IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 Ui iii ■2.2 ^ 1^ 12.0 IL25 i 1.4 i m I 1.6 VI ^ 7] / ^^>' V-!**' .** .»■■ (? / Photograjiiic Sciences CorpQralion 23 WIST MAIN STMiT WIBSTM.N.Y. USM (716)S72-4S03 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Instituta for Historical Microraproductions / Institut Canadian de microreproductions historiquas • Tvchnical and Bibliographic Notaa/Notas tachniquaa at bibiiographiquaa Tha Instituta has attamptad to obtain tha baat original copy availabia for filming. Faaturaa of thia copy which may ba bibliographically uniqua, which may altar any of tha imagaa in tha raproduction, or which may aignificantly changa tha uaual mathod of filming, ara chaclcad balow. L'inatitut a microfilmi la maillaur axamplaira qu'il lui a «t* possibia da sa procurar. 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This itam is filmed at tha reduction ratio chackad below/ Ce document est film* au taux da rMuction indiqu* ci-daasous. 10X 14X 18X 22X 26X 30X X 12X 16X 20X a4X 28X 32X Th ah Tl wt M< dif an bai rig rec mi Vm copy filmad h«r« has bMn raproducad thanka to tha ganarosity of: L'axamplaira filmA fut raproduit grica i la gAn4rosit4 da: Univarsiti d« Shtrbrook* UnivtraM dt Shtrbrook* Tha imagaa appaaring hara ara tha bast quality possibia conaidaring tha condition and iagibility of tha original copy and in kaaping with tha filming contract apacifications. Las imagas suivantas ont M4 raproduitas avac la plus grand soln, compta tanu da la condition at da la nattatA da l'axamplaira film*, at an conformity avac las conditions du contrat da filmaga. Original copies in printed papar covers ara filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated Impres- sion, and ending on the last page with a printed or illustrated impression. Les exemplalres originaux dont la couverture en papier est imprimis sont filmfo en commenpent par la premier plat at en terminant soit par la darniAre page qui comporte une empreinte d'impression ou d'iilustrstion, soit par la second plat, salon la cas. Tous les autres exemplalres originaux sont filmfo en commenpant par la pramlAre page qui comporte une empreinte d'impression ou d'illustration at en terminant par la darnlAre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the aymbol — »> (meaning "CON- TINUED"), or tha aymbol y (meaning "END"), whichever eppllee. Un dea symbolas suivants apparaftra sur la darnlAre image de cheque microfiche, selon le ces: le symbols —► signifie "A SUIVRE ", le symbols y signifle "FIN". Maps, plates, cherts, etc., may be filmed et different reduction ratioa. Those too lerge to be entirely included in one exposure ara filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrama Illustrate the method: Les cartes, planches, tableaux, etc., peuvent ttre fiimte A dee taux da rMuction diff Grants. Loraque le document est trop grand pour Atre reproduit en un seui cllchA, 11 est fiimA A partir de Tangle supArieur gauche, de gauche h drolte, et de haut e.i bas, en prenant le nombre d'images ntcessaire. Les diagrammas suivants illustrent la mMhode. 1 2 3 1 2 3 4 5 6 ■J: THE MEECANTILE AGENCY'S LEGAL GUIDE FOB THE < DOMINION OF CANADA. \ COXriLBO BY C. V. PRICE, LL.B., Kingston. JOHN POPHAM, Montreal. PALMER & McLEOD, Charlottetown, P. E. I. Published by J. W. BOaEUDGE. PRINTED BY JOHN LOVELL, ST. NICHOLAS STREET. 1868. ,, ICiitorcil, according to tlio Act of the rrovinclal I'nrliament, in tho year ono thoumuU ol;;ht hundred and sixty-eight, by J. W. Uooklidqe, in the OtTivv of tlio Kcgistrar of the Uomiulou of Canada. t C s r ti tl .ai V( b( ti( te so ) lo< PllEFACE. In the cours, of a very extensive business in the collection of past due debts, cxt aiding over the lust ten years, the necessity has been constan; y apparent to as for a work of the character herewith pre- sented. In the daily experience of every Merchant and Manufactu- rer, lej^al questions arise, which, though of hardly sufficient impor- tance to justify tlic consultation with a professional adviser, never- theless possess interest enough to induce the constant need of some authority in which satisfactory answers can be found. The volume herewith presented is designed to meet that end. It has J)een the object of the compilers, while giving the fullest informa- tion in detail, on the vital points of Commercial Law, to avoid technicalities, and otherwise it is believed that the work, as pre- sented, will not only be found useful, but interesting. Mr. J. W. Rooklidgo, for m:»ny years connected with the Col- lection Department of tlie 3Iercantilo Agency, has designed and published the work, under our sanction. In the compilation, he was indebted to the following legal gentlemen for their respective portions of the work, who have- certainly acquitted themselves in a manner highly creditable to their professional and literary skill : C. B. Price, LL. B., of Britten & Price, Kingston ; John Pophani, Montreal; and Messrs. Palmer & McLeod, of Charlottetown, Prince Edward Island. If the work meets with the encouragement anticipated, it is the intention of the Publisher to issue, periodically, a new edition, coDtaining all the amendments to the Laws which may be, from time to time, made, and such other additions as may be deemed appropriate. DUN, WIMAN & CO. CONTENTS. PROVINCE OF ONTARIO. CHAPTER I I'AOES. OV HEKCANTILB PEReUNfl. .Section I. Traders 17-10 II. rartnors and Fartnerghlps 1&-34 III. rrinoipal and agent 3t-S0 IV. JointStock Companies 60-63 y. Corporations 63-C6 VI. Limited Partnerships 66-68 CHAFTEB II. XXBOANTILK FBOPKRTT. Section I. Its peculiar inddonts 60-63 II. Shipping 03-72 III. Good wlU 73-74 CHAPTER III. OV MEROANTILX OONTBACTa. Section I. Bills of Exchange andPromissory Notes 75-123 II. Contracts of Sale 124-13G HI. Contracts of Debt 136-137 IV. Contracts with Carriers 137-140 V. Contracts of Afflreightment 140-140 VI. MaritimeLlens 147-148 VII . Maritime Insurance 148-160 VIII. Insurance against Fire 100-164 IX. Guarantees 165-168 CHAPTER IV. KBROAKTILB BBXEDIES. Section I. Stoppage in Transitu 189-171 II. Lien in-173 in. By Civil suit 174-190 IV. Insolvency 190-206 CHAPTER V. FBACDULBNT BNACT.MENT3. (Section I. Fraudulent acts 207-212 II. Property of Married Women 212-216 CONTENTS. PROVINCE OF (JTJEBEC. Intkoduction 217 CUAPTEK I. . . OK MKUCANTILK I'KnSOSS. Section I. Of Solo TradcrB 218-210 11. rartncw 21!>-22o HI I'riuciiml and agent 22C-2S3 IV. Joint Stock Cumpaniog 2.33 ' V. Corporations 233-231 CUAPTEK II. MKKCANTILE PnOPKIlTY. .Section J. Lc;ta1 Incidents of Mercantile Troporty 235 II. siiipping aas III. ratents 235-240 IV. Trade Marks 240-2J1 V. Ucgistratlon of Designs 241-242 CHAPTEn 111. OV MRROANTILG CONTllACTS. Section I. Bills of Exchange and rromUsory Notes 24;}-2t5 II. Contracts of Snin 246-247 III. Contracts of Debt 217-249 IV. Contracts with Carriers 250 V. Contracts of Affreightment 250 VI. Maritirao Liens 260 Vl(. Maritime Insurance 251 VIII. Fire Insurance 252-2C4 IX. Lease, and hire of clerks 254-259 X. Uuarantecs 200-262 CHAITER IV. MEROANTILB RBMEDIEa. Section L Saisie Conservatoire. Stoppajio in Transitu 263-265 IL riedgeand Lion 20'J-2C8 III. By Civil suit 2tiS)-273 IV. Insolvency 173-274 Appendix 276-277 CONTENTS. KOVA SCOTIA, NEW BRUNSWICK, AND PRINCE EDWARD ISLAND. CIIAPTEK I. Introduction 275 Slortgage Security for Debts 2T(i I'ci'goiml Property. Security for debts 278 I'orgonal Security " 27'J Usury Law 28() CIIAFTER II. , LKOAL BEMKDIK9. In Nova Scotia 2S1 rrinco Edward Island 28S Hovf Brunswick. «. '^02 CUAPTEUIII. Insolvency 2U9 CIIAFTER IV. . Bills of Exchange and rromissory Notes 0)2 Currency 804 ATTORNEY'S INDEX. Wo give herewith, an alphabetical list of the principal localities in tho Dominion, indexed to the name of a responsible resident Attornoy. This must prove a great oonvenienoe to the patrons of tho work, who may wish to employ the sorvioos of a local Solicitor for tho collection of debts, or the transaction of any legal businewss. Every pains has been taken by tho Publisher in the collection of the Cards ; and we freely recommend them, being well oonvinoed thitt in every particular the parties will be found promp and reliable. Some few omissions occur in the list, principally in Quebec and the Provinces, which, in the second edition, wo hope to have complete. INDEX OP PLACES. '"' Acton, Ontario J. Livingstone .SeeOard, ActoD, Quebec Ohagnon & Ote " Adaro J. H. Benion " Adolpbistown B. 0. Davy.. " Ainlejrville J. H. Benson " Airey B. Horton " Alexandria A. M. McKeniie " Alma A. G. McMillan " Almonte Shaw ft Hall •< Allendale Mills T. M. Fairbairn " Ameliasburgh Phillip Low " Amherstburgli 0, R. Horn. " Ancaster Osier k Begae " Anderdon 0. R. Horn *' Angus Lonot & Bovg " Appin R. Baylej « Arkona Mackenzie k Ourd " Arkwrigbt George W. Mallock " Arnprior E, A. Bates " Arthur J. Fletcher Gross " A page 3se « 859 ianibly Chagnon k Cie Chatswortli D. A. Greasor Chelsea M. McLeod Cheltenham Cummins, Coyne and Clark Cherry Valley Philip Low,...- Chippawa Calvin Brown Clairmont S. H. Cochrane Clairville Robinson, Beatty & Chad- wick Clarks Mills B. C. Davy Clayton Shaw & Hall Ciearville O'Hara A; Douglas Clifford A. G. McMillan Clilton Calvin Brown Clinton S. Malcomson Coaticooke Hall & Johnston Cobourg J. W. K'-rr Colbrook ....Britton & Price Col borne J. W . Kerr Colchester C. R. Horn Columbus S. B. Fairbanks. Collins Bay Britton k Price Collingwood George Moberly Comber C. R. Horn Compton Sanborn & Brooks CousecoQ Charles Francis Conestoga Alexander Millar Cooksiiire Sanborn & Brooks Cuukstown J. W. H. Wilson Cornabus D. A. Creasor Cum wall James Bcthune Cotetu Landing D. D. Bondy Gowansville G. B. Baker Graighurst Louni & Boys Crossbill Alexander Millar Croyden B. C. Davy Cuiloden Brown & Wells Cumberland P. O'Brien ' Dalhousie Mills A. M. McKenzie. .. Delaware R. Bayley 'Delta H. S. McDonald. « l« 350 (« II 347 l( II 359 II II 353 II ... •...«•< Dresden < Drumbo < Danbar Dundela < Duffins Greek.. f Dungannon < Dunham Dunkeld Duntroon , Dunville • Durham Durham, Quebec .James Bethnne See Card, page .Prank Tyrrell.... .Thomas Deacon... < .J. Fletcher Gross.. .A. G. McMillan..., .O'Hara k Douglas . H. Richardson.. .. .Frank Tyrrell...., . Frank Tyrrell . . . .S. H. Gochrane.... . D. Shade Gooding .G. B. Baker .Shaw & Patcrson. .George Moberly... .E. Barker .C.Harper. .P. 0. Dancereau • •• ••••••••*■ Eaton .....Sanborn & Brooks Eastons Corners J. M. Bates East Farnham G. B. Baker East Williamsburg Frank Tyrrell Eastwood H. Richardson. Eastville Robinson, Beatty it Ghad- Trick Eden Brown & Wells Edwardsburgh ...Macneil Clarke..' Eganville J. D. McDonald Bglington Robinson, Beatty & Chad' wick Egmondville J. H. Benson Elginfield R. Bayley Elmira Alexander Millar Elizabeth Town D. Smart Elora A. G. McMillan Embro Brown & Wells Enterprise B. G. Davy ErinsTille B. C. Davy Erin Blair & Guthrie Escot H. S. McDonald Ethol A. M. McKenzie Exeter R. Bayley Ca>-( i, page 347 « II 346 i( 11 347 K II 356 (( .1 354 (1 II 356 U II 355 (( II 346 (1 II 346 fl II 351 II II 346 (1 II 362 u II 350 II II 347 (I 11 357 II II 351 II II 360 11 II 361 II II 352 l( W. N. Miller Hiawatha T. M. Fairbairn Hicks Corners J. M. Bates HoIIin A. G. McMillan HoUin Landing. Robinson, Beattj k Obad- wick... , Howiek P. 0. Dancereau Hull M. McLeod.'. Hnmber Robinson, Beattj k Ohad- wick Huntley D. O'Connor Huston A. G. McMillan Indiana Smart & Bell IngersoU Brown k Wells Inkerman Frank Tyrrell Inverburon W. P. Brown Inrermay G. W. Mallook IreUnd J. H. Benson Irish Creek.. J. M. Bates Irishtown J. H. Benson Iroquois Frank Tyrrell Islington Robinson, Beatty k Obad- wick Jarris Smarts Bell Jasper J. M, Bates Jefferlow N. F. Paterson Keene T. M. Fairbairo KeenansTille J. W. H. Wilson KemptWUe J. M. Bates Kilmarnoch J. M.Bates Kilsyth .D. A. Creasor Kincardine W. P. Brown King Robinson, Beatty k Chad- wick Card , page 343 II II 364 II II 355 11 II 342 « II 861 II II 358 II II 354 II II 355 II II 364 II II 357 II i< 345 II II 352 II 11 354 II II 341 II II 360 II II 359 II II 341 II II 343 II II 354 II II 357 II II 358 II II 346 II II 346 II II 349 II II 350 i( II 352 11 II 350 II II 346 ii II 341 II II 357 II II 352 II i( 351 i< II 345 II 11 348 II II 352 II II 352 II It 347 II II 346 341 8 attorney's index. Kiogston. , Britton & Price See Card, page 342 li)' Kingston Mills Britton & Price . Kingsville 0. R. Horn Kirkfield N. F. Pateraon Kirkton Jones k McDougall Klineburg Robinson, Beatty & Chad- lyick Komoka R. Bayley Lake Side Brown & Wells Lakefield T. M. Fairbairn Lambton : Robinson, Beatty & Gbad- vrick Lancaster James Bethune Lanark Sbaw & Hall Leamington G.R. H rn Le Baie du Febreve G. I. Barthe Leith D. A. Creasor Lemonville Robinson, Beatty & Gbad- wick Lennoxrille Sanborn k Brooks Lime Lake R. P. Jellett Lindsay R. & J. F. Dennistoun... . Linwood Alexander Millar Locbiel A. M. McKenzie London R. Bayley Londesborough S. Malcomson Long Island Locks D. O'Connor Longueuil Chngnon & Cie Longvrood R. Bayley Lonsdale R. P. Jellett Lorette J. W. H. Wilson L'Original P. O'Brien LloydtowQ Robinson, Beatty & Chad- wick Lucknow.... D. Shade Gooding Madoc M. Jellett Magog Hall & Johnston Maitland Macneil Clark Maidstone C. R. Horn Mallorytown H. S. McDonald Malta W. P. Brown Malton Cummins, Coyne & Clark II II 342 II II 350 II II 351 II ll 357 II II 341 II II 343 II II 358 II II 345 (1 II 341 II II 347 II II 354 11 ll 350 II II 3G1 II II 347 II II 341 II II 361 1. (1 344 II 11 350 l( II 354 tl 11 346 II II 343 II 11 355 II II 343 II II 359 II It 343 II II 344 II II 348 II II 358 II II 341 II II 346 II II 345 II II 361 II 11 358 & i. F. Dennistoun... Marmora.... R< P. Jellett Marlbank R< P< Jellett Martintown James Bethune Meaford D. A. Greasor Medina Jones k McDougall Melrose R. P. Jellett Merino T. M. Fairbairn Merrickville ...J. M. Bates Mersea .0. R. Horn Middletonra J. W. H. Wilson Millbrook D. Smart Millbridge R. P. Jellett Milford Philip Low Mill Haven Britton & Price Millar's Corners A. G. McMillan Mill Point B. C. Davy Mill Roches James Bethune Milton R. S. Appelbe Minden T M. Fairbairn Montreal .....John Popham " John Dunlop Mongolia Robinson, Beatty k C bad- wick Mooretown HcKenzie& Ourd Moosewood Frank Tyrrell Morpeth O'Hara & Douglas Morrisburgh Frank Tyrrell Mount Bridges R. Bayley Mount Elgin Brown & Wells Mount Forest Blair & Guthrie Mount Healey Smart & Bell Mount Pleasant Hugh McMahon Moulinette James Bethune Nairn R. Bayley Napanee B. 0. Davy Neustadt Shaw & Paterson Newboro H. S. McDonald.. Newbury R, Bayley Newburg B. 0. Davy « II 341 II l< 332 II (1 350 II II 344 II II 344 II II 347 II II 347 II II 357 II II 344 II s[« 860 St. Zophirint O.I. B«rth« « •< 361 8(. Zotiqua D. D. BoDdj '* " 350 Tamworth B. 0. Davy Tara Otorge W. MoMallooh... Teeswater Shaw k Patenon Thamesford Brown 4 Weill ThamesTille O'Hara * Douglas Tbomaiburgb R. P. Jellett Thorold Oalrin Brown ThornhUl Robinson, Beatty h Chad- wiok Tburso M. MeLeod Tilsonburgh Brown k Wells i. Tirerton W. P, Brown Toronto Robinson, Beatty k Obad* wick Trenton • Obarles Francis Troj O'Hara & Douglas Tullamore ...Onmmins, Ooyne and Olark Tweed R. P. Jellett Tyrconnell B. Horton Union E. Bortoo UniooTille Robinson, Beatty k Obad' wick Underwood : W. P. Brown Upton Ohagnoo k Oie , Usborne ...D. Shade Gooding Utica S. H. Cochrane Uzblrdge S, H. Cochrane Valleyfield P. 0. Dancereau Yankleek Hill P. O'Brien > Varna D. S. Gooding V.<(odrenil D. D. Bonrly yictb<-ia Square Robinson, Beatty k Ohad- wick Vienna Brown k Wells Villa Not* D. T. Duncombe Victoria D. T. Dnncomba Vi.'oomanton 8. H. Opchrane zer Gay BuETalo George Wadswortb . Chicago Mattocks & Mason . . Detroit Edward Y. Swift... New York Hull & Cbilds II 339 II 340 in, requires to be by deed, an agent to perform the same must be authorized by deed. It may be laid down as a rule, that in order to enable an agent to do any act or thing, his authority must be by an appointment of as high a character as that required to perform the act or thing itself. This rule 86 PRINCIPAL AND AGENT. is not without exceptions, however, as for instance ; certain contracts required to be in writing, by the Statutes of Frauds, may be signed by an agent having a mere verbal authority ; so may an agent, as we have before remarked, if duly ap- pointed for that purpose, sign a writing sufficient to take a claim out of the Statute of Limitations. Special and General Agents. — When an agent is appoint- ed to act generally for his principal in any particular business or undertaking, he is called a general agent, and is vested with full power to do what is customary or necessary for the proper carrying out of that business or undertaking. When appointed to do some special act or thing, he is a special agent, and should confine himself strictly to his appointment ; if he exceeds it he will not bind his principal. An agent's authority may also be limited or unlimited. When limited he must follow his instructions closely. When general, he may use his own discretion, acting as a prudent principal would act, guiding himself by the customs and tisagcs of the business in which he is engaged. Brokers and Factor % — Are a dcscilption of agents, requir- ing to be noticed here. A factor is a person who has goods consigned to him, and has both the possession of the goods and the authority to sell. He has a special property in them, and a lien for any money advanced, or charges upon them. Thus, having the possession, he appears to the world as the owner ; and having a special property in them, may sell in his own name. The principal is bound by the consequences of such sale, and is liable to have set off against him a debt due from the factor to the purchaser. A broker has not the possession, but a mere power to sell. No person can therefore be deceived, and induced to deal with him, believing him to be the owner, and having authority to sell in his own name. If he sells in his own name, ho acts beyond his authority, and his principal is not bound ; neither is he liable to have set up against him a debt due from the broker to the purchaser. PRINCIPAL AND AGENT. 87 Duties of Agents. — Though ignorance of the law excuses no man, an agent is not bound to know it, so as to be made liable to his principal for every error. He only requires to use reasonable skill, and knowledge, and ordinary care in all his transactions. He must act in entire good faith, with the sin- gle purpose of promoting his interest, deriving no personal benefit from his agency, to the prejudice of his principal. This rule is said to take away the sting of temptation. He must follow his instructions as strictly as possible, for, if he disregard them, he will be liable to his principal for any loss or damage occasioned thereby. If a price be limited by his instructions, he should sell for that, and will not be justified in doing otherwise, by the fact of havhig made J'dvances to his principal, and having given him notice that in default of payment, he would sell, for the purpose of re-imbursing himself. If no price be limited, ho should obtain the best price that he reasonably can, after using ordinary care and pains ; but before sacrificing the goods, ho should first advise his principal, or he may be liable for selling for less than the goods are fairly worth. He should also bo guided by the ordinary rules of the trade in which he is en- gaged : if it is customary to sell for cash, he must not upon credit. If it is usual in the trade in which he is engaged to sell upon credit, and he do so, and the purchaser become in- solvent, he will not be liable, unless he has been guilty of neg- ligence. A del credere agent, that is, one who receives an additional consideration for insuring the solvency of persons to whom he sells on credit, is a surety, and in default of pay- ment by the principal debtor, Avill be held liable, though having exercised the utmost care. If an agent or factor, in his former dealings with his prin- cipal, has been in tl"> habit of insurmg goods entrusted to his care, or if it is customary in the trade, he should do so. And where it is his duty to insure, and is from any reason unable to do so, he should at once advise his principal, or he 88 PRINCIPAL AND AGENT. may be held liable for damages, if sustained. He must in every Avay take such care of the goods entrusted to his care, as a prudent man would of his own. He is not liable for acci- dental damages, such as by fire, robbery, &c., unless prior to such damage he had been guilty of some neglect, that might in some way have produced or encouraged such damage. When an agent is employed to purchase goods, he must also follow his instructions closely, and if he exceed them his prin- cipal may refuse the goods, or keep them if ho thinks it to his advantage. There is no duty devolving upon an agent that must be regarded more strictly than that of keeping proper accounts ; a neglect of which may not only subject him to a forfeit of his right to compensation, but make him liable to any loss to which this default may subject his principal. Mights of Principal against Agent. — There is a distinc- tion between the liability of a remunerated and an unremu- nerated agent. A remunerated agent is bound to use ordinary skill and prudence, and the want of them will be no excuse when damages arise therefrom. An unremunerated agent is said to be only liable from gross negligence. This gross negligence may, however, bo but simply negligence, as Baron Kolfe once observed, that ho could see no difference between negligence and gross negligence, that gross negli- gence was only negligence with a vituperative epithet. An unremunerated agent not having begun the task en- trusted to him, cannot be compelled to do so, but having once entered it, he will be responsible for his misconduct. A remunerated agent having undertaken, will be compelled to proceed, and is responsible for himself and all those he may employ under him. It makes no difference what his authority or instructions may be if he exceed it, his principal has not only a right to look to him for any damages, but also to claim any benefit that may result therefrom. The amount of damages a principal is entitled to recover, on account of RINCIPii. i AND AGENT. 89 tho misconduct of his agent, is tho actual loss sustained. There need not bo any actual misconduct in carrying out his engagement on the part of a remunerated agent to make him liable to his principal ; if he engages without competent skill, he is a deceiver, and is liable for the consequences of his inability. An agent employed to sell cannot become the purchaser, nor can an agent employed to purchase be himself the seller, unless by special arrangement between himself and prin- cipal. Where an agent, in disregard of his duty, so assumes a double capacity, it is in the option of his principal to repu- diate the transaction, or hold him to it, and have him de- clared a trustee for his benefit. An agent has no right to dispute the title of his principal to the subject matter of his ag'mcy ; unless the goods in his hands have been fraudulently obtained by the principal from third persons, for no man is bound to make himself an instrument of fraud. The principal is entitled to full statements and accounts of all transactions, an! to every increase made from his property, or arising from the acts of his agent. He is also entitled to all interest received by the agent, upon money belonging to his principal ; also interest upon money lying dead in the agent's hands, if it was his duty to re-invest it. If the agent uses the money belonging to his principal, instead of remitting it, as he might and should have done, he will be held liable for principal, money and interest at six per cent., with annual rests ; which is a capitalizing or com- pounding of interest. A person residing abroad sent funds to an agent in Canada for the purpose of investing in land" , the agent purchased a parcel of land for ^£600, and took a conveyance to himself, which property the agent informed his principal had cost XIOOO, and made a conveyance to his principal charging him that sum in account. The principal some time after discover- 40 PRINCIPAL AND AGENT. .) i! ing the nature of the transaction, filed a bill in Chancery for relief. The Court decreed him entitled to the land at £600, and directed a reference to the master, to take an account of the dealings between the principal and agent. Thus the Court will interfere in all cases where there has been any suppression of facts, disregard of instructions, or non-per- formance or misperformance of duty on the part of the agent, and place the principal as nearly as it can, in the same position as he would have been if the agent had strictly fol- lowed his instructions, and scrupulously performed his duty. When an agent's instructions involve a breach of good morals, or a violation of the rules of law, or where they are impracticable, or where the agent himself has acquired some right in the subject matter of his agency, which he is not bound to sacrifice to his principal, ho will be justified in disregarding such instructions, but then only. A principal's rights against his agent can generally be niore effectually enforced in Equity than in a court of Com- mon Law. It is quite clear, however, that if items can be proved, an action will lie at Common Law. Its machinery, now, is so perfect, for obtaining any information within the knowledge of the defendant, and required by the plaiutiff, by interrogatories or an examination of the defendant, and books and documents in his possession, there is little diflSculty in enforcing any right, in its courts of record. When a principal can trace and identify his own property, he may reclaim it. If, however, the agent, or factor, so blends the property of his principal with his own, that it cannot be distinguished, in the event of his death or insol- vency, the principal must come in as a common creditor. By 22 Vic, c. 92, s. 43, C. S. C, it is enacted among other things, that if any money or other security having been entrusted to any agent, with a lirection in writing to apply the same or any part thereof, for any purpose specified in such writing, and such agent in violation of good faith, and I. PRINCIPAL AND AGENT. 41 contrary to the purpose so specified, converts any part of such money or security to his own use, he shall be guilty of a misdemeanor, and liable to bo imprisoned in the Penitentiary for any term not less than two years, or any other prison or place of confinement for any term less than two years, or to suffer such other punishment by fine and imprisonment as the court may award. By sec. 44, that if any af^ent having been entrusted with any chattel or valuable security, or any power of attorney, for the sale or transfer of any share or interest, in any public fund or stock, or in any fund of any body corporate, company or society, for safe custody, or for any special purpose, without authority to' sell, negotiate, transfer or sell the same, and in violation of good faith, and contrary to the purpose for which the same have been hitrusted to him, sells, negotiates, trans- fers, pledges, or in any way converts to his own use or benefit the same or any part thereof, he shall be guilty of a mis- demeanor, and liable to the same punishments as under sec. 43. By sec. 46, if any factor or agent, intrusted for the pur- pose of sale with any goods or merchandize, or intrusted with any bill of lading, warehouse-keeper's or wharfinger's cer- tificate or warrant or order for goods, deposits or pledges for his own benefit, in violation of good faith, any of such goods or instruments, as a security for any money or negotiable instrument, borrowed or received by such agent or factor, he shall be guilty of a misdemeanor, and liable to the same punishment as before mentioned. But no factor or agent will be liable under this section, provided such deposit or pledge were not made a security for, or subject to the pay- ment of any greater sum of money than the amount at the time of such deposit or pledge, due and owing to such factor or agent from his principal, together with the amount of any bill of exchange drawn by or on account of such principal, and accepted by such factor or agent. 42 PRINCIPAL AND AGENT. • I In case of the bankruptcy of an agent, who has pledged his principal's goods, and in case tiio owner redeems the same, ho shall in respect to the sum paid by him for such redemption, bo held to have paid the same for the use of the agent before his bankruptcy, or in case he do not redeem the goods, the owner is deemed a creditor of the agent, for the value of the goods so pledged, at the time of the time of the pledge. 22 Vic, chap. 50, s. 21, C. S. C. liiijhta of Principal against Third Parties. — As the principal is bound by the acts of his agent, he is also entitled to take advantage of them ; and if a person, without authority, contract in the name of another as a principal, such principal, may, if ho see fit, adopt and enforce it: in either case subject to any defence partial or complete, that the defendant could have relied upon against the agent. If a principal adopt an unauthorized act of his agent, or an act of an unauthor- ized agent, he must adopt it wholly ; he cannot claim the benefit of that part which is advantageous to himself and reject the remainder. Where property is sold by an agent, if the principal gives notice to the purchaser to pay him and not the agent, he is bound to pay the principal, subject to the equities, if any, he may have against such agent. Where an agent has been allowed to deal in his own name, this universal rule should not be forgotten, that the party dealing with him will enjoy the same rights against his prin- cipal as he would have had against the agent, had he really been a principal. Subject to this rule, although an agent con- tracts in his own name, his principal may sue upon it ; or if a person lend money nominally on his own account, but in reality for another, that other may sue for it ; or if a factor delivers goods as his own, without disclosing his principal, the principal may recover for the goods. In soma cases it may seem hard that a principal in bringing an action to recover his own, or the value of it, should be subject to unforseen PRINCIPAL AND AGENT. 48 defences, to ho set up against. But, on the contrary, the in- tention and effect of the law is to prevent hardships. The principal appoints his own agent, confides in him, and clothes him with full power to act. If ho is not willing to accept the risk of such rights and defences being set up against him, ho should prohibit him from dealing in his own name. He can thus avoid even the risk of a hardship. But how could tho purchaser, without this just rule of law, who from peculiar circumstances or considerations has been induced to deal with him ? For instance, having a set-off, which he is anxious to realize, he might bo induced to purchase from the party, at a time, and at prices, he would not otherwise. No greater hardship could bo, than for such purchaser to be afterwards turned over and made liable to some stranger, with his sot-off, and the considerations, which induced him to purchase, taken from him. If at the time of tho transaction the purchaser had know- ledge, or reasonable grounds for knowing that he was dealing with a mere agent, i,!.? principal's rights against such purchas- ers are safe from the liabilities of the agont. And where tho agent is acting in the capacity of a broker, having neither the possession of the goods, nor tho right to contract in his own name, he cannot encumber his contracts with his own personal liabilities. If an agent sells and delivers the property of his principal for a consideration which afterwards fails, tho principal can bring an action to recover back tho property, if tho agent could, or to be reimbursed. As the principal is bound by the admissions of his agent, made in his ordinary course of bus- iness, and in connection with the transaction to which the agency relates, so he may have the benefit of statements made by third parties to his agent ; and, consequently, in almost every case, it is advisable that the principal should enfoi'ce his rights in his own name, and thus secure the benefit of the agent's evidence. 44 PRINCIPAL AlfD AGENT. The foregoing remarks apply equally, whether the contract be a simple one in writing, or made verbally. But when the contract requires to be by deed to make it binding, and is so entered into, it is not optional with the principal to enforce his rights upon such contract, against third parties, either in his own or his agent's name. Whether the contract so entered into is the contract of the principal or agent, depends upon the express terms of such contract, and upon the mode in which the power given to the agent is exercised. If the cov- enants contained in the deed, are distinctly entered into with the principal, and the agent merely executes the deed for and in the name of the principal, then the contract is fully the contract of the principal, and he must sue upon it in his own name. If the agent is made a party to the deed by being named in the body of it, and the covenants are entered into with him, it will be considered as his own deed, and any action brought upon it, must be in his name, as trustee for his prin- cipal. If the covenants are entered into with the principal, and the deed is signed by the agent in his own name, neither of them can maintain an action upon it, and the principal may be left wholly unable to enforce his rights. These are con- sequences growing out of the rule of law, that no person can maintain an action upon a contract under seal, unless he is named therein, either by his own or some acquired or adopt- ed name, and the contract or covenant must in express terms be made with him ; and it makes no difference if the instru- ment has been entered into on behalf of, and for the benefit of some other party. The courts of law recognize no other interest but that of the party with whom the contract is ex- pressed to be made, and hold no other party liable than the one by whom it is executed. It will be seen from what we have said, that in order to enable an agent to contract by deed, and properly to protect his principal and enable him to enforce his legal rights thereon, the utmost care should be taken. The agent's appointment should be by deed, clearly PRINCIPAL AND AQENf. 45 defining his duties, and the purposes of his appointment ; — the principal himself should be the party to the deed ; — and the agent should sign his principal's name, above his own as his agent. Then the principal can enforce his rights in his own name, and have the benefit of his agent's evidence if required. Mights of Third Persons against Principal: — A princi- pal's liability to third persons, depends upon the extent of the agent's authority, to bind him to third persons. This authority, as we have already noticed, may be express, or inferred from the principal's acts, or the nature of the business in which the agent is engaged. Where there is any reason- able ground for presuming authority, or extending it so as to hold the principal liable upon the acts of his agent, both courts and juries are inclined to do so; since one of two innocent parties must suffer from the fraud of a third, he who enabled that third party to commit the fraud should be the sufferer. If an agent is allowed to draw bills, it does not import authority to endorse ; but evidence of such authority to draw will be allowed to go to tut. jury, who are to decide if any authority to endorse exists or not. The question of authority, being one for a jury, must, in each case, depend upon the special circumstance of such case, and cannot be fixed by any reliable rule. Where an agent has been allowed to sign notes for his principal, he may bind him by subse- quent ones, though his authority has been withdrawn, and the proceeds never get to his principal's hands. So a servant being permitted to make a single purchase, was held capable of binding his principal by subsequent ones. When the employment is the measure of authority, an act of the agent in order to bind his principal must be within that employment, and if he attempts to act outside of that employ- ment, he will not, without special authority, bind his princi- pal to any greater extent ; thus a merchant's clerk has an implied authority to receive money for his principal, paid in 46 PRINCIPAL AND AGENT. the course of the business in which he is employed, but he has no implied authority to receive money in collateral or foreign matters, as upon bonds or mortgages. It is only the subsequent ratification by the principal that renders him liable for such acts, on the part of the clerk or agent. Sliould the clerk neglect or refuse to pay over, or abscond with money so received, his principal could recover the money from his debtor. A general agent, though restricted by certain stipulation between himself and his principal, can, nevertheless, bind his principal in defiance of such restrictions, by contracts with third parties, within the scope of his agency. The reverse is the case concerning a particular agency, for it is then in- cumbent upon the party dealing with him to discover the extent of his authority ; and if he exceed it, he will not ren- der his principal liable. A subsequent ratification of, or assent to, the act or con- tract of the agent, by the principal, exonerates the agent from any excess or want of authority, and renders the principal liable. Such ratification, may be inferred, and will be, from the acts of the principal if he accepts any part of the act or contract entered into by his agent, of which such excess or want of authority forms a part. As an undisclosed principal can claim the benefit of con- tracts made by his agent, so he Avill be held liable upon them to third persons. This is the case with simple contracts submitted to writing, even though the principal does not appear upon such writing, as well as with oral contracts. It is true the writing binds the party appearing upon the face of it, but it also binds another, by reason that the act of the agent in signing it is simply the act of the principal. Thus A may contract in writing with B for the purchase of a cargo of grain, yet C may be liable upon the contract, and oral evidence will be admitted to show that A only acted as the agent of G, and that received the benefit of the contract. PRINCIPAL AND AGENT. 47 K'7. A principal to be liable upon a deed executed by his agent, must appear clearly bound by the deed itself, and oral evidence will not be admitted for the purpose of shewing that the deed, though that of another, was for their benefit. Where an agent is guilty of misconduct, or negligence in the performance of his agency, the principal is liable to third persons, for any damage they may sustain on account of such misconduct or negligence. But if the agent exceed his authority, or go outside of his legitimate employment, the agent, and not the principal, is liable for the wrong. An agent at common law, entrusted with goods or docu- ments of title thereto, for the purpose of sale, had no power to bind his principal by pledging such goods or documents, or creating a lien upon them. It was found that this restric- tion was injurious to commercial success in many instances, whereupon chap. 59 Con. Stat, was passed, enabling any agent entrusted with the possession of goods, or the documents of title thereto, to bind his principal as fully as if he were the true owner of the goods : 1. Upon a lien thereon, for money or negotiable securities advanced, or given to such agent, or received by such agent for the use of such third party. 2. Upon any contract or agreement by way of pledge, lien or security bond fide made, with such agent, as well for an original loan, advance or payment made upon the security of the goods or documents, as for further or continuing advance in respect thereof. 3. Upon such contracts notwiths^^^anding the person claim- ing such pledge or lien had notice that he was contrn^ting only Avitli an agent. It is further provided by said statute, that such loans and advances only shall be valid as are made bond fide and with- out notice that the agent making the same has no authority so to do, or that he is acting maid fide against the owner of the goods. And that no antecedent debt owing from any agent so 48 PRINCIPAL AND AGENT. I 'f entrusted, shall authorize any lien or pledge in respect thereof. While the statute has thus given to the agent increased power to bind his principal, his goods, &c., it has also protected the principal against an undue use of this increased power on the part of the agent, by making him criminally liable, as we have already noticed. ItiffJitsof Tliird Parties against Agent : — ^An agent acting on behalf of a responsible and disclosed principal, incurs no personal liability to third persons. But where the principal is undisclosed at the time of a contract being entered into, and the contract was ostensibly on behalf of the agent, the agent himself will be liable, as a principal, to third parties. So where the principal is irresponsible in law, the agent Avill be held liable. If an agent enters into any undertaking, in writ- ing, without disclosing his representative character, on the face ot such writing, the agent himself will be liable ; even though the party dealing with him had knowledge at the time that he was only acting as agent on behalfof a principal. , We have seen that oral evidence is admissable, in order to enable a creditor to get at the re:il principal, and to hold him liable upon the contract ; but it is never admitted for the pur- pose of discharging the agent from a contract or agreement in Avriting, in which he has seen fit to represent himself as really the contracting party. If a person pretend to be acting for a person, from whom he has no authority, he will be liable to the party with whom he contracts. The nature and extent of his liability will depend upon the nature and extent of the contract. If he contract in his own name he will be liable upon the contract ; if in the name of the represented principal, he will be liable to an action for damages for his misrepresentation. An agent who exceeds his authority so as not to bind his principal, is in the same position as if he act without any authority, and becomes liable as a principal upon his contracts. 'PRINCIPAL AND AQENT. 49 In case an agent receive money on behalf of a principal, under such circumstances that some third person would be entitled to recover the same from such principal, the agent himself m\\ be liable to such third person, unless he has paid over the money to his principal, or done some act to divest him of all control over it. But payment over to the principal will not relieve an agent from liability, if he receive money illegally, or as the consequence of a tort committed by him under the instructions of his principal. An agent is not liable to third persons for not carrying out the instructions of his principal, and the purposes of his agen- cy. But if he commit a tort in carrying them out, he will be liable therefor. It has, however, been held that an agent is not liable for fraud in misrepresenting goods entrusted to his charge for sale. When an agent has an interest or special property in the subject matter of the contract, and thus unites the character of principal and agent, he is not only entitled to maintain an action upon the contract, but is also liable upon it. Rights of Agent against Principal. — An agent has few rights against his principal, excepting that of receiving his salary, or commission. When the amount of remuneration he is to receive has been fixed, there can be little or no diffi- culty, but when it has not, it must be settled by usage, or custom, or by the value of his services, assessed by the ver- dict of a jury. If he engage in an unlawful undertaking, or if he misconduct himself, or if he be guilty of gross negli- gence, or if he neglect to keep pi'oper accounts as between himself and principal, he may lose all right to any recom- pense. It is a matter of no consequence, whether or not the object of his agency proves profitable to his principal ; if ho has acted in good faith and competent discretion he will be entitled to his rcnumeration. Any advances made by the agent in the regular course of his employment, he is entitled to from his principal. And D 60 JOINT' STOCK COMPANIES. tho same is the case where advances are made, upon some unforeseen and pressing exigency ; if they are such as a pru- dent man, acting for himself, would have considered neces- sary, and undoubtedly would have made ; as for instance for the insurance of property or goods, placed in any extraordi- nary danger. An agent has a right to be indemnified by his principal from the consequences, arising from any act, which may be right or wrong, but which he believed, by the conduct of his employer, to be right, done in obedience to his principal's instructions. He is not, however, entitled to any indemnity against acts known to him to be wrong, nor to be repaid un- necessary expenses, arising from his own negligence. SECTION IV. JOINT STOCK COMPANIES. Joint Stock Companies may be considered partnerships, modified and protected as to their members by statutes or charters, and adopting certain regulations for their govern- ment. In Upper Canada thei'e have been comparatively few such companies, and for some reason have not generally been so profitable to the stock holders, as they naturally promised. How formed. — Several statutes have been passed, by com- plying with the requirements of which Joint Stock Companies may be formed for the purposes therein stated. Chap. 63, Con. Stat. Can. provides, among other things, that any five or more persons, who desire to form a company for carrying on any kind of manufacturing, ship-building, mining, mechanical or chemical business, may make and sign a statement or de- claration in writing setting forth : — 1. The corporate name of the company ; 2. The object for which it is formed ; 3. The amount of capital stock ; 4. The number of shares of which the stock is to consist ; JOINT STOCK COMPANIES. 61 5. The annual instalments to be paid in ; 6. The number and names of the Trustees who are to manage the company the first year ; 7. The name of the place at which the company is to carry on business ; 8. The term of the Company's proposed existence. When such declaration is properly executed, in duplicate, the one copy filed in the office of the Registrar of the County, in which the proposed business is to be carried on, and the other copy filed with the Provincial Secretary, the persons who signed such declaration and their successors, become a body corporate. By 29 Vic, chap. 22, any seven or more persons may form themselves into a Joint Stock Company, for the purpose of carrying on any labor, trade or business, whether wholesale or retail, except for working mines or quarries, and except for banking and insurance, by executing before a notary public, or justice of the peace, a certificate in duplicate. One copy of which certificate is to be filed with the Regis- trar of the County, where the business is intended to be car- ried on, and the other with the Provincial Secretary. And if the business is intended to be carried on in different coun- ties, a duplicate certificate must be filed with the Registrar of each County. Before commencing operations, any such company must agree upon and frame a set of rules for its regulation, government and management, stating 1. The mode of convening general and special meetings, and of altering rules ; 2. Provisions for auditing accounts ; 3. Power and mode of withdrawal of members, and provi- sions for the claims of executors and administrators of the members ; 4. Mode of application of profits ; 5. Appointment of managers and other officers, and their 52 JOINT STOCK COMPANIES. ' ,' respective powers and remuneration ; and provisions for filling vacancies from death, resignation, &c. Which rules, before adoption, shall be transmitted to the Provincial Secretary, and approved of by the Governor- General, and a certificate of such approval obtained from the Provincial Secretary. Bights and Liabilities. — Such companies have a right to acquire and hold real estate required for the proper carrying on of their busine vi. Though they may acquire and hold such lands, there appears to be no power to mortgage it. 22 Vic. chap. 63, Con. Stat. Can. strictly prohibits it, and 29 Vic. chap. 22, impliedly and effectually does so, by enacting that ail transaction of companies formed under its provisions, shall be for cash exclusively ; that no credit shall be either given or taken, and that no officer, member or servant, shall have power to contract any debt whatever in its name, except in respect of rent of premises required for the business, the salary of clerks and servants, and such like contracts, neces- sary in the management of the affairs of the company. They can elect Trustees, and appoint officers for the management of the business. No stockholder is liable upon any debt or contract of the company, beyond the amount of his share or shares subscribed except under 22 Vic. chap. 03. Con. Stat. Can. for debts due and owing to any of the laborers, servants and apprentices, and for debts and contracts made by the company before the whole of the capital stock is paid up, and a certificate to that effect obtained and registered as required by the act. Trus- tees may also render themselves personally liable by some misperformance or non-performance of duty ; so may an officer or member under 29 Vic. chap. 22, become criminally liable. And if the indebtedness of a company formed under 22 Vic. chap. 63, Con. Stat. Can. at any time exceed the amount of its capital stock, the trustees assenting thereto are personally and individually liable to the creditors for such CORPORATIONS. 53 excess. The general and common law rights of members of a joint sto(;k company among themselves, may bo considered to be quite similar to those of partners, except so far as the act or acts under which they are formed, and the rules and regulations adopted for their guidance, may have provided. The management of the company being confided to trustees and officers, and the bulk of the shareholders being necessa- rily passive, the utmost good faith must bo observed by those in charge, and the courts of equity will be strict in enforcing a proper execution of the duties and trusts reposed. A com- pany as soon as incorporated may sue and be sued in its cor- porate name. Limitation of Liability. — It is provided by 22, Yic. chap. 63, Con. Stat. Can. that no Stockholder shall be personally liable for the payment of any debt contracted by such com- pany, which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt be brought against the company within one year after the debt became due ; and no suit shall be brought against any stockholder for any debt, unless within two years from the time he ceased to be a stockholder, nor until an execution, against the company, has been returned unsatis- fied in whole or in part. There appears no corresponding limitation in 29 Vic. chap. 22, and the liability of companies formed thereunder, and of stockholders of such companies, con- tinues until an action is barred by the Statutes of Limitations. SECTION V. CORPORATIONS. A corporation aggregate is created by a number of indi- viduals being so united, either by virtue of an act of Parlia- ment, or a charter from the Crown, that they and iheir suc- cessors exist as one person in law, independent and distinct from their individual characters, in whom privileges and pro- 64 CORPORATIONS. porty onco vested, will for ever remain so, without any new conveyance to new successors. All that is required to continue its existence, is the addition of members, so that it may retain a body, capable of acting as provided or intended, by the act or charter by which it is created. Power to Contract. — It has been said that the legal entity of a corporation is without soul or conscience, and without any visible or corporeal existence, and could therefore neither be excommunicated or outlawed, or manifest its will by oral communication. The peculiar mode of affixing its corporate seal, was therefore devised for expressing its intentions, and binding it to its contracts. Formerly it was quite strictly held, that though a corporation might to an extent bind itself in equity, by contracts not entered into under its comm m seal, yet to do so ut law, all contracts of anj importance must be so executed. Later decisions of the common law courts, have, however, greatly reduced the necessity of contracts being so entered into, in order to make them binding, and the inclination of the courts now seems to bo, to hold them liable upon even oral contracts, which fall naturally within the necessities and purposes of the corporation, also upon such legitimate contracts as are executed, or that the corporation has received the benefit of. The contract should be made with a corporation itself, under its corporate name, and not with its head, or the individual names of its members. It is sufficient, however, if a corporation be styled the same in sub- stance with the true name, and it need not be the same in words and syllables. A corporation cannot contract for and hold lands, unless the source from which it derives and has its being, gives it power to do so. A trading corporation, or one which from the nature of ita business can raise a presumption of intention, and necessity that it should do so, may make, and bind itself, by promissory notes, bills of exchange, &c. A common servant may be hired, and acts of a pressing nature performed, without either writing or use of the common seal. CORPORATIONS. 