year, as conveniently may be done. 3rd. And for the payment of the legacies aforesaid, I give and devise to my said executrix all tlie personal estate owned by me at my decease (except by household furniture and wearing apparel), and so much of my real estate as will be sutticient, in adilitiv>n to the said personal estate herein given, to pav the said legiicies. 4th. I give to my said executrix all my household furniture and wearing apparel, for h«T sole use. r»th. I devise to my nald executrix all the rest and n'sidiU' of my real estate, as long as she shall nMuain unmarried, and my widow, with remainder thereof, ou her dei-easo or inarringe, to my said children and their heirs respccti'-ely, share aneut, in the presence of us, b-nh present at vht? same time, who, at his rt quest, in his i)re!>ence and in the presence r,f each other, have hereunto subscribed our > ames as witnesses to the due execution nereof . R. S. X. Z. Nuncupative Will, In the matter of the Nuncupative Will of Thomas Atkins, deceased. On the third day of May, in the year one thousand eight hundred and , Thouius Atkins, Sergeani iu Her Majesty's Regi- ment of foot, being iu extremis iu his last sickness, in his tent or dwelling, situate in etc., t describing the situation; if in the dwelling of another, so stating and describing], in the presence of the subscribers, did declare hisj last will and testament in the fol- lowing words, or to that effect, viz.:— " He mentioned that he had about one hundred pounds in the Scottish and Golonian Bank of Birmingham, and ten pounds in the >>ands of Captain lA)ftus 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 risters. All my (»thcr i)r(»perfy I want my brotLer to have for hi» f.eimrate use." At the time the said Thomas Atkins pronounced the foregoing will, he was of sound and disposing ndnd. memory, and understand- ing, and did bid us who were present, to Itear witness thnt such waa his Will. Reduced to writing this fifth day of May, in the year one thou- sand eight hundred and . John Brown. Edward Bakbr. Samuel Nbuson. DICTIONARY OF LAW TERMS IN COMMON USE. Abate. To abate a nuisance is to cause it to be discontinued. Administrator de Son Tort. One who intermeddles with an estate without proper authority. Agistment. Pasturage of cattle. Alias. A term applied to a second writ issuing for the same pur- pose us a prior writ. Alibi. In another place. A Mensa et Thoro. From bed and board; a judioiul separation of man and wife which does not annul the marriage. Amicus Curisa. l<'riend of tUe taias of vessels acknowledging the shipment of goods. Blackmail. To levy blackmail is to extort money Vjy 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 n 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 o trustee holds pro- perty. Compos Mentis. Of sound mind. Contra Bonos Mores. Inconsistent with good morals. Covert. Married. Crim. Con. Criminal conversation; adultery. Curtesy of England. A tenancy by the curtesy is the right of a widower to enjoy for life the lands left by his deceased wife. Curtilege. A court yard. De facto. Actually existing. De jure. AccortliDir to law. De novo. Anew; from the beginning. De|x>aitionii. Written Iwwtimony (nkeii «1nwn nnon a Wal inv#»BttpBt'on. ')etlnet. *' He detains;" n form of action at law to recover possession of BtMH'ifio pr«)perty. DevostHvit. " He has wasted;" wasteful and impro|)er conduct of adrainlstrHtors wtfh estates. Dies non. A legal holiday. Domicile. The place where n man habitually resides. Donatio Mortis Causa. A gift of personnl i»roperty made in con- templation of death and by manual transfer. Easement. A right to do some act uire. Off-hand; without premeditation. Felo de se. A suicide. Feme Covert. A married woman. Feoffment. A deed of grant of lands. FertB NatarsB. Animals and birds fere natures 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 bring suit in this manner, without payment of f^s. 