55 LiaUUty of Corporations. — From what has already been said, it may be seen, m what cases, as well as by what means, a corporation will incur a liability. It may be laid down as a general rule, that it v/ill be liable upon all contracts legally entered into, from which it has derived the contemplated consideration for its promise, and which were not made in bad faith or fraud towards it members. It was held in the case of Clark vs. Hamilton and Gore Mechanics Institute XII — B. R. U. C. 178, that where a contract is made for work, which is performed, and such as evidently contemplated by their charter, they wei'o liable, though the contract was not under seal, nor the claim for small or ordinary services which might constantly be required. Although a corporation may be liable upon many contracts not under seal, the holding of the courts seems to be that it is not liable for damages upon such contracts when the party with whom it has contracted has been prevented from carrying out his contract, by the act of the corporation ; an assessed valuation of the work actually done being considered a fair recompense. If the head of a corporation, or one of its regular servants buys goods, and applies them to the use of the corporation, it is liable for their cost. A corporation may be liable for its own wrong, and for money illegally obtained, to the same extent as a private individual. It was laid down by an eminent American Chief Justice that the number and extent of corporations, " Had necessa- rily aifocted and rendered them liable, like private per-ons with obligations arising from implications of law, and from equitable duties which imply obligations, with constructive notice, implied assent, tacit acquiescence, ratifications from acts and from silence, and from their acting upon contracts made by those professing to be their agents, and generally by those legal and equitable considerations which affect the rights of Natural persons. This doctrine is broad enough to sweep away almost entirely the formerly recognised peculiar 60 LIMITED PARTNERSHIPS. safe-guards held by corporations, and render the common seal, except m extraordinary matters, almost useless. Our own courts are also, with an equitable wisdom, constantly breaking through those ancient protective rights, sot up by corporations, to shield them from liability ; and equitable duties as well as legal rights, have now become matters to bo considered by them. Dissolution of a Corporation. — A corporation may bo dissolved by the death of all its members, without the choice and introduction of new ones ; by the surrender or expiration of its charter ; by the forfeiture of its charter ; and by an act of Parliament. SECTION VI. h i; LIMITED PARTNERSHIPS. We have thought it better to devote a section to the con- sideration of Limited Partnerships, than to confuse and encumber our remarks upon general and ordinary partner- ships, by reviewing them conjointly. Hoto formed. — Limited partnerships are formed and exist under 22 Vic. chap, 60, Con. Stat. Can. and may bo for any mercantile, mechanical or manufacturing business : but not for the purpose of banking or making insurance. Such partner- ships may be composed of one or more persons who are called General Partners, and one or more persons who contribute in actual cash payments a specific sum, as capital to the common stock, who are called Special Partners. In order to form such a partnership it is necessary that the persons desiring to do so, make and severally sign a cer- tificate containing: t 1. The name or firm under which the partnership is to bo conducted. 2. The general nature of the intended business ; 3. The names and residences of all the partners interested LIMITED PAUTNBnSHIPS. W therein, distinguishing tho general from the special partners ; 4. Tho amount of capital stock which each special partner has contributed ; 5. The period at which the partnership will commence, and when it will terminate. This certificate so made and signed is to be filed and recorded in the ofiice of the Clerk of the County Court of tho county in which the principal place of business of tho partner- ship is situate. Any renewal or extension of the business must be by cer- tificate, executed and recorded in tho samo mam i or as is required for its original formation. Liability of Partners. — The general partners are join. •' and severally responsible, as general partners are by \j.v ; but the special partners are only liable to tho anr ^nt of their capital stock. Special partners may, however, aeccnje liable as general partners in several ways. If any false statement be made in the certificate, the special partners at once become liable as general. Tho special part- ner must pay in his stock in cash ; any effort to avoid this will bo construed strictly against him. It was held in Benedic et. al., and Vanallen et al., xvii. U. C, B. R. 234, that where A. and B formed a limited partnership, A to be the general partner and B tho special, and B paid in his stock by promissory notes of A which he held, that this was not a payment within the statute. Tl ■; court of common pleas were of the same opinion in Whiticaore & Macdonnell et. al., vi. U. C. C. P. 547 and that the special partners became, in consequence, liable for the debts of the firm. Every renewal or continuance, or alteration made in the names of the part- ners, tho nature of the business, in the capital or shares, or in any other matter specified in the original certificate is considered a dissolution, rendering the special partners liable, unless the partnership be renewed as a special one. If a special partner allows his name to be used in the firm, he 68 LIMITED PARTNERSHIPS. thereby makes himself a general one. A special partner will become personally liable if he intermeddle with the affairs of the concern ; and one? so liable, he will continue so, even after he has ceased to interfere. And where acts are com- mitted, whether knowingly or unknowingly, of such a nature as to create a general partnership, as to third persons, and such acts are committed with the consent and concurrence of all the parties, the effect may be to make them answerable not only as to third parties, but as between themselves, and liable to contribute towards making up ^ deficiency ascertained on winding up the affairs of the company. The general partners are liable to account both in law and equity to each other, and to their special partners for their management of the concern ; and one of the partners will not be allowed to make special profit out of the business, above his co-partners, as by furnishing from his shop goods for the use of the partnership upon which he charges the usual trade profits. Dmolution. — The partnership may be dissolved by expira- tion of time, by the act of the partners, or by insolvency. A dissolution by act of the partners may take place, by such acts as convert the limited partnership into a general one, and also by a dissolution of all partnership between the parties, by filing a notice of such dissolution in the office where the original certificate was filed, and publishing it once in each week, for three weeks, in a newspaper pubhshed in the county where the partnership has its principal place of business, and in the Canada Gazette. In case of bankruptcy or insolvency the special partners can only claim against the estate, after all the claims of other creditors of the partnership have been satisfied. CHAPTER II. MERCANTILE PROPERTY. SECTION I. ITS PECULIAR INCIDENTS. There are a few peculiar incidents which property derives by passing in the hand? of a merchant, and becoming part of hia stock, and through the force of mercantile law and customs. In order to clearly understand these incidents, it may not be amiss to consider the peculiar, though spontaneous and natural manner by which all right to property first arose. In law as in anything else, in order to fully comprehend aright a natural effect, it is most important to go back to the origi- nation of that right, or the first cause producing the effect, and passing therefrom by careful and proper advances, we soon arrive at, with a clear and correct conception of, the result. If we desire to form a correct knowledge of our rights in property, which we so properly desire and prize, and if we wouid have a fair conception of the incidents peculiar thereto, we must not be afraid to give ourselves the trouble to consider the original foundation of those rights, nor to look back to the means by which they were acquired. It is not our intention, nor would it be advisable in so elementary and practical a work as this, to enter into a full and discursive review of the development of these rights, now so matured and defined in the mercantile world. 60 ITS PECULIAR INCIDENTS. We only glance over them, and advise those who have the time, to enjoy the pleasure and benefit of a perusal of Mr. Backstone's Commentaries upon this subject. Acquisition of Property. — When " dominion over all the earth, and over the fish of the sea, &c., and ovo.' every living thing that moveth upon the earth," was given to man ; there was given to him the only true and solid right over external things. The earth, therefore, and all things therein, then became the general property of man. This general right was at first sufficient, and may be said to have continued so while men retained their primeval simplicity and customs. With the use of goods there came a special right, that lasted so long as the use continued but no longer. This was the first right of possession ; a right that has aptly been called " nine points of the law." Temporary possessory right was first acquired in land. The ground was common. Yet who- ever first occupied a determined spot for rest or shade, acquired a sort of ownership, lasting only so long as he con- tinued to occupy it. The fruit tree and the vine were com- mon, but the fruit once gathered became the property of the party who had gathered it. As the human family multiplied and lands began to bo cultivated and flocks fed, a more lengthy possession ensued, and with it a more definite and permanent right. Habitations for shelter, and raiment for warmth and protection, excited the ingenuity and industry of man, and induced him to exert himself to produce the means nature had placed before him to those purposes. The labour bestowed for those purposes, gave a deeper interest in the subject matter, naturally inducing a more tenacious holding, and more vigorous enforcement of right. The increase of population, and an almost unavoidable necessity, introduced the exchange of products, first from adjacent individuals then from distant localities ; first for the individual's own use, then as a matter of traffic. Here commerce began, and with it civilization, refinement, a settled right in transient pro- ITS PECULIAR INCIDENTS. 61 perty, and a primitive and obscure mercantile law ; yet such a law as respected the right of possession, the necessity of pro- tection, and the benefit of permitting a free alienation. Upon this rude foundation has been being reared for ages, and is now so complete, that noble structure of mercantile law that directs and controls the commerce of the world, and gives to mercantile property its peculiar rights and incidents. lUght of Alienation. — The law will, not allow property to be rendered inalienable, for the reason given by Lord Coke, it would militate against trade and traffic, and against bar- ganing and contracting between man and man. There was formerly an exception allowed to this rule in the case of property given or settled to the use of a married woman. But the onward march of the law, has in effect trampled out this exception. And as noticed in chapter on Principal and Agent, the possession of mercantile property gives to the agent nearly all the rights of the principal, and among them the right to dispose of them in any manner almost that he may see fit, if the party dealing with him act bond fide. Surviving Interest. — It is the ordinary rule at law that where two or more persons are jointly interested in, and possessed of personal property, and the one dies, his interest does not pass to his heirs or next of kin, but to the surviving joint tenant. The reverse of this is the rule with mer. cantile property. The goods, wares, merchandise, and effects which joint merchants or partners in trade may possess, do not survive, but go to the personal representative of the deceased, as separate personal estate ; and this, as the old law writers have it, " by the law of merchants, which is part of the law of the realm, for the advancement and continuance of trade." The same rule applies to real property held in partnership for the purpose of trade. A joint tenancy is not favoured in equity, so that couru of equity will lay hold of any circum- stances, which will enable them to vary in this respect from 62 ITS PECULIAR INCIDENTS. their practice of following the law. Equity also ho^ .i that real estate, bought and held for the purposes of a partnership in trade, n a part of the stock in trade, will be considered in equity, although not at law, as personal estate to all intents f^i "fposes, whatever may be the form of the con- veyance ; so as to be subject to all the equitable rights and liabilities of the partners and their creditors ; and so as to pass to the personal representatives, on the death of a partner, and not as realty to his heir at law, unless there be a clear expression to the contrary by the deceased partner, or some stipulation entered into between the partners. In Equity the creditors of the partnership have a sort of lien upon the partnership funds and estate, and have a right to payment of their debts out of them, before the private creditors of the individual partners. Privileged f 7 om Seizure. — In order to favor trade, the law protects certain property in which traders are temporarily interested, from liability of distress for rent ; thus goods de- livered to a person to be carried, wrought or managed in his ordinary trade or employment, cannot be distrained. An auctioneer, commission merchant, agent, wharfinger, mechanic, &c., comes within this important and beneficial rule. The necessary implements, or tools, ordinarily used, are also in the same manner privileged ; but only in case there be other pro- perty upon the premises, sufficient to satisfy the demand. It is a rule of law that any property or fixture once attached to the freehold, immediately becomes a part thereof, and can- not be removed, without the consent of the owner of the free- hold. But it has long been held that, in order to encourage commerce, and foster and protect trade and manufacture, that fixtures attached to the freehold, and known as trade fix- tures, should be removable. The tendency of modern deci- sions, as lately remarked by Chief Justice Richards, seems to be to carry out what may seem to be the intention of the parties at the time the article, which would otherwise be con- sniPPiNO. 63 sidered a chattel, was attached to the freehold. If it was for a mere temporary purpose, or the more complete enjoy- ment or use of it as a chattel, then it would still retain its original choracter. If a party leases land for the special purpose of carrying on thereon a certain trade or calling, and for that purpose af- fixes to the realty any fixtures, machinery or even buildings, the only question necessary in deciding whether they are re- movable or not, is whether they were designed for purposes of trade, or not, and are accessory to its carrying on. If so, it makes no difference if it be a smith's forge, a steam engine in masonry, or a two story soap chandlery. SECTION II. SHIPPING. No part of the commei ciai trade of England and the pro- perty employed therein, has been more carefully guarded and fostered by legislative enactment than the shipping. The great source of England's wealth and strength being her su- premacy upon the ocean, it is most important that she should guard the rights of British ships, extend their privileges to the utmost limit, and train up a numerous and hardy class of seamen. In Canada legislation has been chiefly to better secure the right of property in Colonial vessels navigating our inland waters, and to facilitate their transfer, and to prevent the fraudulent transfer of the property in them. The Imperial Acts prohibit certain traffic except in Bri- tish ships, give them certain privileges above foreign vessels, and enact that they must be navigated by a certain propor- tion of British seamen. We have no such privileges nor pro- tections, and it has been a frequent, and no doubt just ground of complaint, that while the United States, whose shipping is brought in such active competition with our own, has been 64 SHIPPING. r .: zealous to secure it every advantage, to the almost sofOusicti of ours, yot the Canadian shipping interest^', ,;ijoinlii;5ly yiu- thought of, has been left just where it was when every voyiige was only an expedition. Now that our Provincial character is molted into a Domin- ion, and we have taken our place among nations, with some- thing more to do to sustain our position and honor upon the water, if need be, than trusting to the navy of Eiig'und, there is a fair hopo that legislation wili do something to foster and protect this important arm of our commercial ». 1th, and secure a hardy navy to sustain our national honor. Our Provincial Statute, 22 Vic. chap. 41, Con. Stat. Can. is very similar to parts of the Imperial Statute, 8 and 9 Vic. ohap. 88, und the decisions of the Courts upon parts of that Statute, will be most important in construing similar sections of our own. What Ships may be Registered. — All vessels of over fifteen tons and which have been wholly built in the Province, and which wholly belong and continue to belong to Her Majesty's subjeccs, are capable of being, and should be registered. Where Registered. — Every vessel is considered as belonging to some port, at or near which some or one of the owners, who shall make and subscribe the declaration required pre- vious to registry, reside. It is with the collector of customs at this point she must be registered, and from him receive her certificate. Hoiv Registered. — In order to obtain registry a declaration must be made and subscribed before the collector of customs, to whom application is made by the owner, if only one ; or if there be two joint owners, and they both reside witinn twenty miles of the place of registry, by both of them — if either at a greater distance, then by one; if more than two, by the greater part, (not exceeding three) if residing within twenty miles, unless a larger number wish to join ; and if all, or all but one reside at a greater distance, then by one only. i SUIPPINQ. 65 The declaration must contain the ship's name, the master's name, the owners' names, residences and occupations, that the party making the declaration is a British subject, and that neither he nor any other part owner has taken the oath of allegiance to any foreign state whatever, &c. And that no foreigner hath any interest or share in the vessel. The name of such ship must be painted in white or yellow letters, not loss than four inches in length, upon a black ground upon her stem, as must also, in a legible and distinct manner, the port to which she belongs. If they neglect to have her name so painted before she takes in any cargo, or wilfully allow or permit it to be altered, erased, obliterated, or concealed, or to be described diflFerently in any paper or document, such owner or master, so acting or permitting, in- curs a penalty of eighty dollars. In case of a change of master, the certificate of ownership must be delivered to the person authorized to grant a certifi- cate at the port where such change is to take place, who en- dorses a memorandum of such change upon the certificate, and gives notice to the office where the vessel received its certificate, that such change may be noted in the book of registry of ownership. When the vessel belongs to a corporation or limited part- nership, a declaration differing somewhat from the one above referred to, is made and subscribed toby the secretary, direc- tor, manager, or general partner as the case may be. The applicant for registry must also produce (unless un- avoidable through death of builder) the builder's certificate of the time and place of building, denomination and tonnage, and the name of the first purchaser, together with a declara- tion of her identity. Registry de novo. — A vessel may be registered dc nooo, if the certificate be lost or detained, if the vessel be so alter- ed as not to correspond with her former particulars, or if there be any change of propercy in her. £ Lii 66 SHIPPING. Property in Vessels. — The property in every vessel bo- longing to more than one owner, is considered as being divid- ed into sixty-four equal shares, and the property of each owner must be described iu the certificate of ownership as so many sixty-fourth shares. No person is entitled to be regis- tered as an owner of any share, unless it be an integral sixty- fourth ; but if an owner's interest cannot bo reduced to a certain number of sixty-fourths, his interest in the fractional part is not affected by reason of non registry. Partners in trade having an interest in a vessel may have it registered as joint property, without distinguishing the proportionate inter- est of each partner, and such interest will then be considered as partnership property, to all intents, and so dealt with. Number of Owners. — Not more than thirty-two persons can be legal owners of any registered vessel at the same time ; but minors, heirs, legatees, creditors or others, exceeding that number may have an equitable intei*est, represented by or held from any of the persons within that number. Transfer of Ownership. — The builder of a vessel is not compelled thereby to have his vessel registered before he can make a valid sale of her ; the property in it thus being the same as any other chattel and transferred in the same manner. But the transfer of property in a registered vessel can only take place by a bill of sale, or other instrument in writing, reciting the certificate of ownership or principal contents thereof. But no bill of sale is void merely by reason of any error in such recital, or the recital of a former certificate, if the identity of the vessel bo effectually pi-oved thereby. But no bill of sale of any registered vessel is valid, or effectual to pass the property in such vessel, nor has it any effect until it has been produced to the collector of customs of the port, at which such vessel received a certificate of ownership, or the collector of a port at which she is about to receive a certifi- cate de novo, nor until such collector has entered in the book of ownership in the one case, or in the book of registry de novo, rn SHIPPING. 67 after all the requisites of law for such registry de novo have been complied with, in the other case, the name, residence and description of the vendor, or mortgagor, or of each, if more than one, the number of shares transferred, the name, residence and description of the vendor or mortgagor, or of each if more than one, and the date of the bill of sale, and of the production of it ; and (except such vessel is about to receive a certificate of ownership de novo') endorsed the said particulars of such bill of sale on the certificate of ownership of the vessel, when produced to him, and shall have given notice thereof to the Finance Minister, or other persons to whom the copies of certificates are to be sent. When the particulars of the bill of sale are entered in the book of registry, such bill of sale is effectual to pass the pro- perty thereby intended to be conveyed, against every person and to all intents ; except as against subsequent purchasers, and mortgagees, who first procure the endorsement of owner- ship to be made upon the certificate. It has been held in an action brought for breach of contract in refusing to sign certain promissory notes, the sale and delivery to the defendants of a certain interest inqa schooner, being the alleged consideration for the promise ; and it appearing that the plaintiff had surrendered his interest to the defend- ants, and they had remained in exclusive possession of the vessel ; but that no assignment had been made or required by the statute, and no transfer endorsed on the registry, nor any new certificate of ownership granted, that the plaintiff oould not recover. If the promissory notes, however, had been given, the want of a valid title to the vessel would not have been an effectual defence, to resist their payment. Had the vendor completed his part of the contract as fully as he had power, and applied to a court of equity for specific performance, it would, no doubt, have ordered the defendants to sign promissory notes. SHIPPING. Where the same property has been transferred more than y |i! once, the several vendees or mortgagees take prion . 'Cording to the time token the endorsement is made on the cei ificat3, and not according to the time of entering their respective instruments in the book of registry — Thus if an owner of a share or shares execute two different bills of sale to different persons, and both conveyances be entered in the book of registry, but the second purchaser get the certificate and have the proper endorsement made on it, he, and not the first pur chaser will have the legal title. Every purchaser should there- fore be exceedingly careful to obtain the certificate of registra- tion, as the possession of it is important for the completion of liis title, and without it he may lose his purchase by a fraudulent conveyance to some other person, who may succeed in getting the certificate, and having the proper endorsement made. But in order to protect parties as much as possible against such fraudulent conveyances, it is provided : that when any instrument of transfer has been entered in the book of registry, the collector shall not enter any other instrument, purporting to be a tinnsfer of the same share or shares, from the same vendor or mortgagor to any other person, until after the lapse of thirty day , or (if the vessel were absent from her port at the time of entry,) thirty days after her arrival thereat ; and if a second instrument has been entered, a like period must elapse between its entry and that of a third. Wherever more than one have been entered, the officer is to endorse on the certificate the particulars of that one under which the person claims, who shall produce the certificate for that purpose, within thirty days after the entry of his instrument in the book of registry, or if the vessel be absent at the time, within thirty days after her return to port ; and if no person produce the certificate within such time, then the particulars of that person's instrument, who shall first produce the certificate for that purpose, shall be endorsed. If the certificate be lost, mislaid, or detained, on sufficient proof, time may be granted SHIPPINO. 69 for its recovery, or for registry de novo, during which addi- tional time no other transfer can bo entered in tJio book of registry. This gives to each of rival vendors thirty days from the entry of his instrument, or next subsequent return of the ship to port, to get the certificate endorsed, and obtain a per- fect title. If he allow that time to pass, ho will be in danger of having his title defeated by some subsequent vendee ; unless further time have been granted, as above pointed out. To avoid the inconvenience that would, in some cases, arise if the certificate had to be produced to the Collector of customs of the port, at which the vessel was registered, it is provided, that if after any bill of sale has been recorded, at the port to which the vessel belongs, it be produced with a notification upon it of such record, signed by the Collector of such port, and also produced the certificate of registry, to the Collector of any oLher port ; the Collector of such other port may endorse on such certificate, the transfer mentioned in such bill of sale, and give notice thereof to the Collector, at the port where the vessel belongs, who will record the same as if he had made the endorsement himself. The Collector of such port, must first give notice to the Collector of the port to which the vessel belongs, of such requisition made to him, and ascertain whether any other, and what other bills of sale have been recorded with respect to such vessel, after which he is to endorse the certificate as if the vessel belonged to his port. 3Iortgages. — The transfer of a vessel, or of shares therein by way of mortgage, is effected in the same manner as by bill of sale, so far as practicable. But where the transfer is made by way of mortgage, or to a trustee for the purpose of sale, for the payment of money, the collector must in the entry in the book of registry, and also in the endorsement on the certificate of ownership, state that such transfer is only as a security for money, or by way of mortgage, and the transferee is not deemed to have become, or the transferrer to have ceased to 70 SHIPPINQ. be, the owner thereof, except so far as may bo necessary for the purpose of rendering the vessel, or share so transferred? available by sale or otherwise, for the payment of the money it was transferred to secure. If the mortgagee neglect to have the proper endorsements made upon the certificate, he must abide the CDUsoquences, and the court of Chancery will not relieve hi n against the omission. Bights and Liabilities of Part Owners, — It is possible that a joint tenancy may exist in a vessel as in any other chattel property, causing the whole interest in the vessel to pass to the surviving partner. But the operation of the Registry act, requiring the property to be registered and conveyed in distinct shares, makes the owners, as a consequence, tenants in common of the vessel. At common law any one tenant in common may seize upon the chattel, and regulate the mode of its enjoyment to the exclusion of all the rest. Tlie ship- ping transactions in which the vessels of Upper Canada are yet engaged, are not of sufficient extent or importance to produce many if any differences, which cannot be amicably arranged between the part owners themselves. Should such differences occur, they must look to their legal rights as protected in their deed of settlement (if such a deed exists), or they may seek the interference of the court of equity. The necessity of a court of admiralty is frequently felt ; and there is no doubt if once established and invested with com- petent jurisdiction and well defined powers, it would afford many benefits and reliefs to those interested in shipping interests. The proper mode for the part owners to obtain an adjust, ment of a vessel's accounts, is by a suit in equity. The part owners, like partners, are liable to the full extent of debts contracted for its repair and other necessary expenses > which can be shown or presumed to have been incurred with their assent. The mere legal ownership of itself is not sufficient to render an owner liable, consequently any one 6HIPPIN0. 71 vrill bo exempt who can show that he has not pledged his responsibility. Where the ship is under a master, and the owners divide the profits, the master is, with respect to her concerns, prima facie, the agent of them all. The admission of one joint owner is not binding on the others, but it seems to be established that in all that concerns the repairs and necessaries of a vessel, one part owner is agent for the rest. Each may transfer his share without the consent or privity of the others. Mortffage on Ship's Keel. — As soon as the Keel of any vessel is laid, the owner may mortgage or grant a lien upon the vessel to any person contracting to advance money or goods for its completion : And such mortgage or lien will not attach only to so much of the vessel as may be completed at the time of its creation, but to the whole vessel during her construction, and afterwards until paid. It may also be agreed that the vessel when completed shall bo the proparty of the person advancing ; which agreement will enable such party to register her in his own name, sell the same and grant a clear title. This does not take away from the original owner his right of action of account, or such other remedy as the law may afford him, fop the purpose of recovering the value of his equitable interest in the vessel. All mortgages or liens upon Keels are special in their character, and should be drawn with care. They are tO' be passed before a Notary Public, or made in duplicate, before two witnesses, and such contract if made in duplicate, or a memorial thereof if passed before a notary, must be regis- tered in the Registry OMce of the county where the vessel is being built. The contract and all the rights thereunder only accrue from the date of registration. The contract among other things should contain a descx'iption of the vessel, the designation of the ship yard where she is I i-' 72 OOOD WILL. being built, the amount in money or goods to be advanced, the names, residences and additions of the parties, and of the witnesses. No owner can grant more than one such mortgage or lien, without the express consent of the first advances, and if any subsequent grant be made without such consent, it is void. SECTION m. GOOD WILL. It is diflScult if not impossible to give a clear and precise definition of the term " good-will," when used in a mercantile sense. The only characteristic of mercantile property that it possesses, though recognized as such, is a certain pecuniary value. It is the right and pi*ivilege of carrying on an old and established business in an old and established place, and its value mast be estimated by the benefit to accrue from this privilege. This benefit depends upon so many surrounding and independent circumstances, that it is almost, if not quite impossible, to compute its true and correct value, unless it be by offering it for sale by public competition, when its selling pi'ice would give the best if not the correct idea of its real value. It is so much the growth of modern enterprise and advance- ment, that it is said the Courts have not settled the land- marks by which it is to be defined and protected It is in its nature to a great extent analagous to the exclusive use of a particular name or trade mark upon goods or merchandize. No man has an abstract right to the exclusive use of any particular trade mark or place for carrying on business ; but having once adopted tl m, and devoted his time, talent and means in building up a business in connection with them, and to an extent known and recognized by them, they be- come to him of a pecuniary value, and their protection becomes necessary to secure him the full benefit of ingenuity, industry, and integrity. It is Avith this view that Courts of GOOD WILL. 73 Equity restrain an improper use of the trade mark of another, and estimate as far as possible the value of the good will of a business. In professional business the profits being derived almost entirely from the talent and reputation of the individual, the good-will is so significant that the courts have declined to consider it. It might, however, in such a case have a market- able value, and if special circumstances could be shown to the court, making it a matter of importance, there is little doubt that the court would not refuse to consider it, on account of its arising in connection with a professional call- ing. In the case of hotels, manufacturing and mercantile houses, this so called property becomes of real intrinsic value, and as such is regarded. Upon the sale of such a business the good will passes, as a matter of course, without being specially named. It is in the case of dissolution of firais that the questions relating to the good will of a business are most likely to arise, and it makes no difference whether such dissolution occurs by the act of the partners or by the death of one of them. In case of dissolution there is no obligation on the part of any of the partners to retire from the business, no:* in the case of death of one partner is the survivor under any obli- gation to continue the business, so as to preserve its good will until its final winding up. Whatever value such good will may have, however, belongs to the firm, and unless otherwise agreed, must be sold for the benefit of the partners. In the case of death the good will does not survive, and if the survivor continue to carry on the business, deriving the benefit of the established reputation of the old firm, the Court of Chancery will, as nearly as possible, estimate its value, and order the survivor to pay a reasonable price to the personal representatives of the deceased partner for the use of such good will. 7-4 GOOD WILL. When one partner retires from a firm and from tlic busi- ness, tlic continuing partners obtain the good will for nothing ; for continuing the business in the " old stand," the good will naturally and necessarily continues with it. An agreement that the continuing partners shall take the share of the retiring partner at a valuation, has been held not to entitle the retiring partner to have the good will taken in account. In case of a retiring partner it is only subject of account when there has been some special agreement to that effect. i I CHAPTER III. , OF MERCANTILE CONTRACTS. SECTION I. BILLS OF EXCHANGE AND PROMISSORY NOTES. A Bill of Exchange is a written order or request, from or by one person to another, for the payment of money absolutely and at all events, and is substantially in the following form : $500. Kingston, January 1st, 1867. Thirty days after date pay to A. or order, the sum of five hundred dollars, for value received, and charge the same to account of B. To C. of Montreal. B. is the drawer, C. the drawee, and A. the payee. Sometimes the drawer is the payee. The bill is then usually forwarded to the payee, who pre- sents it to the drawee for his acceptance as it is called. If he does so, he writes his acceptance across the face of it, and then becomes and is known as the acceptor. The essentials of a bill of exchange then, are, a drawer, drawee, and payee, who may be the same person as the drawer. It must be in writing and be a request for the unconditional payment of money, upon some time certain as at sight, on demand, a certain time after date, or the tran- T6 BILLS OF EXCHANGE AND PROMISSORY NOTES. I \'\ i ! ;: ! spirinif of some event, as upon the death of the party. The want of one oi* more of these essentials may not render the instrumerit a nulUty, though they may destroy its assignabi- lity and character as a negotiable instrument. The legal effect of drawing a bill of exchange payable to a third person is a conditional contract on the part of the draAver, to pay to the payee his order, or the bearer, as the case may be, if the acceptor do not. The effect of accepting a bill is an unconditional contract to pay the amount therein specified to the payee, or order, or bearer. And the effect of endorsement is to incur a liability to pay the immediate or any succeeding endorser or bearer, in case of the acceptors' or drawers' default. The acceptor is primarily liable, the drawer secondarily, and then the endorsers according to their priority. The contracts arising upon a bill of exchange, like those of a promissory note are simple contracts, although they differ from ordinary simple contracts in two important par- ticulars : first, that they arc assignable ; secondly, that con- sideration will be presumed till the contrary appear. Bills of exchange derive these peculiar properties from the custom of merchants ; promissory notes, from Stat. 3 and 4 Ann. cliap. 9, which places them on the same footing with bills. At Common Law neither money, nor securities for money, could be taken in execution at the suit of a creditor ; but by 22 Vic. chap. 22, sec. 261, C. S. U. C, the sheriff or officer, having execution, may seize any money, or bank notes, checks, bills of exchange, promissory notes, bonds, mortgages, specialties or other securities for money. The money and bank notes are to be handed over by the sheriff to the exe- cution creditor, and the sheriff, on receiving a sufficient secu- rity, is to sue in his own name on the checks, bills, notes, &c., and apply the money arising therefrom upon the exe- cution. Prommory Notes. — A promissory note is a promise to ! i W_- BILLS OF EXCHANGE AND PROMISSORY NOTES. 77 |)f 7 a sum certain, absolutely and unconditionally, at a time limited, or on demand, or at sight, to a person named therein, or to his order, or to the bearer. No particular form of words are necessary to constitute a note, but the following is the usual form ; — Kingston, January 1st, 1867. $500. Three months after date I promise to pay to A, or order, at the Bank of Montreal here, five hundred dollars, for value received. B B is the maker ; A the payee, and when endorsed by A in blank, i. e. by A simply writing his name across the back, it becomes transferrable by mere delivery, and the holder is the payee. Thus the maker of a note occupies the same position as the acceptor of a bill ; the endorser of a note the same as the draAver of a bill ; and the payee in cither case has the same legal rights and remedies. A note cannot be made by a man to himself without more. But if made to himself or order, and endorsed in blank, it becomes payable to bearer ; and if specially endorsed, it becomes a note payable to the endorsee or order. If made payable to a man, " or to his wife and to no other person," is the same as if made payable to him alone, and his executors may sue upon it. The promise to pay must be unqualified, the amount cleax'ly ascertained, and the time certain. " Three months after date "pay to the order of W. S. at Port Hope, one hundred dollars, for value received," is not a note. A promise to pay a certain sum on a day named, " in cask or mortgage upon, real estate," is not a promissory note, not being an absolute promise to pay money, nor will it become a note by the maker's election to pay in cash. I u i i : ii L 78 BILLS OF EXCHANGE AND PROMISSORY NOTES. An instrument purporting to be a promissory note, with the words " with exchange on New York " has been held not a promissory note, the amount being rendered uncertain by the uncertainty of exchange. On the other hand " I do acknowledge myself to be indebted to A in $50 to be paid on demand for value received " has been held a promissory note, the words "to bo paid " amounting to a promise. It is for the interest of trade and commerce that the law should be construed liberally, and the courts will do so, in order to recognize an instrument a bill or note, if they can find the several requisites contained in it. A note may be made payable by instalments, and should be presented and protested upon each dishonor, allowing the usual three days of grace, and cannot bo endorsed over for less than the sum due. A note made by two or more makers may be either joint, or joint and several. If signed by two or more and begin- ning "We promise,"itis a joint note ; if beginning "I promise," it is a joint and several ; and if beginning, " I promise " and signed by one partner for his copartners is the joint note of all, and has been held to be also the several note of the signing partner. Checks. ~A check resembles and is in effect a bill of exchange drawn upon a banker, payable on demand and subject to many of the rules regulating bills : it nui^t be presented ; it requires equal diligence on the part of the hold' I' ; an ^ may be transferred by endorsement or mere delivory as tht case may be. Checks differ from bills and notes, in the time of t.lang due : as a check is not due until payment is demanded. Neither have they any days of grace, nor require any acceptance, excepting prompt payment. The drawer of a check is not a surety, but the principal debtor, like the maker of a promissory note. The holder must use reasonable diligence in presenting a BILLS OF EXCHANGE AND PROMISSORY NOTES. 79 check for payment, otherwise, if the bank fail in the mean- time, he will lose the money, besides being at the risk of the drawer checking out his funds in the meantime. Prior to the passing of the act imposing " duties on. Pro- missory notes and bills of exchange " a check might be post dated, or made payable on a day other than that upon which it bears date. By section three of that act, it is enacted that " every document usually tenned a letter of credit, or whereby any person is entitled to have credit with or to receive from or draw upon any person for any sum of money, shall be deemed a bill -of exchange or draft," and by the same section among other exceptions from duty, is " any check upon any chartered Bank, or Licensed Bank, or any Savings Bank, if the same shall be payable on demand.^' Under these sections an intended check payable on a diifereut day from that on which it bore date, has been held if not a bill at common law to be one under the act requiring a stamp, and void for the want of it. The dra^\(■e of a bill is not generally speaking, liable till acceptance ; but a bank having sufficient funds of its customer, is bound to pay his checks within a reasonable time after their presentation, and is liable to an action by the customer if it do not. There is an implied contract between the banker and his customer, when he receives his money, to pay his checks, and if he refuse, and the customer's credit be impaired by the refusal, he is entitled to damages. Although checks being intended for immediate payment, on being presented, are not usually accepted ; however, if a banker, as is now frequently done, mark a check as good, and such marking amounts to a writing Avithin the statute 22 Vic. chap. 41, sec, 7, C. S. U. C, it binds the banker to pay the check so marked. In such a case the check should be stamped, as there is little doubt the courts would hold it such an instrument, by the acceptance, as requires a stamp. The giving of a check is prima facie no evidence of money L^Ajl^ . 80 BILLS OF EXCHANGE AND PROMISSORY NOTES. lent, but, on the contrary, is evidence of a debt paid, or that cash was given for it at the time, neither is payment by a banker of money advanced by the banker to the customer, but on the contrary is prima facie evidence of repayment, of money previously lodged by the customer. A check, once accepted, until dishonor, is payment. The mere production of a check drawn payable to a party, and proved to have been paid by the banker upon whom it was drawn, is no evidence that the party in whose favor it was drawn ever received the money. It must be shown to have passed through his hands, and.for this purpose, it is always a safe precaution to make a check payable to the payee's order, so as to secure his endorsement, which will bo evidence that he received the money. When a check is given to take up a bill or note, the holder is entitled to retain the bill or note until payment of the check. If a person take a check in payment of any debt, other than that of a bill or note, and the check from any cause, not resulting from the negligence of the party taking the check is dishonored, the parties' remedies remain entire upon the original del)t. The death of a drawer of a check countermands the banker's authority to pay ; but if payment be made before notice of the death, the payment is good. If a check be fraudulently altered and increased, and the banker pay it, he cannot charge the drawer with the excess, but if the forgery has been induced and assisted by the ne- gligence of the drawer, the party Avhose negligence induced the fraud, and not the banker, must suffer the loss. Thus in a check for fifty dollars, if the word fifty in the body of the check be commenced with a small letter in the middle of the line and the figures 52 placed at some distance from the printed 8 at the top of the check, and a party puts a 1 before the 52, and wiitcs one hundred in the body before the fifty, upon the banker paying the full amount the loss will fall upon the drawer. I ^M- BILLS OF EXCHANGE AND PROMISSORY NOTES. 81 When several parties, not partners in trade, deposit in a bank to their joint credit, tliey must each sign the check. If one should quit the country, or from some improper reason refuse to sign a check, the court of equity will grant relief and assist the others to get their money. An I. 0. U. — is simply an evidence of debt and as such does not require to be stamped. If it goes further and con- tains a promise to pay, or an agreement to pay upon a cer- tain day, it will assume the character of a note and should be stamped. An I. 0. U. not addressed to any one, is evi- dence of an account stated for a Piaintiff in j\a action, upon its mere production, and if another person was meant, the defendant must prove it. But it may be shown under the general issue, that it was given on a consideration that has failed, as for part of a deposit on a sale that has gone oflF for want of title. Capacity of Contracf^'ng Parties to a Bill or Note, and their Liabilities. — Any person, it seems, acting in the capacity of an agent, may make a bill or note binding upon his principal, and no particular form of appointment is necessary to con- stitute such agency : it may be created by writing, or by ver- bal directions, or may be implied from the actual relations existing between the parties. — Vide Chap. 1, Sec. III. There are several descriptions of persons, though capable of acting as agents, so as to bind their principal, yet labor under disabilities that render them unable to bind themselves. An infant cannot bind himself by his promissory note or bill. A married woman cannot bind herself unless her husband be under a civil incapacity, or unless she be carrying on a separate and independent business, and own separate estate, vested in trus- tees, where the court of equity would hold her estate liable. Persons who are drunk, or whose mental faculties are for the time so impaired that they are not capable of knowing what they are doing, may avoid a bill or note made by them while in such state. F 82 rrLLS OF EXCHANGE AND PROMT jOKY NOTES. I Insane persons, during their periods o*" insanitj, and after their being found lunatics by tho Cimrt of Chancery or a Cora- mission, can make no valid contract. An agent's authority to accept or endorse may be spec ial, and in such a case is construed strictly. It is of the utmost importance that care should be taken to discover the extent of an agent's authority, before accepting a bill or note from him, where there is the least intimation of such authority being limited or special. The words " per procuration,''^ or as it is generally written " per pro " are an express intima- tion of a hmited authority, and a person taking a bill or note so made, accepted or endorsed, is bound to inquire into the extent uf such authority. "A", who carried on business, on his own account and also in partnership, went abroad, and before going gave a power of attorney to a party " for him and on his behalf to accept bills drawn on him by his agents or corres- pondents." " B ", one of his partners (and -who acted as his agent) in order to raise money for the payment of creditors of die partnership, drew a bill which the attorney accepted in " A's" name by procuration. In an action against " A" by the endorsee of the bill it was held, first, that the right of the endorser depended upon the authority given to the attorney ; secondly, that the power applied only to "A's" private indi- vidual and not to his partnership affairs ; thirdly, that the special power to accept extended only to bills drawn by an agent in that capacity, and that " B " did not draw the bill in question as agent, but as partner ; and lastly that the general words in the power of attorney were not to be con- strued at large, but as giving general powers for the carrying into effect the spenial purposes for which they were given. In a late case, four notes signed " The executors of the estate of the late William Notman, per pro James S. Mere- dith," were sued upon. It was proved that Meredith had managed the affairs of the estate since testator's death, and that it had been left to him to do what he thought best, in I BILLS OP EXCHANGE AND PROMISSORY NOTES. 83 wiii'linp; it up. Upon the trial the learned Chief Justice of the Commdn Pleas left it to the jury as a mattcrof fact, whe- ther James S. Meredith was authorized to bind the executors personally, pointing out the differci j between authorising or shewing that a party in windin? 'n the business of an estate, and antlidii/ing an attorney ' otes, which would bm i an individual personally : re 'ho defendants leave to move for non-suit, amo.ig ic>, that there was no proof of an; authority on the .4 imes S. Meredith to bind the defendants. It was held that though Meredith might have sufficient authority as regarded the estate, ho clearly had none to bind the defendants pereonally, as they were sued ; and a non-suit ordered accordingly. The learned Chief Justice of the (Queen's Bench in deUvoring the Judgmc'nt of the Court, remarked, in winding up the estate, Meredith may have re- (juired to raise money, conceding that he had authority to pledge or charge the real or personal property of the estate, it is a very different thing to charge the personal represoiita- tives of it in their individual capacity. An authority to draw does not import an authority to en- dorse. An agent who exceeds his authority in negotiating a bill, cannot in any case convey a title to it, and a person taking a bill under such circumstances from an agent, has liis title affected by the wrongful act, and is liable to refund to the principal, money which he receives in discharge of the bill from the previous parties ; or if he take a renewal bill, such renewal bill belongs ^o the principal. If an agent endorse a bill without authority, a bill payable only to order, he conveys no right of action, except against himself. But an unauthorized delivery of a bill or note pay- able to bearer, gives to a bond fide holder, without knowledge of the want of authority, a good title and right of action against all parties to such bill or note. An agent may be personally liable to a third person, by drawing, endorsing or accepting in his own name or without [Ms IMAGE EVALUATION TEST TARGET (MT-3) ^0 :/. 4r^ *J. %Lo -^ 1.0 no ■^" W^m : Ufi 1^ III 2.2 = ^m 1.1 11^ ^^= !li|._8 lilii^ 1.25 m IJA , ^ L 6 7] v2 7 /A Photographic Sciences Corporation 23 WIST MAIN STRUT WEBSTiR.N.Y. 14580 (716) 872-4503 fi t 84 BILLS OF EXCHANGE AND PROMISSORY NOTES. authority, or without unequivocallj shewing on the face of the writing, that he signs only in a ministerial capacity. This liability most frequently occurs in signing on behalf of a Com- pany, with a mistaken idea of authority to bind. Thus a bill drawn " pay to J. S. or order $800, value received, and place same to account of T. B. Company as per advice from C. M. to H. B., cashier of Y. B. Company," and H. B. wrote " accepted per H. B." It was held that H. B. was per- sonally liable, though accepted by direction of the Company. "Where a bill was directed to " A. C. Mining Company" and was accepted in his own name " for the A. C. Company" by one of the managing partners, who had no authority to sign for the rest, it was held, that on proof of his being a partner, he was personally liable. A bill was drawn upon a person as treasurer of the Wolfe Island Bdlway and Canaj Company, and " accepted W. A. Geddos, Trs. W. I. R. W. & C. Co.," adding the company's seal, — it was held he was personally Uable. So a promissory note made " on demand we jointly and severally promise to pay E. H. or order 1800, value received, for and on behalf of W. U. Association," and signed " P. S. I. W. Directors " was held to bind the per- sons signing personally. G. being secretary of an Insurance Company gave the foUowmg note for a loss incurred, " .£1000 sixty days after date I promise to pay to order of J. S. Wood, Esq., of Colbome, one thousand pounds, value received, by the Ontario Marine and Fire Insurance Company, payable at the Gore Bank in Hamilton," and signed " C. Horatio Gates, se- cretary 0. F. Company." Held, he was personally liable thereon. But if in any such a case a note or bill be made and delivered, and accepted, with a distinct understanding that it is so delivered and accepted, on behalf of the company referred to, it would be au equitable defence against per- sonal liability. It will be seen from the foregoing that a person taking a bill accepted, or a note made by an agent, ought to exercise BILLS OF EXOHANQE AND PROMISSOTT NOTES. 85 due caution, for he must take it upon the credit of the party who assumes the authority, and it would be only reasonable prudence to require the production of that authority. The law presumes that each partner in trade is entrusted, by his co-partners, with a general authority in all partnership affairs. Each partner, therefore, by makmg, drawing or ac- cepting negotiable instruments, in the name of the firm, and in the course of the partnership business, binds the firm — whether he signs the name of the firm, or signs by procura- tion, or accepts in his own name, a bill drawn on the firm. A partner cannot, it seems, bind his co-partner by a joint and several note. Partners not in trade, but for other purposes, as farming, medical and law partnerships, have no implied power to bind each other. If a man be at the same time partner in two firms, each using the same style, and he draw a bill in the common name of the two firms, the endorser may charge either firm at his election. If a new partner be introduced into a firm, an acceptance for an old debt, in the name of the new firm, will not, in the hands of the party taking it, bind the new partner. The taking of security from one of several partners, joint makers of a note or acceptors of a bill, will, in general, dis- charge the other co-partners. A secret or dormant partner is bound by negotiable instru- ments under the names of the firm ; and it makes no differ- ence whether such instruments are negotiated for the pur- poses and benefit of the firm, or be given by one partner in payment of his private debt, — provided the holder were not aware of this circumstance, for credit is given to the firm generally, of whomsoever it may consist. A mere nominal or ostensible partner is liahh to any one to whom he has been held out as a partner ; for as they can not know what his interest in the firm may bo, they would be 86 BILLS OF EXCHANGE AND PROMISSORY NOTES. injured if they could not charge ; and it would bo a fraud to allow a party to hold himself out as a partner, and induce parties to give credit or take bills or notes upon his respon- sibility, and then to avoid all liabiUty upon ground of want of interest. To put it shortly, the man is liable who is really a partner, though he is not known to be one, and he is liable who holds himself out as a partner, to those who thought him one, whe- ther he was one or not. Thus there are two classes of persons liable upon a bill or note signed in the name of the firm. 1. Those who participate, or are entitled to participate in the profits of the concern. 2. Those on the strength of whose credit a person may have contracted. After dissolution, the ex- partners have no power to bind each other by bills or notes to persons aware of the dissolu- tion, but if notice has not been given, a bond-fide holder of a bill or note may recover from the ex-partners. A secret partner is not liable after dissolution without notice ; for the contract not being made upon his credit, and he having no interest in it, he is not • rought within either of the above rules of liability. Where the dissolution arises from lodth of one of the part- ners, no notice is required w protect the estate of the de- ceased ; nor can an executor complete his testator's endorse- ment by delivery of the instrument. In taking from an e.: partner a bill or note, belonging to the late firm, the separate names of each partner should be had, or else the partner puttmg the name of the late firm to such bill or note, should show his authority to do so. A bill drawn or note made without authority, but after- wards ratified, is as binding as if made under a prior and suf- ficient authority. If an infant be a party, jointly with an adult, to a negotiable BILLS OP EXCHANGE AND PROMISSORY NOTES. 87 instrument, the holder may recover from the adult alone, without taking notice of the infant. An infant drawing and endorsing bills may convey a title, so the holder can sue the acceptor and all other persons ex- cept the infant himself. If a bill or note is given to a single woman, and she marries, the property in such bill or note would remain vested in her by virtue of 22 Vic. chap. 73., C. S. U. C, but her husband must be joined with her in any action upon it. Agreementi intended to control the Operation of Bills or Notes. — Such agreements are either written or verbal. A written agreement may be either upon the instrument, or upon a distinct paper ; and may be either made at the same time of thfe bill or note, or at a subsequent time. And a contem- poraneous written agreement may either be parcel of the in- strument, or it may be collateral. A verbal agreement made contemporaneous with the instru- ment cannot <^ake effect, it must be a subsequent agreement. The effect of a memorandum endorsed upon a bill or note, depends upon circumstances. If it make the payment contin- gent it will be incorporated with it. But if it be merely di- rectory as to place of payment, or imports a collateral security has been given, or is intended merely to identify the instru- ment, it does not affect its operation. A written agreemeiit, on a distinct paper, to renew, or qualify the liability of a maker or acceptor is good as between the original parties. But a written agreement, though contemporaneous, will not restrain the bill or note, if other persons besides the parties to the bill or note are parties to it. An agreement to renew, has been held to be an agreement to renew once only. Stamps on Bills and Notes. — Our Stamp Act, 27 and 28 Vic. chap. 4, seems to have two effects upon commercial paper, which should not be lost sight of. First it makes all notes, 88 BILLS OF EXCHANGE AND PROMISSORY NOTES. bills of exchange and drafts, made, drawn or accepted in this Province, void, unless properly stamped. Secondly, it makes informal instruments, such as letters of credit, certain receipts, &c., bills of exchange or drafts for the purposes of the act. The original Stamp Act came in force on the first day of August, 1864, prior to which date no stamps were necessary upon negotiable instruments, and although now in force for nearly three years, unstamped instruments are not at all un- common, partly from ignorance of the strict requirements of the Act, and partly from its unadaptability to a country like our own. The stamp system may afford a large revenue, and very little inconvenience, in an old and thickly populated country like England, but in a deep back country like ours, with a scattered population, full of the spirit of commerce and speculation, the inconvenience of obtaining stamps is too great. This is no doubt the cause of much unstamped paper ; and not a desire to evade the law. The Imperial Stamp Act has long made, in England, the distinction between foreign and inland bills an important one. In this country we have, heretofore, scarcely recognized such a distinction. But it may now become important to recognize such a distinction even here, for the purposes of evidence. The Act ia effect applies only to notes and inland bills and such foreign bills as are accepted within the Province. Such foreign bills therefore as do not come within the Act, are both admissible in evidence, and capable of recovery. The stamps, imposed by the Act, and by 29 Vic: chap. 4, extending it, are as follows : — Upon every promissory note,bill of exchange or draft, made, drawn or accepted, in the Province of Canada, Amounting to $25 or under Ic. Exceeding $25, not exceeding $50 2c. Exceeding $50, not exceeding $100 3c. And for each additional $100 or fractional part of { ,„ $100 J ^*- BILLS OF EXCHANGE AND PROMISSORY NOTES. 89 On each draft or bill executed in duplicate, a duty > . on each part for the first $100 of J And a further duty on each additional $100, or frac-} ^c tional part thereof, of $ On each draft or bill executed in more than two 7 . parts, a duty on each part for the first $100 of $ And a further duty for each additional $100, or frac- \ . tional part thereof, of / Any interest made payable at the maturity of any bill, draft or note, with the principal sum, shall be counted as part of the amount thereof. A bill or draft under the Act does not only include an or- dinary bill of exchange, or bank draft, but also all instruments for the payment of any sum of money, hy a hill or promissory note, whether such payment be required to be made to the bearer or to order. Every document usually termed a letter of credit, or where- by any person is entitled to have credit with, or to receive from or draw upon any person for any sum of money — And every receipt for money, given by any bank or person, which shall entitle the person paying such money or the bearer of such receipt, to receive the like sum from any third person — The exemptions from duty are : 1. Every bill, draft or order drawn by any officer of Her Majesty's commissariat. ^ • .» . 2. Every bill, draft or order by any officer in Her Majesty's Imperial or Provincial Service, in his official capacity. 3. Every acceptance or endorsement by any such officer on any bill drawn out of Canada, or any draft of or on any bank payable to the order of such officer m his official capa- city. 4. Every note payable on demand to bearer, issued by any chartered Bank of Canada. 5. Every note issued by any bank imder and by virtue of chap. 55, Con. Stat. Can. "N 90 BILLS OF EXCHANGE AND PROMISSORY NOTES. 6. Every Cheque upon any Chartered Bank, or Licensed Bank, or on any Savings Bank, if payable on demand. 7. Every Post-Office order. 8. Every Municipal Debenture, or coupon of such De- benture. All stamps are to be cancelled at the time of affixing them by writing, or stamping thereon the date at which it is affixed, which date so written is held to be prima facie the date of affixing. Any person becoming the holder of, or paying any instru- ment requiring to be stamped, and which instrument is un- stamped, may affix thereto double the amount of stamps ori- ginally required to be affixed thereto, and such instrument will thereby become valid. There appears to be a lax opinion among commercial men as to within what time su oh double stamps must be affixed in order to meet the requirements of the act ; but there is no doubt from the wording of the act there should be no unrea- sonable delay. It was remarked by Chief Justice Richards in the case of Stephens v. Berry, 15 C. P., page 548, that " the holder of such a bill, can only be considered safe by affixing the proper stamps at such time as he in law would be considered as having taken and accepted the bill as his own or within a reasonable time thereafter." And Henderson v. Gesner et al, 25 B. R. U. C. 184, has established the above dictum, and will undoubtedly be followed by the several courts. There may be some doubt whether or not the want of a stamp can be successfully taken advantage of in a court of record unless raised by special plea. As remarked by the learned Chief Justice of the Common Pleas, in a late case, " the most convenient and proper mode of raising the ques- tion of validity of a bill or note is by a special plea." This does not apply to instruments within the jurisdiction of, and sued in the Division Court ; for there bemg no written plead- ings in this court, any defence can be set up orally, and taken advantage of as it may arise. '- BILLS OP EXCHANQB AND PROMISSORY NOTES. 91 When the necessary duty or double duty required by the act has not been duly affixed, such instrument is not only invalid, and of no effect in law or in equity ; but any person who makes, draws, accepts, endorses, signs, becomes a party to or pays any such instrument before such duty has been paid, does thereby incur a penalty of one hundred dollars ; and any person wilfully writing or stamping a false date will also incur a penalty of one hundred dollars. But it is pro- vided that no party to, or holder of such instrument, shall incur any penalty, by reason of the duty thereon not having been paid at the proper time, and by the proper party, if at the time it came to his hands, it had affixed to it the necessary stamps, and if he had no knowledge that it was not affixed at the proper time, and if he pays the proper duty, as soon as he acquires such knowledge. Consideration. — A consideration in law moans some bene- fit given, or promise made, or loss suffered by the plaintiff in any action, to or for the defendant. In suing upon a simple contract it is necessary to aver that it was made on good consideration, and to substantiate that allegation by good and sufficient evidence, the law presuming there was no consideration until proved. One of the important peculiarites of negotiable rvtruments, is their exception to this rule, — the presumption of Ir w being, that they were given for a consideration. Although conside- ration is presumed to have been given for a negotiable instru- ment, yet, under certain circumstances, a defence may be made out by shewing that the instrument was obtained without consideration, or that it was given for an illegal con- sideration, or was obtained by force or fraud, or that it was lost and the plaintiff is not a bond fide holder for good consi- deration, neither fraud nor want of consideration can be any defence to an action on a bill or note, by an innocent and bond fide holder, who became possessed of it as such before due. 92 BILLS OF EXOHANOB AND PROMISSORY NOTES. ! But if a defendant can make out a prima facie case of fraud, or that the instrument was originally tainted with ille- gality, it throws the burden of proof upon tho plaintiff to relieve it of such fraud or illegal taint and prove consider- ation. Mere absence of consideration, as in case of an accommodation bill or note, received by the defendant, does not entitle the defendant to call upon the plaintiff to show what consideration he gave. It is necessary for the defen- dant to go further, and prove not only that it was an accom- modation bill or note, but that the plaintiff and those through whom he deduces his title gave no value for it. We say, " and those through whom he derives his title," for it must be remembered, that between remote parties, as between payee and acceptor, between endorsee and acceptor, or between any maker, acceptor, or endorser, and the holder of a bill or note which has passed through intervening hands, two distinct considerations must be regarded, first, that which defendant received, and secondly, that which plaintiff gave. And an action between such remote parties will not fail unless in absence of both these considerations. Again, if any intervening holder gave value, the plaintiff may take advantage of it, and it will sustain his action. An entire failure of consideration has the same effect as an origmal and total absence ; but a plea showing not a total but a partial, is bad. But where the consideration fails in a specific ascertained amount, the defendant may set up its partial failure as an answer pro tanto. Thus if A give B a promissory note for $100, for value as to $60, and as an accommodation to B for residue, A may, in an action against him by B, set up want of consideration as to $40. Where a bill or note b given for work done or goods sold, the price, amount, and quality of the goods or work cannot be disputed in an action on the bill or note. We have already stated in general terms what may be considered sufficient consideration to sustain a simple con- BILLS OF EXCHANGE AND PROMISSORY NOTES. 98 tract. But it may be well to state a little more fully and plainly what may be looked upon as constituting a good con- sideration for a bill or note. First, the payment of money, however small the amount. Second, a pre-existing debt, at all events if the bill or notd be payable at a future day. Third, a fluctuating balance upon an open account, the con- sideration increasing or decreasing from time to time with the amount of balance. Fourth, a debt due from some third person to the transferee. Fifth, any risk run at the request of the person giving the bill or note. Sixth, a judgment debt is a good consideration for a bill or note, payable at a future day. Whenever a bill or note is proved to have been illegal or fraudulent in its inception, or where the immediate endorser to the plaintiff is shewn to have obtained possession of it by fraud, the plaintiff will be called upon for proof that he gave value for, and took the bill without notice of the illegality or fraud. In case of fraud there is said to be no contract ; for instance, if A sell B a horse, which he warrants, B giving his note for the same, and the horse turn out unsound, the breach of the warranty, simply, is no defence to an action on the note by A ; but if A knew of the unsoundness, there is fraud and no contract, and no action lies upon the note by A. A fraud may be committed as to third persons, so as to render the instrument unavailable. As for instance, an in- solvent proposes to compound with his creditors, but A being one of his creditors, refuses to execute the deed of composition and discharge, unless the insolvent gives him a note for the balance of his debt. The insolvent does so without the knowledge of the other creditors, and A and the rest of the creditors then sign the deed. The note so given is void, as a fraud on the other creditors. And if the note 80 given also include his proper composition dividend, his dealing with the insolvent is one entire transaction, and we are of opinion he could not recover on the note, even for the j!i 04 DILLS OF EXOHANQE AND PROMISSORY NOTES. amount of his dividend. And it haa been hold that a noto given for such a purpose, though given by u third party, is equally void. So the noto would bo equally void if given vi'itYi such fraudulent intention, though the composition bo never efToctcd. But a noto given by an insolvent, after his discharge, to a creditor for his debt, unsatisfied by his estate, would be free from fraud, and the moral obligation would be sufficient to support a consideration. It matters not what may have been the fraud practised upon a maker or acceptor, or how improperly it may have been obtained, a third person who takes it fairly, for valuable consideration, can recover upon it. It is important that this should be so, otherwise the use and benefit of negotiable instruments in trade would be almost destroyed ; as each holder would require to trace them back to the maker or acceptor, and satisfy himself that it was free from fraud or illegality. It is also important to remark that the consideration given for a promissory note or bill must not be an illegal one. A consideration may be illegal, first, by common law ; secondly, by statute. Those at common law are " such as violate the rules of religion or morality," and "such as contravene public policy." Thus a contract in general restraint of trade ; or in restraint of marriage or to procure a marriage ; or to evade or violate the customs and excise laws ; or not to pro- ceed in a prosecution for felony ; or tending to the sale of a public office ; or procuring a neglect of duty in a public officer, or with a public enemy ; or to secure a future illicit intercourse, is void. Those by statute are chiefly founded upon gambling con- siderations, or stock jobbing, or usury. As to usury, it may be said that it is entirely wiped out. 22 Vic. chap. 58, C. S. C, enacted, that excepting banks and banking institutions, any person or persons might stipu- late for, allow and exact, on any contract or agreement BILLS OF EXCHANGE AND PROMISSORY NOTES. 96 whatsoever, any rate of interest or discount agreed upon. And by tlio same statute it was enacted, that no bank should stipulate for, take, reserve, or exact, a higher rate of discount or interest than seven per cent per annum ; excepting in case of bills or notes payable at some foreign place within the province, upon which might bo taken, in addition to the dis- count, a sum not exceeding one-half per cent, on the amount thereof, to defray the expense of agency and exchange in collecting. And that all bonds, bills, notes, &c., whereupon any greater interest was received and taken than authorized by law, should bo utterly void ; and that every bank and every corporation, or company, and association of persons (not ijcing a bank authorized to lend or borrow money) which should directly or indirectly take, accept or receive a higher rate of interest, should /or/ee< and fo8e,for every such oiFence, treble the moneys, &c., lent or bargained for. By the 5th section of 29 and 80 Vic, chap. 10, it is enacted, that after its passing, no bank shall be liable to any penalty or forfeiture for usury, but the amount of interest or commission which such bank can receive shall remain as limited as before. The effect of tliis last enactment, has just been considered in the Court of Error and Appeals, in the case of tlio Com- mercial Bank v. Cotton et al., and it was held that 29 and 30 Vic, chap. 10, not only exompts Banking Corporations from liability to the pecuniary penalty, but from the loss or forfeiture of the security received by them for the moneys advanced. However much this judgment may astonish the legislators that passed the act, as well as the mercantile community, it is none the less law by force of this decision, and usury may bo said not to exist. The mere fact of an enactment that banks shall take only seven per cent, interest, without any penalty or forfeiture, amounts to nothing. It is simply say- ing, the Courts will not assist you in recovering more, but get what you can. 96 BILLS OF EXCHANGE AND PROMISSORT NOTES. Transfer of BilU and Notes. — Let U8 consider, first, what instruments are transferable ; secondly, the modes of trans- fer ; thirdly, the nature and extent of an endorser's liability ; fourthly, the rights of an endorsee : fifthly, the liability of a person transferring by delivery ; sixthly, the rights of a transferree by delivery ; seventhly, transfer under peculiar circumstances, and when a Court of Equity will restrain a transfer. , First. — A note or bill in order to be transferable must be made payable to hearer or to the order of the payee, other- wise the maker or acceptor is not liable upon an assignment of the right of action. A person, however, transferring a note not transferable by mere delivery, or by endorsement and delivery, may, however, become liable, as upon a gua- rantee. And as every endorser of a Mil is in the nature of a new drawer, he will be liable to his endorsee upon a not negotiable bill, unless indeed the Stamp Act would be held to intervene and render such endorsement void. Secondly/. — A bill or note payable to bearer is transferable by mere delivery ; but if payable to order, only by endorse- ment ; if it be not payable either to bearer or order, it is only good in the hands of the payee. An endorsement may be either in blank or special. A blank endorsement is made simply by the payee writing his name on the back. A special endorsement, besides the sig- nature of the endorsee, contains a written direction to pay to a particular person, as " Pay X. Y. or order. C. D." The omission of the words, " or order," will not in this case restrict its negotiability ; for its negotiable quality, is one of its incidents, of which it cannot be divested. An endorsement is not complete, any more than an accep- tance, until delivery. An endorsee may convert a blank endorsement into a special one, either in his own favor, or that of a stranger. Thirdly. — Every endorser is liable to every subsequent holder, in case of default by the maker or acceptor. \ BILLS OF EXCHANGE AND PROMISSORY NOTES. 97 A his sig- ay to The case ne of And a subsequent endorser may be liable to a prior one, if it be distinctly proved that such subsequent endorsement was made for the security and benefit of the prior endorser, and that though nominally made payable to the prior endor- ser, it was substantially payable to the subsequent endorser, and the prior was not to become liable to the subsequent endorser, and that this was clearly understood and agreed between them. Any person may avoid liability in endorsing, by simply adding to his name the words " sans recours,*^ or " without recourse to me," which is the proper endorsement for an agent. Also a simple agreement between an endorser and his immediate endorsee, that such an endorsee will not sue the endorser, is valid as between them ; but it is no protec- tion against any subsequent holder. A bill may be endorsed conditionally, as making it depen- dent upon some particular event. Thus, a bill endorsed on such a condition by the payee, afterwards accepted, then passed through several hands, and finally paid by the accep- tor before the condition is fulfilled, the acceptor will bo liable to pay the bill again to the payee. An endorsement admits all the prior signatures to the instrument, and they cannot afterwards be disputed. An endorsement intentionally struck out by the holder, discharges the endorser ; not so, if by mistake. Fourthly ; — An endorsement vests in an endorsee a right of action against all parties to the instrument, and none of them can set up the defence of fraud, duress, absence of con- sideration, or, in general, illegality, unless the holder can be coupled with it. If a party deliver a bill or note, where it was intended that he should endorse, and afterwards refuse to do so, he is liable to an action, and may be compelled to do so, by a bill in equity. . If a bill be re-endorsed to a previous endorser, he cannot, 98 BILLS OF EXCHANOE AND PROMISSORY NOTES. if he was liable upon -his first endorsement, sue the intermedi- ate parties. For they would have an action over against him, which would be an inadmissible circuity of litigation. An endorsement by a trustee in breach of trust, gives to the endorsee with notice of the breach of trust, no right or title against the rightful owner, and it makes no difference whether the trust be expressed on the instrument itself, by a restrict- ive endorsement, or whether it exists by a simple agreement ; actual notice is all that is necessary. Fifthly: — A transfer by mere delivery of an instrument, made or become payable to bearer, does not render the trans- ferrer liable upon the instrument. Nor is he, as a general rule, liable upon the consideration, though such bill or note turn out useless, Dy reason of the failure of the parties to it. There is no implied guarantee of the solvency of the parties to it by such a transfer ; while it is a prima facie sale of it for what it may be worth. But if a bill or note be given on account of a pre-existing debt, it is not considered as sold ; and if not paid at maturity, and if duly presented and notice of dishonor given, the remedy for the antecedent debt revives. A transferrer by mere delivery, does warrant that the bill or note is not forged or fictitious. And if notes or bills are transferred as valid when the transferrer knows they are good for nothing, the suppression of the truth is fraud, and the transferrer is liable. Sixthly: — A transferree of a bill or note negotiable by delivery, who takes it before duo, hon0.fidey and for good consideration, has a right to the property in, and the posses- sion of it. If a bill be payable to order, and not made pay- able to bearer by a blank endorsement, a transferree has no right to the bill, either as against the real owner, or to sue any party upon it. If a bill or note be transferred, when over due, it is said to come to the hands of the transferree " disgraced," and that he BILLS OF EXCHANGE AND PROMISSORT NOTES. 99 takes it at his peril, " subject to all the equities with which it may be encumbered." But the endorsee takes it only subject to the equities attach- ing upon the instrument itself, and he is not affected by those which are collateral to it, or a iietK)ff' from the payee to the maker or acceptor. Seventhly : — A bill or note may be endorsed before made or accepted, and while the note itself is only a blank. If a party venture to sign his name across the back of a blank promissory note, he imprudently places himself in the power of the party in whose hands it may fall. It has been said by Lord Mansfield, that " such an endorse- ment on a blank note is a letter of credit for an indefinite sum," and as such, under our stamp act, requires to be stamped. A bill or note cannot be endorsed for a part of the sum due to the endorser upon it, if the limitation appear in the i endorsement. It can only be endorsed for the whole amount. If a bill or note bo part paid, it may be endorsed for the whole of the balance. A release at maturity, like a payment, extinguishes a bill or note. But a release before maturity, will not act as a dis- charge, as against an endorsee for value, before maturity and without notice. After the death of the holder, his personal representatives are the proper parties to transfer. And the husband of a married woman should endorse bills or notes transferred to her either before or after marriage. A court of equity will restrain the negotiation of a bill or note unduly obtained ; and will also decree them, if void in their creation, to be delivered up to be cancelled. Of the Presentment for Acceptance. — Presentment for acceptance only applies to bills of exchange, and our remarks under this head should be remembered as applying strictly to them. 100 BILLS OF EXCHANGE AND PROMISSORY NOTES. Kit 111 An acceptance is an irrevocable assent on the part of the payee to pay the bill, in money, when it becomes due. It is enacted by 22 Vic. chap. 42, C. S. U. C, " that no acceptance of any bill shall be sufficient to bind any person, unless such acceptance be in writing on the bill, and if there be more than one part to such bill, then on one of the said parts." A holder of an unaccepted bill should always present it for acceptance, without delay; for he thus secures the additional security, if accepted, and if refused the antecedent parties become liable at once. It is not necessary to present a bill payable at a certain time after date for acceptance, in order to hold the drawer ; presentment for payment when due is sufficient, but it should be duly protested, and notice given. If drawn payable at sight, or at a certain period after sight, it must be presented for acceptance, for there is no right of action till such pre- sentment, and unless made within a reasonable time, the ante- cedent parties may be relieved. Presentment for acceptance, as well as payment, should, properly, be always made during business hours, and to the drawee himself, or to his authorized agent. If the holder of an unaccepted bill put it in circulation, and it be kept in circulation from hand to hand, there is no laches in its not being presented even for a year, so as to relieve the drawer. So may presentation be delayed from sickness or other unavoidable cause. There may be an acceptance "for honor," as it is called. Thus, when a bill is in the hands of a payee or endorsee, and the drawee cannot be found, or will not accept, a stranger may, to save the credit of the drawer or some other party, go before a notary, and accept the bill, after it has been pro- tested, for the honor of the drawer, &c. In doing so he writes across the bill, " accepted S. P. (or supra protest) for the honor of A. B.," and signs. , . BILLS or EXCHANGE AND PROMISSORY NOTES. 101 Such an acceptance is a conditional one to pay, if the drawee do not when the bill becomes due ; it is therefore necessary again to present the bill to the drawee when it becomes due. The parties who may accept a bill, are : firsts the person upon whom it is drawn ; iecond, either partner if drawn upon a firm ; thirds if drawn upon several persons, not partners, all must accept ; fourth, a duly authorised agent ; fifth, any person for honor. A bill may be accepted in Vi, general or qualified manner ; the holder may refuse anything less than a general or unre- stricted acceptance. A general acceptance is an unconditional undertaking to pay according to the tenor of the bill. Qualified acceptances are of two kinds ; conditional and partial. Conditional when they make it depend upon some subsequent circumstance or event ; as " to pay as remitted for " or " when consignment of goods sold." A partial ac- ceptance is when the bill is accepted for part ; as a bill for $500, " accepted for $200," part thereof. Or it may be to pay at a different time or place, from that mentioned in the drawing of the bill. It must be remembered that an acceptance will not restrict a bill as to place of payment, unless such acceptance contain the additional words " and not otherwise or elsewhere." All other acceptances being general ones. An acceptance once made and issued cannot be revoked. It admits the drawer's signature and capacity to draw, but not that of an endorser. An acceptor becomes relieved from his contract or acceptance : first, by payment in pursuance to his acceptance ; second, by a cancellation of his acceptance, done by the consent of the holder ; third, by the holder ex- pressly renouncing his claim ; fourth, by taking a co-exten- sive security, by speciality, without recognizing the bill as still existing , fifth, by taking a security from some third party ; sixth, by the Statute of limitations. 102 BILLS OP EXCHANGE AND PROMISSORY NOTES. I ' if; Presentment for Payment. — It is not necessary, except in case of bills or notes payable at or after sight, that they be presented for payment, in order to charge the maker or acceptor. But when a bill is accepted, or a note made pay- able, at a particular place " and not otherwise or elsewhere," it must be presented and payment duly demanded at such place, before either such acceptor or maker can be held liable. It is not necessary that presentmenlj^should be made to the maker or acceptor himself ; it is sufficient if made at the place named. And if not so made it relieves all the parties to such instrument except the maker or acceptor ; unless presentation, or the want of it, is waived by the party to be charged there- by. The bankruptcy, insolvency, removal, or death of the party, is not an excuse for non-presentment. If the party has removed, reasonable efforts should be used to find his where- abouts. And if maker or acceptor die, presentment should be made to his personal representatives, and if he have none, then at his house. If the holder die, presentment should be made by his personal representatives. A bill or note payable upon demand becomes due upon presentment ; and such presentment should be made within a reasonable time, afler receiving it. What is a reasonable time is a question to be settled in each particular case ; but any delay beyond that warranted by the common course of busi- ness, is considered unreasonable. As long as it is kept in circulation, there is no delay ; but a holder must not lock it up and keep it. If a bill or note is payable upon a certain day or event ; or so many days after sight, there must also be added three days of grace, as they are called. And then if the last day falls upon a Sunday, Christmas day. Good Friday, Easter Monday, Ash Wednesday, New Years Day, the Queen's or King's Birth BILLS OF EXCHANGE AND PROMISSORY NOTES. 103 day, or any day set apart by Royal Proclamation for Fasting or Thanksgiving, then upon the next following dajfy not being one of such non-juridical days. If a bill or note specify no time of payment, it is payable upon demand, and should be presented within a reasonable time. All presentments must be made at reasonable hours ; and if at a Bank, within banking hours. In case of dishonor of a bill or note upon presentment, it should be protested at some time, after three o'clock, of the same afternoon, and notices of such protest sent to each of the parties thereto ; which notices are deemed to have been duly served upon the party to whom the same are addressed, if deposited in the Post Office, nearest to the place of making presentment, at any time during the day of making present- ment, or the next juridical day then following. And the pro- test of any bill or note, is prima facie evidence of all the al- legations and facts (such as presentment, dishonor, and no- tice) therein contained. Notice must be more than mere knowledge, though it need not be of a formal character, nor given by a notary. If it come from the holder, or some party entitled as an endorser, and distinctly shows that the bill or note has been presented dishonored, and the party is looked to for payment, it is suffi- cient if it can be proved. The notice should describe the in- strument in a manner sufficiently accurate, that the party can- not be misled by it. Immediately upon receiving notice, the party to whom it was sent becomes at once liable to pay, and be sued upon the bill. A notice is not necessary to hold a party who guarantees a bill or note. A notice may in certain cases be excused or waived. For instance by a prior agreement, on the part of the party other- wise entitled to it, that it be not necessary to give him notice. 104 BILLS OF EXCHANGE AND PROMISSORY NOTES. i It) :il m ! and it has been held evon by implication, as where tha drawer stated to the holder a few days before the bill became due, that he would call and see if it had been paid by the accep- tor." Where the drawer of a bill has countermanded payment, notice to him is dispensed with, though necessary to present, and give notice to other parties. If the drawer had no funds at any time during the currency of the bill, in the hands of the acceptor, and will have no re- medy against him or any other person, it has been said as he will not be prejudiced by the want of notice, he need not re- ceive any. But even though he had no effects in hands of the drawer, yet if he had reasonable grounds to expect it would be honored, ho is entitled to notice of dishonor. If the holder cannot after due diligence and enquiry find a party's address or residence, that will excuse notice so long as that ignorance continues. The death, bankruptcy, or insolvency of the drawee, will not excuse want of notice. But in any case where notice is absolutely impossible it will be excused. The want of notice may alp'^ be waived by a subsequent promise to pay, or a part-payment, or an acknowledgment of liability, though even after action. Such a promise or ac- knowledgment must not be obtained through any misrepre- sentation of the facts on the part of the holder, nor in ignorance of the facts on the part of the party to be charged, or it will he of no avail. ' Although presentment and notice may, as we have noticed, be dispensed with, or waived, yet it should never be done under any circumstance, when it can be avoided. All these excep- tions are questions for a jury, and their verdicts are not always safe. Of Payment. — Payment must be made to the holder of the instrument, or his representative, entitled to receive payment ; for payment to any other person is not a discharge to the u-m BILLS OF EXCHANGE AND PROMISSORY NOTES. 105 maker of a note or acceptor of a bill ; unless the money finds its way into the holder's hands, and he receives it in liquida- tion of the bill or note. A drew a bill upon B which B ac- cepted. A then endorsed it to his banker, who credited him by it. At maturity it was dishonored, and charged to A's account, without being delivered to him. A continued his account, and paid in more money than sufficient to cover the bill, and all the preceding items in the account, though a balance larger than the bill always remained against him, A failed, and the bankers proved the whole of their balance against his estate ; and then sued B upon the bill. It was held that the payments by A did not of themselves discharge B ; but that the bankers having charged A with the bill, and having treated it as paid, B was discharged. If there was a desire of holding B in case of accident, it should not have been debited to A's account. There are cases in which payment to a person, other than the rightful holder, will be a discharge. If a bill or note be lost, or stolen, and such bill is payable to bearer, either from the manner in which it was drawn, or from blank endorsement, payment even to the thief, without suspicion, or reasonable grounds for suspicion of the wrongful possession, is good ; but if such payment be made under suspicious circumstances, or incautiously, it will not discharge the party paying. If a bill or note be transferrable by endorsement only, auvl be paid to a wrong party, it is no discharge ; therefore, the accceptor or maker, should be satisfied, on paying such an instrument, that the endorsement is genuine ; for if forged, or made by an unauthorized person, he may have to pay again. The maker of a note and acceptor of a bill have the whole of the day npon which it falls due, and presentment is made for payment. And payment by the maker or acceptor, fully ex- tinguishes the instrument, and renders it a bit of waste paper. But a bill paid at maturity by the drawer or endorser, is not extinguished, it is simply retired, and still may be recovered from the acceptor. 106 DILLS OF EXOHANQB AND PROMISSORY NOTES. If a bill be paid before it is due, and is afterwards endor- sed over, it is a valid security in the hands of a bondjide en- dorsee ; the payment in such a case, rather taking the char- acter of a discount. A bill or note payable on demand, can never be prematurely p{ud, and a payment on demand of such an instrument, will be good against all parties. Extreme caution should therefore be used in taking such bills or notes, which may be useless. The person paying a bill of exchange supra protest, for the honor of some party to such bill, has a right to recover from the party for whom the payment was made, and from all par- ties from whom that party had a right ; but he thereby dis- charges all other parties. A party paying, should always as a matter of right and caution, upon paying a bill or note, have it given up to him. And if it be mislaid, or lost, he would be justly entitled to ask and receive an indemnity against it in the future. If the holder constitute tnj one of the parties liable to him his executor, and die, the appointment is equivalent to payment and release in law. ' A set-off does not amount to payment except by agreement. A legacy does amount to payment, when it may be presumed to have been the intention of the testator that it should so operate. Appropriation of Payments : — Where a party is indebted to another in several items, it is often important to third par- ties, as well as to themselves, to which of the items a partial payment is to be applied. The rule is this : first, to such as the party paying may direct : second, if no such direction be given, then as the creditor may see fit ; third, if the intention of neither be distinctly shown, the court will appropriate them according to the presumed intention of the party paying ; that is, in discharge of such debts as are most burdensome, as a debt carrying interest, before one not ; a debt with a forfeit- ure or penalty attached, before one of a mere simple-con- BILLS OF EXCHANQE AND PR0MIS80RT NOTES. 107 tract nature ; a debt which subjects the party to arrest, or bankruptcy, before one not doing so ; fourth, if tlie debts are of equal character, then according to their priority in point of time ; fifth, if there bo an open account, then to items according to priority. The lapse of time raises a presumption of payment, and bars an action. Thus six years after right of action has accrued, except in case of bills and notes payable upon a cer- tain time after demand, when twenty years has been held sufficient presumption of payment, to be a defence to an action. A check produced, drawn by an acceptor of a bill upon his banker, and endorsed by the holder of a bill, \b prima facie evidence of payment, unless there hare been a number of transactions between the parties, when it must be connected with the bill by some additional evidence. The mere possession of a bill or note is also a presumption of payment ; except in case of bills in the hands of the ac- acccptor, when it is necessary, in addition, to show that the bill was in circulation after acceptance. It is to bo remembered that a tender of part payment of a bill or note is not good, even to the amount tendered, and it need not be accepted. If the drawer discovers after payment that the bill or check is a forgery, he may, by giving notice on the same day, in general, recover the money back, as paid under mistake. Satisfaction, Extinguishment and Suspension. — There are other circumstances under which a bill or note may be as much satisfied, and the remedies on it extinguished, as by means of payment, strictly so called. Eefore breach, a simple contract debt of any kind may be discharged, without a release or satisfaction. But after breach, there must be one or the other, a release or satisfac- tion. We have before mentioned, that a part payment of a bill or note need never be accepted ; and a part payment by a 108 BILLS OP EXCIIANQE AND PROMISSORY NOTES. party owing a larger sum can novcr satisfy the whole debt ; unless accompanied by some act done, matter or thing, which will render it capable of being as effectual to discharge the party as payment. If for example, A holds a bill against B for $500 — one hundred dollars cannot pay this bill — but if A agrees to take $100, and certain work and labor, or 60 bushels of wheat from B, this will disch|irge the bill, and is called" accord and satufaction.''* In order to be a good discharge of the cause of action, an accord must be executed, that is, performed by the debtor and accepted by the creditor, before it can be set up as a defence ; but a valid executory agreement, that is, one to bo performed, may bo accepted in satisfaction ; the question being for the jury, whether the agreement^ or the performance of it, was accepted in lieu and satisfaction. Ono of several joint-croditors, without the consent of the co-creditors, may accept a satisfaction. Though payment, by the debtor, of a less sum than the debt, is no satisfaction, the reverse may be the case, if the payment be made by a third party. A holds a bill for $500 against B, who is unable to pay. B's father, to assist him, pays A $200, in full satisfaction of the debt. This is a good and complete discharge of the bill ; otherwise it would be a fraud on the father, to induce him to advance money, on the faith , that such advance was to discharge his son from further lia- bility. ■ . , •Reiinquishing a suit, involving a doubtful point, has been held a good satisfaction. So a bill from one of two part- ners may extinguish a partnership one. The liability upon a bill or note will be extinguished if the holder take or obtain a higher security, as a judgment obtained upon such bill or note. But such judgment will not, until actually satisfied, prevent the holder from proceed- ing ar>; inst any of the other parties to the bill or note. Taking a bend, chattel-mortgage, or mortgage of real estate, BILLS OP EXClfANQB AND PnOMISSORT NOTES. 109 rand for the purpose of acting simply as an additional and collateral security, to a note or bill, has frcMjuontly the effect of merging and extinguishing the bill. There is, however, no need of losing the double security and rights if a proper precaution bo taken that the intention plainly appears upon the face of the higher security , il it vma intended as a collateral. If a holder of a bill or note take a now one, or renew it, as it is called, holding the old one, his right of action upon the original bill or note is suspended, until the renewal falls due. In case of non-payment of the renewal, or failure in recovering upon the second, the original may bo resorted to and recover- ed upon. And, although the renewal bo paid, the holder may recover interest upon the original at the time when the second vras given, unless the second was intended as a satisfaction of the whole of the former. After a note or bill has been given, the right of action may be suspended by a binding verbal agreement to renew when due. Such an agreement must not, as wo have noticed, be made contemporaneous with the making, or if made with an endorser, contemporaneous with the endorsing ; for this would be incorporating with a written contract, a verbal couJition, which is contrary to first principles of law, affectmg written contracts. Release : — An express release is an acquittance under seal. A release before a bill or note is due, is good between the parties ; but not against subsequent bond fide holders, without notice, for value. If made after maturity, it is good against all parties ; as subsequent holders taking after maturity, take it with the equities only of the transferrer. A release of one joint maker, or acceptor, is a release to all ; and so is a release to one of several joint and several debtors. In the French law it only liberates the party to whom it is given, discharging him of his portion of the debt. A covenant not to sue, for a limited time, may act as a rc'.case to sureties, but it is not even a suspension of right of 110 BILLS OF EXCHANGE AND PROMISSORY NOTES. action as between the parties, it only gives a right of action for breach of the covenant. A covenant not to sue at all in law amounts to a release ; for with the right of action barred the debt is useless. A release by one of several joint creditors, as partners, is as effectual as a release by all, to an action brought by the other joint claimants. The release of a debt, is a release of the right to hold any collateral security. A party, therefore, releasing a bill or note, may be compelled to execute a release of a mortgage, held by him as a collateral. Principal and Sureties. — The parties to a bill or note, may as in other simple contracts, bear the relation of princi- pal debtor, and sureties. This relationship, as a surety, may attach to a person either by his becoming a party to a bill or note, or by an inde- pendent contract. The maker of a note, and the acceptor of a bill are the principals, and all the other parties are their sureties, but each is a principal to those who follow him. This relationship of principal and security is only important to be recognized and understood, for the purpose of properly comprehending the effect of a discharge or release, to any of the parties, to the instrument. A general rule may be laid down, and it is this, a discharge to prior parties is equally a discharge to all subsequent par- ties, but a discharge to subsequent parties, is not a discharge to prior ones. The reason of this rule is plain ; for if a dis- charge did not so act, the subsequent party might still be sued, and in his turn, again, sue the prior party who had been discharged ; thus by a circuity of action robbing him of all benefit from the discharge. On the other hand, as the prior party has no right over against a subsequent party, he has no reason to complain if a discharge be granted to such subsequent party. BILLS OP EXCHANGE AND PR0MIP50RT NOTES. Ill 13 ■ty, he such There is an exception to this rule, where the discharge is an act of the law and not of the parties. Thus, if the accep- tor of a hill be discharged in i:7Solvency, the holder of the bill may still recover, against the drawer or endorsers ; and this although he may have proved his claim before the as- signee. The holder of a bill or note may be as negligent as he will, in recovering from the party primarily liable, and he will not, by so doing, discharge the subsequent parties ; but if he, for a single moment, suspend his right of recovering against the principal, those liable as sureties are discharged, unless such suspension took place with their sanction. An agreement, however, not to sue for a certain time, with a proviso, that if not paid, the creditor may have judgment as soon as he could by the regular course, will not affect the liability of the sureties. The taking of a new bill or note, (unless it be taken merely as collateral) suspends the right of action upon the first, and thereby discharges the sureties ; but taking a new bill or note against a subsequent party does not discharge a prior one. A voluntary composition accepted from the principal, is a discharge to the sureties. If it be agreed between the holder, and the principal deb- tor, that the sureties shall remain liable, they will so remain ; for it is thus presumed the sureties can at any time pay off the debt, and recover against the principal debtor, and it is on the continuance of this right, that the continuance of the sureties' liability depends. A surety who has paid an over due bill may at once reco- ver from the principal ; and if he pay by instalments, he can bring an action for each instalment. Where there are several sureties for the whole amount, each is liable to the creditor for the whole amount, but among themselves, only for a pro rata share ; therefore if one pay more than his share, he may sue the others for contribution. 112 BILLS OF EXCHANGE AND PROMISSORY NOTES. There is a marked difference in the liability to contribute, in law and equity. It is this : — if one become insolvent, and can pay nothing, each of the others is, at law, only liable to contribute to the extent of his original proportion ; but, in equity, each is liable to the same, or as large a proportion, as if the insolvent had never been reckoned among the num- ber. Interest. — As we have before noticed, usury is, in legal eflfect, abolished ; the law leaving the question of interest a matter of contract between the parties. But when no rate of interest is settled upon, the law fixes it at six per cent. ; and frequently when no time is mentioned, the law will stop and regulate the periods from which it is to run, when it takes the form of damages for the retention of the principal debt. Interest is seldom expressed to be payable on the face of a bill or note, but when it is, it is counted from the date of the instrument. When there is no mention of interest, it is counted from maturity, and in case of a note payable on demand, /ro»i de- mand. And when there is no demand until action brought, interest is given from the service of the writ. Interest is recoverable upon an open account, from the time when a demand of payment is made in writing, informing the debtor that interest will be charged from the date of such demand. Interest runs to the time of payment, but ceases upon a tender being made. ' If a party is liable by agreement to give a note with inte- rest (as for goods sold), he cannot escape his liability to inte- rest by not giving the bill. A surety or party guaranteeing a bill or note is also liable for interest. Where payments are made at different times, and the amount large, the manner of computing interest becomes im- portant. It was decided in Barnum v. TurnbuU 13, U. C. BILLS OP EXCHANGE AND PROMISSORY NOTES. 