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 Blood. Where the relationship proceeds from a single anceittor only; thus two brothers having the same father but diffeient mothers, or vice versa, are of the half blood. Hotchnot. Bringing all moneys into one sum or account for equal division. Incest. Illicit intercourse within the prohibited degrees of con- sanguinitv. In esse. In being. In extremis. In immediate danger of death. In posse. Within probability. In propria persona. In one's own person, lu 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. Ipso facto. By that fact. Ipso jure. Bv the law itself. Joint tenants. Are such as possess a common title to the same land. Jointure. Lands or money set apart for the support and maintenance of a woman, to take effect after her husband's death. Jurat. The memorandum or certificate appended to an affidavit to show when, where, and before what officer it was iworn. Jure gentium. By the law of nations. 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 lega\ rights. Levare facias. A writ of execution against goods and chattels. Lex talionls. The law of retaliation in kind. DICTIONAUT OF LAW TERMS IN COMMON USE. 335 Livery of seisin. The dfelivery. or handing over from one to another. of the poBsesgion of lands. Loco parentis. In the place of 4he parent Locus sigilli (commonly abb. L. S.). The place of the seal. Malfeasance. A wrongful act. Malum in se. Bad in itself; that which is forbidden by natural or moral justice. -' Malum prohibitum. Bad because forbidden; that which is forbidden 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 aud seal of A magistrate, for the imprisonment of an offender. Mutatis mutandis. ChenginR what ought to be changed. Mystery. An art, trade, craft or occupation. Ne exeat provincia. A writ to arrest a debtor about to abscond from the province. Nemine contradicente. None dissenting. Nisi prins. A Court where actions are tried before a Judge and jury. Nolle prosequi. A discontiuuance of further proceedings in criminni cases. Non est inventus. The return of a sheriff endorsed upon a summon^ 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 daperior Courts for the trial of criminal offences. Parat^ernalia. The wearing apparel, jewels, etc., of a wife or widow, which she is entitled to retain at her husband's ileath 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 separate ». Per capita. " B^ the heade;" share and share alike. Per se. By himself, or itself. Plough bote. The right of a tenant to cut sufficient timber to make and repair implements of husbandry, Pluries. " Very often;'* a third writ after two have issued against a defendant. Posse comitatns. A body of citizens summoned by the sheriff to assist him in maintaining the public peace, or enforcing the law. Postea. '• Afterwards;" the endorsement of the verdict upon the record. Post mortem. After death. Prima facie. At first glance. Prochein amy. The next (or nearest) friend. Prohibition. A writ whereby a Superior Court stays proceedings in an inferior. 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 gesserit. During good behaviour. Quantum meruit. As much as he has earned. Quantum valebat. > s much as it is worth. Quare clousum^ fro^.i. " Why he broke the close;" the name of nn action brought for tresposs to land. 386 THE CAVADUN LAWYER. Qvmab. To aet aside; to nallify. Qui tarn. A proceedinK by an informer to recover a penal tr imirased upon, or reward given by a penal statute. Quo animo. With what intent. Quorum. The number of persons whose presence is required before a. legislatlre or corporate body can proceed to act. Quo warranto. By what authority; a writ to dettirinine the right or ownership of a franchise or office. Bealty. Real