113 in time such 1 inte- inte- liable the im- F. C. B. R. 277, that the usual mode of adding the interest to the principal, deducting the payment, and charging interest on the balance, could not be adopted ; but that interest ccnld only be computed on balance of principal remaining due six each payment. There are certain damages, in addition to the ordinary six per cent interest, recoverable under 29 Vic, cap. 42, C. S. U. C, upon bills drawn upon persons residing out of the Pro- vince, and upon notes made so payable. These damages are reckoned by way of per centage upon the face of the bill or note, and may most properly be considered of the nature* of a penal interest. If a bill has been drawn upon any person at any place in Europe, or in the West Indies, or in any part of America, not within this Province or any other British North American Colony, and not within the United States, ten per cent. ; and if drawn upon any person in any of the other British North American Colonies, or in the United States, four per cent, upon the principal sum specified in the bill, in addition to the ordinary six per cent, interest. And such aggregate interest or damage, together with costs of protest, &c., as well as the principal money, shall be paid to the holder, at the current rate of exchange of the day when the protest for non-payment is produced and re-payment demanded ; that is to say, the holder of any such bill returned under pro- test for non-payment, may demand or recover from the drawer, or endorsers, so much current money of this Pro- vince as shall then be equal to the purchase of another bill of the like amount, drawn on the same place at the same date or sight, together with the damages, interests, and costs of protesting. It has been held that ten per cent, damages are recover- able upon a bill drawn in Upper Canada, addressed to a person in Upper Canada, and payable in England ; and that six per cent, damages are chargeable upon a protested bill 114 BILLS OP EXCHANGE AND PROMISSORY NOTES. r i drawn in Upper Canada, accepted in Upper Canada, and payable in the United States. In case a promissory note payable only at some place in the United States of America, or in some one of the British North American Provinces not being Canada, and not other- wise or elsewhere, be made or negotiated within Upper Canada, and be protested for non-payment, the holder will, in addition to the principal sum, and the ordinary six per cen- tum interest, recover damages at the rate of four per centum upon such principal sum, to be reckoned from the day of the date of the protest, together with the costs of protest ; and such aggregate amount shall be paid to the holder at the current rate of exchange of the day when the protest is produced and payment demanded, in the same manner as in the case of bills before mentioned. When the parties themselves cannot agree upon the rate of exchange, the holder and the di'awer, maker or endorser,, or any of them interested, may apply to the President, or in his absence the Secretary of any Board of Trade or Cham- ber of Commerce, in the city or town in which the holder of such protested bill or note, or his agent, resides, or in the city or town nearest to the residence of such holder, or his agent, and obtain from such President or Secretary a cer- tificate in writing, under his hand, of the then current rate of exchange, which shall be final and conclusive between the parties, and shall regulate the sum to be paid. Alteration of a Bill, or Note. — According to the general rule of law, all instruments in writing, including bills and notes, are rendered void by alteration in any material part, whether made by a party to the instrument or by a stranger, unless all the parties interested consent to such alteration. When an alteration is made by the consent of all the parties, the original contract is put an end to, and a new one created. Therefore it is more than probable, that an alter- ation of a bill or note, in any material part— such as the date, BILLS OF EXCHANGE AND PROMISSOEY NOTES. 115 :eneral s and part, ranger, iration. all the ew one alter- le date, sum, time of payment, &c. — even with the consent of the parties, would render the instrument void, under the Stamp Act. As alterations in a material part affect all subsequent holders, it is of the utmost importance to a party taking a bill or note, on which any change appears to have been made, to know first, whether it arose from mere accident ; second, whether it is a material alteration. Any alteration made before a bill is perfected, that is issued, or if made to correct an obvious mistake or omission, and in furtherance of the original intention of the parties, it will not vacate the instrument. An alteration by the drawer and payee of a bill, or the payee of a note, though it avoids the instrument, does not extinguish the debt ; but an alteration by an endorsee also extinguishes the debt due the endorsee fr«m his endorser ; for if the endorsee could compel his endorser to pay the debt, the latter would lose the whole amount, as he could not recover upon the bill or note from any other. When an alteration appears upon the face of a bill or note it lies upon the holder, if he sue, to show that it was made under such circumstances as not to vitiate the instrument. A party is not liable upon a renewal bill given for an altered one, unless he knew of the alteration in the original, at the time of giving the substituted one. Forgery and False Pretences. — Forgery is the counter- feit making or altering of any writing with intent to defraud. If any person forges or alters, utters, disposes of or puts off, knowing the same to be forged or altered, any bill of ex- change, promissory note, undertaking or order for payment of money, he is guilty of felony, and liable to imprisonment in the Penitentiary, for any term not less than two yearS) nor more than seven years, or to be imprisoned in any Common Gaol for any term less than two years. A bond fide holder cannot acquire any rights in a forged ^ 116 BILLS OF EXCHANGE AND PROMISSORY NOTES. bill as against the party whose name has been forged ; nor even keep it as against him. Therefore, if an acceptor of a bill, or maker of a note pay to a person who derives his title through a forgery, the payment is no discharge, and he may be compelled to give up the instrument to the true owner, and to pay him the amount. Where a party paying upon a forged instrument, has not been guilty of any want of caution, which it was his duty to exercise, and has not by his conduct aifected the rights of any other party to the instrument, he may in general recover back the money as money paid under a mistake. But where the party paying ought to have ascertained, or is bound to know that the handwriting is forged ; or where by his delay in discovering his mistake, or from any other cause, he has deprived the holder of the means of resorting to other parties on the bill or note, he will not be allowed to recover. The general principle of law, that a mistake to enable a party to recover back money once paid, must be a mistake of fact and not of law^ is applicable to bills and notes. If a party purchases or pays a bill, note, or check upon which a forged addition has been made to the sum, he cannot recover more than the original amount ; unless the forgery has been induced and assisted by the negligence of the party making or drawing the instrument. Limitation of Actions. — Because a party has been over lenient in allowirtg his rights to remain unenforced, it may seem in many cases inequitable that he should be entirely barred from recovering. But as prescription is the original source of all title, so is a limitation in point of time to actions ; the security which a person has against actions, which would endanger his property and rights, when the true and proper means of evidence in his defence may have passed away. A statute of the 21st year of James t> e First has fixed the time upon which all actions on simple contracts, including those on bills, notes, and checks must be brought within six years after the right to bring the action may have accrued. BILLS OP EXCHANQE AND PROMISSORY NOTES. 117 over There are exceptions to this in cases where the t)arty to whom the right of action has accrued is laboring under some disability ; as an infant, married woman, or a person of unsound mind, who has six years after the disability has ceased. Also, when the defendant is out of the country, when the right of action accrues, a party has six years after his return within which to commence proceedings. But where there is a right of action against two or more joint debtors, and one of such parties be out of Upper Canada, a party is not entitled to any additional time, in consequence of such absence, within which to commence and sue any action or suit against thosf of such joint debtors as may be within Upper Canada, at t'>c time such action accrued. And the party so entitled may bring a subsequent action against such joint debtor, as may be so without Upper Canada, at any time within six years after his return. It is generally said that the statute does not destroy the debt, but only bars the remedy. Consequently, a party to rely upon it as a defence, must plead it in a proper manner, and not simply set it up in evidence. In Lower Canada, the eflFect of the law is to go further, and destroy the debt. Therefore, if a note or bill be made payable there, and dishonored, it cannot be recovered upon in Upper Canada, except within five years after the right of action accrued ; although the statute does not bar the right until the expiration of six years. An action may be taken out of the statute first by a suffi- cient acknowledgement, or payment, or by issuing process. An acknowledgement or promise to be sufficient, must con- tain evidence of a new or continuing contract, and be made or contained by or in some writing signed by the party char- geable thereby, or by his agent duly authorized to make such acknowledgement or promise. An endorsement of a payment, written or made upon a bill or note by the holder, or any one for him, is no longer evidence :*' 113 BILLS OF EXCHANGE AND PRUSIISSORT NOTES. against tiie partj to be charged. It must be made by the T>".i'ty making such payment in order to take the instrument out of the statute as to him. The endorsement is, however, only evidence of payment. It is the payment itself of part of the sum that takes the balance out of the statute, and this may be proved by oral evidence. In case of persons liable jointly, or jointly and severally on any bill or note, no acknowledgement, or promise, or pay- ment made by one will bind the others ; unless made by him, as the agent, and with the authority of the others. The statute does not run after the issuing of process, as a writ of summons. And it seems it need not be served, if it only be properly continued as by renewal. Set off. — Set-off is now favored in all cases when practi- cable, for the purpose of avoiding circuity of action. It is only admitted in case of mutual debts ; that is, of ascertained money demands. Hence it follows there can be no set-off tmless the demand the action is brought for, and that sought to be set-off, are both of them for a specific sum of money ; that is, for a sum of money calculated from figures, and not a mere estimation for the opinion of a jury, as in cases of damage. Again, the set-off must be a legal and not a mere equitable debt. A set-off may exceed the plaintiff's claim, when a verdict will be found for the defendant, to the amount of the excess. One judgment may by order of the Court be set-oi" against another when they are substantially between the same par- ties. If a firm sue, only a debt due by the firm can be set-off. So if a firm be sued they can only set-off a debt due to all, but not to one or more of the partners. But the debts and credits of a firm are vested at law in the surviving partner, who is then in the same position as regards set-off, as if the other partners had never existed. In case of insolvency, the right to set-off is of the utmost BILLS OF EXCHANGE AND PROMISSORY NOTES. 119 importance ; otherwise, a person might have to pay the full amount of a debt due from him to the insolvent, and only be able to recover a small dividend upon the debt that might be due him at the same time from the insolvent. But a debt to be the subject of set-off against a claim of an insolvent estate in liquidation, should be one incurred prior to an assignment, or attachment in insolvency, and without knowledge of the intended insolvency. And the party so seeking to set-off should be the real creditor, and not the mere holder of a bill or note, transferred to him for the pur- pose of using for set-off. Loit Bill or Note. — The finder of .a lost bill or note acquires no interest m it, nor right to retain the instrument itself against the rightful owner. But if it be capable of transfer by mere delivery, and be passed to a party who takes it for value, and honftfide, he is not only entitled to retain the instrument, but also to recover from the parties liable thereon. The loser of a bill or note should at once give notice to the parties thereto, and give notice to the public by adver- tisement in some newspaper : for any person discounting it with notice, does so with such strong evidence of fraud that he can acquire no property in it. If a bill or note be lost or destroyed, application must be made to the proper party at the time it falls due ; and give notice of dishonor, as carefully as if the instrument itself had been presented. A party upon demanding payment of a lost bill or note, should be prepared to give to the person upon whom such demand is made, an indemnity against the claims against any other person, into whose hands such bill or note might come. Much difficulty having been met in recovering upon lost bills and notes, it was enacted by 19 Vic, Chap. 43, Sec. 292, that in case any action be founded upon a lost bill or 120 BILLS OF EXCHANGE AND PROMISSORY NOTES. other negotiable instrument, then upon an indemnity to the satisfaction of the Court or a Judge, or any officer of the court to whom such indemnity is referred, being given to the defendant against the claims of any other person upon him in respect of such instrument, the Court or a Judge may order that such loss shall not be set up as u defence in such action. It will be observed that this applies to Actions founded on lost instruments, but if a bill or note be lost after action brought, and the defendant, in resisting the action, puts the plaintiff to prove the bill, it is said the loss may be no ex(!use for the non-production of it. How far a Bill or Note is considered Payment, — A bill or note given, does not act as payment of a pre-existing debt unless it be so agreed. It simply acts as a suspension of the creditor's remedy, and, if he receive the money upon the instrument, or be guilty of negliger 3e, it then becomes a complete satisfaction. If the bill or not' h in the hands of the creditor, over due and dishonored, ho hac his remedy, either on the bill or note, or on the original debt, and though he may have parted with the instrument, he will, in case it be dishonored, still have his remedy for the original debt. If the payment of such a bill be made, not for a past debt, but for an immediate consideration, such as the sale of goods, then and there, the seller is supposed to consent to take the bill in exchange for the goods, and if he has taken a bill without endorsement, h<3 cannot sue the buyer, if the bill turns out worthless ; for the transaction is simply one of exchange, the bill passing with all its faults. The taking of a bill or note from a party bound by con- tract, under seal, does not extinguish or suspend the remedy upon the specialty, unless the bill or note is actually paid ; until then it operates as a collateral. A bill or note accepted from one partner in consideration of a pre-existing partneraliip debt, will discharge the firm, BILLS OF EXCHANGE AND PROMISSORY NOTES. 121 unless there was a distinct agreement that the firm should continue liable. This is because, in case of insolvency of the firm, or death of the partner, the creditor might be in a far better position than he would be if having the firm his debtors, and this advantage amounts to a consideration. If a party having a lien on goods, takes a bill or note for the debt, his lien on the goods is at an end, and ho roust give them to the owner, unless he can hold them under some special agree- ment If the party giving a bill or note knows at the time it is of no value, it will not act, even as a suspension of the original liability, and he is liable to be sued upon the original indebt- edness as soon as the fraud is discovered. A bill, check, or note is earnest, or part payment, within the seventeenth section of the Statute of Frauds, so as to avoid the necessity of a written contract. Foreign. Bills and Notes : — A bill of exchange is prima facie an inland bill ; that is, one drawn and payable within the country. All others may, for our present purpose, be considered foreign. Foreign bills are frequently drawn in sets, or parts, each part referring to the other parts, and cantaining a condition that it shall continue payable only so long as the others remain unpaid. The legal questions arising upon foreign bills, are of the greatest intricacy ; resulting from the country in which the different parties reside, the place where the contract is made, the place where it is to be performed, the place where the remedy is sought, &c. The nature of the present work will not allow a further examination of the law effecting foreign bills, than a mere synopsis of the principles of law to be regarded as effecting them and the rights of parties in reference to them. First, a contract is in general to be regulated by the laws of the country where it is made. Hence any bill or note not valid in the country where 122 DILLS OF EXCHANGE AND PROiMISSORY N0IK9. m raado, will not bo valid liere ; though it might be mado, if here. Secondly, a contract made in one country, to bo performed in another, is deemed to have been made in the country in which it is to be performed. Thirdly, any contract immoral or contrary to the law of nations, or injurious to Uritish interest, though valid whoro made, will not bo enforced in behalf of a guilty party here. Fourthly, one country will not in general regard the revenue laws of another. Fifthly, the remedy will be governed by the la»T of the country where the remedy is sought. The time of payment, including the days of grace, is to bo regulated by the laws of the country where the note is made payable. So must the protest and notice of dishonor bo regu- lated by those laws. But a general acceptance, being a promise to pay everywhere, is governed by the law of the place where given. Though a party be not liable to arrest in the country in which a contract is made, he may be here, if the remedy is sought hero ; this being part of a legal remedy, and not a part of the contract. The depreciation and fluctuation of United States Cur- rency, for the last few years, has introduced a new and important question here in the recovery of bills and notes payable in the United States. The Courts have decided that the amount a party is enti' tied to recover, on such a bill or note, here, is not on the face of the instrument in Canada Currency, nor an amount equa to the face of the instrument,* at the time of judgment in American Currency ; but an amount equal to the face of the instrument in American Currency, at the time the bill or note became payable ; which sum must bo settled upon proof of the rate of exchange or, more properly, price of gold, at that date. DILI.S OP EXCHANGE AND PROMISSORY NOTES. 128 Reme< hj by Action on BilU and Notes : — The holder of a bill or iioto is tlio person entitled at law to receive the raonoy, and the only person who can safely or properly sue upon it. Where there are several parties liable to the holder of a bill or note, he is not obliged to single out any one of such parties, but may proceed at once against them all, at his option. If separate actions bo broughti, no costs, except actual disbursements, can bo recovered in more than one of such actions. If action bo brought against the maker of a note or tho acceptor of a bill, together with tho parties subsequently liable upon such instrument, and such party that is subse- quently liable occupies tho position of a surety for the party or parties primarily liable, he will be entitled, upon payment of the judgment, to have it together with every specialty and other security held by tho creditor assigned to him, or a trustee for him ; and will be entitled to stand in tho place of the creditor, and to use all the remedies, and if need be, and on proper indemnity, to use the name of the creditor, in any action or othor proceeding in law or equity, to recover the money paid upon such judgment. A Plaintiff may bring his action in any part of Upper Canada, in a Court of Record, and without any reference to the residence of the defendant. A tender after a bill becomes due, is no defence by the acceptor. But a drawer or endorser may tender within a reasonable time afler the request. All tenders must be unconditional of the correct amount, and in current funds. If a bill or note be obtained by the plaintiff from the defendant without consideration, the court will stay proceed- ings on an affidavit to that effect by the defendant. But if there are contradictory affidavits filed, the court will decline to interfere in a summary manner, but lot the question of consideration go down for trial before a jury. 124 CONTRACTS OF SALE. :|-ii! :!i;|ii SECTION II. CONTRACTS OF SALE. It is foreign to the present work to treat of contracts by way of Record, or contracts by Deed : therefore our remarks may be considered to apply solely to simple contracts : i. e. contracts by writing or parol. There are no principles of law, which are of such every day occurrence, and which it is of more importance for every one to perfectly understand, and have fresh upoa the mind, than those which govern and operate upon simple contracts — as of bargain and sale. Those principles alone cannot be stated in so elementary a work, but they may be sufficient to protect one from many of the egregious mistakes, that so often take place in the ordinary transactions of every day business. Nice distinctions and subtle principles of law are frequently found in connection with such contracts. But in such cases, no author can be a safe counsel for the non- professional ; the only safety is, and must be found in the advice of a sound and honest lawyer, who has before him all the facts incident to the case. A Sale, is the entire disposition, and passing over of pro- perty, from one man to another, in consideration of a money price. If the consideration is not a cash one, it is a barter or exchange. - There is also a peculiar species of contract, called bail- ment, which it is often difficult to distinguish from a sale or exchange. The distinction generally taken is between an obligation to restore the specific thing, and the duty of re- turning others of equal value. In the first, it is said to be a bailment ; in the latter, it becomes a debt. A contract of sale may be either express or implied. Express contracts are where the terms of the agreement are openly uttered as to pay a stated price for certain goods. ImpUed, are such as reason and justice dictate,^and which, CONTRACTS OP SALE. 125 therefore, the law presumes every man undertakes to per- form : thus, if a man take wares from a tradesman, or goods from a merchant, without any agreement of price, the law concludes that he contracted to pay their real value. Who may Sell. — The general rule is, where a man has in himself the property of the goods, he may dispose of them to whomsoever and in what manner he pleases. If there he judgment, however, against him, and an execution in the hands of the sheriff, the goods are liable to answer the ex- ecution and can oilly be disposed of subject to the sheriff's right to seize by virtue of the execution. Or if a person is in insolvent circumstances or unable to pay his debts in full, or knows himself to be upon the eve of insolvency, makes any gift, conveyance or transfer of any of his goods and chattels, with intent to defeat, delay or de- fraud, or to give a preference to any of his creditors, it is provided by 22, Vic, cap. 26., sec. 18., C. S. U. C, that such gift, conveyance, or transfer, shall be null and void against the creditors of such person. Or if a sale be within the restrictions of the Insolvent Act of 1864, as referred to in a subsequent section, the sale may be void, though the vendor has in himself the property in the goods. Markets overt. — In England there are certain public sales called markets overt, at which a person having no property in the article sold may yet convey a good title to the pur- chaser. We have no such market in Canada, consequently a person must have some title in order to pass the property. Sale hy Common Law. — By the common law, a parol agreement might, in every case, be sufficient to perfect a sale of goods ; and if the vendor tendered the goods, the vendee became liable for the contract price ; and if the vendor tendered the contract price he might recover the goods. Statute of Frauds. — In order to prevent frauds, which frequently occurred, when a contract might depend simply \. 126 CONTRACTS OP SALE. upon some verbal agreement, the Imperial Statute, 29 Car. II., chap. 3, was passed — which statute is in force here, and known as the Statute of Frauds. By the fourth section of this statute it is enacted, " that no action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agree- ment, upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person, thereunto by him lawfully authorized." It has been decided, that under the word " agreement " the consideration as well as the promise must appear. It may be remarked that this agreement need not be contained in a single writing, but may be collected from several. Thus it may be collected from several papers, provided they are sufficiently connected in sense among themselves, so that a person looking at them all together, can make out the connection and meaning of the whole, without the aid of any verbal evidence ; but it is otherwise when such connection does not appeal* on the face of the writings, for letting in verbal evidence to connect them would be introducing the very mischief intended to be avoided by the Act, namely, the uncertainty and temptation to falsehood, occasioned by allowing the proof of a contract to depend upon the recollection of witnesses. By the seventeenth section of the same statute it is enacted that " no contract for the sale of any goods, wares, or merchandizes, for the price of £10 (sterling) or upwards, shall be good, except the buyer shall accept part of the goods so sold, and actually receive the same ; or give something in earnest to bind the bargain, or in part payment ; or that some note or memorandum in writing oi the said bargain be made and signed by the parties to be charged by such con- tract, or their agents thereunto lawfully authorized." This section was held not to extend to contracts for the making and manufacturing of goods, i.e., contracts to make CONTRACTS OF SALE. 127 and and complete, and deliver at some subsequent period, goods not in existence, and consequently not capable of delivery, or of part acceptance, at the time of making the contract ; which were only considered contracts for work and labor, and supply of material, rather than contracts of sale ; where- upon cap. 44, sec. It, Con. Stat., U. C, was passed, follow- ing the Imperial Arc 9, Geo. IV., c. 14, s. 7, enacting that " the seventeeth section of the Statute of Frauds shall extend to all contracts for the sale of goods of the value of forty dollars and upwards, notwithstanding the goods may be intended to be deUvered at some future time, or may not at the time of such contract be actually made, piacured, or provided, or fit or ready for delivery, or although some act may be requisite for the making or completing thereof, or rendering tlie same fit for delivery. It will be observed that the seventeeth section of the Statute of Frauds only refers to contracts of sale, where the value of the goods is JEIO sterling (148.60) or upwards, while our Provincial Statute refers to all contracts of sale where the value oi the goods is $40 or upwards. The rules which govern cases arising under the fourth or seventeenth sections are very analogous. The signature must be by the party to be charged, or his agent thereunto law- fully authorized ; but in neither case is it necessary that such agent should be appointed by writing. So under the seven- teenth section, as well as under the fourth, several documents may be read together as making up the contract. The names of both parties must appear in the statement, as there can be no bargain without two parties ; and so should the price or consideration, if one bo agreed upon. If none be named, the court will assume the parties meant the considera- tion should be what the thing sold is reasonably worth. Acceptance and Receipt. — Where an acceptance is neces- sary under the statute, there must be a delivery of the goods by the vendor, with an intention of vesting the right 128 CONTRACTS OP SALE. 1 1 nil of possession in the purchaser, and there must be an actual acceptance by the latter with the intention of taking to the possession as owner. An acceptance without, as it was, is said to be insuflSc^ont, for the words are " accept and actually receive ;" but the acceptance may be prior to the actual receipt, and need not be contemporaneous with or subsequent to it. There can bo no acceptance while the vendor retains a lien for the price, for a lien necessarily implies a possession of the goods ; nor can there be a full acceptance so long as the buyer continues to have a right to object either to the quality or quantity of the goods ; nor can there be one until the buyer has had an opportunity of judging whether the articles correspond with the order. And it further appears that the purchaser r'ay use a part of the goods for the purpose of ascertaining their quality, and yet there will not be an acceptance. If the goods be pon- derous, and be incapable of being handed over from one to another, there need not be an actual delivery, but may be one by what is tantamount ; as by the delivery of the key of the store-house in which goods are lodged, or some other indi- cia of property as the bill of lading. Acceptance of a sample which is to be accounted part of the commodity is suflScient, though acceptance of one which is to be no part is not so. Delivery to an agent or carrier appointed by the vendee is sufficient. Where different classes or lots of goods are jointly ordered, acceptance of one is an acceptance of all. There may also be a comtructioe accoptanc.e where a party receives goods, and does not advise the vendor of his refusal to accept within a reasonable time. Earnest or Part Payment. — Earnest is given by the buyer and not the seller, and the part delivery of the goods is not by way of earnest as is sometimes thought. It is either money or something given to bind the bargain and to show that it is concluded, and no longer remains in mere proposal or in fieri. If given in money, it presumably forms CONTRACTS OF SALE. 129 of part of the price, like a deposit at an auction. If it be some other article, it is in the nature of a pledge. The old North of England custom of %triking a bargain by drawing a shilling across the hand, is not suflScient, nor is an understanding that the vendor ahall take in part payment a smaller debt due from him to the vendee, in itself sufficient part payment to dispense with a writing. What Note is a sufficient Memorandum under Section 11 tk. — A mere offer made by one side and not accepted by the other is not sufficient : as if A write to B that he will buy his horse for one hundred dollars, if warranted sound and quiet in harness, to which B replies he will send him and warrant him sound and quiet in double harness ; this is no con- tract, the proposal of A not being completely accepted. Where there is an insufficient memorandum such as an un- signed order for goods, a subsequent letter, signed by the defendant, referring to the order, is sufficient. Where the buyer, after an oral contract, receives, without objection, an invoice or sold note signed by the seller, differing from the contract, he cannot, in a case within the statute, set up the original terms to contradict the invoice or sold note. The contract as made must stand, it cannot be altered though it may bo completely rescinded by a subsequent parol agree- ment. We have already seen that if there be a stated price it must appear in the writing. And signed hy the Parties to be charged. — It is not neces- sary that the note or memorandum should be signed by both parties to the contract. It is sufficient if it be signed by the party to be charged, and it makes no difference if there be no remedy against the party who does not sign. It is quite immaterial whf>re the signature is placed in the document, it may be at the head as well as the foot of the instrument ; for instance I, A B agree, or A B agrees, is sufficient, although the document is not signed. It would, however, be different if a signature at the end of the instrument was I I' ill 1 130 CONTRACTS OF SALE. ill manifestly intended, in order to its completion as if it con- cluded " As witness our hands." The signature may be printed as well as wiittenif the person is in the habit of doing so, thus the signature that usually appears at the top of bill heads is sufficient to bind the vendor. A signature by ini- tials is not sufficient, though where a person cannot write, a signature by mark, if properly identified, may be. Or by their Agents. — An agent, to bind a party by his signature, must be some third person, and not the other con" tracting party ; and to bind under the statute of Frauds now being considered must be " thereunto lawfully authorized.^* A parol authority is sufficient, and although the agent may not have authority at the time of signature, it will be suffi- cient if the principal subsequently recognizes the agent's act, and adopts the contract. An auctioneer is an agent for both parties, and as such binds them within the statute : therefore, where an auctioneer writes down the buyer's name, in the catalogue, opposite the lot, together with the price paid, it is a sufficient memoran- dum ; so where a broker is the agent of both parties, he may bind them by signing the same contract on behalf of the buyer and seller. Ordinary contracts of Buying and Selling^ duly authentica- ted in the mode previously pointed out, may operate as a direct transfer of the ownership and right of property in the thing sold, to the purchaser, and that in the price to the vendor ; or may amount only to an agreement for a future transfer, giving the purchaser a right of action against the vendor for a breach of contract, but not afiecting any altera- tion of ownership. When the bargain operates as a transfer of ownership and of right of property in the thing sold, the sale is a perfect and complete sale, and the goods remain at the risk of the purchaser, who in case of accident may be compelled to pay the price, although he can never have the thing for which he agreed to pay. CONTRACTS OF SALE. 131 hentica- te as a in the to the I future inst the altera- transfer lold, the remain may be lave the Duties of Vendor. — First, to deliver the goods as soon as the purchaser has performed all conditions precedent on his part, and may, if he refuse to do so, be sued either specially for non-performance of contract, or in trover for the goods themselves. An actual delivery may be excused, if the vendor has offered to deliver, or the purchaser has dispensed with a delivery, or has made it an useless and idle form to attempt to deliver. Goods are delivered when they are placed in the vendor's power, when he may immediately remove them, and cannot be rightfully prevented from so doing ; thus if the goods be in a stranger's close, and that stranger have licensed the vendor to remove them, that is a deUvery, for the license is irrevocable. The vendor, when no time is mentioned, has a reasonable time to deliver in, and wha' is a reasonable time is a question of evidence, depending upon the circumstances of each case. If it be specially mentioned that the vendor shall send the good's, that means within a reasonable time. It was also once considered that the delivery should be made at a reasonable hour, in order to discharge the vendor's duty ; but it is now decided that an actual tender of the goods to the purchaser, if he be at his warehouse, at any hour of the last day, which will allow him time before midnight to examine, weigh, and receive them, in the absence of any special custom, will be good ; but the purchaser is not bound to remain at his ware- house after a reasonable time before sunset to allow of the examination. Duties of Purchaser. — The principal duties of a purchaser are to receive the goods and pay for them, in pursuance of his contract. In the absence of special stipulations, the condition precedent upon the vendee's part is readi- ness to pay the price, and of this readiness a demand of the goods, even though mad by a servant, is pima facie evidence. When the goods are sold for a bill, the bill should be tendered ; but the word bill does not mean an approved 132 CONTRACTS OF SALE. ; >i HI ' one. And if an approved bill is mentioned, that means one that no reasonable objection can he taken to it. When goods are sold on credit, the vendor may be compelled to do- liver them without payment or tender of the price ; but the vendee's rights are not indefeasable, but will be defeated if he become insolvent before receipt of them. If a purchaser give a limited order for certain specified goods, and the sel- ler sends those and others from a distant place in one pack- age, charged at a lump sum, the purchaser may repudiate the whole and refuse to receive the package. Neither need a party accept articles tendered in closed packages, so as to prevent inspection, for it is no tender in law. If the goods were to be of a particular description, the vendee has a right to inspect the article tendered, and refuse to accept, if not according to agreement or sample, and may, if prevented from doing so, rescind the contract. 80, if he order several things at the same time, he may regard the contract as entire, and object to receive some of them without the rest ; but if he accept one singly he severs the contract, and cannot object to receive another singly. Implied Warranty. — There are many cases in which a warranty on the part of the vendor is implied in law. Where the sale is of any particular class and description of goods to be selected by the vendor, and not of any particular ascer- tained parcel of goods, there is an implied undertaking that the goods furnished fairly answer the description given him. If a person describe an article falsely, and through such false representation sell it, he is liable to aa action for breach of an impUed undertaking, to furnish an article corresponding with the description. If the vendor is informed that an article of a certain quality, character, or description, suited for some specific purpose, is required, the law implies a promise from him that he does not, at least at the time of sale, know that the article is not of the requisite character and quality, and that it is CONTRACTS OP SALE. 188 unfit for the purpose for which it is required. A manufac- turer is presumed to have a reasonable kno":vledge of the article ho makes ; and the law implies a proruise or under- taking from him, that all goods manufactured and sold by him for a specific purpose, to be used in a particular way, are reasonably fit and proper for the purposes for which he professes to make them, and for which they are known to be required. Very slight expressions made at time of a sale may bo held to be warranty ; if it can be made appear that th3y were so intended, but any warranting aftor sale is void, or want of consideration. Defects that are visible to the eye, and equally apparent to the purchaser as the seller, are not the subject of implied or general warranties, as they are not the subject of deceit or fraud, and the warranty can only be intelligibly con- strued, as saving those manifest defects, se';n and contem- plated by the parties. Damages. — In an action for not accepting goods, the difference between the contract price and the market price on the day the contract was broken, is the ordinary measure of damages. And the ri(];ht to re-sell (though not the obligation to do so) exists in all cases of sale, where the vendor wrongfully refuses to receive, and there is no express stipulation precluding such right. Whore goods were to be delivered at a certain time, and while on their way the ven- dee gave notice that he would not accept, the measure of damages was held to be the difference between the contract and the market price, on the day fixed for the delivery, and not that on the day on which the seller received the notice. If a party has ordered goods, an^^en wrongfully countermanded the order, and thereupon the manufacturer ceases to manu- facture them, he is entitled to damages for the go -aS in hand and to such profits as he would have made if the contract were carried out. If the vendor has performed his part of the contract m full, 184 CONTRACTS OF SALE. and the vendee refuse to accept the goods, the vendor may either sue him specially upon the contract, or (if the proper- tv has passed) for goods bavgained and sold, in which latter form of action he will recover the price, while by the former but the amount of damages actually sustained. If the goods were to be delivered at a stipulated place, the vendor, before suing for the price, must tender them there, unless the vendee has refused, or put it out of his power to complete his contract. If there is no place of delivery mentioned, it is the vendee's duty to fetch them, and if they are to be forwarded by a carrier, the vendor must enter them so that the carrier may be liable for them if lost. Fraud and Illegality. — If a contract has been obtained by fraud or deceit, all those of the contracting parties who have been parties or privies to the fraud will not be allowed to Sue upon it. It matters not whether the fraud consists in a wilful misrepresentation, or an intentional concealment by one of the contracting parties, of circumstances material to be knowc, and which ought, in good faith to have been disclosed. A mere misrepresentation or false statement, not amounting in law to a warranty, is not fraudulent and will not vitiate the contract, unless the party knew it to be untrue at the time it was made, and there was consequently an intention to deceive on the part of the party making it. But if the means of knowledge are peculiarly within the reach of the vendor, and he pretends to have informed himself about it, when in reality he knows nothing at all about it, he does, in fact and reality, wilfully make a representation which he knows to be false, and is in principle guilty of wilful deception and fraud, or ii he makes a r^esentation, not knowing at the time whether it is false or true, it is fraud, if in point of fact it turns out to be false ; for it is equally false and fraudu lent for a man to affirm his knowledge of that he knows nothing of, as to affirm that as true which he knows to be false. He is presumed to warrant his knowledge of the fact and it is his want of knowledge which constitutes the fraud. CONTRACTS OF SALE. 186 A representation, moreover, frequently amounts to a mere statement of the party's own opinion and belief upon a matter concerning which the other contracting party is to exercise his own judgment, and does not amount to a positive affirm- ation or statement of fact. The ordinary praise or com- mendation made by the vendor upon the wares he sells, though embodying statements of fact, known by the party making them to be not strictly true, does not vitiate the contract of sale. They are looked upon as mere puff a. A mere concealment of the truth may alone, in certain cases, and under certain circumstances, amount to fraud. Thus, if a debtor induces his creditors to compound their claims, and execute a deed of composition for their several debts, by concealing from them the true state of his affairs, and withholding information which ought to be given in good faith, the deed will be void, and the creditors will be remitted to theii' original rights, and will be entitled to sue for the full amount of their several debts. If in sales of manufactured articles, provisions, &c., the vendor is cognizant at the time of sale of latent defects, materially lowering their value, and rendering them totally unfit for the purpose for which they are known to be required, and neglects to disclose such defects to the purchaser, he b guilty of fraudulent conceal- ment. As fraud vitiates all contracts, it is a sufficient excuse ior the vendee to be off and refuse a performance on his part of the contract that the vendor has been guilty of fraud ; thus, if puffers are employed at an auction to enhance the price, with- out a notice being given of an intention to do so. Though a vendee who has been imposed upon, has in every case a right to repudiate the contract, and may, if ho have paid his money, recover it back again ; yet he must elect to avoid the contract as soon as he discovers the fraud ; if he lie by and treat the property as his own, he will be considered as having elected to confirm the transaction ; and even though he 186 CONTRACTS OF DEBT. subsequently has discovered a new incident in the fraud, for that docs not give him a new right to rescind, but merely strengthens the evidence of the vendor's dishonesty. Wo have already noticed what contracts are illegal — either from being contrary to public policy, or statutary enactments, or from being of an immoral character. We have now only to mention that either party to a contract may excuse him- self from it by showing that it is illegal, and it will make no difference whether the illegality exists in the consideration, or the promise based upon the consideration. 8KCT10N III. CONTRACTS OF DEBT. .1 Contract of Belt, may bo that whereby a right to a cer- tain sum of money is mutually acquired and lost. It includes CYcry contract whereby a determinate sumof money becomes due to any person and is not paid, but remains in action merely. Duti/ of Debtor. — The debtor should, generally speaking, before demand made, or action brought, tender payment ; but when the creditor has marked out the mode of payment, it is sufficient to follow his arrangements. And where the parties have agreed on a particular thing as payment, whether it be lands, goods, labor, or a bill, or note, and the agreement has been carried into execution, it is in ofi'ect equal to a pay- ment in money. The tender must bo made to the creditor himself, or some person duly authorized to receive it. In the absence of directions from the creditor, there must be a tender of the debt by an actual production and offer of the sum due ; un- less the creditor dispense with it by a declaration that he will not accept it ; and this tender must be of money. The tender of a larger sum than that 'due is good, but not so if change is demanded. Nor is a tender good if accompanied C0NTRACT8 WITH CARRIERS. 187 with a condition ; as that a bill bo doliverod up, or a receipt in full bo given. Nor should a tender be made in such terms as would compel the creditor to make any admission. Although a bill or note is not generally payment, except by special agreement, yet if the creditor negotiate the bill or note for value, and without rendering himself liable, it will operate as payment, though dishonored. It has been held, that where payment is to bo made by a bill or note, payable at a certain period, the creditor cannot, even if the bill or note be not delivered according to agree- ment, commence an action on the consideration, till the expi- ration of that period, though ho may sue in the meantime upon the special contract, and complain of the non-delivery of the bill or note ; and where goods were sold at six month's credit, payment then to bo made by a bill at two or throe months, it was considered in effect, nine month's credit. Dnty of Creditor. — Wo have already noticed that it is the duty of the creditor to receive payment. The conse- quence of refusing payment when tendered, will be, that if he afterwards commence an action for the amount, the tender accompanied by a payment ot the sum paid into court, will be a good defense, unless the creditor can prove a prior or subsequent demand and refusal. Such a tender will also prevent interest from afterwards running against the debtor. A receipt is not conclusive evidence of payment as against the creditor ; unless it be by deed. SECTION IV. CONTRACTS WITH CARRIERS. A common carrier is one who undertakes for hire, to carry goods for such as choose to hire him, from place to place. Railways or steamboat companies are common carriers with regard to the goods which they convey, unless the Acta constituting them, limit their liability. Mis 138 CONTRACTS WITH CARRIERS. Common Law Liahility. — It is the duty of a common carrier to carry the goods of all persons offering (for there need not be an actual tender) to pay the charges, unless his carriage be full, or the goods are of a character that render them liable to extraordinary danger, or such as he is unaccustomed or unable to convey. He is also bound to take proper care of them while in his charge, to carry them by the route which hfe professes to be his route, and to use due diligence in de- livering them, having reference to the means of conveyance at his disposal. He is, also, the insurer of the goods against all accidents, except the act of God, or the Queen's enemies ; and it makes no difference whether the loss occurs from acci- dent, robbery, violence, or the negligence of third persons. This Kability continues up to the time of the delivery of the goods, unless, as often happens, they continue in his possess- ion after the journey, under a contract expressed or implied by the nature of his employment, or the circumstances of the case, which alter the nature of his employment, and conse- quently his liabilities in regard to them ; for instance, if upon their arrival at their destination he agrees to hold them as a warehouseman or wharfinger. Carriers by sea are not liable for losses by piracy ; as there is very little possibility of collusion between the carrier and the pirate, and a contrary rule would have tendency to check commercial enterprise in that way. Special Agreements. — The common law liabilities being so general and strict, whore there was no special agreement between carriers and their employers, special contracts and terms were soon introduced, and have now become general, to limit this liability. These special terms generally are made known by posters, advertisements, or printed stipulation in the body of, or upon the back of freight or shipping bills. These special terms should be carefully regarded, for they will, if consistent, be held to free them from damage or loss sustained, without fault upon the part of the carrier ; but if CONTRACTS WITH CARRIERS. 139 he be guilty of wilful misconduct, or gross negligence, he will be chargeable with damage or loss occasioned thereby, and his notice or special agreement will not be permitted to Umit his liability. Common carriers are also in the habit of making special agreements, in the same manner, for a premium in proportion to the risk incurred, where goods are of a peculiar character or great value. If such notice or conditions can be brought home to the knowledge of the employer, his consent to its terms are implied, and the carrier becomes entitled to the protection for which he stipulated ; but the carrier will be held liable for the apparent value of the goods at the time of their shipment, unless his employer's misconduct was to some extent conducive to the loss. The question frequently arising, in practice, whether car- riers who have received a parcel of goods to be carried to a point beyond that to which their own means of conveyance extends, are liable as carriers for loss beyond that point, or are to be looked upon as mere agents for the purpose of carrying to the end of their route, and em '^ying fresh agents at its termination to complete the journey. This is often a question of fact for a jury, but the tendency of the courts is to hold them liable as carriers. Evidence of the Contract. — The contract implied from the delivery and acceptance of the goods to and by a party in his capacity as carrier, is to charge a reasonable reward for the conveyance ; and if a carrier refuse to carry and deUver, except upon payment of an exorbitant charge, the excess, if paid, may be recovered back. But it is competent at common law, to make a previous special bargain in each case for the rate of charge, and thus such agreement has the full effect of a contract, and the parties must be strictly guided by it. Damages. — The proper person to claim damages is the person in whom the property was vested when lost or damaged. Hence the consignee is usually the proper plaintiff, because 140 Contracts of affreightment. delivering of goods to the carrier commonly vests the pro- perty in the consignee. But if the consignment does not change the property, as where goods are sent on approval, or are to be delivered free of charge at the place of business of the purchaser, the consignor is the party entitled to recover damages. The amount of damages must be measured by the ordinary consequences of a breach of contract or duty, such as both parties must be supposed to have contemplated. If here goods are sent from A to B and are lost, the con- signee is entitled to their value at B as distinguished from the place where they were delivered to the carrier. Specu- lative or trade profits which might have been enjoyed can- not be recovered as damages. Thus where, owing to the delay of a month in the delivery of cloth by the defendants, (common carriers), which the Plaintiff wanted immediately to make up into caps, the PlaintiflF lost the season, it was held that he could not recover as damages the loss of the profit he would have made by the sale of the caps, but that be could recover the amount of depreciation in the market value of the cloth owing to the lapse of the season. SECTION V. CONTRACTS OF AFFREIGHTMENT. Contracts of aifreightment, though confined in their mean- ing to the carriage of goods in vessels, possess most of the characteristics of contracts with common carriers by land. There are two classes of contracts of this description : — 1. Contracts of affreightment by a charter-party. 