property; lands, houses, etc. Record. A ctniy 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 fnciHs. " That you declare;" a writ commanding a party to show cause why a certain th.jg should not be done. Seisin. Possession. Sequestration. A process employed by Courts of Equity for euforc<- ing obedience to their decrees, whereby the dtlmquent party is dei>rived of his entire estate. Set-off. The mutual liquidation of opposing demands. Severalty. An estate In severalty is one held Ly a single person iu' dependent 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. Sui generis. Of its kind. Summons. A mandate from a justice of the peace to an accused person, 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. Terse 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 thine is sold. Venire. A writ directing a sheriff to summon jurors. Venne. The place from which the jury are summoned. A'ice versa. On the contrary. Vi et nratis. By force and arms unlawfully. Viva voce. Verbally. Voire dire. A witness who is suspected of being incompetent to give evidence at a trial, as by reason of partiality or otherwise, majr 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 copstable to make an arrest, search for stolen goods, etc. (w- INDEX. ) ADMINISTRATORS, 1. appointment of, 1. - « bond to be given, 2 form of, 4. petition for, form of, 4. priority, where sought by different persons, 1 proof necessary for, 1. authority of. 2. does noi extend beyond jurisdiction, 2. caution, registration of, by, 3. form of, 5. withdrawal of, 3. form of. 6. definition of term, 1. Devolution of Estates Act, effect of, 2, 3. duties of, 2. advertisement for debts, 2. form of. 5. division of estate by, 2. Succession Duties. See Succession Duties. oflBcial guardian. when concurrence of necessaryi 3. vesting of real estate without conveyance V>y, 3. AFFIDAVITS AND DECLARATIONS. 7. affirmation, when allowed. 7. form of. 9. 10. definition of. 7. duties of oflBrnrs administering, 8. form of. 7. 9. how sworn, 8. before whom. 8. where deponent Illiterate, 8. form used. 9. form of oath. 10. requisites of, 7. statutory declarations, when used, 8. form of, 9, 10. when affidavits may be taken, 7. AGREEMENTS OR CONTRACTS, 11. consideration in. 11. good, 11. valuable. 11. definition of, 11. fraud, effect of, 14. kinds of contracts, 11. c ii. — Snn ED. 22 mmmtmmitmtm 888 INDEX. V ^ AGREEMENTS OR CONTR VGTS-Conl/ntMd. forms: agreements for building, 20, 22. lease vith right to purchase, lu. repairs to building, 27. • sale by way of lease, 16. sale of freeholds, 14. sale of grain. 2^. sale of merchant's stock, 28. 8ul>-contract between builder and carpenter. 'M. Statute of Frauds, 11. eflfect of, 11, 12, 13. unlawful acts, eflfect of. agreements to do. 14. when must be in writing, 11, 12, 13, 14. who may make contracts, 14. APPRENTICES. 30. definition of. 30. duties of muster and apprentice, 30, 31. duration of contract, 30. how terminated. 31. forms relating to. indenture of apprenticeship, 34. nssignniont of. 3U. of girl, CO learn housework, 33. nature of contract. 30. statute, law as to, Manitoba. 34. New Brunswick, 33. Nova Scotia. 33. Ontario, 31. Prince Edward Island. 34. ARBITRATION AND AWARD. arbitrators, duties of, 39. power of, to administer oaths, 39. awards: enlargement of time for making. 3S. form of, 45. for payment of money, eflfect cf. 40. requisites of. 39. when bad, 39. when may be set aside, 40. eflfect of Act respecting, 37. fees, 41. forms: appointment by arbitrator for attendance, 4i>. of thirti person as additional arbitrattn*, 45. of umpire, 45. peremptory, 40. award, general, 40. special clauses in, 48. where submission by agreement. 47. where submission by bond, 47. ' enlargment of time for making award. 45. by parties, 45. oath to be administered to witness. 46. submission to arbitration, 41, 43. by bond, 44. nffldarit of executi«)n of. 49. INDEX. 88U ARBITRATION AND AWARDS— (7urU/«iu«ii. nature of proceedings, 37.- submission to, 37. forms of, 41, 43. by bond, 44. provisions deemed to be included in, 38. umpire: appointment of, 40. powers of, 40. when irrevocaBle, 37. ASSIGNMENTS. forms of assignment of, « afQdavit of execution. 53. agreement to purchase, 60. bond by endorsement, 51, 52. / debts, «1. 03. fire insurance policy, (t4. for the benefit of creditors, 49. general nature of, 49. goods by bill of sale, 64, 65. judgment, 59. lease, 53. 55. by administrator, 66. mortgage, 60. by endorsement. 61. of an Interest in lands, 49. Ontario Crown lands. 53. property of trader to secure debt. 57. general nature of, 49. AUCTIONS AND AUCTIONEERS, 67. definition of terms. 67. forms: conditions of sale — of gootis, 69. of lands. 60. of lands (High Court), 70. memorandum of sale of land by auctioneer, 68. memorandum of sale of land by purchaser, 68. general principles of law as to, 67. how sales should be conducted, 67. licenses to auctioneers, 68. sales of land by auction, 67. reserved bids in. 68. BILLS OP EXCHANGE. 75. acceptance of. 77. payable at a particular place, 80. for honour. 77. amount, effect of where contradictory, 78. date, not necessary, 78. definition of terms. 76. endorsement of, 78. by agent or partner, 78. fictitious person as drawee, 80. fictitious person as payee, 79. form of bill, 82. inland and foreign bills, 76. notice of protest of, statutory provisions as to, 75. time within which to be given, 76. «40 INDEX. V BILLS OF EXCHANQE-CiwMiMM^. payee, 78. need not be named, 79. signature, how must be made. 80. time when payable where no date fixed, 7H. unconditional, must be. 79. " value received "—not necessary, 80. BILLS OF SALE. See Chattel Mortgages. BONDS. 85. by administrators. See Administrators, definition, nature of, 85. forms of, assignment oT tioud, 61, 52. bond for payment of purchase money, 87-. of indemnity, 83, 86. to convey land, 8U. to pay rent, 88. to perform a contract, 89. money bond, 86. Hintrle lioud without condition, 85. impossibility of performance, effect of, 85. penalty in, 85. when liquidated damages, 85. CHATTEL MORTGAGES AXD BILLS OF SALE, 90. bar of dower unueceHsary in, 91. bills of sale, 91. definition of, 90. forms: British Columbia. affidavit of execution. 108. renewal of Bill of Sale. 100. New Brunswick. discharge of mortgage, 104. renewal and affidavit. 105. Ontario. discharge of mortgage, 103. renewal and affidavit. 103. Prince Edward Island. affidavit of execution. 107. general forms: affidavit of bargainee, 110. mortgagee. 111, Hi. 117. witqiess. 111. 114. bill of Jiale. 117. chattel mortgage, 109. to secure against endorsement, 112. to secure future advances, 115. requisites of valid chattel mortgage, 91. seizure and sale under, 01. statutory provisions respecting: British Columbia, 108. Manitoba. 107. New Brunswick. 104. Nova Scotia, 92. Ontario, 92. Prince Edward Island, 106. . \ I \ « \ INDKX. CHEQUES, 81. definition and aatare of, 81. form of, 82. fraudulent alteration of. 81. general principieu goveruing, 81. preseutation for payment, 81. refusal of bank to pay, 81. COVSTABLES, 120. appointment of, in Ontario, I'W. arrest. lUO. on warrant. 125. without w^arrant. 12<{. breaking open doors, 121. coroners' constables. 123. duties of, generally, 122. Nova Scotia. 127. oath of office. 120. refusing to assist a constable, 124. search warrant, 124. CONTRACTS. Set> Agreements. DECLARATfONS. See Affidavit. DEEDS. 128. affidavit of execution of, 130. British Columbia, 133. consideration for. 132. diflFerent kinds of. 128, 132. dower in. 129. examination of title. 