2. Contracts for the conveyance of goods in a general ship. Affreightment hy Charter-party — Is when the entire ship or some specified part of it is let for the conveyance of goods, for some specified period of time, or for a particular voyage. The customary stipulations on the part of the shipowner or CONTRACTS OP AFFREIGHTMENT. 141 master are, that the ship shall be tight and sta unch, and well equipped and manned, and furnished with all the necessaries for the voyage ; that she shall be ready by the day appointed to receive the cargo, and shall wait a certain time to receive it on board, and shall then sail with the first fair wind to the destined port, and there deliver the goods in proper or ler and condition to the order of the charterer ; and that during the voyage the ship shall be tight and staunch, and furnished with sufficient men and necessaries, to the best of the owner's endeavors. The charterer's usual covenants are to load the vessel within a fixed or reasonable time, after she is ready to receive her cargo ; to unload within a certain number of days and to pay freight. When the master of a vessel undertakes to carry freight, 'i- impliedly contracts that his vessel shall be seaworthy and '1« for the purpose. Also when there is no stipulation as to timo, he must sail within a reasonable time, and proceed without deviation to the destined port, otherwise he will be liable to the plaintiff for loss occasioned thereby ; even though the loss be occasioned by the perils of sea, if the deviation has been the proximate cause. The charter-party usually contains a clause exempting the charterer from liability, in case of being prevented from per- forming his contract, by certain specified causes, — as, the acts of God, the Queen's enemies, fire, and the dangers of the lakes, rivers and navigation, and such restrictions of common law liability as the parties agree upon. The merchant usually covenants to load and unload within a certain time, or, if he detains the ship a longer time, which sometimes he receives liberty to do, to pay a daily sum, which, as well as the delay itself, is called demurrage. This stipulation must be strictly performed on both sides. With respect to the time allowed for loading and unloading, the merchant must pay demurrage for any delay beyond the arranged period, though not attributable to his fault, but to some 142 CONTRACTS OP AFFREIGHTMENT. unforeseen impediment to her loading or unloading, such as the crowded state of the doc'is ; for he has expressly engaged and is bound by his contract. But if the owners interrupt the loading or unloading by their wrongful interference or act, they are not entitled to receive demurrage for any addi- tional time occasioned by such wrongful interference or act. The time allowed for unloading is not to be reckoned from the arrival of the vessel at the entrance of the port, but at the usual place of discharge. The claim for demurrage ceases as soon as the vessel is loaded, and none can be claimed for subsequent delay occa- sioned from the state of the port, nor from tempestuous wea- ther, nor though the vessel set out and be driven into port again. In contracts of charter-party it is often important to deter- mine whether the possession of the ship passes to the merchant, so as to constitute him an owner, for the purposes of the charter, and cause the general owner to stand to him in the position of a lessor, rather than a carrier. On this important question may depend the owner's right of lien for freight. It is iiflpossible to lay down any general and safe rule for its solution ; it must be gathered in each case from the terms of the instrument, creating the charter-party, or its purposes and objects. The greatest care should therefore be exercised that the relation of the parties distinctly appear upon the face of the instrument. It has been held that a person may be owner for the voyage, who by a contract with the general owner, has the ship for the voyage, and has exclusive possession, command and navi- gation of the vessel. But where the general owner retains the possession, command or navigation of the ship, contracts to carry a cargo or freight for a voyage, the charter-party is considered as a mere aifreightment sounding in covenant, and the freighter is not clothed with the character or legal res- ponsibility of ownership. In the first place the general CONTRACTS OF AFFREIGHTMENT. 143 freighter would be responsible for the conduct of the master and crew during the voyage ; in the latter case the responsi- bility rests on the general owner. Also where the owners were to keep the vessel in order and the charters to pay all wages and disbursements, it was held that the owners continued in possession of the ship, and liable for mischief done by the crew. Affreightment in a general Ship. — Where the use of the entire vessel, or a certain amount of storage therein, is not contracted for, but merely packages of goods sent on board to be conveyed to the port of destination, and the master or some person acting for him gives a receipt or bill of lading, it is affreightment in a general ship. The bill of lading is really the contract in such cases exist- ing between the shipper and the master or owner of the vessel ; it is usually executed in three parts, one of which parts is retained upon the vessel, and two delivered to the shipper, one of which he sends to his consignee, and the other keeps for his own security. The bill of lading is generally a partly written and partly printed memorandum, signed by the master, acknowledging the shipment of the goods on board, and promising to deliver them at the port of destination, to a person named as the consignee or his assigns, on payment of freight primage, ave- rage, &c., with a protective clause from the act of God, &c., as in a charter party. This bill is usually assignable by a mere endorsement and handing over to some other person, who then stands in the position of, with all the rights of, the original consignor as to the property in the goods. It is the duty of the master to deliver the goods upon the presentment of the bill and payment of the freight, &c., and if the bill and payment are not tendered within a reasonable time, he is not bound to keep the goods for an indefinite time on board his vessel, but may deliver them to a trustworthy 144 CONTRACTS OP AFFKJ. iHTMENT. ■wharfinger or person, as is the usual custom, to be kept until presentment of the bill, and offer to pay the freight and charges. According to the English decisions, though the consignee named in the bill of lading should become insolvent, without having paid for the goods, yet his assignment made for valu- able consideration, and without notice to the assignee that the goods were not paid for, or that they were paid for by bills sure to be dishonored, has been held to pass them absolutely to the assignee, and deprive the consignor of his right to stop in transitu (a right hereafter to be noticed), which as against the original consignee he might have exercised. But if the assignee have not acted bond fide ; for instance, if he knew that the consignee was insolvent, and assisted to defraud the consignor of the price of his goods, he stands in no better situation than the consignee ; and if there be any condition either in the bill of lading or in the endorsement thereof, ex. gr., if the goods are to be deWvered, provided A B pays a certain draft, all subsequent endorsers take subject to that condition. The full effect of an endorsement and transfer of a bil! of lading seems to be a symbolical delivery of the goods, and capable of operating no further than a delivery of the goods would have done. If therefore the consignee could not transfer a good title, although in possession, to a bond fide purchaser, his endorse- ment and delivery of a bill of lading will not bo allowed a greater effect even in favor of an innocent party who has paid value for it. Payment of Freight. — When the goods have been carried and delivered according to contract, the merchant must pay freight, according to the agreement of the parties, or if no rate be specified, then for the value of the services performed, estimated according to the usage of trade in like cases, or by the course of former dealing between the parties. CONTRACTS OF AFFREIGHTMENT. 145 In addition to the ordinary remedy by action, the shipowner has a lien on the goods for his freight. The terms of the bill of lading may, however, be such as to waive the lien, as where the freight is to be paid at the port of lading, or by the shipper at a given time after sailing, ship lost or not lost. There are certain other charges, such as primage, average, &;c. Primage — Is a small customary payment to the master of the vessel for his care and trouble in taking charge of the cargo. This claim we believe is seldom or ever made in our inland navigation. Average — Denotes several petty charges, such as towage, beaconage, pilotage, &c. General Average. — Where damage or loss is incurred by a particular part of the ship or cargo, for the preservation of the rest, it is called general average. But it may be more clearly understood when defined to be the contribution that the owners of the ship and cargo and freight are called upon to make, for the purpose of recompen- sing a party whose goods or property have been sacrificed for the general safety. Thus, when for the safety of the ship in distress, any des- truction of property is incurred, either by cutting away the masts, throwing goods overboard, or other means, all persons who have goods on board, or property in the ship, must oon-. tribute to the loss according to their average, that is the goods of each on board — everything saved pays according to its value: the shipowner contributes in proportion to the value of the ship and furniture, excepting the provisions of the passengers and crew — the passengers and owuots of goods shipped in proportion to their value, and the owners of the freight and earmngs of the ship after deducting the wages and expenses of the voyage. In order to establish a claim for general average, it must be shown that the goods were thrown overboard in a moment of distress and danger, for the purpose of preserving the ship 146 CONTRACTS OP AFFREIGHTMENT. and cargo. All ordinary losses and damage sustained by the ship, happening immediately from the storm or the perils of the sea, must be borne by the shipowners. But all those articles which were made use of by the master and crew upon the particular emergency, and out of the usual course, for the benefit of tho whole concern, and the other expenses in- curred, must be paid proportionably as general average. Thus it will be seen that it is only a voluntary injury to the vessel, or destruction of goo'^s, for the general preservation and benefit of all, that creates a liability to general average. Salvage. — In order to encourage persons to lend their aid and assistance for the protection and preservation of property from shipwreck, Lhc law gives to parties by whose labor and assistance the property has been saved, a right to a fair and reasonable compensation for their services, and a right to retain the property until they have received it. This compensation is called salvage, and the amount payable depends upon the value of the things saved, the degree of danger of loss, and tlie amount of labor and skill employed in saving it. A man cannot entitle himself to salvage in respect of ser- vices rendered contrary to the expressed wishes and directions of the owner, and has no right to interfere with persons em- ployed to save the property. A passenger is not entitled to claim salvage in respect to assistance which it is the natural duty of all on board to give in case of distress ; but for extraor- dinary services rendered and dangers incurred for the pre- servation of property, the passenger is equally entitled with the stranger. Neither can a person such as an oflScer or sea- man upon the vessel, whose duty it is to do all in his power to save the vessel and freight, claim any salvage for rescuing her. If he could, it might act in some cases at least, as an inducement to endanger the vessel, upon the venture and hope of securing salvage in saving her. MARITIME LIENS. m SECTION VI. MARITIME LIENS. Bottomry — Is an agreement whereby the owner of a ship or his agent undertakes to repay with interest, money advan- ced for the use of the vessel, if the vessel terminates her voyage successfully, and binds or hypothecates the vessel for the performance of the agreement, by a bond or deed poll called a bottomry bill. Respondentia — Is an agreement or contract similar to that of bottomry, except the lien is given upon the goods and mer- chandize laden upon her, and not upon the vessel herself. Character of the Liens. — These liens differ from most others in the risk the party advancing has to run ; as the condition is, if " the vessel terminates her voyage successfully ;" and in the high rate of interest he consequently receives. These contracts are entered into by the owner or the master acting as agent — most generally by the master in charge. The master's authority to thus hypothecate the vessel or cargo, arises only upon the utmost necessity ; as when in a foreign or distant port, and unable to correspond with the owners, he can by no other means raise money to repair or furnish his vessel, or to enable him to carry out his voyage, and without it the adventure would be frustrated. It is not until all other means of obtaining necessaries fail that he has authority to hypothecate the ship, and to give a maritime interest, which is in effect defeating the object of the adventure and transferring to the creditor much of the profits of the voyage. No debtor to the vessel can make advances upon a bot- tomry bond ; but the consignee of the cargo may if lie can fully establish the fairness of the transaction. Where several bottomry bonds have been given upon the vessel by the master at different periods during the voyage, those of the latest date have the priority of payment, oh the 148 MARITIME INSURANCE. supposition that the last bond operates for the protection of the prior interests. A bottomry bond also executed under the pressure of necessity at a foreign port will supersede a previous mortgage of the vessel, so as to be entitled to priority. SKCTION Vlf. MARITIME INSURANCE. The Contract of insurance is a contract whereby one of the contracting parties agrees to take upon himself, and protect the other from the risks and accidents to which any particu- lar property is exposed, in consideration of a certain premium, the price of the risk. Maritime insurance is where a merchant gives a premium to others t*^ insure his ship or goods from one port or place to some other port or place, upon such terms and for such premium as may be agreed upon. If the ship or goods are lost in the whole, or part, or damaged, every subscriber is to make a recompense either to the full extent of the insurance or in proportion thereto, depending upon the loss. In case of loss the insured may be called upon to prove the following facts, which should be carefully considered and regarded ; viz., the execution of the policy ; the interest of the party as averred ; the putting of the goods, &c., on board when the policy is on goods ; the inception of the risk : com- pliance with warranties ; a license for legalizing the voyage in some cases ; the loss ; and amount of it. The Policy. — It may be a voyage or time, valued or open policy. When the insurance is on a voyage from port to port, without reference to time, it is called a voyage policy ; when it is from one fixed period of time to another it is a time po. licy. When the value of the property insured, as between the insured and the insurer, is expressed upon the face of the policy, it is a valued policy ; and when it is not so expressed, MARITIME INSURANCE. 149 but left to be estimated in case of loss, it is called an open policy. Valued policies when capable of being entered into, are preferable, as they may save much after trouble and ex- pense. The valuation in such a case must be a fair one, or the policy may be held fraudulent and void, for the contract being strictly a contract of indemnity for a real loss, the law will not permit it to be made a means of profit and gain to one party at the expense of the other. Policies yet retain much of the ungrammatical and tech- nical construction of their ancient form, and are liable to mis- lead the unprofessional. The principal parts are : 1. The Name of the Insured, which should properly appear in full in the body of the policy. 2. The Name of the Ship, which should bo correctly stated, for a variance from the right name may discharge the com- pany ; it is not unusual to insert, '* or by whatever other name or names the ship shall be called." A policy may be upon ship or ships expected from a certain place. £, The Subject Matter of insurance, which should be de- scribed with accuracy and certainty. A person may insure under the term oi freight, profits expected to be derived from his own vessel. It is sufficient to say that a policy is on goods generally ; but that will only mean goods of an ordinary not extraordinary danger. It is always better also to state in the policy the nature of the insured's interest in the, goods or property. 4. The Voyage also must be accurately set forth ; the de- scription comprehending the times and places at which the risk is to begin. An omission of the time is said to cause the risk to begin from the making of the policy. If a voyage be from or to a district containing several ports, they must in absence of provision to the contrary be visited in their geo- graphical order ; but words are generally inserted to autho- rize a deviation from the direct track, in order to the better accomplishment of the purposes of the voyage. If a vessel 150 MARITIME INSURANCE. sail upon a voyage different from that described, or having entered upon hor voyage, afterwards deviate, her policy is vacated and rendered void. The voyage is generally limited to determine when the ship has been moored twenty-four hours in good mfetjj. If she arrive a more wreck, and afterwards founder, she cannot be said to have moored an instant in good mfety ; but if sUo continue in good safety twenty-four hours and afterwards bo lost, although by some act performed during the voyage ; and if the words " good 8({fety" be not used, the risk determines under all circumstances at the expiration of the limited time. When the insurance is upon goods, it is better to have it continue until they shall be " discharged and safely landed." The risk then continues even after the goods have left the vessel, and are in lighters for the purpose of being landed, if necessary, in the usual custom of the voyage. There must, however, be no unreasonable delay in unloading the goods. 5. The Perils insured against are usually described to be "of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints, and detainments of all queens, princes and people, barratry of the master and ma- riners, and all other perils, losses and misfortunes, that have or shall come to the hurt, or detriment, or damage of the ves- sel, or any part thereof." And if the words lost or not lost be added, the underwriter becomes liable, though the vessel be lost at the time of the insurance. The words of the policy having by decisions derived im- portant meanings, we will briefly notice them : — Perils of the Sea. — These words cover all damage or loss, where the sea, strictly speaking, has been the proximate cause ; whether by stress of weather, winds and waves, lightning and tempest, rocks, sands, &;c. A loss occasioned by another vessel's running down the ship insured, is a loss by peril of the seas, although there has been negligence and MARITIME INSURANCE. 161 want of skill on the part of the master and crew of the ship insured. If the loss takes place from the vessel running aground, on entering or leaving port, the loss is a loss by perils of the sea, so is a loss of animals killed by the agitation of the ship in a storm. If a vessel is not heard of within a reasonable time after her sailing, it is presumed that she foundered, and the assured may recover for a loss by perils of the sea. Lo»» by Capture. — An insurance on voyage to ports block- aded by a British squadron is illegal, and no action can be maintained for indemnity in respect of losses resulting fr^m an attempt to break such blockade, if it appear :'mt the virty had knowledge of the blockade and intended to break it at the time he effected the insurance. But if he had no knowledge of the blockade, or no intention to break it, or had fair ;.:"ound to think that the blockade would be raised by the ti nc ho vessel reached her destination, the insurance will be valid. In every policy there is an implied terra or proviso, that the insurance shall not extend to cover any loss from capture of enemies' property by the British government, on the breaking out of hostilities. When the insurance was effected against capture only, and the vessel was driven on the enemies' coast, in a stiff gale of wind, but received no damage, and whilst she remained stranded on the shore she was seized and con- fiscated, it was held to be a loss by capture. Enemies. — A capture by enemies is . ^ act done under the recognized laws of warfare. The mere cay/ture does not divest an owner's property in the thing captured ; but the insurance being in form of an indemnity, the insured must be reimbursed for his loss. If the vessel be rs-captured, and the owners recover it, upon payment of salvage, this may change a loss that was primd facie total, into a partial loss. An insurance against British capture is illegal, as being against public policy. PiraieSf Movers and Thieves, are not like enemies, such 162 MARITIME INSURANCE. I parties as commit an injury under color of authority ; but are such as \rithout any right or authority commit acts of depreciation and injury to property. Restraint and Detainment of Kings, Princes, and People. — By kings and princes are meant all potentates, whether at peace or war. The word " people," comprehends nations in their collective capacity, and not bodies of insurgents acting in opposition to their rulers. It means the supreme power of the country, whatever it may be ; and if a vessel is seized by a mob, or party of rebels — they not having the supreme power — the loss resulting therefrom is not covered by the policy. Jettison is a throwing of the goods overboard from some just cause, as for the purpose of preventing their capture by an enemy. Fire. — It is of no coD?equonce whether this occurs from common accident, or lightning, or in duty lO the state, the damage is equally covered by the policy. But if the goods spontaneously generate the fire, from their character and damaged state when put on board, the insurer is not liable. Barratry of the master and crew, in policies includes every species of fraud or knavery by them, by which the owners are injured. Thus barratry may be committed by a wilful deviation in fraud of the owners, by smuggling, by running away with the ship, by sinking or deserting her, or by defeat- ing or delaying the voyage with a criminal intent. If by reason of these or other similar acts, committed in fraud of the owners, the subject matter is detained, lost, or forfeited, the insured will be entitled to recover for a loss by barratry. Other Perils, ^c, as generally inserted in policies, cover and protect all losses happening on the sea and in port, whilst the ship is in the due and customary prosecution of the voyage insured, and whilst the risk on the policy continues. If a vessel is fired into and sunk by mistake, or if a vessel is. lost or injured in port, the loss will be covered by this clause. MARITIME INSURANCE. 153 Memorandum. — There is usually a memorandum intro- duced in the policy to protect the insurer from liability to small averages, or partial losses vrhich might be claimed in respect of certain perishable commodities. This memorandum protects the insurer from making good any partial loss what- ever upon the classes of articles mentioned therein, further than to the small extent stipulated. As this memorandum is incorporated into the policy, and becomes part of the contract, it is important that it should be clearly understood, and care- fully regarded, otherwise the insured may unexpectedly find his policy next to useless. Insurable Interest. — If the assured has no property exp6sed to loss, and no real risk to guard against, he has no insurable interest, and the policy is void. Neither can a party who is a stranger to the property in both a vessel and her cargo* crciite an insurable interest in the freight by spontaneously advancing the amount of such freight to the master or owner of the vessel. But if he has any pecuniary interest, however small, he may lawfully insure to the extent of it, whether it be a property in the vessel or goods, or an interest in the freight, or a profit derivable from the carriage of goods, or the hire of the vessel under a charter party. So may a shipowner insure the profits which he ordinarily makes from carrying his own goods in his own vessel to a distant market, or any profits fairly expected to be made in the due course of trade. It seems that any interest (not being a mere expectancy) even though defeasable or inchoate, may be insured. It has been held that when a party contracted to purchase the property insured, and had failed in making his payments but was proceeding in equity to compel perform- ance of the contract by the vendor, he had an insurable interest. The party effecting an insurance should be very careful in making known to the agent, and having appear in the body of his policy, the character and extent of his interest in the property insured. This may avoid much after trouble, and perhaps loss. 154 MARITIME INSURANCE. Inception of the Risk. — If the policy is on goods " lost or not lost," the indemnity extends to all past as Avell as all future losses. The risk begins at the port, when the insur- ance is on a voyage, " at and from," &c.,orat the begirning of the voyage, when the insurance is " from" the port. In an insurance upon a time policy, (i. e., one within certain dates without regard to a particular voyage) the risk begins at the first date. In the case of goods, the risk depends upon the agreement of the parties, but it usually begins with the loading on board, and ends with the safe discharge, including their passage to the shore by usual means. The risk on freight it seems begins, in the absence of express provisions, when the goods, or part are on board, or the ship is at the point of loading in a condition to take them on board. Warranties. — Warranties are expressed ox implied. They are in the nature of conditions precedent ; and unless they are performed there is no contract, and, in this necessity for a literal compliance they differ from mere representation, which it is sufficient to jierform substantially. Express Warranties are such as appear in the body, margin, or at the bottom of the policy, and are incorporated in, and form part of it by reference. They are usually : 1. Time of Sailing. — When a ship is warranted to sail on a particular day, that means that she shall be upon her voyage on that day, for which purpose she must be completely unmoored, and not simply with her cargo on board, though proven t^ed from sailing by stress of weather. If she have once set sail, that will be sufficient, though she be afterwards detained by embargo, or stress of weather, &c. She must, however, have her clearance, her full cargo on board, and everything necessary for the performance of her voyage, — nothing remaining to be done afterwards. If the warranty be to " depart,^' or to " sail /row a place," it is necessary that the vessel should be out of port on or before the day ; to set sail on the voyage is not sufficient. MARITIME INSURANCE. 155 >» 2. Safety of the Ship on a particular day. — If the vessel be safe upon any part of the day, the warranty is complied ■with. 3. To Depart ivith Convoy. — It is usual in time of war, for merchant vessels to depart with a naval convoy, appointed by the govennent of the country to which the vessel insured belongs. The appointment of the goverment is essential, and a ship of wq,r accidentally bound to the same port as the merchantman is not sufficient. Neutral Property. — Whenever property is insured as neutral property, which is not neutral, there is no contract, and nothing can be recovered on the policy. But if the property is neutral at the time the insurance is effected, and the risk attaches on the policy, the fact of its ceasing to be so at a subsequent period, does not affect the insurer's liability. If a war break out the next day ho is liable. 5. Freedom from Zeizure in Port of Discharge, is a war- ranty frequently inserted, to protect the insurer from liability in case of confiscation, seizure, or capture in port; which may arise from illicit trade, or trade in articles contraband of war. The seizure must be inport, and for a legal and justi- fiable cause. As to where a vessel is in port, for the purposes of this warranty is often a vexed question ; but the holding of the courts appears to be, that she must at least be within the head of the port, if not within that part where ships generally unload. Lnplied Warranties. — There are certain implied war- ranties, the breach of which, equally with express ones, will prevent the insured from recovering ; such implied warranties are: 1. Seaworthiness. — By seaworthiness is meant that the vessels shall be in a fit state as to repairs, equipment and crew, and in all respects to encounter all the ordinary perils of the voyage insured, at the time of sailing upon it. There is a warranty of a similar nature in an insurance upon goods, with 156 MARITIME INSURANCE. respect to the vessel upon which they are loaded, but there is no warranty ;, to the goods themselves that they are sea- worthy for the vo .;ge. If the assu; . l n. .kes no warranty that the vessel shall con- tinue seaworthy, or that the master and crew shall do their duty during the voyage, their negligence or misconduct is no defence where the loss has been immediately occasioned by the perils insured against. There is not ordinarily any im- plied warranty of seaworthiness, where the policy is merely a time policy, and not even connected with a voyage. 2. Deviation. — Where the insurance is on a voyage to a given place, and the captain when he sails does not mean to go to that place at all, he never sails on the voyage insured against, and the policy never attaches. When the vessel sets out upon her voyage but afterwards deviates, the insurer is discharged, not from the beginning of the voyage, but/rom the time of deviation ; a deviation happens when there is a wilful and unnecessary departure from the due course of the voyage, for any, even the shortest time. But all deviations by reason of inevitable accident or stress of weather, to obtain needful provisions, or do needful repairs, or avoid capture, are implied exceptions to the Avarranty. An unreasonable and unjustifiable delay on the part of the insured, either before or after the risk attaches, in commencing the voyage insured, is in the nature of a deviation, and discharges the insurer. 3. lieasonable Diligence in Guarding against Risk. — There is also an implied warranty that the insured will use all reasonable diligence in guarding against the risk covered by his policy. Thus, he must have the vessel properly docu- mented according to her national character. There is an im- portant distinction between an express warranty of the ship's national character, and an implied warranty of her being properly documented. In case of such an express warranty, if the ship be not properly documented at the time of sailing, MARITIME INSURANCE. 157 the insurer is discharged, whereas a breach of the implied warranty does not discharge him, unless the loss actually happens in consequence. There is, however, no implied warranty of docu: aentation in an insurance upon goods, unless the owner is also the owner of the ship. 4. Disclosure of all Material Circumstances. — The assured is bound to make known, at the time of obtaining the risk, all circumstances within his knowledge materially affecting it. The fraudulent keeping back, or concealment of circumstances calculated to materially affect or enhance the risk to be incurred by the insurer, avoids the policy, and prevents a recovery in respect of a loss wholly unconnected with the circumstances concealed. But the assured is not bound to disclose matters as much in the knowledge of the insurer as himself, nor such things as it is the business of the insurer to know or find out for himself: so may either party be innocently silent upon matters of mere opinion, aiid upon which both can exercise their judgment. All material statements and representations which are false to the knowledge of the party making them, are frau- dulent, and avoid the policy, even though the actual loss is unconnected with the fact represented, and though there be no fraud intended. Proof of Loss. — The loss is either total or partial ; and a total loss may be either so of itself, or rendered so by abandonment. 1. Total Loss is where the thing insured is either totally destroyed or is so damaged as to be worthless ; or if the thing insured, though still existing in fact, is lost to all useful purposes, so as to justify the insured iu abandoning all his interest and claiming for a total loss. A loss is total and re- quires no abandonment where the vessel is lost, or destroyed, or captured, or reduced to a mere wreck, so as to exist as a ship for no useful purpose. In some cases of damage by 158 MARITIME INSURANCE. soa, the owners or master may be justified in selling 'he vesso), and claim'i'.g for a total loss ; such a sale must i)0 judtilied by necessity, and be for the benefit of all partie;*, and \h' pro- ceeds of the sale becomes money received for th*; insurer. An abandonment cannot bo partial ; it must be of the whole thing insured, aud uncoiiditional, unless the insurer think proper to accept a conditional or limited one. The insured is in no onse compelled to abandon, but where he !3 entitled and thinks proper to do so, ho mnat wit'' "^nt delay, and give notice of abandonment within a r:i,3onaole t>a>. What is a reasonable time, is a question of evidence, and vnust depend upon the circumstances of each case. It may .')'.. g,iven, however, as a general rule, that not more time shoal\i elapse than is absolutely necessary to learn the amount of damage done, and to give the notice. Partial Loss. — A loss once total may from subsequent circumstances become a partial one. Thus, a vessel cap- tured is a total loss ; but if she escape or be recaptured, so as still to be of value, that which was once a total becomes a partial loss. So where the policy is on freight, and the ship is detained under an embargo, the loss is a total one ; yet if the embargo is taken off, it then becomes a partial one. ^■oss how calculated. — When the policy is a valued one, and there has been a total loss, the assured is entitled to be indemnified to the extent of the declared value in the policy, and is released from proving the value, unless the valuation can be impeached by the insurer. But if the declared value exceeds the interest of the insured, through some mistake or misapprehension, the loss will be adjusted in the same manner as if the policy was an open policy, and the computation be made by the real interest on board, and not by the value in the policy. The rule on an open policy is to estimate the actual value of the subject insured, at its actual or market value at the one. MARITIME INSURANCE. 159 commencement of the risk, — the object of insurance beinw merely to put the party in statu quo, and not to indemnify him for the loss of prospective profits. If the claim be on repairs of a vessel which has sustained damage, the full costs of repairs will not be allowed, but only two-thirds of the cost of repairs, it being considered a deduction of one-third ought to be made in favor of the insurer, by reason of the owner's having the benefit of new material instead of the old, unless the vessel is on her first trip. If a partial loss has been sustained on goods, this loss is calculated and adjusted by comparing the selling price of the sound commodity with the selling price of the damaged part of the same, at the port of delivery. The difference between these two affords the pro- portion of loss in any given case, i. e., it gives the aliquot part of the original value, which may be considered as destroyed by the peril insured against, and for which the assured is entitled to recover, or as it is sometimes put, the sum to be paid by the insurer is to bear the same ratio to the original value at the port of lading, as the gross proceeds of the actual sale bear to what would have been the gross proceeds if the goods had been sound when sold. The ex- pense of insurance and commission are to be added to the prime costs or invoice price. Thus, suppose the original value, costs of commission and insurance were $400 ; had the cargo arrived safe at the end of its voyage would have fetched $800 ; but in its damaged state will only bring $500 ; then as $800 : $500 : $400 to the sum required, which will be $250 ; subtracting $250 from $400, the original value, we have $150, the estimated loss for which the insurer is liable. Where the policy is a valued one, the parties thereby having fixed the value of the goods, are bound by it as the standard to be adopted. The amount recoverable depends or the value of the thing insured, the sum insured, and the amjunt of loss; and as the l\ r I f! 160 INSURANCE AGAINST FIRE. contract of marino insurance is a contract of indemnity only, where there are several policies on the same subject matter, and the assured has been paid on some of the policies, he can only recover on another such an amount as with the sum already received will give him indemnity against the loss actually sustained. In ascertaining this loss in an action on an open policy, the true value of the thing assured is the criterion. But on a valued policy the assured can only recover to the amount that the thing is valued in the particular policy ; and it has been held, that if he has already received the value on another policy, he cannot recover anything further, although the true value and loss be beyond what he has already received. Return of Premium. — If the policy is void from the beginning, or where there is no insurable interest, and this proceeds from misinformation or other innocent cause; or where an interest is less than that insured ; the premium, or part of it may be recovered back. Where there are two insurances, at different times, together exceeding the interest insured, the excess of premium may be recovered from the last msurer, not the first. Where there are several insur- ances effected at the same time, and before the risk com- menced, they are to be taken as one policy, and the return must be pro rata. If the risk has never commenced there must be a return ; as if the ship never sailed, or the policy is avoided by failure of warranty, without fraud. But if the risk has once com- menced, or the policy is void for illegality, or for any fraud of the assured, there can be no return. SECTION VIII. INSURANCE AGAINST FIRE. The insurer, by this contract, in consideration of a pre- mium paid either in gross or at stated periods, undertakes INSURANCE AGAINST FIRB. %m to indemnify tho assured against loss of, or injury to, pro- perty from fire, and tho policy is called a fire policy. Most of the observations already made in rofcronce to maritime insurances, may be considered equally applying to fire poli- cies ; tho application being made with duo consideration of the different character of the property, nature of the con- tract, and different conditions attached. Interest. — It is necessary to show an insurable interest in the subject insured at the time of insuring, and of the fire. This interest need not be an absolute one ; thus an insolvent may insure a house, &c., to which his assignees are entitled, he being in possession and responsible to tho real owners. Warehousemen and wharfingers may insure their customers' goods in their custody, and may recover the whole value under a policy on goods, " held in trust on commission." Tho mortgagee of reality may insure ; so the holder of a chattel mortgage being a mortgagee, has an insurable inte- rest though the mortgagor remain in possession. Whenever there is an actual pecuniary interest in the property held by the party, it seems an insurance may be lawfully and effec- tually made ; and even where this interest is of such a fine and equitable nature as scarcely to be recognizable ; thus, where A, owner of a stock of goods sold to B and C, en- dorsed B's notes in payment, and the policy of insurance was assigned from A to C as a security against his endorsement, it was held that C had an insurable interest. Description of Property. — The utmost care should be taken, at the time of affecting an insurance, that an accurate and full description of the property to be insured be given. A buildhig, for want of care, may be described as belonging to one class instead of another, when a larger premium would have been required for that other, and the policy thus ren- dered void. Also personal property, intended to be included, often is found not to be within the strictness of the policy and decisions from the want of sufficient care in describing it I ; ; \ 162 INSURANCE AGAINST FIRE. at the time of insuring ; thus an insurance on " household furniture, linen, and drapery," will not cover linen bought on speculation. Warr("^t{e8. — Every statement, condition, and represen- tation, mat. al to the risk, will amount to a warranty, but not statements and representations concerning matters which do not form the basis of the contract and regulate the risk. Such warranties or conditions as are inserted in the policy, or incorporated into it by reference from printed proposals (which are considered parcel of the contract) must be strictly observed. In every insurance against fire, there is an implied pro- mise or undertaking on the part of the assured, that he will not after the making of the policy, alter the premises so as to increase the risk. Fraudulent Concealment. — All facts and circumstances known to the assured, material to the risk, should be fully disclosed at the time of insuring, otherwise it will be con- sidered a fraudulent concealment, and the policy be held void. Where a warehouse adjoining a boat builder's shop took fire, and the fire was apparently extinguished, and the boat builder sent immediate instructions for the insurance of his shop, without communicating the fact of the neighboring fire to the insurers, and the fire was not in fact extinguished, but broke out again on the following morning, and extended to and consumed the shop, it was held thai the concealment of the increased risk, from the recent adjoining fire, avoided the policy. Conditions. — The conditions contained in the body, and those endorsed on back of policy, should be carefully ex- amined and strictly followed. They are generally numerous, and all in i^-^'oi of the Company, but as they form a part of the contrac, they are none the less binding upon the insured, and the non-observance of che least of them may render a recovery impossible. Here is the greatest danger, and we cannot urge a too careful observance. INSURANCE AGAINST FIRE. 163 Mutual Inaurance Companiea have certain conditions rendering their policies void, under 22 Vic. chap 52, C. S. U. C, which do not appear in general upon their policies, and are therefore generally unknown by their holders. 1. If the party has a title less than a fee simple, unen- cumbered to the buildings insured, the policy \» void, unless the true title of the assured, and of the incumbrances on the premises, be expressed therein and in the application therefor. 2. If a double insurance exists at the same time, the policy is void, unless the double insurance exists with the consent of the directors, signified by endorsement on the back of the policy, signed by the president and secretary. But if a notification in writing be given of a subsequent insurance, or of an intention to effect one, the additional insurance will be deemed to have been consented to, unless the Company notified signifies its dissent in writing within two weeks after such notice. 3. In case the property insured be alienated by sale or otherwise, the policy becomes void; but the alienee may have the policy assigned to him, and confirmed, by furnishing security to the Company, &c., within thirty days, as provided by the act. Loss. — As the insurers take upon themselves only the risk of fire, they will not be responsible, it is said, unless there be an actual ignition. If damaged from the heat and smoke of ordinary flues and chimneys, overheated and mismanaged, they will not be responsible. Nor will the injury caused by lightning be within the risk unless conflagration ensue. One of the chief objects of insurance is to guard against the negligence of servants and others, and therefore the simple fact of negligence has never been held to be a defence against the claim of the assured, and there is no distinction against the negligence of servants or agents, and the assured himself. ' 164 IXSURAXCG AOAINST FIRB. |i Notice of Loss. — In case of loss, the necessary notice, proof of lo3^, cortificato of a Justice of the Peace, &c., must bo carefully given in manner and time as provided by the policy. This should bo most carefully done, and when possible under the direction of a legal adviser. No informality should bo risked. It has boon even held, where the affidavit of loss sent in after tho firo, had no jurat, and was not in the form of an affidavit, that tho insured was on that account precluded from recovering. Distribution of Loss. — Where there are several insurances upon the same ])roperty, and tho loss is not to the full amount of tho united insurances, the insured is not compelled to partition the loss upon the several policies, but may sue and recover for one or more of them to the extent of his entire loss if the sums subscribed will cover it ; each insurer stand- ing in the relation of a co-surety with the other, according to their several amounts. The insurer paying the amount, may compel contribution from tho others, in proportion that tho suras subscribed by them bears to the whole amount of the insurances. To avoid this circuity of recovery, a clause sometimes is introduced providing that in case of loss or damage the insured shall recover upon the policy no greater sum than the amount thereby insured shall bear to the whole amount insured upon said property. Assignment of Policy. — An assignment of a fire policy can only be aflFected by the consent of the insurer ; which consent is generally signified by an endorsement upon the back of tho policy, to that eflfect, signed by the agent of the insurer. In case of sale of property insured, the policy must be assigned to the purchaser, or it in effect becomes void. For the holder of the policy, having no longer any interest in the property, cannot recover, neither can the purchaser, he having no legal interest in the policy. After loss, however, it is otherwise ; the insurance then becoming fixed, may like any other debt, be assigned, without the consent of the insurer. OUARANTEEM. 165 SECTION IX. GUARANTEES. • A gwarantj is a promise to answer for the payment of some debt, or the performance of some duty, in case of failure of some other person, who is himself, in the first instance, liable to such payment or performance. It differs from a warranty in this, that a warranty properly relates to some property or thing, while a guaranty relates to the act of a person. What eonatitutes a Ouaranty. — By the statute of Frauds^ " no action lies to charge any person on a promise to answer for the debt, default or miscarriage of another, unless the agreement, or some note or memorandum thereof be in writ- ing, signed by the party to be charged, or by gome person thereunto lawfully authorized." The agent to sign a guaranty need not bo authorized in writing. This section prevents a verbal guaranty from binding, though it is to be observed that money once paid in pursuance of it cannot be recovered back, the contract being legal, and the statute only prevent- ing any action being brouglit. Under this statute it was held that the word agmement comprehended contracting parties, a consideration and a promise, all of which must therefore ap- pear in the writing. Innumerable guarantees, honestly en- tered into, were afterwards found to be void, from want of a consideration expressed therein ; and no just reason could be advanced why it should be so expressed, except the holding of the Courts in defining the word agreement. To remedy this, sec. 1, chap. 45, 26 Vic, was passed, enacting, " that no special promise to answer for the debt, default or miscar. ria<^t. oi another person, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise was made, by reason only that the con- sideration does not appear in writing, or by necessary infer- ence from a written document.'* This statute has so far changed the law affecting guarantees, as to render it no longer 166 GUARAITTEES. necessary that the consideration be mentioned in the writing itself. The consideration, however, is equally » .: ^ssary as before, and must still be proved, independent of the writing. The Consideration. — A consideration may be some loss or inconvenience to one party as well as some profit to another. In the case of guarantees the consideration which usually binds the party is not any benefit to himself, but some loss to the party to whom he is a surety. Thus if A purchase goods from B, and C become surety to B for the payment of the price, it is not necessary in order to constitute a good consideration, that C should receive the goods, or anything either from A or B. The fact that B has parted with his goods, upon the inducement of C becoming a suret;- for their price, is a con- sideration in law, and sufficient to bind C. So if " A " cash or take the promissory note of B, if C guarantees the note, the taking of the note by A under such circumstances, is a sufficient consideration. But if the guaranty is taken after tiie goods are sold and delivered, or after the note is taken, it 3vill then require some additional consideration to support it. Where a party, however, instead of taking the position of a surety assumes that of a principal, the agreement does not require to be in writing, though there must be some construc- tive consideration. Thus when A agreed that if B would give up his claim against C for $200, he would pay him $175 out of proceeds of a certain raft, when it would arrive "t Quebec, it was held B oould sue A on such agreement upon the common counts, without producing proof of the agreement in writing. Surety how Discharged. — Entire good faith is required be- tween the debtor and creditor r.ad sureties. And if a creditor doesi any act affecting the surety, or if he omits to do any act of duty when required by the surety, and that act or omis- sion may prove injurious to the surety, or if a creditor enters into any stipulation with the debtor, unknown to the surety, and inconsistent with the terms of the original contract, the GUARANTEES. 