130. execution of, 129. , by corporation, 131. under power of attorney, 132. form of. 139. forms of gift of lands, 138. deed of grant, 1.34. with Qualified covenants, 130. of quit claim, 140. of right of way, 139. short form, 138. release of dower, 140. Manitoba, 133. minors joining in, 129. New Brunswick, 134. Nova Scotia, 132. parties to, 129. registration, 130. by corporation, 131. fees for, 131. DICTIONARY OF LAW TRPMH. 338. DITCHES AND WATERCOURSES, 142. abstract of R. S. O. c. 285, 142. forms: agreement by owners, 140. by-law for appointment of engineer, 14.5. declaration of ownership, 140. notice of appointment by engineer, 148. notice to owners of land, 140. g?rc ral law in Ontario, 142, requisition for examination by engineer, 146. M'4 INDKX. H V, DIVISION COURTS, 141). utsHcoudiug debtors, 1(33. attidavitH, before whoui to be sworn, 157. appeals, 157. uttaehuieut of debts, lti-4. books, where received as evidenee, 157. co-defendauts, action ugaiust, 153. foniinissions to take evidence, ]5ii. confessions of debt, 158. costK, 158 death of party, ItiU. dispute, how entered, 153. division of claim not allowed, 151. establishment of Courts, 149. execution, 157, 159, ItiO, 161, lt;4. where cross judgments, 159. forms: affidavit for attachment, 11)7. for leave to sue in adjoining Division, 1G5. where several debtors, 105. for order to garnish debts, 171. for revival of judgment, 173. of disbursements, 172. to obtain writ of replevin, 108. aflirmation by Quakers, 172. application for judgment summons, 170. claim of replevin, 1(W). defendant's notice to plaintiff. 171. landlord's claim for rent. 170. particulars in case of contract, 109. of replevin, 170. of tort. H19. undertaking by next friend of infant for costs, 1(U. interpleader, 1(J4. judgment, 157. judgment summons. 101. jurisdiction. 149. where none, 150. by consent. l.'>2. jury, 159. minors, suit by, 151. numWr of Courts, 140. payment into Court, 154. r»»ference to arbitration, 158, service, how made. 153. set -off, how pleaded, 155. subpoena, how issued, 156. suit in, how brought, 152, tend«r, how plended, 152. transcripts of judgments, 100. trial. 154. where suit to lie brought, 151. KXEMTTIONS FROM SKIZURK FOR DEBT, general iiolicy of the law, 174. notice by landl(«nl to t'.'nnnt, 177. statutory provislonH in British Columbia. 182. Manitoba. 180. ■H. INDEX. EXEMPTIONS FROM SEIZURE FOB DEBT— Conftntifcf. statu tor V proviHions in New Brunswick, 180. Nova Scotia. 18U. Ontario. 174. Prince Edwnrd Island. 180. GAME. See Protection of Game. GUARANTIES, 183. forniH «)f Kuni-anty for cleric. 183. goods t(» he furnished. 183. servant. 183. nature and requisites of, 183. " I. O. U."— nature and effect of, 81. LANDLORD AND TENANT. contract between, nature of, 184. distress, 185, 180, 187. costs of in British Colunibiii. lUl. Miiuitoba. IIM). Ontario. 188. forms: distress: notice of distress of growing crops 1U9. notice of inventory, 1D8. request for delay i»y tenant, 20<>. warrant, 108. leases, of house. 101. and farm. 105. land. 103. under Ontario Short Forms Act, lOT. notice to (ndt by landlord, 200. by tenant. 200. leases. , by implicHtion, 184, 185. monthly, 185. of furnished house, 180. requisites of. 184. j'enrly, 185. loitgers, law as to, 100, notice to quit. 180. IMtssession. giving up at <'xplry of term, UN), remedies of landlord, 1H5 repairs, 188. snb-h>ttiiig by tenant. 1INI. LINE FENCES. 201. forms : agreement. 2(NI, award. 2(MI. notice to fence viewers. 205. op|N)slte party. 2(K'). Ktnlutory Provl'inns resiN'cting Manitoba. 200. ( Ontiirlo, 201, 348 7' ;■ 344 INDEX. MASTER AND SERVANT. 208. definition of terms. 2()8. domestic servants, law as to. 2lt8. dnties of master. 21U. servant, 2UU. forms. 215. Iiiring: presumption of. 209. verbal law as to, 2U8. liability of master to servant, 210. master's right of dismissal, 210, 211. ort'uputiou of house by servant, 200. statutory provisions resiH'c-ting, Manitoba, 213. Ontario, 212. l*rini'e Kdwnrd Island, 215. wages, 20{). where i)ercentage of profits given, 208. MECHANICS' LIENS, 21fi. f«>rms under Ontario Act, 228. general law as to, 210. statutory law as to, British Columbia, 210. Manitoba. 210. Nova Scotia. 210. Ontario. 217. rrince Edward Island. 210. MORT(JA«ES OF LAND. 230. custody of detnls, 2.'{0. definition »)f terms, 237. discharge of, 238 dower^ 230. forms: assignment of mortgage, 243. discharge of mortgiige, 242. mortgage, of leitse. 244. under Short Forms Act, 241. affidavit for. 242. how executed. 238. kinds of mortgages, '2^7. possession by mortgagee. 230. power of sule. 240. redemption and re, 238. remedies of mortgagee. 238. statutory provisions in British (^tlumbin. 'i40. New Brunswick. 2.30. Nova Scotia. 240. N.VTT'R-MIZATION AND ALIENS. 248. definition of terms. 248. Dominion enactmc ,s reH|)ectln«. 248. forms under the Act. 257. r<>guliitions made under the authority of the Act, 202. INDEX. 345 PARTNERSHIP. 265. dellnitiou of terms. 2ti5. disMclutioii of partnership, 267. doriuant iturtuers, liability <>f, 207. employees sharing profits, position of, 20S. executor continuing business, liability of as partner, 2(38. forms: certificate of partnership. 271. disisolution of partneiship, 273. notice thereof. 273. notice when business to be continued, 274 . partuer'^hli) dted, 272. holding out, effect of, 2(»7. kinds of partnership, 2.'>. may be, 2(i.'>. PATENTS OF INVENTIONS, 27.^ ' application f(»r. how made, 27.">. assignment of patent, 277. caveat, how filed, 278. * '' disclaimer, 277. d(»micile of inventor, 27G. effect «.f patent, 277. fees payable on patents, 278. forms: iissigunient of patent, 281. disclaimer, 281. «»ath. 279. |>etiti(>n for patent. 279. specification. 280. surrender for re-issue, 280. mnrks necessary to be put on patented articles, 278. models and drawings, when necessary, 270. notes given tor patent rights, 279. oath Ut be taken by Inventor, 270. remedy for infring(>ment. 277. surrender of patent for correction. •nt, general, effect of, 73. ' si)ecial. 73. without recourse, 73. forms: bond of indemnity on paying lost note, 83. non-neg> cir i •, 82. on ' 'mj .J, 82. notfs, , 'int, 82. joint and several, 82. negoiiable, 81. .< protest of for non-payment, 82. notice of. 83. interest, when payable on, 73. joint notes, 71. notice of invalidity of note, effect of on holder, 72. patent right, notes given for, 72. presentment for payment, how made, 74. protest for non-payment, 75. requisites of, 71. stamp no longer necessary, 71. transfer of notes, rights of parties upon, 73. transfer of notes after dishonour, effect of, 73. PROTECTION OF GAME, 285. statute law of British Columbia, 294. Manitoba, 295. New Brunswick, 294. Nova Scotia, 293. Ontario, 285. forms under, 292. Prince Edward Island, 294. RECEIPTS AND RELEASES, 29(5. detinition of ternjs, 29(5. execiitors, release by one of, 290. lorms: receipt for d<'eds left, 297. for payment on a«'connt, 290. for promissory nole delivered, 297. in full of account, 297. release, general, 297. on settling partnership ac(onnts, 21>7. how far receipt Is evidence of payment. 2tK!. quit claims. 290. ST.\TITTE OF FRAUDS. 11. 12. 13. STATUTORY DECLARATIONS. See Affidavits. STRIKES AND BOYCOTTINO. 21M». uetinltious, "99. provisions of Criminal Code respecting. 30(). SUCCESSION DIRTIES, .HOI. Act respecting, summary of. 301. amount of duty payable, .102. ^^ I INDEX. 847 8UOCE8BION DUTIES— CoiMutied. appeal from appraisement, 303. executors. duties of, 802. wheu personally liable for duties, 302. when duties payable, 303. when estates subject to duties, 301. TORRENS SYSTEM OP LAND TRANSFER. 304. certificates of ownership, 305. loss or destruction of, ?11. certified copies of instruments, 312. changes effected by system, 305. forms: affidavit of, execution. 