167 surety may set up such contract as a defence to any suit brought against him, in a Court of Law or Equity. So that if a creditor stipulates with his debtor, in a binding manner, upon a suflScient consideration, to give further time for pay- ment, without the consent of the surety, or discharges the prin- cipal, the surety will be thereby discharged. But a condi- tional agreement for further time, does not discharge the surety, when, from the agreement not being performed, the agreement does not become binding. Nor does mere delay on the part of the creditor to proceed against the principal debtor release the surety. Reimbursement. — A surety is not under the necessity of waiting to be forced by legal process to pay the debt. But as soon as there has been default on the part of his principal, and he is under legal liability, he is entitled to pay the amount, and look to his principal for reimbursement. And so if he has paid part of the debt, he has a right to obtain reim- bursement to that extent, and may thus recover — toties quotiea, as it is called — as oflen as he is compelled to make a pay- ment on account of it. Contribution. — When there are several sureties and one is compelled to paj' the whole amount of the debt, he has a right to recover from his co-sureties their proper proportion, and this right is called contribution. And this right is the same whether their suretyship arises under the same, or undar different in- struments, either executed Avith the knowledge of the several sureties or not, if all the instruments are primary securities for the same debt. There is a material distinction between the rights of co- sureties to contribution at Law and in Equity. At law, a Surety is entitled, in every case, to contribution from his co- sureties, in proportion to their number^ without regard to the insolvency of any of them. But in equity, if there are several sureties, and one of them is insolvent, and another pays the debt, he can recover from the solvent surety or sureties 168 GUARANTEES. as much as such solvent surety or sureties would have had to pay if the insolvent had never undertaken the office of surety. Assignment of Collaterals. — If the creditor holds any col- lateral security from his principal debtor, and the surety pays the debt, he is entitled to have delivered over to him all such collateral securities, and to enforce their., as the creditor might, for his own benefit. And now by 26 Vic, chap. 45, sec. 2, " every person, who, being surety for the debt or duty of another, pays the debt, or performs such duty, shall be en- titled to have assigned to him or a trustee for him, every judgment, specialty, or other security which shall be hold by the creditor in respect of such debt, whether such specialty, judgment, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt, or pei'- formance of the duty." And by sec. 3, he is " entitled to stand in the place of the creditor, and to use all the remedies, and if need be, such creditor's name, to obtain the full benefit of such judgment, specialty, or other security." Representations in nature of Guarantees. — It was formerly held that there might be a representation in the nature of a guaranty, and yet not one so as to bring it within the statute of Frauds. An aclion might be brought upon such represen- tation, and the efiect of the statute, requiring a guaranty to be in writing, rendered nearly useless. To remedy this mis- chief our statute of 22 Vic, chap. 44, sec. 10, C. S. U. C, was passed, enacting that no action should be brought to charge a person upon or by reason of any representation or assurance made or given concerning the character, conduct, credit, ability, trade or dealing of any other person, to the interest or purpose that such other person should obtain money, goods or credit thereupon, unless the same be made in writing, signed by the party to be charged therewith. CHAPTER IV. MERCANTILE REMEDIES, SECTION I. STOPPAGE IN TRANSITU. Right to Stop. —A delivery of goods to a carrier, to bo conveyed to a purchaser, in fulfilment of a duly authenticated contract of sale is, in ordinary cases, a delivery to the pur- chaser, so that the vendor has no longer any power or control over the goods, and cannot, lawfully, demand them back from the carrier, or intercept the delivery, yet, if the pui'chaser becomes bankrupt or insolvent before payment of the price, the vendor is entitled so long as the goods are in transitu and have not reached their final destination. •>.• come in the manual possession of the purchaser or his agent duly appointed to take possession of them, to retake thera, and put himself in the same situation as if he had never parted with the actual possession. Tlie tran8itus, has been held to bo every sort of passage to the hands of the buyer, and it is not terminated by delivery, if it appears that the consignee has not taken possession of the goods rt» owner. In Bm'r, et al v. Wilson, et «?, xiii. U. C, Q. B., 478, A, living in Kingston, bought six cases of goods in New York, and saw them packed, and leave the ven- dor's shop, on their way to the shipping warehouse. On their arrival in Kingston, they were received by the officers of the customs, and placed in the custom house store. A entered 170 STOPPAGE IN TRANSITU. and paid duty upon and took away two of the cases ; he also paid the freight and charges upon all from New York. It was held, that the vendor had not lost the right of stoppage in transitu over the remaining four cases. Who possess the right. — The person who stops the goods iti transitu must not be a mere surety for their price, one, for instance, who has at the instance of the vendee, accepted bills drawn by the vendor for the purchase money. But a person abroad, who, in pursuance of orders sent him, pur- chases goods, on his own credit, of others whose names are unknown to his principal, and charges a commission on the price, is a consignor, so as to entitle him to stop the goods in transitu, if his principal fail, while the goods are on their passage. ffoiv defeated, or divested. — The right to stop being co-ex- tensive with that of the transit oi uie goods, from the vendor to the purchaser, it is defeated by their coming into the actual or constructive possession of the purchaser. It is defeated by a delivery of part of goods sold under one entire con- tract, if such delivery appears to have been intended as a delivery of the whole. The most usual way in which the right of a vendor to stop goods in transitu is defeated, is by assigning the bill of lading to a bond fide assignee, for valuable consideration. The assignee in such a case, in order to divest the right of stoppage, must have acted with fairness and honesty. If he assist in contravening the actual terms of sale on the part of the consignor, or his reasonable expecta- tions arising out of them, or his rights connected therewith, he will stand in the same situation with the consignee. If, for instance, he knows that the consignee has been in insolvent circumstances, the interposition of himself between the con- signor and consignee, to assist the latter in disappointing the just expectations and rights of the former, will be an act done in fraud of the right to stop, and unavailing to the party taking the assignment. LIEN. 171 An asSi,j;nment by the consignee by way of pledge, will not defeat the 'ght of the vendor subject to the pledge. Where goods in the hands of a Avarehouseman were sold, and the vendor gave a delivery order to the purchaser ..which he lodged with the warehouseman, who transferred the goods in his books into the purchaser's name, this was held to be equivalent to an executed delivery and to divest the vendor's right. How exercised. — A consignor, in order to exercise his right to stop in transitu is not obliged to make an actual seizure of them while upon their road ; ft is sufficient to give notice to the carrier in whose hands they are ; on the delivery of such notice it becomes that person's duty, to retain the goods, so that if he afterwards, by mistake, deliver them to the vendee, the vendor may bring trover for them, even against the ven- dee's assignees, if he himself have become insolvent ; and the carrier, who after such notice, delivers the goods to the ven- dee, becomes thereby liable to the vendor. This notice must be given to the person having the actual custody of the goods ; if given to the principal, whose servant has such custody, it must bo given at such a time, and under such circumstances, that the principal, by the exorcise of rea- sonable diligence, may communicate it to his servant. Effect of stopping in transitu. — Whether its ofFcct be or be not to dissolve the contract of sale between the consignor and consignee, is a question of much discussion. The better opinion appears to be, that it does not rescind the contract of sale, but gives an equitable lien, adopted by the law, for the purpose of substantial justice. ] SECTION II. LIEN. What it is. — A lien is a right vested in one man to retain possession of the property of another until some debt or claim m »:;l;tei 172 LTEN. 13 satisfied. It exists in favor of the unpaid vendor ; if per- sons who have advanced money upon the security of goods deposited ; of innkeepers who have provided food and lodging for guests ; of common carriers for the carriage of goods ; of shipowners for the freight carried by their vessels ; of factors, brokers, or auctioneers, who hiwe received goods, and have made advances, or given advances upon the credit of them to his employer ; generally in favor of mechanics and artizans, who have bestowed labor upon articles placed in their hands for that purpose. It may also exist by custom or by the ex- press agreement of the parties. There are two species of lien known to the law — general liens and particular liens. General Lien — Is a right claimed in respect of a general balance of accounts, and this founded in custom only, and is therefore to be taken strictly. A general lien may be proved either by evidence of an express agreement, or of the mode of dealing between the parties, or of the general usage of other persons engaged in the same employment of such notoriety as that it may fairly bo presumed to be known to the owner of the goods. I'articular Lien — Is where a person claims to retain goods in respect of labor or money expended upon them, and those liens are favored in law. Where goods are delivered in separate quantities at diiFcr- ent times, yet if the work be done under one entire agreement, the right of lien for the work expended upon the whole attaches upon every pa ;. IIoiv loht. — As a lien is a rig'n to retain possession, it fol- lows, of course, that where there is no possession there can be no lien. It also follows tliat where the possession of the goods have ouee been abandoned, the hen is gone. But when the muster of a vessel in obediance to revenue regulations, lands goods at a particular wharf or dock, he does not thereby lose his lien on them for freight ; and LIEN. 173 •where they are not required to be landed at any particular dock, the common practice is to land them at a public wharf, and direct the wharfinger not to part them till the charges upon them are paid ; in this case the wharfinger is the ship- master's agent, and the goods remain in the constructive possession of the latter. If the party changes the nature of his possession, as by a purchase of the goods under execution,or if he voluntarily parts with the possession, the lien is gone ; so that if he afterwards recovers possession of the property, his right of lien does not revive ; but if it is stolen or taken away by a trespasser, or by fraud, and he gets it back again, his right of lien is not extinguished. The mere taking of a bill of exchange, for the amount of the debt, does not necessarily waive or extinguish a lien ; but so dealing with such bill, as by negotiation, so as to approve of it, docs. A tender of the amount for which the goods are held, is a satisfaction of the hen, and gives the party tender- ing a right to the ^^viods, and if the creditor refuse after such tender, to restore them, he does so at his peril, for if the tender were sufficient in amount, he is a wrong doer, and answerable for his misconduct in an action. And it has been held, that an actual tender is not necessary, if the party, in whose pos- session the property is, has signified his refusal to accept the amount really due. If a security is taken for the debt, for which a party has a lien upon the property of the debtor, such security being payable at a future day, the lien is gone. So, too, if the parties come to a new arrangement, and agree that the debt shall be paid in a particular way. But a more right of set-off does not destroy it. And it has been held that a verdict for goods bargained and sold did not destroy the lien upon t}iem for the purchase money. 174 BY CIVIL SUIT. i- SEcnoN iir. BY CIVIL SUIT. If a debtor reside within this Province, or if a creditor re- side, and have a cause of action which arose here, he has a right to invoke the assistance of our Courts of law, to assist him in the recovery of his claim. There are three Courts of common law, possessing different jurisdictions, and difiering in their course of procedure lud time of holding. It is for the creditor to consider in which of these Courts he will pro- ceed. In this decision he must be guided by the nature of his claim, the amount of indebtedness, the residence of the parties and witnesses, and the importance of a speedy recovery. AVe will separately and briefly notice the jurisdiction and machinery of these different courts, beginning with the inferior and so proceeding to the Court of Queen's Bench. Division Court. — This is said to be the poor man's and small debtor's court. There is no doubt that it was established for the best of purposes, and with a full hope that it would be of important benefit. Cheap law is at all times a fruitful source of litigation. As political purposes have created in every county ignorant and dangerous magistrates, who, it has been aptly said " keep ready-made convictions on Land for the first applicant," to whom every supposed grievance is carried, and satisfaction obtained for a few shillings — and these recoverable, and thus the peace of whole neighborhoods disturbed, and ordinary rights of citizenship endangered, by the necessary elevation of such irresponsible political brawlers, so not from the character and ability of the men who preside over the Division Courts, but from its cheapness, and the existmg in- ducements to flee to it, with every supposed grievance, has it been rendered, if not (juite, at least next to as great a pub- lic nuisance. While thuy thus act, at least in many counties as foster-schools of ill-feeling, and future litigation, they are mostly useless to the honest creditor, for the purpose of re- BY CIVIL SUIT. 175 covering a just claim. And most intelligent men now say, that they would rather forgive a debtor than seek redress here. The costs, (which the creditor must generally pay) ; the slowness of the remedy ; the incapable, and frequently doubtful character of its officers ; and the devoted care that many of its jugdes exert to protect a debtor, in a dishonest decision, not to pay his just debts, all give strength to the opinion, that it is cheaper to be ignored by a debtor, than defrauded by the machinery of a Court. The Judge of the County Court is also Judge of the Division Courts, within his County. As Judge of the Division Court, he possesses legal and equitable powers, his decisions are final, and has no check except that which exists in his own mind, as regards equity and law. From the low and unimportant cases he is here forced to try, the intimate acquaintance and con- nection he must here form, from direct discussion with the most ignorant and doubtful men ; and from the unsoundness of many decisions, too hastily given, he loses his proper respect and dignity, both in the eyes of the community and the pro- fession, and thus weakens the position and benefit of the Su- perior Court over which he presides. It is, however, a civil court of Justice, and as such, enti- tled to a brief and careful consideration. It8 officers. — First, a Judge, who may be said to control it in every part, without check or supervision. Second, a Clerk, who is appointed by the Judge. He re- ceives all claims ; issues summonses ; attends the Judge at Court ; generally appears in the improper capacity of agent for either the Plaintiff or Defendant ; issues executions ; re- ceives all moneys, and settles claims. Third, Bailiffs. — They are also appointed by the Judge, and as seldom a good and commendable man will accept the office, he has few good men to select from. They serve all processes of the Court, act as its criers, enforce executions and warrants. These are generally the worst officers of the 176 BY CIVIL SUIT. court, although the most successful in gain, not, iiowovor, from what they do, hut from what they dont — not from the money they collect, hut from what they do not. Jurmlidion. — The Judge of every Division Court may hold plea of, and may hear and determine in a summary manner, for or against persons, hodies corporate or otherwise, in : — 1. All personal actions, where the debt or damages claimed do not exceed forty dollars. 2. All claims and demands of debt, account, or breach of contract, or covenant, or money demand, whether payable in money or otherwise, when the amount or balance claimed does not exceed one hundred dollars, and except in cases in which a jury is legally demanded, the judge shall in all actions determine all questions of law and fact, and shall deliver such judgments and doorees thereupon as shall to him appear just and equitable, and every such order and judgment shall be final and conclusive. o. A cause of action cannot be divided into two or more suits tor the purpose of bringing it within the jurisdiction of the JDi vision Court, and no greater sum than one hundred dollars can be recovered for the balance of an unsettled account, nor can any action for any such balance be sus- tained where the unsettled account in the whole exceeds two hundred dollars. 4. In replevin, where the value of the goods does not exceed forty dollars, It will be noticed that it is first over personal actions that the Court is given jurisdiction ; that is, in actions whereby a man either claims the specific recovery of a debtor personal chattel, or satisfaction in damages for some injury done to his person or property. What has been said as to jurisdiction refers particularly to causes of action arising in this Province. If the cause of action arise out of this Province, as in the Province of LY CIVIL SUIT. 177 Quebec, it is tlio practice to bring the suit in the County Court, cvt tlionj^li the amount sought to bo recovered be leas than oj»o hundred dollars. Many of our small dealing mercii. fits have become aware of this fact, and when owinir some foreign house — generally at Montrca' -for goods, some- thing less than one hundred dollars, thoy iro careful to send vablo in Ontario, 'ness, and give lie, the cre- , iuced. IIo is cither a promissory note or accept n and thus change the character of ti jurisdiction to the Divi.siun Court, ditor's prospects < f collection are ;. forced to bear his own costs of suit, and after waiting an unreasonable time for the money to be made, is in great danger, oven though the defendant bo solvent, of losing the debt as well as the costs, through the inability or dishonesty of the officers of the Court. It is far preferable that any account or balance of account, less than one hundred dollars, should remain in open account, or if settled by note or bill, that such note or bill should bo made payable at the place of business of the creditor. Where Suit must be brought. — A Plaintiff is not entitled to bring his action in any Division Court that suits his con- venience, but must either bring it in the Court holden for the division in which the cause of action arose, or in which the defendant or any one of several defendants resides, or carries on business at the time the action is brought, or at that Court which is nearest to the residence of the defendant or defendants. The words " cause of action " mean the Avhole cause of action, therefore when a contract is entered into in one division and the breach takes place in another, the cause of action includes both the contract and the breach. The consequence is, the action can neither be brought in the division in which the contract was entered into, nor the one in which the breach occurred. It must therefore be brought where the defendant resides, or in the Court nearodt to his residence. i^a^ .^^ IMAGE EVALUATION TEST TARGET (MT-3) ^' W ^ 1.0 I.I ■aiM |2.5 150 "^^ !!■■ !!^ 1^ 112.0 L25 iU IIIIIJ^ Fhotograplric Sciences COTporation ^ \ iV « •NJ S> o\ 23 WIST MAIN STREET WEBSTER, N.Y. 14SS0 (716)872-4503 %' 5. 0^ 178 BY CIVIL SUIT. Service of Process. — The summons, which is the beginning of legal proceedings, with a copy of the account, or of the particulars of the claim or demand attached, must be served ten days (exclusive of the day of service and the Court day) before the return day thereof. And in case none of the defendants reside in the county in which the action is brought, but one of them resides in the adjoining county, the summons must be served fifteen days ; and in case none of the defen- dants reside within the county within which the action is brought or in an adjoining county, then twenty days before the return day, which is the day of the holding of the Court. When the amount of account, claim, or demand exceeds eight dollars, the service must be personal ; if it does not exceed eight dollars it may be upon the defendant, his wife, servant, or some grown person being an inmate of the defen- dant's dwelling-house, place of abode, trade or dealing. Trial oftJie Cause. — On the day named in the summons, the plaintiff and defendant, in person or by attorney or agent, must attend at Court. If the plaintiff neglect so to appear, he is liable to be nonsuited, and if the defendant neglect, judgment is almost certain to be passed against him. The Judge tries the cause in a summary manner (unless a jury has been properly asked for) and gives such judgment as he thinks proper in law and equity. The evidence necessary to establish a claim in this Court is of the same nature and character as that required in Superior Courts of Law, with this exception, that when the amount claimed is less than eight dollars, if the plaintiff gives sufficient evidence to satisfy the judge that the defendant is indebted to him, the Court may in its discretion examine the plaintiff as to the items of the account. Defence, — The defendant, besides simply denying his indebtedness, may also plead a tender before action brought, by paying the amount into Court, at least six days before trial, and at once giving notice of the same to the plaintiff. BY CIVIL SUIT. 179 The defendant may also rely upon a set off or some statutory defence, as the statute of limitations, in which case he must also give the proper six days' notice. Judgments are either given at once or reserved and after- wards given by the Judge in Chambers, or left to abide the award of such person as the Judge may name. Once entered, the judgment becomes final, unless properly applied against within fourteen days. If there be cross-judgments, the less may be set off against the greater, and execution issued for the balance. . Execution. — Except in cases where a new trial has been granted, the is^ue of execution should not be postponed for more than fifty days from the service of the summons, with- out the consent of the plaintiff. The execution is against the goods and chattels of the defendant situated within the county in which the same is issued. If the defendant removes to another county, the Judge of such county may, upon a copy of the judgment, duly certified by the Judge of the county in which the judgment was entered, order an execution for the debt and costs, to issue against the party. The clerk of any court in whou judgment has been entered, may send a transcript of such entry to the clerk of any other court, and upon such transcript being duly entered, all such proceedings may be had, as if the same were an original judgment. There is no means of getting against a debtor's lands in the Division Court. If the amount of the judgment remaining unpaid exceeds forty dollars, a transcript may however be obtained, and filed in the office of the clerk of the county court, in which the judgment was obtained or in which the debtor has lands. Upon such transcript being filed, it becomes a judgment of the county court, and execution may be issued against lands, which binds the same from the time of being placed in the Sheriff's hand. And after the filing and entry of such transcript, the same remedies, for the recovery thereof, may be pursued as if the judgment had been originally ob- tained in the county court. 180 BY CIVIL SUIT. Rights of Landlords. — When an execution is issued from the Division Court, as "when from a Superior Court, the liabi- lity of goods to seizure and sale under such execution is frequently materially aflFected, by the right of a land- lord to his preferential lien for rent. To entitle a landlord to a preferential right under such circumstances, the rent should be due, and the landlord must, within a reasonable time, or before sale, by a writing under his hand, or under the hand of his agent, claim the amount of rent due from the Bailiff seizing the goods, and in such writing must state the terms of holding, and the rent payable for the same. He cannot, however, claim more than four weeks rent, when the tenement has been let by the week ; nor more than two terms of payment where the tenement has been let for any other term less than a year, and not exceeding in any case the rent accruing due in one year. In case of such a claim for rent being made, the Bailiff making the levy, is to distrain for the amount of such rent, as well as the cost^ of such additional distress, and upon sale of the goods must first pay over to the landlord the amount of such rent, and then from tlie surplus, if it be sufficient, the execution debt. Attachments. — If a person indeb^ - a sum exceeding four and less than one hundred dolla , absconds from this province, leaving personal pT.j^erty, liable to seizure, under execution for debt ; or attemjits to remove such property from either out of Ontario, or from one county to another therein ; or keeps concealed to avoid service of process ; and in case any creditor of such person, his servant or agent, makes and produces an affidavit of such fact, as required by the rules of the court, and files the same with the clerk of the court, such clerk may issue a warrant to his Bailiff to attach such debtor's personal estate and effects. The creditors must then proceed to judgment and execution. The property seized under the warrant of attachment is liable to sale under execution ; or BY CIVIL SUIT. 181 if from the perishable character of such property it has been sold, then the proceeds to be applied in satisfaction of the judgment. Examination of Judgment Debtor. — A party having an unsatisfied judgment, may obtain a summons calling upon the judgment debtor, to appear and be examined upon oath touching his estate and effects, and the manner and circum- stances under which he contracted the debt, as to the means and expectations he then had, and the property and moans he still has, and as to the disposal he may have made of any property. If the party so summoned, does not attend as required, or allege a sufficient reason for not attending ; or if he attend and refuses to be sworn or to declare any of the things aforesaid ; or if ho does not make answers touching the same satisfactory to the Judge ; or if it appear he obtained credit under false pretences or by means of fraud or breach of trust, or wilfully without a reasonable expectation of being able to pay ; or has made any gift or transfer of property, or removed or concealed the same with intent to defraud ; or if it appears that the party has had, since the recovery of judgment, suffi- cient means to pay the same and has neglected to do so, the Judge may order him to be committed to jail for any period not exceeding forty days, subject to release upon payment of the debt and costs. This would be a beneficial provision if vigorously enforced by our Judges. Most of them are, however, strongly inclined to seek an excuse to protect the debtor from its consequences ; an excuse which is generally easily found, when it is remem- bered that a debtor dishonest enough to bring himself within it, will always give evidence sufficiently in his own favor, to found such excuse. Instead of being a great benefit, it is therefore of little use, at least when sought to be administered through many of our Judges. , 182 BY CIVIL SUIT. Soiling of the Courts. — The courts are belfl in different parts of the several counties, and at such times as the several Judges appoint There are generally from three to six sittings during the year, differing in the different divisions, as cir- cumstances require. COUNTY COURT. Jurisdiction. — As to the collection of debts the jurisdiction of the County Court extends to all personal actions where the debt or damages claimed do not exceed the sum of two hundred dollars. 2. To all causes and suits relative to debt, covenant and contract, to four hundred dollars, where the amount is liqui- dated or ascertained by the act of the parties or by the signature of the defendant. Time of Holding. — The County Courts are held in every county or union of counties, on the second Tuesday in March, June, September and December in every year. Thus having four sittings in each year at which defended suits may be tried. Practice. — The practice and proceedings in the several County Courts are mostly regulated by and conform to the practice of the Superior Courts of Common Law. We shall therefore pass them for the present, remindmg the reader that our remarks upon the practice and proceedings of our courts of Record and Common Law, are appUcable to the County as well as Superior Courts. ■ ' V SUPERIOR COURTS. The Superior Courts, at Common Law are the Courts of Queen's Bench and Common Pleas. They are equal in their jurisdiction and powers, and may be considered as distinct Courts, for the purpose of a division of labor ; a matter of no importance to the suitor. This fact, however, is important ; BY CIVIL SUIT. 183 they have differed materially in their holding upon certain technicalities and rendering of the law. A vriso counsel will therefore consider well, at times, in which court he will con- duct his client, unless he is desirous of carrying his cause to the Court of Error and Appeal, and settling the point by a higher trib' nal. Juriidiction. — The Superior Courts have jurisdiction in all cases, no matter how large or small may be the amount. But if a suit be brought, in which the Division Court or County Court has jurisdiction, the Plaintiff will only recover the costs of such Inferior Court, as the case may be, and is also liable to have the defendant's additional costs, incurred, by such action being brought in the Superior, instead of an Inferior Court, set-off against his verdict and Inferior Court costs. Sittings. — The Assizes, as they are usually called, or sittings of the Superior Courts, for trial of causes, are held in the United Counties of York and Peel, three times in each year — commencing on the Thursday next after the municipal elections in January, on the second Monday in April, and on the second Monday in October. The city of Toronto has also three sittings, which take place about the same time, as in the United Counties of York and Peel. In each of the remaining counties and union of counties, throughout the province, the Assizes are held twice in each year — some time between the second Saturday after the first Monday in February, and the third Monday in May, and some time between the second Saturday, following the Monday next after the twenty-first day of August, and the third Monday in November. PRACTICE IN THE COUNTY AND SUPERIOR COURTS. The practice and proceedings both in the County and Superior Courts, are regulated partially by precedents, and rules made by the Judges, but mostly by the Common Law 184 BY CIVIL SUIT. Procedure Act. They are so nearly similar in the different courts, that it is sufficient, in a work like the present, that our remarks should bo of a general character. Commencement of an Action. — An action is ordinarily commenced by the issuing of a Writ of Summons ; which is to bo served personally upon the defendant ; and in case this is rendered impossible by the acts of the defendant, then such substitutional service and proceedings may be had to judgment, as ordered by the judge of the court. Special Endorsement. — In all cases where the defendant resides within the Province, and the claim is for a debt or liquidated demand in money, arising upon a contract expressed or implied, as on a bill of exchange, promissory note or cheque, or other simple contract debt, the plaintiff may make an endorsement of the pa.'ticulars of his claim, upon the Writ of Summons, and copy thereof for service, and if the defen- dant does not appear to such writ within the time allowed, the plaintiff may sign judgment for the amount of his claim so endorsed, and issue execution at the expiration of eighteen days from the day of service of the writ. This it will be observed gives the creditor a summary a.Ad cheap mode of recovery. Appearance. — The defendant, if a resident within the Province, has ten days allowed him to appear and defend in every action. If he resides without the Province, such further time as may be mentioned in the writ, depending upon his residence, and the time necessary to communicate. Declaration. — If the defendant appears, or if the writ was not specially endorsed, the plaintiff must file and serve a declaration setting forth carefully and clearly the grounds of his action. With the declaration a notice to plead is usually aervfed, requiring the defendant to plead within eight days. Pleas. — If the defendant does not plead or demur within the eight days, the plaintiff may enter judgment and issue execution for his debt. If the defendant pleads or demurs, BY CIVIL SUIT. 185 the cause then goes to issue, cher at law or fact, and comes down for hearing at term or at court, as the case may be. In case a suit be brought in the Superior Court, if it appear to the Court, or a Judge thereof, that the action is brought to recover a claim or amount liquidated by the act or signature of the parties, and that no difficult questions of law or fact are likely to arise upon the trial, an order will be made that the same be tried at the County Court, next holden after the granting of such order ; thus enabling the plaintiff to get judgment earlier than he otherwise would. Judgment. — The judgment is founded and entered upon the finding of a jury at the trial, the decision of the court upon the points of law at issue, or upon the award or certifi- cate of an arbitrator appointed by the court. It being provided that if at any time after a writ has issued, it be, upon the application of either party, made appear to the satisfaction of the court or a Judge, that the matters in dispute consist wholly or in part of matters of mere account which cannot conveniently be tried in the ordinary way, the court or judge may order such matter to be referred to an arbitrator, whose finding is equal to a verdict of a jury. The judgment may in the Superior Court b .i-tered on the fifth day of term next after the verdict, and in tie County Court on the third day of the term next following the verdict. The defendant having until this time to make such motion as he may be advised against the verdict or state of the cause. It is within the power of the Judge who tries the cause, however, to certify under his hand upon the back of record, " that in his opinion execution ought to issue forthwith," or at some day to be named in the certificate. It has now become the usual practice in actions upon accounts, pi'omis- sory notes, etc., where there is no reasonable ground for believing that the defendant can make any substantial motion, to order execution in four or six days. The result of such a certificate is that the plaintiff is not delayed until the ensuing 186 BY CIVIL SUIT. II term, but may enter judgment upon the day specified in the certificate. Execution. — As soon aa proceedings are finally determined in favor of a party, and he has obtained judgment, he is enti- tled to issue out an execution against the goods and chattels of the opposite party, for the recovery of his debt and costs, or costs alone, as the case may bo. All the goods, chattels, cheques, bills of exchange, promissory notes, mortgages, bonds and securities for money are liable to seizure, and as to, are bound from the placing of the Writ in the Sheriffs hands. Negotiable instruments, &c., are bound only from the time of actual seisure. There are certain exemptions, composed of necessary beds, bedding, vrearing apparel, cooking utensils, dishes, &c., and also the implements of the debtor's trade to the value of sixty dollars. An execution is liable to be aflfected by a landlord's claim for rent, which cannot exceed one year's rent, due. If the claim is honi^fide, the execution creditor should pay the landlord his claim (not exceeding one year's rent) and instruct the Sheriff to make the amount so paid, in addition to the execution debt. The next and most frequent obstacle is likely to be a chattel mortgage covering the debtor's property. These are frequently maid fides and often void from technical infor- mality, &;c. If the creditor desires to contest the validity of the mortgage, he can do so by an interpleader issue. Should he accept it as valid, he should pay off the mortgage, if due, or sell subject to it. Prior executions also frequently interfere ; many of which are executions held at the request of the judgment debtor, for the purpose of protecting his property from the liability of his just debts. It is for the creditor to decide whether he will contest these prior liens or submit to them. If he submits to them he can force a sale of the goods and chattels, the proceeds being first applied upon the prior claims, «nd the balance upon his execution. If there be no impediments, he BY CIVIL SUIT. 187 can (unless tho execution debtor sooner go into insolvency), after advertising eight days, proceed to sell tho goods seized. If from any reason he cannot realize enough to satisfy his claim from personal property, 'and the sheriff return " No goods " ho can issue a writ against the lands of tho execution debtor, which will bind all the lands and estate of such debtor, over which he has the power of disposal, from its delivery to tho Sheriff of the county in which such lands lie. No sale of lands can take place under any such writ, until it has lain in tho hands of the Sheriff for one year, and such lands have been advertized in the Canada Gazette for at least six weeks, and in some local paper or by poster in the Sheriff^s office, or upon the door of the Court House, for the space of three months. All sales must take place, subject to prior incum- brances, by way of mortgages, &c. Interpleader. — In case a claim be made to any goods or chattels taken under any process of the court, or to the proceeds or value thereof, then upon the application of the Sheriff or officer to whom the writ or process is directed, tho Court or Judge may, by rule or order, call before such Court or Judge the parties issuing such process as well as the party making the claim, and may dispose of the matter ; or, as is usually done, order an issue to be tried, to determine by a jury the ownerahip of the property in question. This protects the Sheriff or officer in performance of his duty, prevents after actions for damages, and is a cheap and expeditious mode of settling the question of ownership. Examination of Debtor». — If the Execution creditor is unable to realize from goods and chattels of the debtor, he may obtain an order that the debtor he examined as to any and what debts are owing to him, and that he produce all books of accounts, documents, &c., in his possession ; or as to the property and means he had when he incurred the liability, and the means he has at time of the examination of discharg- ing such debt, and as to the disposal be may have made of 188 BY CIVIL SDIT. any property after Incurring such indebtedness. If ho neglect to attend, or refuse to answer, or docs not answer satisfacto< rily, or if it appears that he has concealed or made away with any of his property, to defeat or defraud his creditor, the court may order such debtor's imprisonment for any term not exceeding twelve months, or direct a Writ of Capias ad SatUfaciendum to issue against him. Garnishee. — If an execution creditor, by means of such examination, or otherwise, discovers that some third person is indebted to the execution debtor, he may, by an application to a Judge, obtain an attaching order, which, when served upon such third party, prevents him paying the debt so attached to the execution debtor. It should be observed that these attaching orders take priority in the order of their issue and service, and not of the executions upon which they are founded. Such third party is called a garnishee. If the garnishee does not forthwith pay into C ourt the amount duo from him to the judgment debtor, or an amount equal to the judgment debt, or dispute the debt claimed to be due from him to the judgment debtor, he may order execution to issue forthwith, and the amount levied from the garnisher. If the garnishee disputes his liability, the Judge may order that the judgment creditor be at liberty to proceed against him by writ, calling upon him to shew cause why he should not pay over, and if the liability of the garnishee is estabhshed, the judgment will have execution against him. All payments made by a garnisher, under such process, are equal to payment made to his original debtor ; and this is the case, though the garnishee's pFoccedings be afterwards set aside or reversed. Attachments. — If a creditor, his servant or agent, can make an affidavit (supported by the affidavits of two other credible persons) that he has good reason to believe and doth verily believe that a debtor, in a sum exceeding one hundred dollars BY CIVIL SUIT. 189 hath departed from this Proviiico with intent to defraud such creditor of his just dues, or to avoid being arrested or served with process, he may obtain an order that a Writ of Attach- mont do issue against the estate and effects of such debtor. It is the duty of the Sheriff, in whose hands such Writ is placed, to attach and keep all the debtor's real and personal property, credits, and effects, securities, books of accounts papers, &c., or the proceeds of a sale of such as are perishable until such debtor shall have put in special bail as required by the Writ, or until the creditor shall have proceeded to judgment and execution. Any person having commenced a suit in any Court of Record, before the issue of an attachment, does Lot thereby lose his priority, although be may be, upon the order of the Court or Judge, subject to the costs of issuing out the attachment. When several persons sue out Writs of Attachments against an absconding debtor, the proceeds of the property and effects attached is ratably distributed among such of the plaintiffs as obtain judgments, and sue out execution in proportion to the amounts actually due upon such judgments, and the Court or a Judge may delay the distribution in order to give a rea- sonable time for the obtaining of judgment. Arrest. — If a party have a cause of action amounting to one hundred dollars or upwards, and shows by affidavit such facts and circumstances as satisfy a Judge, that there is good and probable cause for believing that the debtor, unless he be forthwith apprehended, is about to quit the province, with intent to defraud his creditors generally, or the party applying in particular, an order may be obtained for a Writ of Capias, for the arrest and detention of the debtor, until hd shall give such bail as the Judge may order. Such bail as required having been filed and approved, the Plaintiff must proceed to judgment and execution as m an ordinary action, upon which he is entitled to proceed either against the estate and effects of the defendant, or his sureties, may be . • or person, as the case 190 INSOLVENCY. Hecovcry upon Judgments. — If a partjr having a judgment rocovcrod hero, upon which he is unable to realize, discover that the defendant have property in Great Britain, or any of the dependencies or provinces, or in the United States, he may sue upon such judgment and recover in the country or place where such property exists. The process is cheap and exceedingly simple, the judgment being proved by an exem- plification, certified by the seal of the court. Judgment may be obtained hero upon foreign judgments in the same manner and upon quite similar proof. SECTION IV. INSOLVENCY. The Insolvent Act of 1864 materially efiects a creditor's remedies, and in many cases must entirely change his course of procedure for the purpose of recovery. It is difficult to say what have been and will be the full eflFects of the Act. We believe it to be the opinion of professional and business men, who have had the best opportunity of seeing its working, that in its present form at least, it is unadapted to accomplish the desired purpose ; that it has oftener assisted a dishonest man to defraud his creditors, than it has an oppressed debtcr to regain his standing — and that from its general working it has tended to weaken the foreign credit of our mercantile men. In reading the Act of 1864, it should be remembered that it is divided into thirteen sections with their several sub-sec- tions. Each section having a special heading and confined to a special matter, evidently intending to be as complete as possible in itself. And though the Act must be considered and construed generally — as a whole — yet each division may be looked upon, as peculiarly controlling the substantial points to which it is devoted. To whom Act applies. — Section 1, as far as the Province of Ontario is concerned, removes the old distinction between INSOLVENCY. •m traders and non-traders, and makes the Act applicable to both. It soems, therefore, that an infant, married woman, and even a lunatic, may take advantage of the Act under certain cir- cumstances. We think a fair test would be, could the estate of the party be made liable under an execution at common law. Section 1 has, however, one exception, that is the case provided for by sub-section 2 of section 3, which is confined to traders exclusively. The Act gives no definition (as do the recent English statutes) of the term, as intended to be used in its application. We can, therefore, only construe it, by such an interpretation as it has received by general use, and by the courts, in considering other and different statutes. A " trader" as commonly used, means a person engaged in traflic or merchandize — a dealer in buying and selling or barter. By 13 Eliz., chap. 7 and 21, Jac. 1, chap. 19, it was provided that every person seeking a living by buying and selling, was liable to bankruptcy as a trader. And this, although, he did not sell the wares he purchased, but con- verted them into saleable commodities which he afterwards sold, so in case of an artisan who purchased materials, after- wards to be used in manufacturing articles for sale. Buying nor selling alone will not constitute a trader. But it seems if there be a buying and selling, either with or with- out change of the nature of the articles, for the purpose of a living, followed at the time of the passing of the Act, the party is a " trader" for the purpose of sub-sec. 2 of sect. 3, in Ontario, and the Act generally in the Province of Quebec. Voluntary Assignments. — Any person unable to meet his engagements may make an assignment of his estate. Whether or not a voluntary assignment can be made when there is no es^t^t^, incidentally arose in the matter of one Smith, an insolvent, upon an appeal against his discharge by Wm. Darling of Montreal. Adam Wilson, J., held there was an estate, but remarked, " What conclusion he might have 192 INSOLVEXCY. formed as to the validity of an assignment when there was no estate, if he had been obliged to consider it, he was not pro- pared to say." Prac. Ct. Rep. vol. 4, p. 89. S. J. Jones, Esq., judge C. C, Brant, held in re W. Perry, an insolvent, L. J., 1866, p. 75, that a consent to a discharge of an insol- vent is operative, even tvithout an assignment, provided the insolvent makes and files an affidavit that he has no estate or eflFects to assign. In this case the only notice given was the notice of consent to discharge ; and an order confirming the insolvent's discharge was granted. It would seem remarkable if an Act evidently passed for the benefit of insolvents, should ignore the one so fully insol- vent, that he has no estate. The preamble of the Act, how- ever, reads, " whereas, it is expedient that provision be made for the settlement of the estates of insolvent debtors." Sec. 2, only provides for an assignment of the insolvent's estate. Section 9, sub-section 1 and 2 provides for a deed of compo- sition and discharge. Siib-section 3 of section 9, provides for a consent to a discharge after an assignment. There can be no composition without an estate, out of Avhich to pay it ; and the assignment is simply of the estate. There is no clear way, therefore, of carrying out the Act, and notwithstanding Judge Jones' decision in re Perry, there is strong reason for believing that when the point comes to be finally decided it will be held that a party without an estate is debarred from the benefit of the Act. A voluntary assignment can now bo made under section 2 of the Amending Act of 1865, to an official assignee, without any of the formalities or notices formerly required. Neither is it necessary that a copy of the list of the insolvent's credi- tors be attached. Hingston vs. Campbell, L. J., 1866, p. 299. The assignment must be made to an official assignee residing within this Pi-ovince. White V3. Cuthbertson, 17 C. P. 377. This opinion has been concurred in by the Hon. Justice Loranger, of Lower Canada, while the Hon. Judge INSOLVENCY. 193 Monk, we believe, held differently in the case of Wright, an insolvent, vs. Armstrong. Not only must it be made to an assignee residing within the Province, but to one of that county in which the insolvent resides or carries on business, Kingston vs. Campbell, L. J., 1866, p. 299. An insolvent may still call a meeting of his creditors as provided by section 2 of the Act of 1864, in which case the creditors may appoint what assignee they choose. The as- signee so chosen by the creditors need not be an official assignee, neither need he reside within the county in which the insolvent resides or carries on his business. Property Conveyed by Assignmen t. — An assignment vests in the aaeignee all the estate and effects real and personal^ and securities held or possessed by the insolvent ; except such as are exempt from seizure and sale under exec«tion, and such as are held by him as trustee, or otherwise for the bene- fit of others, subject, however, to bona fide prior liens, mort» gages, rents, &c., and executions which have been in Sheriff's hands for thirty days prior to such assignment, or the issuing of an attachment, and the costs of suits where the execu- tions have been in the Sheriff's hands for less than thirty days. A singular point arose in the case of Thomas vs. Torrance, C. P. 17, p. 445. The facts were briefly as follows : J. and C. Parsons made an assignment of all their estate, for benefit of creditors, not under the Insolvent Act, to Thorn on June 5th, 1865. On the 6th of June, 1865, Torrance obtained a judgment against J. and C. Parsons, and placed an execution in the sheriff's hands. On July 1st, 1865, Torrance issued a Writ of Attachment in insolvency against J. and C. Par- sons. Upon an interpleader issue between Thorn and Tor- rance, it was held, that the assignment to Thorn not being in accordance with the provisions of the Insolvent Act, was an act of insolvency and could not be supported, and that it was. I 194 INSOLVENCY. by the issue of the Writ of Attachment displaced and render cd void ; that Torrance, although having proceeded to judg. inent and execution, with fall knowledge of all the facts, and afterwards becoming the attaching creditor, was not put to his election, but might proceed in insolvency as well as upon his Ji.fa. : and that having got rid of the first assignment by proceedings in insolvency, his execution came in as a prior lien upon the estate. It certainly never could have been the intention of the fra- mers of the Act that it should be a means to get rid of an assignment, made for the benefit of creditors, and to let in an execution as a first charge, and then to leave the other credi- tors to help themselves as they best could. This, however, seems to be its legal effect, and the holding in Thorn vs. Tor- rance, has since been followed in Rose et al. vs. Brown, 17 C. P. p. 477. Compuhory Liquidation. — A debtor is deemed insolvent, and his estate subject to compulsory liquidation : — 1. If he absconds, or is about to abscond from this Province with intent to defraud any creditor, or to defeat or delay the remedy of any ci'editor, or conceals himself within the Pro- vince with a like intent ; 2. If he secretes or is about to secrete any of his estate with intent to defraud his creditors, or to defeat or delay their demands or any of them ; 3. Tf he assigns or removes any of his property, or is about or attempts to do so, with intent to defraud, defeat or delay his creditors or any of them ; 4. If with such intent he has procured his property to be seized or taken in execution for an indebtedness exceeding two hundred dollars. 5. If being a trader he permits an execution issued agtunst him, to remain unsettled until within forty-eight hours of the time fixed by the Sheriff, for the sale of his property or ■estate ; INSOLVENCY. 195 6. If he be actually imprisoned or upon the gaol limits for more than thirty days in a civil action, founded on a contract for the sum of tiro hundred dollars or upwards ; 7. If he wilfully neglects or refuses to appear on any rule or order requiring his appearance to be examined into his debts ; 8. If he wilfully refuses or neglects to comply with any jiuch order made for the payment of his debts or any part of Ihem; 9. If he wilfully neglects or refuses to obey any order of ihe Court of Chancery or a Judge thereof for the payment of money ; 10. If he has made any general conveyance or assignment of his property for the benefit of his creditors, otherwise than in the manner prescribed by the Insolvent Act ; 11. If a trader ceases to meet his commercial liabilities generally as they become due, any two or more creditors, for sums exceeding in the aggregate five hundred dollars, may make a demand on him, requiring him to make an assignment of his estate and effects for the benefit of his creditors ; and if the trader does not within five days after service of such demand, call a meeting of his creditors, nor make an assignment, nor apply by petition to the Court, to have further proceedings under such demand stayed. Where the act of insolvency is one of ommion, proceed- ings to place the estate in compulsory liquidation must be had within three months after such act, and the act relied upon must have been committed during the existence of the debt of the creditor making the application. Writ of Attachment. — An order for a Writ of Attachment, placing the estate of an insolvent in compulsory liquidation, is obtained, upon an affidavit of the creditor showing that he is a creditor of the insolvent for a sum of not less than two hundred dollars, supported by the affidavits of two credible persons, containing facts and circumstances as satisfy the judge of the debtor's insolvency. 