310. posting up advertist»ment, 315, 316. publication of advertisement, o15. where absolute title applied for. 312. application for first regintration of ownership, 312. authority to notify cespation of charge, 317. affidavit for 317. caution. 31(5. affidavit iu support of, 310. certificate of Justice of the Peace. 314. ownership. 314. charge or mortgage, 310. first entry of ownership in register, 314. power of attorney to malie transfers. 320. revocation of, 320. sheriff's certificate, 315. transfer of charge or mortgage, 318. transfer of land. 318. transmission of ownership on death of owner, 319. application for, 318. how land brought under Torrens' System, 304. leases. 306. 310. moitgngei,. 30(5. 310. assignment of, 310. registration. 308, 300. transfers of land, 30(5, 310. transmission of interest on death of owner, 311. trusts. 308. where system in force, 304. VESSELS, 321. »)dl of sale of vessel, 321. mcM'tgnge of vessel, 322. discharge of. 323. transfer <)f, 323. WILLS. 324. advertisement for creditors. 327. alterations in wiiis, 32(5. cwliclis. .125. .32(5. definitions, 324. deposit of. for safe );ee|iing, 330. devise in lieu of dower, 325. subject to mortgage, 320. difference bctwwn wills of personalty and realty, 327. 'm'% is INDIX. -./-• WILLS — CoutititUtt^ ■' eiecutotB, apiJrthitmfent of, .826, formalities nec-^miarT. 324. formft: codicil. 332. gfnc-rai form of will, 381. nuncnpa'wAe, Sit6. short foi >n of will. 33i). gnardiauD, app'. mtment'of, 320. hologrftrh wiUi> la Manitoba. 330. int«Bta -: , distri'intion of property o» personal, 328. t«al. 328. ,;j«!tter« of admliji'»tratioij, tiow taken *>ut, ■inarried women, power of to uiflko wUIk, .1 hi New Brnnx^nc-k. 330. uuncnpative wiltu, 3f of wills, 327. in Prince Edward Inlimd. 330, r»-Ti>catiou of, 3241. j^itaiature of. 324. Htntv.i's'H of Morttnniu, effect of, 325, ubcn ..iU take?" offect, 324. n'i>f> mny make. 324. i \ I ,*d m S- ' %. ■•,,'JJ ^^?t%1' *f; ,■-;;- .t^'. .7- :\ HIGGINS' (W. H.) DIVISION COURT LAW TO DATE, isa^.— - Tlie Act, Rules and Forms. Over 500 pages. Half law call, $5. V The Division Courts Act, chapter 61, Revised Statutes of On-' tario, 1897, carefully annotated; also the New Revised Rules, and Forms,* together with a Review of the Tariff of Fees of CleTJa ' and BailifiEs, witih full instructions to the ofl&cers of the Courts on ouestions most frequently arising in the course of their duties. By W . H. Higgins, of the Department of the Inspector of Divi- sion Courts. HUNTER'S (W. H.) DOMINION CONVEYANCER.— Comprising precedents for general use and clauses for special cases, selected and edited by W. H. Hunter, B.A., Barrister, ett>. Second edition, revised and enlarged. 1897. Half-calf, $4. There are precedents for affidavltp, agreements, and appolntmenta, for submissions to arbitration, for references and awards. There are assignments of leases, mortgages, bonds, articles of apprenticeship, and SSBignments for benefit of creditors. There are powers of attorney, bills of sale, bonds, chattel mortgages, conditions of sale, declarations of trust, debentures, and deeds, leases, and mortgages of all kinds. There are notarial forms and forms of bills, notes, drafts, and notices, partnership agreements, patents of invention, assignments of patents, pledges, re- leases, settiements, deeds of separation, surrenders, transfers, wills and codicils, and many other forms. In shoH^ Everything which a'conveyancer ordinarily requires as a reference or guides in daily practice 3 to be found in this useful book of forms. No conveyancer, however sk'' 3d, can trust to memory alone in drafting. He. must have a settled precedent before ■htin. The book embracing the ordinary forms and precedents in convey- ancing is, therefore, a necessity in every law oflSce. Mr. Hunter's book meets this requirement. The index appears to be complete, containing references to all the forms under the names by which such forms are usually classifled. It is well printed and neatly bound. — Mril and Empire, Sept 4, 1897. JONES' COUNTY CONSTABLES' MANUAL^ s Or Handy-book, adapted to the Criminal Code of Canada. C!aU., 1893. Cloth, 75c.; leather, $1. This useful little manual, or "Handy Book," as its sub-title aptly expresses it, has reached a second edition. The present edition is based . upon the Criminal Code of 1892-3. It is a very successful attempt to pre- sent a synopsis of the chief features of the Code and matters cognate thereto in pocket book form. It is primarily intended for constables, and a copy certainly should be in the hands of every policeman, for there is no other publication which will so concisely and plainly enlighten him as to his duties. But it will also be f )und most useful to all that have anything to do with the administration of Justice. Lawyers and magis- trates will find it a practical addition to their libraries. The every-day citizen will also find it a useful guide book. An elementary knowledge of crlminn law in pi^->08t as necessary to the average man as some little arquaintKUi , w' . commercial law — even if one does not belong to the " criminal " classes. And any person desiring such elementary- enlighten- ment cannot do better thnn secure a copy of this cheap little handbook. It has a good index, as well as the subjects of the paragraphs running in alphabet>^w^*15twBw^^ws'^ JfVft * £ l« .KINGSFOBiyS (R. E.) LAW OF LANDLORD AND TENANT.— A Handboolc on the Law of Landlord and Tenant. 1896. $1. Perhaps no branch of the law is so often sought to be referred to as^^ that concerning the relations of landlord and tenant l*erlAps, too. \vMr yers or magistrates would not have so many applications as they oonn such matters if such a work of ready reference, selling in the book Pores at a dollar, could be distributed liberally in the community. The notes, forms and statutory directions should be of use to the legal profession, too. The Btatut law quoted is brought down to last session.— Jfoirielory Times, 4tfc ^r" i;96. (I T2 ^3: EAU'S (HON. MR. JUSTICE) ^ nal Law of Canada. — ^Third edition. Owing to the great chui JA introduced by the Criminal Code this n<;,ir edition is virtually a new book. All the Forms of Indictments have been revised Pi.d adapted to th< new Statutory Enactments, and the cases froM England and ea» \\ of the Provinces of Canada brought down to the latest date. KiiiL-calf or circuit, $10. ' ' The -amendments and changes in the law will be found either priutecf in italics i remarl* under ea^ f the statute or noted in the by a mere reference to the booic, 'llhat is new ^V'|m'3B» J^)^ ^^)^J^Rf^i^^^^ ^® easily ascertained. Under each sectioCWMfH*Micil iftsBMMttfl«ht likely to help in finding out what are the changes introduced, and the reasons therefor, the Imperial Commissioner's Report on the Draft Cbde of 1879, upon which the Canadian Code is based, is reproduced. Letter from Joel P. Bishop, the distinguished writer on Criminal Law. ^' Cambridge. Mass., U.S.A. May 3, 1896. Hon. H. B. Taschereau. My deailF Sir, — I duly received the copy of your "Criminal Code of the Dominion* df Canada as amended in 1803," which you kindly procured tr> be sent to me. I delayed a little to acknowledge it, that I might have the oprcrtunity of examining it first, and then extended ^he< delay by reason of my not being in usual health. I nni groatly pleased with it. It must be immensely popular with the profesFion in Canada. Even if its prominent and solid merits were stricken oiit, the convenience of the material collected and its arrangement would still rende;* ^t of the greatest practical value. I fully sympathise with you In regrets ihr the care' ess an idfi^erfect condition In which your Legis- lature pnartt^d it. Bui you have dune ever'*hlng in its nature possible to an author toward improvL t, its conditio . •