196 INSOLVENCY. Whether or not the debt upon which an attachment may be obtained, must be a debt due^ such as a suit at common law might be instituted, there seems to be some question. The Judge of the County Court of the county of Frontenac, in Darling vs. Rudston, granted an order for an attachment, upon promissory notes, unexpired. The validity of the order was not so questioned as to obtain a final decision upon the point. We think the better opinion is that the debt need not be, necessarily, due. If it were held otherwise, the benefit of the act would in many cases be entirely destroyed; for instance, in re Ruston, the attachment was only placed in the Sheriff's hands, as he was offering the estate for sale under an execution, «ollusively obtained on the part of the Bank of Upper Canada, which would have swallowed up the estate, and deprived the other creditors of all benefit. It is the duty of the Sheriff to at once take possession of the estate of the insolvent, under the attachment, and hand the same over to a proper official assignee, to hold as guar- dian ; and in case of there being no such official assignee, then to some responsible person. Such guardian continues to hold the estate, and make an inventory thereof, until an assignee be appointed by the cre- ditors, or the Judge, as the case may be, at a meeting legally called for that purpose. Amgnee. — It is the duty of the assignee to publish all notices, attend all meetings, and be guided by the lawful instructions of the creditors and of the Judge. He should call all meetings of the creditors, and carry on all proceedings at the place where proceedings were instituted — except per- haps where otherwise specially ordered by the Judge — In re William Atkins, an insolvent L. J. 1866, p. 25. The notices must also be published in a newspaper, at or nearest the place where the meeting is to be held. All power vested in an insolvent, which he might legally INSOLVENCY. 197 execute for his own benefit, rests in the assignee,«ndmaybe executed in the same manner and to the same effect, as they might by the insolvent himself. These powers should be pru- dently exercised by the assignee in winding up the estate, under the guidance of the creditors, as provided by the act. An assignee may be removed for misconduct, fraud or dis- honesty, either by the creditors, at a meeting called for that purpose, or by the Judge, and after removal, as before, he remains subject to the summary jurisdiction of the Court or Judge, in the same manner and to the same extent as the ordinary oflBccrs of the Court. Creditors Voting. — Considerable difficulty was found to exist, in settling under the Act of 1864, as to what creditors were entitled to vote at different meetings and for different purpose. It was therefore enacted by Sec. 21, of the amend- ing Act of 1865, that if the creditors representing claims of one hundred dollars and upAvards, do not represent a suffi- cient proportion of the creditors, such proportion may be completed by the votes or concurrence of creditors holding claims of less than one hundred dollars, and by Sec. 22, in the nomination of an assignee, in the granting of an allow^- ance to the insolvent, in the execution of a deed of composi- tion and discharge in the consent to a discharge, and in every other matter, where the' right of a creditor to vote depends upon the amount of his claim, every creditor whose claim amounts to, or exceeds one hundred dollars, shall have such right ; subject always to the provisions of the Act, respecting the voting and action of secured creditors ; and the propor- tions of creditors so voting or concurring, shall be ascertained by computing all claims entitled so to vote or act. A creditor, voting or acting, after the appointment of an assignee should first prove his claim by affidavit filed with as- signee. The Judge has only an appellate jurisdiction in res- pect of the proving of debts. They cannot therefore be proved before him, although, if necessary, he will adjourn 198 INSOLVENCY. a matter to allow a creditor to properly^ prove his claim be- fore the assignee. Be Stevenson L. J. 1865, p. 52. Debts due, but not at the time actually payable, are as well as debts due and payable, entitled to proof and to rank upon the estate ; subject to such rebate of interest as may be reasonable. A creditor's claim may be questioned either by the assignee or some other creditor, in which case it is the duty of the as- signee, to take evidence, under oath, and make an award which shall be final, unless appealed from by the party disatis- ficd within three days from the communication of such award to him. Dividends. — The assignee must declare dividends at the expiration of two months from the insertion of the advertise- ment giving notice of the assignment, and afterwards from time to time at intervals not exceeding six months. Not only are primary creditors entitled to dividends, but also sureties of the insolvent who subsequently pay such debts, and to stand in the same position as the party to whom he was a surety might. So a creditor upon a contract, de- pending upon a condition, \o entitled to have a dividend re- served to him, until the conditioner contingency is determined, but if such condition might detain the estate an undue length of time, he may be compelled to submit to an award, of the present value, of such conditional claims. If a creditor holds any security from the insolvent, he must state the value of such security under oath. It is then op- tional with the assignee, under the authority of the creditors, to allow such creditor to rank on the estate for the balance of his claim ; or for the assignee to take the security, at an advance of ten per cent upon such specified value, and allow the creditor to rank for the then balance. A creditor is only entitled to rank upon the amount due him, upon each separate item of his account, at the time of an assignment or attachment, and no claim can rank more INSOLVENCY. 199 than once. Thus, if A holds the promissory note of the insol- vent endorsed by B for f 100, and leceivos from the estate at dividend of $60. Then B takes up the note, paying A the remaining |40, B can only rank upon the estate for the re- maining $40, and not over again for the whole amount of the note. If he could he might recover for more than the $40 paid by him. If an insolvent owes debts both individually and as a mem- ber of a firm, or as a member of two different firms, the claims against him rank, first upon the estate by which the debts they represent were contracted, and only upon the other, after the creditors of that other have been paid in full. Clerks in the employ of the insolvent are entitled to re- ceive, in full, three months wages remaining unpaid at the time of an assignment or attachment, and to rank as ordinary creditors for the balance of their wages. Fraud and Fraudulent Preferences. — 1. All gratuitous con- tracts or conveyances without consideration, made within three months next preceding the date of an assignment or the issue of a writ of attachment, and all contracts by which creditors are injured, obstructed, or delayed, made by a debtor unable to meet his engagements, and afterwards becoming insolvent with a person knowing such inability, are presumed to be made with intent to defraud his creditors. 2. A contract or conveyance for consideration by which creditors are injured or obstructed, made within thirty days of an assignment or writ of attachment, is liable to be set aside by a court of competent jurisdiction. 3. All contracts made and acts done, with an intent to de- lay, defeat or defraud his creditors, and in effect doing so, and so made with a person knowing such facts, are null and void, though in consideration or in contemplation of mar- riage. It is actual knowledge and notice that is necessary in this case, and not mere constructive notice. Leys and wife vs. McPherson, 17 C. P. p. 266. 200 INSOLVENCY. 4. Any sale, deposit, pledge, or transfer, made in contem- plation of insolvency, by way of security or payment to any creditor, whereby such creditor obtains an unjust preference, such sale, deposit, pledge, transferor payment, is null and void, and the subject thereof may be recovered back, for the benefit of the estate by the assignee ; and if the same take place within thirty days, before an assignment or attachment, it will be presumed to have been made in contemplation of insolvency. Under this sub-section, the knowledge of the creditor of the debtor's inability to pay his debts, or of a fraudulent intention on his part to impede, obstruct, or delay his creditors, is not material to make the transfer null and void, and even the ex- istence of a fraudulent intent is not necessary. It is the policy of the Act to distribute the insolvent's effects ratably among all his creditors, and if one obtains payment in full by the means stated above, while the others get nothing, it is an unjust preference, Adams yi\. McCall, 25 B. R. p. 219. 5. Every payment made yithin thirty days of an assign- ment or attachment, by a de])tor unable to meet his engage- ments in full, to a person knowing, or having reasonable grounds of knowing such inability, is void. The general wording of this sub-section would lead one to think that all payments made within thirty days would be void, whether voluntary or not. It is quite evident, however, from several English cases, bearing strongly upon the point, that it does not apply to payments made under pressure of law, as under an execution or distress ; but only to payments voluntarily made. 6. Any transfer of a debt due by an insolvent, made with- in thirty days next previous to an assignment or attachment, or at any time afterwards to a person knowing, or having reasonable grounds for believing the insolvent to be unable to meet his engagements, or about to pass into insolvency, are null and void as to the estate of the insolvent, and for the pur pose of enabling the transferee to set it up by way of set off o- compensation, to a debt due to the insolvent. INSOLVENCY. 201 7. Any person purchasing goods on credit, or procuring advances of money, knowing or believing himself to be unable to meet his engagements, and concealing the fact, with intent to defraud such person ; or by false pretences obtaining a term of credit, for the payment of money, with intent to de- fraud ; and who shall not afterwards have paid the debt so incurred, is guilty of fraud and liable to imprisonment for any term not exceeding two years. 8. If an insolvent retains or receives any portion of his estate, papers, books, documents, or evidences of debt, from the assignee, without lawful right, and refuses to deliver them over upon an order of the Judge, he is liable to be im- prisoned for any term not exceeding one year. 9. If a creditor directly or indirectly takes from an insol- vent any payment, gift, gratuity, or preference, as a consi- deration or inducement to consent to the discharge of such insolvent, ho is liable to forfeit treble the value of such pay- ment, gift, gratuity, or preference, to be recovered by the assignee, and passed to the general assets of the estate. 10. Every assignee is an agent within the meaning of the forty-third, and four following sections, of the ninety-second chapter of the Con. Stat, of Canada, and for any misappli- cation of goods and chattels, securities or moneys, passing to him as such assignee, i^ liable to indictment, and fine or im- prisonment under said act. Two things are necessary to bring a party within this sub- section ; first, — an intent to defraud, to defraud at the time the purchase was made, or the advance obtained ; second, — the result of that intention flowing from the act. The intent would naturally be inferred from the position and conduct of the party. And though sub-sec. 8 enacts that in every case the Plaintiff shall prove the fraud charged, it cannot be presumed to mean that he shall do more than offer such evidence as would satisfy a jury, after a conside" ration of all the facts, that fraud existed in the intent and act* 202 IXSOLVENCY. Order of Discharge. — There are three modes of obtaining^ a discharge under the act : — 1. By obtaining a deed of composition and discharge, exe- cuted by a majority of the creditors who aro respectively creditors for sums of one hundred dollars and upwards, and who represent at least three-fourths of the liabilities of the insolvent. But in case the whole of the creditors holding claims against the insolvent, for sums of one hundred dollars and upwards, do not represent the proportion in value of tho liabilities of tho insolvent, subject, to be computed in giving validity to the deed, then such proportion, or amount, may bo completed by creditors holding claims of loss than one hundred dollars. The deed of composition and discharge may be made either before, pending, or after proceedings upon an assignment or attachment. It can doubtless bo made before an assignment is executed, but there are very strong reasons for believing — not without due respect for tho opinion of Judge Jones in re Perry L. J. 1866, 75 — that an assignment is necessary, at least, before the full completion of a discharge. 2. By a conson t simply in writing, signed by the said pro portion of creditors, to the discharge of a debtor after an assignment, or after duo attachment. In either case tho insolvent should file his deed of compo- sition and discharge, or consent, as the case may be, and after giving due notice, as required by tho act, sliould apply to a Judge for a confirmation. Upon 6>uch application, any creditor may appear and oppose the confirraaiion, upon the ground of frau'l ov fraadt'Vjini pre- ference, or evil p^'actiae in procuring the compromise or con- sent of creditors, or the insufficiency in number or value of the consenting creditors, or of the fraudulent retention and concealment by the insolvent of part of his estate, or of eva- .?ioi or false f wearing on tho part of the insolvent, or tho want of profeHy kept cash books and such other books as- INSOLVENCY. 203 are suitable to his trade, or having kept tiiom, has refused to deliver them to the assignee. The Judge, upon hearing all parties, will confirm or annul the discharge, or confirm it absolutely, conditionally or sus* pensively ; which order, unless appealed from within eight days, becomes final. A deed of composition and discharge or consent to a dis- charge, sufficiently executed, is not without effect, beforo confirmation by the judge. If it were void until then, it would not admit of being annulled. The principal effect of a confirmation is to change the na- ture of evidence. Until the confirmation, the burden of proof of the discharge being completely effected, rests upon tho insolvent ; after confirmation, an authentic copy of tho judg- ment confirming the same, is sufficient evidence, as well of such discharge as of the confirmation thereof. 3. After tho expiration of one year from tho date of an assignment, or the issue of an attachment, (not having ob- tained a deed of composition and discharge, nor a consent to a discharge) ho may apply to the judge by petition, (having first given the necessary notice) for a discharge. Sec. 11, sub-sec. 1, provides, in effect, that all notices must not only be published in tho " Canada Gazette," and in some local paper, but'that notices thereof shall also be mailed by the party giving tho same to all creditors, and to all representatives of foreign creditors, within the province, post paid. The learned Chief Justice of Upper Canada, held (m re Waddell, an insolvent, in appeal, L. J. 1866, p. 242) that this section did not apply in application for a confirmation of a deed of composition and discharge, or of a consent to a dis- cha^e, or a discharge after the expiration of a year from tho datb of an assignment, or the issue of a writ of attachment. Such cases being governed wholly by sub-sees. 6 and 10^ of sec. 9. 204 INSOLVENCY. A discharge, though final, unless appealed from in due notice, is not so when obtained by fraud or fraudulent prefe- rence, or by means of the consent of any creditor, procured by the payment of such creditor of any valuable consideration for such consent. In all such cases it is null and void from the beginning. Upon an application for a discharge, the insolvent himself should be presen t, that he may be examined by the Judge or any creditor desiring to do so. i2a. Stevenson, L. J. 1865, p. 52. If any fraudulent preference appears, or a neglect to keep proper books, the inclination is strong against any leniency. In re. Lamb, an insolvent ; (upon appeal, Prac. Rep. vol. 4, p. 16) Mr. Justice Hagarty most wisely remarked, " we have in this country in our legislation done everything to favor debtors and render their escape from liability as easy as possible to them. It will bo well at all events that the very easy requirements of the Insolvent Act on debtors, asking for their discharge, should be peremptorily insisted on, and proper punishment awarded to any breach of the trader's duties in conducting his business." Examination of Insolvent and others. — Immediately upon the expiry of the period of two months from the first insertion of the advertisement giving notice of an assignment, or the appointment of an official assignee, the assignee must call a meeting, by advertisement, of the creditors, for tfie examina- tion of the insolvent, and shall summon him to attend such meeting, and the insolvent may then be sworn before the assignee, and examined by any creditor present, in his turn. He may also be examined, before the Judge, by the assignee or a creditor, upon an order or a subpoena for that purpose, in any case where an attachment has issued agaiast his estate. So may any other person, although a creditor, (Re. Hamilton and Davis, Insolvents, Logic. Co. J. U. C. L. J. 1865, p. 52) in every case, who is believed to possess information respect- ing the estate of the insolvent liable to examination before INSOLVENCY. 205 the Judge, upon an order obtained for that purpose. Suoh witness is not, however, bound to be sworn until his expenses are paid. The insolvent himself, when attending, is not so entitled to pay, and he may be examined before as well as at, or after the meeting mentioned in sub-sec. 1 of sec. 10 after act, Worthington vs. Taylor, 10 U. C. L. J. 304. The insolvent must also attend all meetings of his creditors, when summoned to do so by the assignee, and must answer questions put to him touching his estate, for which attendance he is entitled to such sum, as may be ordered at such meeting, but not less than one dollar. Effect of a Discharge. — A discharge, whether obtained under a voluntary assignment, or compulsory liquidation, fully frees and acquits (with a few exceptions) the insolvent from all debts and liabilities, existing at the date of such assignment, or the issue of the writ of attachmont, and which are disclosed by the insolvent or by the crodltors themselves. A law which has a retrospective character is generally con- sidered repugnant to a strict sense of justice. The Insolvent Act, has, however, a retroactive effect, and discharges an insolvent, as fully from debts and liabilities incurred before its passing, as since. But it does not effect a discharge, without the express consent of the creditor, to any debt for enforcing the payment of which the imprisonment of the debtor is permitted by the Insolvent Act, nor to any debt due as damages for personal wrongs, or as a penalty for any offence of which the insolvent has been convicted, or as a balance due by the insolvent as an assignee, tutor, curator, trustee, executor or public officer, though such parties may claim and accept a dividend thereon from the estate. Neither does it operate nor produce any change in the liability of any person or company secondarily liable for the debts of the insolvent, either as drawer or endorser of negotiable paper, or as a guarantor surety, or otherwise, nor of any partner or other person liable jointly 206 INSOLVENCY. or severally with the insolvent for any debt, nor any mort- gage,*lien or security held by and credited as a collateral security. We have only given a brief and general synopsis of the act, and the holding of the different Courts upon points already arisen under it ; not too brief, however, we hope to be of some benefit to the reader. There are some sections of the act that we have left unreferred to ; beUeving, that from their ambiguous, if not confused character, there would be more danger than benefit to the unprofessional reader, in any dictum, excepting that -bearing with it judicial strength. CHAPTER V. IxMPORTANT ENACTMENTS. SKCTION I. FRAUDULENT ACT.S. It has long been the object of legislation, and of the Courts, to prevent, as far possible, acts and conveyances, intended to delay and defeat creditors in the recovery of their just claims. The law is now most stringent, and every protection seemingly afforded ; yet, the designing and dis- honest find various means of avoiding it. By 13 Eliz., c. 5, if a person makes a conveyance of any property which is liable to the payment of debts (unless for valuable consideration and bond fide, to a person who has no notice of a fraudulent intent), and at the same time, or imme- diately afterwards, is indebted to such an amount that he has no ample means available to pay the debts, such conveyance is fraudulent and void as against the creditors. The property coming within the statute is such as is liable to sale under an execution for debt. As every interest in real estate that a person can dispose of is now made saleable, the effect of the statute is materially extended. It lias, how- ever, been held, in Kilbride v. Cameron, C. P. R., Vol. 17, p. 373, that though a sale of land may be fraudulent as against creditors, yet, where the execution debtor (the vendor) had not raised the crops, the subject of seizure, or furnished the means of so doing, but the labour and means 208 FRAUDULENT ACTS. ■I had been contributed by the vendee alone, the crops were the sole property of the vendee as against the execution creditor. In the case of Pegg v. Eastman, Chan. R., Vol. 13, p. 137, it appeared that a person having a claim against a party in insolvent circumstances made a present of it to his sister, the wife of the insolvent, in order that she might thereby obtain from her husband a deed of his property in considera- tion of such debt, which she did through the intervention of a third party, who conveyed the land ta her ; and the Court set aside the conveyance at the instance of a creditor of the husband, as void under the Statute 13 Elizabeth and the Indigent Debtor's Act of this Province. Thwe need not be an indebtedness at the time of transfer. The conveyance may be fraudulent and void, as against cre- ditors, although no debt be in existence at the time, if made in contemplation of becoming indebted, and in such a manner as to satisfy a jury that it was colorable and fictitious, and for the purpose of defrauding. Bank B. N. A. v Batten- bury, vii. U. C, Chan. R. 383. By the Statute 27 Eliz., c. 4, the object of which was to give full protection to subsequent purchasers for valuable consideration, against voluntary prior conveyances, a prior conveyance is deemed void as against a subsequent purchaser or mortgagee, whether with or without notice. Neither of these statutes, Eliz. 13 nor 17, prevented a debtor from disposing of his property, or giving a preferen- tial lien by way of mortgage to one creditor to the prejudice of others. So could goods and chattels be handed over, or passed by bill of sale, or encumbered by mortgage with the same effect; or a judgment and execution allowed to be obtained, to the delay and prejudice of remaining creditors. But by C. S. U. C., Chap. 26, Sec. 17, it is enacted that in case any person being insolvent or unable to pay his debts in full, or knowing himself to be on the eve of insol- FRAUDULENT ACTS. 209 vency, voluntarily or by collusion, with a creditor gives a confession of judgment, cognovit actionem, or Warrant of Attorney to confess judgment, to defeat or delay his credi- tors wholly or in part, or with intent to give an undue preference, every such confession, cognovit actionem, or Warrant of Attorney to confess judgment, shall be deemed and taken to be null and void, as against the creditors of the party giving the same, and shall be invalid to support any judgment or Writ of Execution. It was held in Young v. Christie, 7 Chan. R. 312, that entering an appearan* e to one action, and allowing judgment by default in anothei , is not a fraudulent preference within this section ; though complete in effecting that purpose. But if there be any collusion between the debtor and credi- tor, as in the case of White v. Lord, the judgment so obtained will be set aside as fraudulent. By Sec. 18, if a person being insolvent, or upon the eve of insolvency, or unable to pay his debts in full, makes or causes to be made any gift, conveyance, assignment, or transfer of any goods, chattels or effects, or delivers or makes over, or causes to be delivered or made over, any bills, bonds, note, or other securities or property, with intent to defeat or delay the creditors of such person, or with intent of giving any one or more of the creditors of such person a preference over other creditors of such person, every such gift, conveyance, &c., is null and void as against the credi- tors of such persons. By ISec. 19, if any person destroys, alters, mutilates or falsifies any of his books, papers, writings, or securities, cr makes or is privy to the making of any false or fraudulent entry in any book of account or other document, with intent to defraud his creditors, or any one of them, he is guilty of a misdemeanor, and liable to be imprisoned in the common jail for any term not exceeding six months. And by Sec. 20, any person who makes or causes to be made any gift, V 210 FRAUDULENT ACTS. H! i'i conveyance, assignment, sale, transfer, or delivery of any of his lands, hereditaments, goods or chattels, or who removes, conceals, or disposes of any of them with intent to defraud his creditors, or any of them, and any person who receives such property, real or personal, with such intent, is guilty of a misdemeanor, and liable to imprisonment for any term not exceeding twelve months, and to a fine not exceeding eight hundred dollars. By Section 1, Chap. 45, C. S. U. C, every mortgage or conveyance intended to operate as a mortgage of goods and chattels, which is not attended by an immediate delivery and an actual and continued change of ponsessioii, or a true copy thereof, must be filed in the office of the Clerk of the County in which the mortgagor resides, and if not a resident of the Province, then of the County in which the property is situated within five days after its execution. The Courts of Common Pleas and Queen's Bench were formerly at variance as to whether such mortgage took effect from the time of execution or filing, whereupon 2G Vic, Chap. 40, S. I, was passed, giving it effect from the day of its execution. A person's property may therefore be covered by a mortgage for four days without any means of discovering the foct ; thus rendering the original intention of chap. 4") seemingly inoperative for that period. Every such mortgage, and copy thereof, so filed, must be accompanied by an affidavit of a witness thereto, of the due execution thereof, and an affidavit of the mortgagee or his agent, stating " tliat the mortgagor, therein named, is justly and truly indebted to the mortgagee in the sum mentioned in the mortgage, that it was executed in good faith, and for the purpose of secu'ing the payment of money justly due or accruing due, and not for the purpose of protecting the goods and chattels mentioned therei-. against the creditors of the mortgagor, or of preventing the creditors of such mortgagor from obtaining payment of any claim against »>im " FRAUDULENT ACTS. 211 lay of lores, [fraud ceives ilty of ■in not ' eight ige ov da and dioery < a true of the ■esident perty is ch were took ipon 26 rom the efore be neans of ntention must be the due c or his is justly cntioned and for y due or ig the creditors of such against Unless the mortgage and affidavit be not so executed and registered, they are absolutely void as against creditors of the mortgagor, and against subsequent purchasers or mort- gagees in good faith for valuable consideration. Nothing requires greater care than the drawing and executing of Chattel mortgages. If there be anything wanting in the mortgage itself, the description of the pro- perty, the affidavit, or the execution, our Courts are strongly and justly inclined to hold against its validity as agalnat creditors. Many persons were so long accustomed to make fraudulent sales of their personal property, or to clande ..- tinely encumber it with mortgages while they retain^^d rts, possession, and any benefit from its use and mercantile credit, that every means is still sought to evade the law, and accomplish the same purpose, at least so far as to give a preferential lien, or defraud a creditor. The strictest hold- ing of the Courts cannot prevent the evil ; all it can dc is to remedy it as far as possible. Every such mortgage becomes void as against creditors, subsequent mortgagees and purchasers, in good faith for valuable consideration, unless it be renewed, by filing within thirty days next preceding the expi-ation of one year from the filing thereof, a true, copy of such mortgage, together with a statement of the interest of the mortgagee in the property mentioned therein, and a full statement of the amount of piincipal and interest still due thereon, authenti- cated by an affidavit of such mortgagee or his agent ; which affidavit must also state " that the said mortgage has not been kept on foot for any fraudulent purpose." Every sale of goods and chattels, not accompanied by an immediate delivery and followed by an actual and continued change of possession of the goods and chattels sold, must be in writing, under 22 Vic, chap. 45, C. S. U. C, accom- panied by an affidavit of a witness thereto after due execu- tion thereof, and an affidavit of the bargainee, or his agent, 212 PROPERTY OP MARRIED WOMEN. ' duly authorised in writing to take such conveyance, " that the sale is bond fide and for good consideration, as set forth in said conveyance, and not for the purpose of holding or enabling the bargainee to hold the goods mentioned therein against the creditors of the bargainor." Such conveyance must be registered in the same time and manner aa a chattel mortgage, otherwise the sale is abso- lutely void as against the creditors of the bargainor, and as against subsequent purchasers and mortgagees in good faith. A bill of sale, though requiring to be filed in the same manner as a chattel mortgage, does not require renewing to keep it alive. A chattel mortgage may be made securing a party against future advances, for the purpose of enabling the borrower to enter into and carry on business, also against the endorse- ment of bills and notes, or any other liability, the time for repayment, nor the liability extending beyond a year from the date of such mortgage. It must state clearly and fully the terms, nature, and effect of the agreement, and the amount of liability intended to be created ; also an affidavit of execution, and an affidavit of the mortgagee, or his duly authorized agent, ** that the mortgage truly sets forth the agreement entered into between the parties thereto, and the extent of the liability intended to be created, and covered by the mortgage, and that it is executed in gi^od faith, and for the express purpose of securing the mortgagee repay- ment of his advances, or against the payment of the amount of his liability for the mortgagor, as the case may be," &c. SECTION 11. PROPERTY OF MARRIED WOMEN. Formerly the notion of an unity of person between the husband and wife — it being held that they were one person in law, so that the very being and existence of the woman PROPERTY OF MARRIED WOMEN. 213 &c. •was suspended during marriage, or entirely merged or incor- porated in that of her husband — established the principle of law that those chattels which belonged to the wife before marriage, were, by the act of law through marriage, vested in the husband, with the same degree of property and with the same power, as the wife, when sole, had over them. In real estate he only gained a title to the rents and profits during coverture ; for that depending upon feodal principles, remained entire to the wife after the death of her husband, or to her heirs, if she died before him ; unless, by the birth of a child, he became tenant for life by the cui'tcsy, as it is called. But in chattel interests the sole and absolute property vested in the husband to be disposed of at his pleasure, if he chose to take possession of them. The interest of the husband in his wife's property, whe- ther such property came to her before or after marriage, was not only under his own control, but also liable to sale under execution for his debts. The only way of protecting her property was by a marriage settlement. This state of the law has been materially altered, so as to protect the interest of married women in their separate pro- perty, by chap. 73, C. S. U. C. By Sec. 1, every married woman, who has married since the fourth day of May a. d. 1859, without any marriage set- tlement or contract, shall have, hold and enjoy all her real and personal property, whether belonging to her before, or acquired after marriage, free from the debts of her husband, and from his control or disposition in as full and ample a manner as if she had continued unmarried. By Sec. 2, every woman, who had married on or before the fourth day of May A. d. 1859, without any marriage contract or settlement, shall have, hold and enjoy all her real estate not then taken possession of by her husband, and all her personal estate not then reduced into his possession, free i f.i. 2U PROPERTY OP MARRIED WtMEN. from his debts and obligations, and from his control and dis- position without her consent, as fully as if she had remained unmarried. The act, however, provides that a married woman's property shall not be protected from seizure, upon an execution against her husband for her torts, and that no conveyance by her shall deprive her husband of any estate he may become entitled to as tenant by the curtesy. The married woman has still no power to contract oo as to bind herself in law, though her separate property, Nhether real or personal, not settled by an ante-nuptial c<*iiti'ict, is liable for a separate contract made or debt incurred by her before marriage. And every husband who takes any interest in the separate estate or property of his wife, under any con- tract or marriage settlement, is liable upon the contracts made or debts incurred by her before mariiage, to the extent or value of such interest only, and no more. There arc certain contracts which a tuarricd woman might enter into so as to make her separate estate liable in equity, in case she was forced to apply to equity to have her rights protected in connection with such contract. A married woman may be sued upon a contract made or debt incurred before marriage, (but her husband must be joined in such action, if residing within the province of Ontario) and the amount of judgment recovered out of her separate estate : the husband only being liable for costs in case he puts in a false plea or answer to the question. A married woman being of the age of twenty-one years, may convey her real estate by deed, executed by her jointly with her husband. Such deed, if executed in Ontario, must be executed before one of the Judges of the Courts of Queen's Bench or Common Pleas, or a Judge of the County Court, or two Justices of the Peace for the county in which she resides, and such Judge or two Justices must examinelier apart from her husband respecting her free and voluntary consent to PROPERTY OF MARRIED WOMEN. 215 convey, and endorse upon the back of the conveyance a certificate prescribed by chap. 85, sec. 2, C. S. U. C. If the deed is executed out of Ontario, it must be done before, and the corticate signed by certain officials mentioned in said chap. 85. She may also dispose of lier estate, real and personal, by devise or bequest, executed in presence of two or more ■witnesses, neither of whom is her husband, to or among her children, issue of any marriage, and failing any issue, then to her husband, or as she may see fit ; but her husband is not deprived by any such devise, of any right as tenant by the curtesy. If she die intestate, her separate personal property passes one-third to her husband, and two-thirds to her children, and if there be no children then the whole to her husband. The law effecting the descent of the real estate of an intes- tate, is too voluminous and intricate to be set forth in a work like the present. Where it becomes a matter of interest, a trusty counsel should be consulted before any action what- ever in relation to it is taken. The effect of the law, as we have stated it, is, a married woman may take hold and enjoy a separate estate, real or personal, without the assistance of any trust deed or marriage settlement, free from her husband's control, disposition or debts ; it is liable in law for debts contracted by her before marriage, and in many instances for the contracts after coverture ; that she may dispose of it with her husband's con- sent, and pass it by devise to her children, and if she have none, then as she may see fit. .Iv. i M 1 ADDENDUM. The laws respecting Patents, Trade-Marks, and Regis- tration of Designs existing in the Provinces of Ontario and Quebec, arc identical. The reader is referred for informa- tion on these subjects to post Chapter II, in the Treatise of the Laws of Quebec, (Lower Canada.) A COMPENDIUM OV TUK MERCANTILE LAW OF THE PROVINCE OF QUEBEC. 4 TNTIIODUCTION. . The mercantile law of the Province of Quebec — formerly Lower Canada — is derived, Ist. From the Coutume de Paris introduced by Louis XIV, in 10G3 ; 2nd. Such of the French King's Edicts and Ordinances as were enregistered in the Superior Council of Quebec ; 3rd. The ordinances of the Governor and Lcj^islativo Council passed from 1774 to 1792 ; 4th. The Statutes of the Province of Lower Canada from 1792 to 1838 ; 5th. The ordinances of the Governor and Special Council from 1838to 1841 ; 6th. The Statutes of the Parliament of Canada from 1841 until now ; 7th. The English rules of Evidence in proof of Commercial facts ; 8th. The English law relating to Bills of Exchange and Promissory Notes, in matters wherein the laws of this Province are silent ; and 9th. The English Vice-Admiralty Law, and the Act of the Imperial Parliament, entituled : The Merchant Shipping Act of 1854. This Treatise will be divided into four Books. The First, concerning Mercantile Persons ; the Second, Mercantile Property ; the Third, Mercantile Contracts ; the Fourth and last, Mercantile Remedies. 218 OF SOLE TRADERS. CHAPTER I. OP MERCANTILE PERSONS. Trade may be carried on by Individuals, Pa . tnerships, Cor- porate Companies, Corporations, and their respective agents. SECTION 1. OP SOLE TRADERS. t : '■l.ii Traders are defined to be those persons who are engaged in Commerce, and who make it their habitual occupation. The manifest intention to make of commerce a habitual oc- cupation, although the sales be few or unfrequent, constitute a Trader. So also will the mere opening of a shop for the sale of goods, or purchasing goods for sale. The following persons, amongst others, may be considered as Traders : — Merchants, Manufacturers of goods, Factors, Commission Merchants, Bankers, Dealers in Commercial paper and Secu- curities. Brokers, Auctioneers, Insurers, and Underwriters, Common Carriers for hire by land or water. Hotel, Tavern, Eating-house, and Boarding-house keepers, Warehouse-men and Wharfingers, also Mechanics and Tradesmen, who buy merchandize, either in the form of raw or partially manufac- tured materials, with intent to sell, before or after having them improved, or converted into something else ; such as Merchant Tailors, Shoemakers, Builders, Millers, Printers and Butchers. Any individual is at liberty to assume the functions of a Trader, unless he falls under some special prohibition : such as idiots, lunatics, persons interdicted from contracting by a Judgment of the Court, by reason of imbecility or prodigality. OP PARTNERS. 21 9- Minors, are persons below the age of twenty-one. As a general rule, they cannot contract during their minority, but when at the age of fourteen, they can engage themselves for hire, and sue in their own name, for the recovery of wages» to the amount of fifty dollars. A minor engaged in trade is also reputed of full age for all acts relating to such trade. A Married Woman may engage in trade, and when such trade is different to that followed by the husband, she may not only bind herself for all that concerns her commerce, but him also if there be no separation of property between them. SECTION II. OF PARTNERS. <> 1. Partnership) — What. 2. How formed. 3. How dissolved. 4. Rights of Partners between themselves. 5. Rights of Ihird Persons against Partners. 6. Rights of Partners against Third Persons. 7. Limited Partnership, or partnership en commandite. Partnership — What. 1. — Partnership is the result of a contract whereby two oi- more persons agree to combine property or labor for the pur- pose of a common undertaking and a common profit. It is essential that it should be for the common profit of the Partr ners, each of whom must contribute to it property, credit, skill, or industry. This contract need not be limited as to time. It may continue for an hour, or last for centuries. Hoio formed. 2. — A Partnership, though generally created by a Deed, may also be formed by a verbal agreement. And though it is, as between the Partners themselves, the result of art 220 OF PARTNERS. agi'eement, yet a person may, without entering into any con- tract, impose on himself the liability of a Partner with regard to third pei'sons. He who declares himself, or leads third parties to beHeve him to be a Partner, is liable for the supposed Partnership engagements towards them, whether he have any interest in the firm or not. As a rule, no new member can be admitted into a firm without the consent of all the Partners. In partnerships for trading, manufacturing, or mechanical purposes, or for the construction of roads, dams and bridges, or for the purposes of colonization, the Partners must deliver to the Prothonotary of the Superior Court of the District and to the Registrar of the County wherein such Partnership is formed, or where its place of business may be established, a declaration in writing,* containmg the names, address, and occupation of the Partners, the name of the firm, and the date of its formation. The omission so to deliver such a > declaration does not ;'onder the partnership null, but subjects ' '^•^^■'V'/**.^ th^ooiittmding parties to a penalty. And any Partner not ^ mentioned in the declaration may be sued with the Partners mentioned therein. t:| 1 •i 1 i IIoio dissolved. 3. — Partnership is dissolv^cu by lapse of time, by mutual consent, by the accomplishment of the business for which the pai'nership was contracted, by extinction or loss of the part- nership property, by bankruptcy of the firm, and by the death, or civil death, or bankruptcy, or a judicial declaration of business incapacity of one of the Partners. Partnerships not limited as to time may be dissolved by the will of any one of the Partners. The dissolution af a partnership, limited as to duration, may be demanded by any one of the Part- ners, before the expiration of the term, when a co-partner fails to fulfil his engagement, or is guilty of gross misconduct, • See form A in Appendix. OP PARTNERS. 221 or from mental or physical infirmity is unable to attend to the business of the firm. It may be stipulated that in case of the death of one of the Partners, the partnership shall con- tinue with his legal representatives, or only between the sur- viving Partners. A partnership may be also dissolved at the instance of a Partner who was induced to enter it by false representation. Righis of Partners between themselves. 4. — The laws existing in the Provinces of Ontario and Quebec, regulating the rights and liabilities of Partners be- tween themselves, are almost identical. The reader is therefore referred to page ante 22, et seq., for a succinct statement of their substance. In addition it may be added, that in the Province of Quebec no Partner can carry on pri- vately any business which deprives the Partnership of a por- tion of his skill and attention, or any share of that portion of the capital belonging to the firm. If he does so, he is obliged to account to the partnership for the profits he may acquire by such business. Each Partner is liable to the firm for any damages occasioned by his fault, and while in the event of difference of opinion between Partners as to the best manner of carrying out the purposes for which the firm was established, the minority must submit to the majority. Yet, a Partner, charged with the management of the busi- ness of the partnership by a special clause in the contract, may perform all acts connected with his management, not- withstanding the opposition of his Partners, provided he act without fraud. But if such power of management be given him subsequent to the contract of Partnership, it is revokablfr in the same manner as any ordinary appointment. Mights of Third Persons against Partners. 5. — The rights of third Persons against Partners, as are laid down in pages 26 to 30 inclusive, are likewise existing. 222 OF PARTNERS. in the Province of Quebec. But the law as explained in the remainder of the section on this subject in the Treatise on the law of Ontario, is partially inapplicable to this Province. The following will exhibit such additional information as to the liability of Partners to third Persons as may be suGScient for the purpose of this work. A pereon cannot release himself from the existing liabiU- tics of a firm by his withdrawal. lie can, however, protect himself from any future liability by depositing with the Pro- thonotary of the district, and the Registrar of the County, in which the business of the firm is conducted, a notice of his withdrawal, according to a form, in the Appendix.* When a Partner dies, and the Partnc .ship is dissolved bj his death, the creditor has his remedy against the legal re- presentatives of the deceased, jointly and severally, along with the surviving Partners. But the separate estate of the de- ceased Partner, as contra-distiuguishcd from his Partnership estate, will be applied to the payment of Partnership debts only after liis personal liabilities have been paid. And if the deceased Partner is supposed to have died insolvent, his heirs may relieve themselves from any personal liability beyond the value of the estate by accepting it conditionally, or as it is called in law, sous benefice d^inventaire. When the right of action upon a Partnership or joint debt has been prohibited by lapse of time, no member of such Partnership or joint debtor will lose the benefit of this prohi- bition, so as to be chargeable by reason of any promise in writing, or of any part payment, made by any other Partner or joint debtor. And as regards Bills and Notes, it has been held, in Appeal, in Boioker v. Fenn, X. L. 0. Jurist, 120, that even a part payment and a promise to pay (in this case equivalent to one in writing), were insufficient to give a right of action on a note, which had been due more than five years * See Form B Appendix. OP PARTNEUS. previous to the institution of the action, although the pro- mise and the payments had been made by tlic Person against whom the suit had been brought. This decision, it is be- lieved, will now apply under the code to all debts of a com- mercial nature. In Partnerships of a non-commercial character, such as between professional men, &c., the Partners arc liable to the creditors for the debts, in equal shares only. They are liable to this extent although their shares in the Partnership may be unequal. liiffhta of Partners against Third Persons. 6. — See ante 33, Limited Partnerships (en commandite.') 7. — The object and nature of Limited Partnerships may be understood by the following illustration. A and B have carried on, or intend to carry on, business as co-partners, iu the name of A B & Co. They have insuflficient capital. C is a man of wealth, and is willing to risk, say five thou- sand dollars, in their business, but is unwilling to assume any risk or liability, either toward them or their creditors, beyond that amount. To secure this object, he deposits this amount, as a special Partner, under the provisions of the statute, and deposits with the Prothonotary of the District and with the Registrar of the County where the business of the firm is conducted, a declaration to that effect, according to a form in the Appendix.* In this declaration the name of the firm, the nature of the business, the names of and address of the general t^iid special Partners, the amount of capital contri- buted by each special Partner, and the period at which the Partnership commences and that of its termination must be • See Form C. in Appendix. 224 OF PARTNERS. ■i- .11' »' ■i ■ I t 1 I 'I inserted. This species of Partnership is not deemed to be formed until this statement is tlius made and recorded. A and B are called the general Partners, and C becomes the special Partner. The general Partners are jointly and severally liable, in the same manner, as ordinary Partners under a collective name. The special Partner is liable only to the amount contributed by him to the capital of the firm. The general Partners only can be autliorized to transact business, and sign the name of the firm. If any false statement be made in the declaration or certi- ficate of Partnership, all the Partners, special and general, thereby become liable to the creditors as ordinary Partners. In case of any renewal of the Partnership beyond the time originally fixed be agreed upon, a certificate thereof must be filed and recorded in the same manner as was the original certificate, otherwise the renewal will be deemed a general Partnership. So also, under a like penalty, must be regis- tered every alteration in the names of the general Partners, in the nature of the business, or in the shares specified in the original certificate. The special Partner will also become liable as a general partner, if he allows his name to be used in the title or name of the firm ; or if he transacts any business for the firm, either as Partner, or as an Agent. He may, however, from time to time, examine into the affairs of the partnership, and advise as to its management- No part of the sum which any special Partner has contri- buted to the capital can be withdrawn by him or paid to him in any way during the continuance of the partnership ; but he may annually receive lawful interest, of six per cent, provided the payment of such interest does not reduce the original amount of the capital ; and he may also, with a like proviso, receive his portion of the profits. If, by the payment of the interest, or supposed profits, PRINCIPAL AND AGENT. 225 the original capital be reduced, the special partner, receiving the same, is bound to restore the amount necessary to supply the deficiency, with interest. In the event of Insolvency of the firm, no special Partner is allowed to claim as a creditor until the claims of all the other creditors have been satisfied. No dissolution of the partnership can take place until after notice of dissolution has been registered by the Prothonotary and Registrar in the offices where the certificate of formation had been recorded, and published once in each week, for three weeks, in a newspaper published in the district where the partnership has its principal place of business, and for the same time in the Canada Gazette. The general Partners are liable to render an account to the special partners, for the management of the afiairs of the firm, in the same manner as arc ordinary Partners to each other. SECTION III. PRINCIPAL AND AGENT. 1. Definition of the Contract of Agency and Genei'al Prin- ciples by which it is yoverned. Obligations of the Agent toward his Principal, OlUgations of the Principal toivard Jus Ageht. Obligations of the Principal toward Third Persons. Rights of Third Persons against Agent. Rights and Potver of Agent. 7. Brokers and Factors. 8. The Termination of the Agency. 2. 3. 4. 5. 6. profits, Definition of the Contract of Agency and the General Prin- ciples by whic^ it is Governed. 1. Agency (Mandate) is a contract by which a person called the Principal (Mandator) commits a lawful business 226 PRINCIPAL AND AGENT. I .1 to the management of another called the Agent, (Mandatory) who, by hia acceptance, obliges himself to perform it. This acceptance may be expressed, or implied ; in some cases, the silence, or an omission, to refuse the agency, will be considered sufficient to bind the Agent. Agency will be considered to have been fulfilled gra- tuitously unless there has been an agreement, or an estab- lished usage to the contrary in respect to agency of a like nature. In all agencies of a commercial nature, a gra- tuitous performance of the agency cannot be presumed. For the purpose of sale or mortgage of real estate special authority must be given, in writing to the Agent, to enable him to sign the deeds or mortgage on behalf of his Principal. The Agent cannot bind his Principal beyond his express or implied authority, nor can he -be the buyer and seller of the thing which he has been entrusted to buy or sell for his Principal. ObligationH of the Agent to his Principal. 2. The Agent is liable for the damages resulting from the non-execution of the agency while his authority lasted, and he is also obliged, if after the termination of the contract, when the termination is occasioned by the death of the Prin- cipal, to complete business of a nature which cannot be de- layed without a risk of loss or injury. He is also bound to follow his instructions p.s strictly as possible and to exer- cise all reasonable skill and care ; but if his services bo rendered gratuitously, the Courts may moderate the rigor of the liability arising from his negligence or fault, according to circumstances. When the Agent has not been empowered to appoint a substitute, he is answerable for the substitute he may appoint, and the Principal may repudiate the acts of the latter. But when a Commercial Agent acts through his clerk, the latter will not be deemed a substitute, in the transaction of a com PRINCT- \ AND GENT. 227 mei'cial agency. The Agent is answerable in like manncr when ho is empowered to substitute, if ho appoints one notoriously unfit. In both these cases the Principal can recover also from the substitute, for the losses occasioned by his conduct. When several Agents have been appointed to act together, they become jointly and severally liable to the Principal for each other's acts, unless the contrary bo stipulated. Whenever reasonably demanded, the Agent is bound to render an account to his Principal, and to pay over any money he may have received even though it may not b3 due. He may retain therefrom all his lawful charges, and he is bound to pay interest on all money of the Principal which he may unnecessarily detain, or employ for his own use. He has a right to refuse to return to his Principal any goods entrusted him by the latter, until all lawful charges and disbursements are paid. By a provincial statute 22 Vict. c. 92. sec. 43, now in force, it is enacted, that if any money, or security, having been entrusted to any Agent wtfh a direction in writing, to apply such money or the proceeds of the security for any purpose specified in such writing, and such Agent, contrary to the direction, applies the money or proceeds to his own use, he shall be guilty of misdemeanor and liable to imprisonment. By the 44th section of the same statute, it is further enact- ed, that if any Agent having been entrusted for safe custody with any chattel or valuable security or any Power of Attorney for the sale or transfer of any public stock or fund, or in the fund of any corporate body, or company, or has been s> entrusted with such property or Power of Attorney for any other special purpose, but without any authority to sell, ne- gotiate, or pledge, such property ; and who, contrary to the purpose for which such property may have been entrusted to him, sells, transfers or pledges it, he shall be guilty of mis- demeanor, and liable to imprisonment. 22^ PRINCIPAL AND AGENT. 1 By sect. 46, if any Agent intrusted for the purpose of sale with any goods, or intrusted with any Bill of Lading, Ware- housokecpor or Wharfinger's Receipt, or cortificato or order for delivery of goods, deposits or pledges, for his own benefit, any of such goods, or any of the said documents, he shall be guilty of misdemeanour, and liable to the same punishments as are provided in the preceding sections. The same punishment is also applied by the 54th sect, to any person entrusted with a Power of Attorney to sell property, and who fraudulently sells or transfers it, or converts such property to his own use ; and by the 55th sect, any person, as for instance a Ware- houseman, or Guardian, intrusted with the property of another, who fraudulently takes or converts the same to his own use, is held to be guilty of larceny. But no Agent can be held liable under the preceding sections who, in good faith, pledges any goods, or securities, for the amount of his claim against his Princins'!, or to enable him to pay the amount of any Bill or Draft, drawn by, or on account of such Principal, and accepted by the Agent. In case of the bankruptcy of an Agent who has pledged the goods of his Principal, and the owner redeems the same, he will in respect to the sum paid by him for su'^h redemption, be held to have paid for the use of his Agent before bankruptcy ; or, if he does not redeem them, the owner is deemed a creditor of the agent for the value of the goods so pledged ; and may, in either case, claim or set off the sum paid, or the value of the goods from the Agent's estate. Ohligailons of the Principal toward his Agent. When the remuneration to be paid the Agent for his ser- vices has not been agreed upon between the parties, it must be settled accordiug to custom or usage. The Principal is bound to indemnify the Agent for all obligations contracted by him toward third persons, withii; the limit of his powers, PRINCIPAL AND AGENT. 229 and for acts of the Agent exceeding his powers whenever they have been expressly or tacitly ratified. These will in- clude all obligations which it may be presumed a prudent man, acting for himself, would have considered necessary, as for instance, the insurance of goods or other property, placed in any extraordinary danger. When there is no legal fault imputable to the Agent, the Principal is not released from any of his liabilities toward him; although the business has not been successfully accomplished. Nor can he reduce the amount of the re-imbursement upon the ground that the expenses and charges might have been made less by himself, if they are not unreasonable, according to the circumstances of the case. He is also liable for the loss suffered by his Agent in the execution of the Agency, whon they are not occasioned by the fault of the latter. The Priuoipal is obliged to pay interest upon all money advanced by the Agent ; and the Agent has a privilege, or lien, for the payment of his expenses, upon the goods placed in his hands, and upon the proceeds of the sale. Obligations of the Principal toward Third Persons. The Principal is liable to third persons for all acts done by his Agent in the execution, and within the scope, of the agency. The extent of this liability may be regulated by the Agent's authority, or by the nature of his business. Wherever there is reasonable ground for presuming authority, the Principal will be presumed to have given it, and made liable accordingly. Courts act on the principle that Avhere one of two innocent parties must suffer from the fraud of a third, he who enabled that third party to commit the fraud should be the sufferer. The measure of the Agent's presumed authority to bind his Principal in any case, will depend upon the special circumstances of such case. An Agent authorized to draw bills for his Principal is not presumed thereby to 230 PRINCIPAL AND AGENT. Pli have power to endorse. Where he has had authority to draw Bills, or Notes, he may bind him by subsequent ones, though his authority has been withdrawn, and the proceeds never reached the Principal, where the third party had no notice of such withdrawal. A Merchant's clerk is presumed to have authority to receive money for his Employers, paid in the course of business in which he is employed, but he has no implied authority to receive money on matters beyond the business, such as Bonds or Mortgages. A Merchant's clerk has also an implied authority to collect claims due to his Em- ployer, in the business in which he is engaged. An Agent intrusted with the possession of goods, or docu- ments of title thereto, such as Bills of Lading, Warehouse Receipts, &c., may bind his Principal to third parties as fully as if he were the actual owner. A ratification or assent of the Principal of such acts com- mitted by the Agent beyond his authority, will exonerate the latter and make the former liable. Such ratification may be mferred if he accepts any part of the act or contracts where- in such excess of authority forms a part. A person is also liable to third parties who in good faith contract with another, who is not his Agent, under the belief that he is so, when he has given them reasonable cause for the belief. The Principal is likewise liable for the damages caused by his Agent, in the performance of the agency ; and also for such acts of his Agent, after the withdrawal of the agency, which are necessary, and where loss or damage might have resulted from their non-performance. So also, is he liable jto third parties for all acts of the Agent done after the withdrawal of the authority, if the withdrawal be unknown to them. Rights of Third Persons against Agent. On this subject the reader is referred to ante 48 and 49. In addition to what is there stated, it may be added, that in I'UINCIPAL AND AGENT. m this Prcvinco, an Agent, whose Principal resides in an- other cr untry, is personally liable to third parties with whom he contracts, whether the name of the Principal be known or not. The Principal in this case is not liable on such con- tracts to the third parties, unless it is proved that the credit was given to both Principal and Agent, or to the Principal alone. Jiiljhta and Poivem of Agents. Some of these rights are mentioned in a preceding page under the head of obligations of the Principal toward his Agent. There are others which it is necessary to advert to liere. Formerly an Agent, entrusted with goods, or docu- ments of title thereto, for the purpose of sale, could not bind his Principal by pledging sucli goods or documents. It .was found that tliis restriction was sometimes injurious to com- mercial success. By a recent statute, now embodied in the code, the restriction is abolished. Any Agent entrusted with the possession of goods, or with the documents of title thereto, is now deemed the Owner thereof for the following purposes : 1. To obtain loans, advances, and exchanges, and the Owner shall be liable for such, to third parties in good faith, though made with notice of the Agent not being the owner, but without notice that the Agent was acting without author- ity. 2. To entitle the Consignee of goods consigned by such Agent to a lien thereon, for any money or negotiable security advanced by him in good faith to the agent, and without notice of the Agent's want of authority. Any person having a valid lien on goods, or documents of title thereto, or negotiable security, arising from an advance upon a contract with an Agent, gives up the same to such Agent, and takes other goods or personal property as secur- ity for the advance, this exchange, if made in good faith, ia 232 PRINCIPAL AND AGENT. valid ; but the lien, thua acquired, cannot exceed the value of the goods or securities so delivered up and exchanged. But no antecedent debt owed by an Agent, entrusted with the possession of goods, &c., can be the subject of any lien or pledge of such goods. An Agent possessed of any document of title to goods is deemed to be entrusted with the possession of the goods re- presented by such title. Bills of lading, warehouse, and wharfinger's receipts or orders for the delivery of goods, bills of inspection of pot-ash and pearl-ash, and all other documents used in the ordinary course of business as proof of the possession or control of goods, or purporting to authorize, either by endorsement or delivery, the possession of any such document to receive goods thereby represented, are deemed to be documents of title. In any of the foregoing cases, the Owner may redeem the goods or documents of title which have been pledged, before they have been sold, upon re-payment of the amount of the lien ; or he may recover from the person with whom any goods or documents have been pledged, the balance remain- ing, on the produce of the sale, after deducting the amount of the lien. Brokers and Factors. There is a difference between the powers of Brokers and Factors or Commission agents. A Broker has not the posses- sion, but a mere power to sell and to buy. He negociates between the Vendor and Vendee, and may be, at the same time, the Agent of both parties, and bind both by his acts in the business for which he is engaged for them. A Factor, or Commission merchant, has the possession of the goods entrusted to him to sell. He has a special lien on them for any money advanced or charges on them. To- wards third parties in good faith, he stands in the position of JOINT STOCK COMPANIES. 233 •Tvner, and may sell the goods in his own name. He may also be engaged to buy for his Principal, for "which he usually receives a compensation, commonly called a commis- sion. And he is clothed with the powers and subjected to the responsibilities stated in the preceding pages. THE TERMINATION OF AGENCY. An agency terminates by : „ 1. Revocation. 2. By the resignation of the Agent. 3. By the natural or civil death of the Agent or Principal. 4. By the interdiction by a Court of Justice, or by bankruptcy of either party. 6. By the cessation of authority in the Principal. 6. By the impossibility of the performance of the agency. SKCTION IV. JOINT STOCK COMPAN'^8. For information upon the nature, mode of formation, and liabilities of Joint Stock Companies, the reader is referred to ante p. 50 ; the law of the Provinces of Quebec and Onta- rio being identical upon these questions. It may, however, be added to what is stated in the preceding pages, that the provisions of the chap. 63 of the Consolidated Statutes of Canada, are, by 29 Vict.,chap. 20, extended to skating Rinks, and by 29 Vic, chap, 21, to Petroleum Companies. SECTION V. CORPORATIONS. Sec ante 53. The principles laid down there, and in the following pages on Corporations, are applicable also to this Province. With reference to the liability of Shareholders 234 JOINT STOCK COMPANIES. toward third parties, it may be necessary to state, that here their responsibility is limited by the extent of their interest in the corporation. That is to say, a Shareholder is not liable beyond the amount paid for his shares. If, however, a Corporation becomes insolvent, and the Shareholder has not paid the full price of the shares he represents, he is liable to the Creditors of the Corporation for the balance. The extent of this liability is sometimes increased by the charter or sta- tute creating the Corporation. In some cases it is enacted that they shall be liable for double the amount of their sha- res ; and there are Corporations existing wherein the liability is unlimited. CHAPTER II. MERCANTILE PROPERTY, 'ection 1. Legal incidents of Mercantile Property. « 2. Shipping. ii 3. Patents. (( 4. Trade Marks. <( 5. Registration of Designs. SKCTION I. LEGAL INCIDENTS PECULIAR TO MERCANTILE PROPERTY. The Legal incidents peculiar to Mercantile Property are set forth in ante 59 to 63, and are mainly applicable to the Province of Quebec, with the exception of those exempting certain goods from seizure, and as to the removal of Fixtures. The law of this Province, respecting these exceptions, may be found explained under the section of Lease and Hire, post. SECTION II. SHIPPING. The laws affecting the Building, Ownership, Mortgaging* and Registering of Vessels, are of the same in the Provinces of Ontario and Quebec. The reader is referred to ante Gd, and following pages, for information on these matters. SECTION III. PATENTS. Under the hoad of Mercantile Property, the Laws regu- I >!llil||i 236 PATENTS. \ lating Patents for Inventions, and for the protection of Trade marks and designs may be properly introduced. Who may obtain a Patent and how. — By a statute of the Parliament of the late Province of Canada, it is enacted, that any British subject, residing in this Prooince, having disco- vered or invented : — 1st. Any new and useful art ; or 2nd. Any machine, manufacture, composition of matter ; or 3rd. Any design for a manufacture ; or 4th. Any design for the printing of silk, woollen, or cotton fabrics; or 5th. Any design for a Statue, Bust, or Bas-relief, or com- position in alto, or basso relievo ; or 6th. Any new ornament ; or 7th. Any pattern, design, or print, to be worked, printed, or cast ; He may obtain a Patent therefor, provided the invention, or discovery, sought to be patented, has not been previously known or used by others " in this Province "; and not being, at the time of the application, in public use, or for sale, with the consent of the Inventor or Discoverer. The " Province," as it existed at the time of the passing of this statute, having included the present Provinces of Ontario and Quebec, which have since merged into the Domi- nion of Canada, it may be presumed, the words " in this Pro- vince" now extend to the Dominion. Therefore, any British subject, a resident of the Province of Ontario or Quebec, may now obtain a Patent from the General Government which will be operative throughout the Dominion, under the condi- tions of, and upon compliance with the terms of the statute. Duration of Patents — The Duration of Patents is limited to fourteen years from the date of the grant, Avhich may be extended to seven years more, upon application under special circumstances. It is available not only to the grantee, but also to his heirs, and assigns. PATENTS. 237 Patents to Representatives of deceased Inventor. — The executors, or other legal representatives of any person decea- sed who in his lifetime may have been entitled to a Patent, may also apply for it, on behalf of the heirs of the deceased. Patents in Foreign Countries. — A Discoverer or Inventor, who possesses the qualifications for claiming a Patent, will not be deprived of liis right to it, by having previously taken out one in a Foreign Country, provided it has not been obtained for six months or more, from the time of his making the appUcation in this country. Inventions broiu/htbi/ Canadians from Foreign Countries. — An inhabitant of this Province, who in the course of his travels in a Foreign Country, has discovered or obtained the knowledge of any Invention or improvement not known or in use here, may obtain a Patent therefor. But this privilege does not extend to Inventions or Improvements made in Great Britain or in the United States. Hence it is, that no inven- tion or discovery made in the States, can be patented here ; nor if made in Great Britain, unless the applicant be a resident of this Province, and possessed of the qualifications already specified. Hoto Patents may he obtained. — Patents are obtainable by Petition to the Governor of the Dominion setting up the name and address of Petitioner, that he is a British sub- ject, or resident of this Province, the nature of his Inventions or discovery, and his prayer for a Patent. The Petition must be accompanied. Ist. By a declaration, under oath, stating that the Peti- tioner believes he is the true Inventor or Discoverer. If the application be upon the introduction of a discovery patented in any Foreign Country, it must contain a statement, that it was not seen or patented in Great Britain, or the United States. 2ndly. By a written description, in duplicate, of the Inven- tion, and of the manner of making or compounding the same. 238 PATENTS. 1 1 w- ! If i nai i: This must be signed by the Petitioner, and attested by two witnesses. In the case of any machine, it must explain •wherein the Invention differs from other similar inventions. Srdly. This description must be accompanied by drawings in dupliacte illustrating the Invention. 4thly. If the Patent bo for a machine, a model of it must be sent. While it is deemed necessary to give these explicit instruc- tions as to the mode of application for Patents, it is proper to add, that an Inventor may save himself trouble and expense, and not jeopardize the loss of his rights, by employing a Patent agent or a professional man to make the application, rather than to attempt it himself. Patented articles to be marked as such. — Every Patentee, or his assignee, is required to mark or stamp on the article patented, the fact and date of the Patent ; a neglect to do so, is a misdemeanor, and is punishable by fine or imprisonment, or both. So also, any person who imitates the name of any Patentee upon an article for which he has obtained a Patent ; or affixes the words " Patent", " Letters Patent", " Paten- ted" on any article similar to that Patented by another, for the purpose of deceiving the Public, is guilty of a mis- demeanor, and punishable as in the preceding caste. Annulling of Letters Patent. — A Patent may be declared null, and be repealed by the Superior Court. 1st. Whore it was obtained by a fraudulent suggestion, or where a material fact has been concealed by the Patentee? or with his knowledge and consent ; 2nd. Where it has been granted by mistake, or in ignor- ance of some material fact ; 3rd. When the Patentee, or his heirs or assigns, have done, or omitted to do, an act in violation of the terms and conditions on wliich such letters Patent were granted, or for any other reason have forfeited their rights in such Patent. Amending Patents. — Whenever a Patent is inoperative PATENTS. 23& or defective by reason of a defective description, made by in- advertence, and without fraud, the Patentee may surrender such Patent, and obtain a new one, for the residue of the un- e;cpired term of fourteen years, after he has removed the de- fect from the specifications and drawings upon which the original Patent issued. Assignment of Patents. — A patent may be assigned in whole or in part, by an Instrument in writing, which must be recorded in the office of the Minister of Agriculture within two months from the execution. An Assignment of the Patentee's rights may be also made anterior to the existence of the Patent ; and, if required, the Patent may issue in the name of the Assignee, after the registration of the Assign- ment as aforesaid. nights of Patentees, jfr?., to things Patented. — Any person who without the consent of the Patentee, or his legal repre- sentatives, first obtained in writing, imitates or infringes upon the rights secured by the Patent, is not only liable to the damages which may be awarded by a Jury, but also to the payment of treble costs. But it, in such an action, it is proved that the specification filed by the Patentee, with the Governnent, does not contain the whole truth, or contains more than l.=i necessary, for the purpose ot deceiving the Public ; or, that the tl,ing secured by Patent was not originally discovered by the Patentee, or had been in Public use in this countiy, anterior to the sup- posed discovery of the Patentee, or that, the Patent had been surreptitiously obtained, — in any of these cases, the ac- tion would be dismissed, and the Patent declared void. The sale of a Machine by the Inventor, before this issuing of the Patent, will ^not, however, affect the validity of the- Patent, except upon proof of the abandonment of the dis- covery to the Public, or the sale or prior use for more than a year previous to the application for the Patent. li 240 TRADE MARKS. SKCTION IV. * TRADE MARKS. It has been customary for some Manufacturer to aflRx a certain mark, brand, or name upon Merchandize, for the Manufacture of which they may have obtained a valued repu- tation. It is therefore important to them, that such marks or devices should not be imitated by another, whereby an infer- ior article might be impose I upon the Public as of their pro- duction, and to the detriment of their business. The Legis- lature has therefore wisely provided for the ascertainment of those to whom the exclusive use of any trade mark may be- long, and for iiic punishment of those who may infringe it. What shall be deemed Trade marks. — All names, marks, brands, lables, packages, or other business device, adopted by any pei'son for the purpose of distinguishing any manu- facture, by him made, or offered for sale, whether applied to the article, or to the package or vessel containing it, is to be considered as his trade mark, and may be registered for his exclusive use. IIoiv Trade marks may be registered. — By application to the Secretary of the Board of Registration and Statistics, with a drawing and description of such trade mark, a declara- tion that such description is correct, and not in use by any other person, to the knowledge of the applicant. A fee of five dollars must be transmitted with the application. The mark is thereupon examined by the Secretary, and if he finds it does not conflict with any other registered, he will cause it to be registered, and give a certificate of the date of registra- tion to the applicant. Penalty for using another person' s Trade mark. — Any per- son who shall imitate the trade mark, thus registered by an- other or any part of it, and apply it to Merchandize, whereby the public may be deceived into the belief that it was made or produced by the person to whom the trade mark belongs, will REGISTRATION OF DESIGNS. 241 will be held guilty of misdemeanor, and liable to a penalty of not less than twenty and not exceeding one hundred dollars, which shall be paid to the proprietor of such trade mark, together with the costs. A penalty of not less than ten nor more than fifty dollars is also affixed to any counterfeiter of a trade mark not regis- tered, when belonging to a person not resident in this coun- try. SECTION V. REGIOTRATION OF DESIGNS. ffoiv obtained. — Upon similar conditions, and in a similar way, by which patents are granted, a registration of a design may be obtained, and the exclusive use thereby secured for a specified time. Duration of the Copyright of a Design. — In respect of the application of a design for ornamenting any of the following articles, the duration of the copyright is seven years : — 1. To articles of manufacture wholly or chiefly composed of metal or mixed metals. 2. To articles of manufacture wholly and chiefly composed of wood ; or to ornamenting of ivory, bone, papier machd, and other solid substances. 3. To articles wholly or chiefly composed of glass or earthenware. 4. To carpets, floor or oil cloths, shawls (except those designs consisting solely by printing of colours upon tissue or textile fabrics desciibed in following class 2.) 5. Of woven fabrics composed of linen, cotton, wool, silk, or hair, or of any two or more of such materials, if design be by printing, or by any other process by which colours are, or may be hereafter, produced upon tissue or textile fabrics, such woven fabrics being or coming within the description called furniture, and the repeat of the design whereof shall be more than 12 X 8 inches. Q m RBQISTRAIION OF DBStONS. 6. Of laoe, and of any article of manufacture not comprised in the preceding and following classes. The duration of the copyright of a design applied to the following articles is three years : — 1. To paper hangings. 2. To shawls, if solely by printing or colours upon tissue or textile fabrics. 3. To yam, thread, warp, if the design be applied by printing or other process by which colors are, or may be here- after produced. 4. To woven fabrics, composed of linen, cotton, wool, silk, or hair, or if any two or more such materials if design be by printing, or by any other process by which colours are, or may hereafter be produced upon tissue or textile fabrics ex- cepting articles mentioned in class of preceding number 5. 5. To woven fabrics not included in any of the preceding classes. 6. To articles of Manufacture having reference to some purpose of utility. Penalty. — The registration and date of registration of the design must appear upon the article bearing it ; and an imita- tion of a design so registered, without permission in writing of the proprietor, is punishable by a fine of not less than twenty and not exceeding one himdred and twenty dollars, payable to the proprietor, with costs. So also any person who places the word " Registered," or, " Rd," on an unregistered article, or upon an article the copy- right of which has expired, becomes liable to forfeit for every such offence not less than four nor more than thirty dollars, one half to be paid to the complainant. The proprietor of a registered design has also a right of action in the Superior Court against the counterfeiter, for the damages he may have sustained by the imitation. Registered designs are assignable, in whole or in part, and the assignment must be recorded in the o£B[ce of the Board of Re^tration and Statistics. CHAPTER III. OF MERCANTILE CONTRACTS. Section 1. jBiW« 0/ Exchange and Promisaori/ Notes (( 2. Contracts of Sale. u 3. Contracts of Debt. ^^ 4. Contracts with Carriers. « 5. Contracts of Affreightment. 11 6. Maritime Liens. « 7. Maritime Insurance. M S.^Jnsurance Against Fire. (. 9. 2ica«e, awi 5iVe of Clerks, dec. <( V).\Guarantees. (^Suretyship.) SECTION I. BILLS OF EXCHANGE AND PROMISSORY NOTES. 1. Stamps of Bills and Notes. 2. Presentment of Bills and Notes for Payment. 3. Days on which Bills and Notes cannot be presented. 4. Limitation of Action. 5. Release. s 6. Literest. The law respecting Bills of Exchange and Promissory Notes, as l{ud down in Chapter III. of the preceding treatise on the Laws of the Province of Ontario, is applicable to this Province, with the undermentioned exceptions : — Stamps of Bills and Notes. — Contradictory decisions exist 244 BILLS OF EXCHANGE AND PROUISSORY NOTES. here, as to within what time double stamps must bo affixed to Bills or Notes. In the Courts of Quebec^one Judge has held they might be affixed even after action was brought, while another Judge has maintained the reverse, and pronounced the note to bo thus null and void. It may be assumed, that a fair interpretation of the Statute requires, that in cases where the stamp has not been affixed at the time of making, double stamps should be affixed within a reasonable time after it comes into the possession of the claimant, and before suit, as has been held ih the Province of Ontario. Presentment of Bills and Notes for Payment. — Bills or Notes payable at a particular place, are here presumed, as against the maker and acceptor, in the one case, and as against the maker and payee in the other, to have been pre- sented at the place of maturity ; unless the Defendant spec- ially denies the presumption and fyles an affidavit with his plea, that at the maturity, provision for payment had been made at the place specified for payment. Days on which Presentment of Bills and Notes cannot It. made. — In this Province, Bills or Notes, falling due on any of the undermentioned days, cannot then be presented for pay- ment, namely : Sundays, New Year's day, the Epiphany, the Annunciation, Good Friday, the Ascension, Corpus Christi, St. Peter and St. Paul, All Saint's day, Christmas day, and any other day fixed by Proclamation, as a day of general fast or thanksgiving. And Bills and Notes become due, and arc presentable on the next following day, if it does not fall with- in any of the foregoing exceptions. Limitation of Actions on Bills and Notes. — There is no right of action here upon any Bill or Note, or on any contract of a commercial nature, five years after maturity. Form- erly it was held, that a payment on account, or a promise in writing to pay, or a verbal promise to pay, admitted under oath by the party liable, was sufficient to suspend the oper- ation of the Statute of Limitations until five years from the BILLS OF EXCHANGE AND PROMISSORY NOTES. 245 date of such payment or acknowledgment ; but it is now held that no payment on account, or promise, will be sufficient, unless such promise be in writing, and sufficient to constitute a new contract. Release. — By the common law, the surrender of the origi- nal title of an obligation, to one of several debtors, is avail- able in favour of his co-debtors. But an express release to one debtor, does not discharge the others. With regard to Bills and Notes, it is apprehended a different rule will no y prevail, with regard to a special release to one debtor where there are others liable. Anterior to the code, the law re- garding Notes and Bills were to be found in the Provincial Statutes ; in matters wherein they Avere silent, the law of France prevailed ; and wherein the law of France was "'lent, then the Iftw of England ruled. But our code has rjiv is- tablished, that in all matters relating to Bills and Notes, which it has not provided for, recourse must be had to the laws of England in force on the 30th May, 1849. The Law of Eng- land rules that a release of a joint maker or acceptor is a re- lease to all ; and this rule it is believed will be now con; Idered in force here. A discharge to a subsequent indorser does not however release a prior indorser, but otherwise, where the prior indorser has been discharged. Interest. — Interest on Bills and Notes is regulated as in the Province of Ontario. With regard *o open accounts, no interest can be recovered here, except r.o-^i the date of the action, unless it has been promised by the debtor. An agent can, however, recover interest on advances from his principal, without any express agreement. 246 CONTRACTS OF SALE. SECTION II. CONTRACTS OF SALE. 1. The effect of Vendor being the Owner of goods sold, 2. Of the Capacity to Buy or Sell. 3. Statute of Frauds. 4. Implied Warranty. As in Bills and Notes, so in Contracts of Sale of a commer- cial nature, the laws of the Provinces of Ontario and Quebec, are in some respects identical. We shall therefore, in treat- ing upon the question of contracts of sale, confine ourselves to those points wherein the law of this Province differs from that of Ontario. Bejond this, we refer the reader to ante Chap. III. Sect. II. p. 124, where the rules laid down, in so far as they do not conflict with the following, are the same as those in force here. The effect of Vervdor not being the Owner of goods sold. — In commercial matters, the purchaser has an actiuii to enforce the sales against the seller, although the latter may not be owner of the thing sold. If a thing lost or stolen be bought, in good faith, in a fair, or market, or at a public sale, or from a Trader dealing in similar articles, the owner cannot reclaim it, without re-im- bursing to the purchaser the price he has paid for it. If the thing lost or stolen be sold under the authority of law, as for instance, under a writ of Execution, it cannot be reclaimed from the purchaser. Of the Capacity to Buy or Sell. — Husband and wife can- not enter into a Contract of Sale with each other ; nor can any of the following persons become buyers, either by them- selves, or through third parties, namely : — Tutors or Cura- tors of the property of those over whom they have been ap- pointed, except in sales by judicial authority ; — Agents of the property which they are charged with the sale of ; — Ad- ministrators or Trustees of the property in their charge. CONTRACTS OF DEBT. 247 Statute of Frauds. — This Statute, whose provisions are explained in ante p. 125, is applicable here, in all commer- cial transactions, where the sum of money, or value in ques- tion, exceeds fifty dollars. In any action of a commercial nature for the recovery of a sum not exceeding fifty dollars, proof of the contract by the verbal testimony of one witness, is sufficient, provided it be not a balance of a debt under a contract which cannot be proved by verbal testimony. In the latter case, the creditor, while he cannot prove the con- tract, by verbal evidence, may in that mode, prove a promise made by the debtor to pay, and recover accordingly. In all aotions for payment of goods sold and delivered, proof of sale, or a promise to pay, made by one witness, is sufficient. Implied Warranty. — Here, the seller is not only obliged to warrant the buyer against latent defects in the thing sold, but he is equally liable, though the defects were not known to him at the sale, unless the contrary was expressly stipulat- ed. He is not, however, bound for defects which were ap- parent, and which the Buyer might have known himself at the purchase. Our law draws no distinction between the manufacturer and the merchant as to the amount of respon- sibiUty against latent defects in goods sold as is done by the law of Ontario. i SECTION III. CONTRACTS OF DEBT. 1. Place of Payment. 2. Sow Payment or Tender must he made. 3. Duty of the Creditor. 4. Limitation of Right of Action. Place of Payment. — Payment of a debt must be made in the place expressly or impliedly indicated by the contract. If no place be indicated, the payment, if it be of a specific thing, 248 CONTRACTS OP DEBT. must be made where the thing was, at the time of contracting. In all other cases, payment must be made at the domicile of the Debtor. The expenses attending payment, that is to say, in giving the discharge, must be borne by him. Duty of the Debtor. — But while it is held that t\)bts are payable at the domicile of the Debtor ; unless the contrary be expressly or impliedly stipulated, in all commercial mat- ters, the Debtor is placed in default, and liable to be sued, at any time after the delivery of the goods, or consideration of the debt, if no term of credit be given, and if credit be given, t)y the mere lapse of the time. It is therefore prudent for the Debtor, in all cases, where practicable, to pay at the domi- cile of the Creditor, if he wishes to avoid the expense of a law suit. But if he will not go beyond the strict requirements of the law, he must notify his Creditor, in writing, that he is ready to make payment, which will exempt him from liability to costs, if the Creditor should afterwards sue, provided he is able to establish that, at the time of the notification, he was actually provided with the money, at the place for payment. How payment or Tender must be made. — When a Creditor refuses to receive payment, it becomes the duty of the Debtor to tender him formally the debt. This is usually done through a Notary, and should be accompanied by a notice of the ten- der in writing. If the Creditor sues subsequently, a copy of the notice of tender, together with the amount tendered, should be deposited in Court with the defence, and if the tender be declared by the Court sufficient, the Plaintiff will be condemned in the costs of the action. It i. necessary to the validity of a tender : 1. That it be of the whole sum of money, or other thing payable, and of all arrears of interest, and where costs are due, the amount of the costs, with a sum for costs, the amount of which is not known, saving the right to make up any deficiency. 2. That if the debt be payable in money, it be in current CONTRACTS OP DEBT. 24^ coin of this Country, or of Great Britain, or in gold coin of the United States of America ; and the notice or tender should contain an enumeration and specification of the coins tendered. 3. That the tender be made at the place of payment, where a place has been specified in the contract. Where payment is to be made by a Bill or Note, payable at a certain period, the Creditor can, upon delivery of the goods, demand such Bill or Note. A refusal on the part of the debtor, gives the Creditor an immediate right of action for damages, and the measure of the damages is the price of the goods. In this respect, our law differs again from that of the Province of Ontario. Duty of the Creditor. — Where a tender has been duly made to a creditor, H becomes his duty to accept. For if he afterwards commences an action, the proof of the tender, accompanied by a payment of the amount into Court, will subject him to the payment of the costs ; unless he can prove a subsequent demand and refusal. Such tender will also prevent interest from running against the Debtor. A receipt is not conclusive evidence of payment as against a Creditor. It is competent for him to prove that it had been given by mistake, or that a less sum was received than that expressed in the document. Limitation of Right of Action. — Formerly a lapse of six years was required to extinguish a debt upon a me rcantile contract. The time is now reduced to Five^ and the operation of this law cannot be suspended by verbal promise to pay though proved by the mouth of the Debtor. An express promise in writing, sufficient in itself to create a contract, is alone sufficient to prevent extinguishment of a mercantile debt- 260 CONTRACTS WITH CARRIERS. SECTION IV. CONTRACTS WITH CARRIERS. 1. Liability at Common Law, 2. Damafj ?«, Common juaw Liability. — In addition to what is stated ante p. 137, on these contracts, it may be here added that, in this Province, notice by Common Carriers of special con- ditions limiting their liability, is binding only upon persons to whom it is made known ; and notwithstanding such notice, and knowledge thereof, carriers are liable wherever it is proved that the damage is caused by their fault, or the fault of those for whom they are responsible. Damages. — We are of opinion that the damages which may be claimed by the Consignee, on a breach of contract by the Carrier, would bo in our Courts estimated on a somewhat wider basis, than that in the case supposed in ante p. 140. Here, the measure of damages would be not only the depreciated value of the cloth at the place of delivery, but the loss of profit sustained by the non-sale of the caps, through the delay in the delivery of the material. The rule is, that the damages due to the owner are the amount of loss he has sustained, and the profit of which he has been deprived. SECTION v. CONTRACTS OF AFFREIGHTMENT. 1. Assignment of Bills of Lading. 2. Delivery of Croods., ivithin what time. 3. Time allowed for the Discharge of Cargo. 4. Demurrage. The principles of law regulating contracts of Affreightment as laid down in ante, Section V., p. 140, are likewise in force in this Province. In addition to these there stated, the fol- lowing may be added : MARITIME LIENS. 251 Assignment of Bills of Lading. — In Fowler v. Meikle- ham, it was held by the Superior Court, in Montreal, that the mere delivery of the Bill of Lading, without indorsement, was sufficient to pass delivery of the goods to tho holder of the Bill. Delivery of Goods. — Whenever any vessel has arrived at its destination, at any port in this Province, and the master has notified the consignee, either by public advertisement or otherwise, that the cargo has reached the place designed in Bill of Lading, the latter is bound to receive his goods within twenty-four hours after notice, thereafter, and such cargo, so soon as placed on the wharf, is at the risk and charges of the consignee or owner. Time allowed for Discharge of Cargoes. — When the cargo of a vessel consists of coal, such coal must be discharged at the rate of 40 chaldrons per diem ; when of metal, the freight of which is estimated by the ton, not less than sixty tons ; when of salt or grain, not less than two thousand minots ; when of salt in sacks, not less than one thousand sacks ; when of sawed lumber, not less than fifty thousand feet ; and when of bricks, not less than twenty-thousand, per diem. Demurrage. — If the time of loading and unloading the ship, and the rate of demurrage, be not agreed upon, they are regu- lated by usage of the port, in so far as such usage may not conflict with any law existing there. SECTION VI. MARITIME LIENS. See ante, Section VI., p. 147. SECTION VII. MARITIME INSURANCE. The reader is referred to ante, P- 148. Section VII, for information on this question. • ■ 252 FIRE INSURANCE. Abandonment. -But with regard to what is stated on the subject of abandonment in that section, (_ante \< 158,) it should be here added, that in this Province it cannot be made without sufficient cause. For instance, abandonment on tlic ground of the vessel being disabled by strandin:;- cannot be made, if she can be raised and pnt in a condition to continue her voyage to the place of destination. The notice of abandonment must be explicit, and contain the grounds of abandoniuent. If these grounds be sufficient, and the abandonment be accepted, it cannot bo revoiced bj u-y -subsciiuent event, without the consent of both parties. SECTION VIII. FIRE INSURANCE. J . Assignment of the Policy. 2. Liabilities of Insurance Companies at Common Law. 3. Proof of Value of Goods Insured. 4. Mutual Insurance Companies. Referring the reader to ante Sect. VIII., p. 160, for in- formation respecting the nature of the interest required to be possessed by the Insured in the property, — the mode of describing the property to be insured,— the warranties and eflFect of fraudulent concealment, — and the conditions annexed to ^ .e Policies, — we will here confine ourselves to brief re- marks on the assignment of PoUcies, and the liabilities of Fire Insurance Companies generally, and on the proof of value of the object insured. Assignment of Policies. — The Insurance is rendered void by the transfer of the interest in the object of it, unless the transfer is with the consent or privity of the Insurer. A transfer without notice, by one to another of several Part- ners, or owners of undivided property, does not avoid the policy. Nor is notice of assignment required in the case of FIRE INSURANCE. 253 rights acquired by succession, nor in case of an official as- signee, succeeding under the Insolvent Act to the interest of an Insolvent. Liotbilitiea of Insurance Companies at Common Law. — The Insurer is not only liable for all losses suffered by the Insured by fire, but also for those resulting from fire ; as for instance, for damages by the water used to extinguish it, or in removing the goods. He is also liable for losses caused by the insured himself, otherwise than by fraud or gross negligence. Also, for losses caused by the faults of the ser- vants of the insured and committed without the knowledge or consent of the latter. In case of loss, the Insurer is liable for the whole amount, not exceeding the sum insured, with- out deduction or average. The Insurer is not liable for losses caused merely by excessive heat in a furnace, stove, or other usual means for communicating warmth, when there has been no actual burning or ignition. When by the terms of the Policy a delay is given for the payment of the renewal of premium, the insurance continues, and if a loss occur with- in the delay, the Insurer is liable, deducting the amount of premium due. These are among the liabilities established by the common law, but they may be modified, and some of them extin- guished by the conditions annexed to the Policy. A person should therefore carefully examine the condi- tions annexed by a Company to a Policy before effecting an insurance. Proof of Value. — The sum insured does not, however, con- stitute any proof of the value of the objects of the insurance. The value must be established according to the conditions of the Policy, or by the usual mode of proof, imless there is a special valuation in the Policy, and then no further proof of value can be sustained. The Insurer, on payment of the loss, is entitled to a transfer of tha rights of the Insured 254 LEASE, AND HIRE OF CLERKS. against the Persons by whose fault the Fire or loss was caused. Mutual Insurance Companiea are, in this Province, estab- lished under chapter 68 of Cousolidated Statutes of Lower Canada. The conditions of the Statute of the Province of Ontario, explained in ante p. 163, are similar to those in force here. SECTION IX. LEASE, AND HIRE OF CLERKS. 1. Obligations and Mights of tha Lessor. 2. Obligations and Rights of the Lessee. 3. Termination and Renewal of Lease. 4. The contract of Hire as regard to Clerks , 6. Albert. — Second Tuesday in July. • 7. WcBtmoreland. — Third Tuesday in July and second Tuesday in January. 8. Aen<.— Fourth Tuesday in September and second Tues- day in March. 9. Gloucester. — First Tuesday in September. 10. Northumberland. — Second Tuesday in September. 11. Oarleton. —Last Tuesday in September. 12. Sunbury. — Fourth Tuesday in January. -: 13. ReBtigouchc. — Last Tuesday in August. 14. Victoria. — Wednesday before the last Tuesday in September. Each of these Courts continues as long as may be neces- sary for the despatch of business. 28. All Acts relating to the Summary Practice of the Supreme Court are abolished after the 17th January, 1867 ; and if any action be brought in the Supreme Court that could be tned in a County Court the Plaintiff shall not be allowed any costs, unless the presiding Judge certify that there was good reason for bringing the cause in the Supreme Court. 24. Action in the Supreme Court may be commenced by a bailable or non-bailable writ, and the Defendant has thirty days after the return of the writ to enter appearance or file common bail, as the case may require. If the Defendant do not appear within this period, the Plaintiff may file " common bsul" or appearance for him, and file his declaration and r.o tice to plead in twenty days ; and if no defence is put within 296 PRAOTrCB ANl' fllTTINQS OF THE COURTS. this period, the Plaintiff may mark judgment hj default. When judgment is thus obminod by default, the Court in Term, or a Judge in vacation, may assess the Plaintiff^g damages — without the intervention of a Jury — in all actions for the recovery of a sum of money. When the Defendant ap- pears according to the terms of the writ, bo has twenty days to plead after appearance ; and after the cause is at issue, the Plaintiff must servo fourteen days' notice of trial, previous to the sitting of the Court at which tho cause is to bo tried. 25. The Defendant may, by notice in writing, offer that judgment be rendered against him for a specified sura, and the Plaintiff shall have ten days to accept or refuse the offer. If thereafter the Plaintiff do not recover for a larger sum, tho Defendant shall have judgment against him for the costs incurred after such offer. This offer to confess, if not ac- cepted, shall not subsequently be evidence against the Defendant. 26. Absent or ahaeonding Debtors. — The proceedings in Absent Debtor cases in New Brunswick differ from those in Nova Scotia and Prince Edward Island. By chapter 125 of the Revised Statutes, it is provided that if any person in- debted in j610 and upwards, depart from, or keep concealed within the Province with intent to defraud his creditors, any creditor may make affidavit thereof — the departure or con- cealment to be verified by the affidavit of two witnesses, to the satisfaction of a '^udge of the Supreme Court, or two Commissianflrg (who ire appointed in each County for this purpose) : thereupon the Judge or Commissioners issue a warrant, by virtue of which the Sheriff attaches all the real and personal estate, books of accounts, &c., of the absent debtor. The Judge who issued the warrant shall immediately publish a notice thereof in tho Royal Gazette, statmg that un- less the absent Debtor return within three mor ths his estate will be sold for the payment of his debts. The ^. -' '1 ' ^( CHAPTEli III. INSOLVENCY. 1. No Bankrupt Law exists in any of the Lower Pro- vinces, but there are Insolvent Laws in each of them, very similar in thetl* general features, though somewhat different in their details. In New Brunswick and Prince Edward Island, an Insolvent Debtor, on being arrested, may apply to a Judge of the Supreme Court, or other officials appointed for the purpose ; and after seven days' notice in the former, and fourteen day's notice in the !<».tter Province, to the opposite party, and proof that he is Insolvent and has not made any fraudulent conveyances or assignments, he will be entitled to receive a weekly allowance of five shillings from the detain- ing creditor, and in default of payment thereof will be entitled to his discharge. In New Brunswick and Prince Edward Island; the Insolvent is entitled to retain wearing apparel, kitchen utensils, &c., to the amount of <£15 ; and in Nova Scotia, to the value of $40.00. In New Bruns- wick, at the expiration of six months from the granting of the Insolvent Order, and in Prince Edw ard Island at the end of three months, the debtor who has been paid the allow- ance is entitled to his discharge, but in the particular suit only in which an order has been made. An Insolvent who has been discharged in one suit is still obliged to go through the same ordeal in all other suits, no matter how numerous they may be. If the debtor is possessed of any property, he must tender the whole of it to the detaining creditor, towards ill 300 INSOLVENCY. satisfaction of his debt ; and in case of his refusal to accept, he may sell, and pay the proceeds to his other creditors. 2. In Nova Scotia, the Judge may order the immediate discharge of the debtor, upon his making an assignment to the detaining creditor, and signing a confession of judgment, if so ordered. But if on examination, the debt appears to have been fraudulently contracted, or any fraudulent circum- stances have occurred in respect to it, the Judge may remand the debtor to close imprisonment, for such time, not exceed- ing one year, as he may deem proper, and tax the fees of the creditor's witnesses, and if the taxed costs be not paid, the debtor is imprisoned for such further period as the Judge shall deem right. 3. A discharge under the Insolvent Law exonerates a de'itor from any further arrest in respect of the same debt^ but any property he may at any time afterwards own maj be levied upon in satisfaction *of the judgment obtained on the debt, in respect of which he may have been previously so dis- charged. 4. Such a system of Insolvency evidently works injustice both to debtor and creditor. The pressing creditor, by forc- ing his embarrassed debtor in insolvency, gets the benefit of all his property to the exclusion of those who are more lenient, and do not wish to oppress a man in difficult circum- stances. It is true, debtors may execute voluntary assign- ments, but these, in nine cases out of ten, are necessarily unsatisfactory and unjust to creditors. A man in failing circumstances generally has recourse to friends for assistance, and struggles with the dlificulties of his affairs as long as pos- sible. The result is that when he is evidently obliged to suspend, personal friends are involved as sureties, or some vigilant creditor has security on his debts or stock, and an assignment made in such a state of affairs, almost invariably contains clauses for the preferential discharge of pre-existing INSOLVENCY. 301 securities, and the payment of " debts of honor." These preferential ciiims, though introduced inevitably, and from necessity, exciti the distrust of those prejudiced by them, and reduce the divideiic" of the general creditors to a rate altoge- ther disproportional to the expectations they formed of the responsibility of their debtor and the value of his estate. The consequence is that the creditors are either dissatisfied with, or altogether repudiate the assignment, the debtor loses the control of his business, and finds himself in an impoverished plight from which he has seldom the power to rescue himself by industry, and from which the law afibrds him no means of escape. When a man, through misfortune or accident, becomes involved, and unable to pay his debts, he should not be for ever after at the mercy of his creditors. As the law now stands, an insolvent has little hope and no encouragement to retrieve his fortune. No sooner does he acquire a little property than some eager creditors pounce down upon him for an old debt. Hundreds of honest and industrious men, in all the Provinces, languish in poverty under the burden of old debts which they cannot pay off, and from which the law will not relieve them. They become disheartened in business, and too often sink into indolence or intemperance, and spend a life, which might otherwise be useful, without benefitting them- selves, their families, or their creditors. A Bankrupt Law for each Province would hitherto have been but a very par- tial and imperfect remedy for this evil, on account of the limit- ed area within which it would afford protection ; but now that the Parliament of the Dominion can legislate for nearly al British North America, the fate of many an unfortunate debtor within its limits, urgently demands the speedy passing oi a general and well-matured Insolvent or Bankrupt Law. lii i» .. ,,.v--.lf CHAPTER IV. .r^r^* - '- .-.. ' BILLS OF EXCHANGE AND CURRENCY. 1. The general principles of law relating to Bills of Ex- change, as already laid down in the former pages of this work, is applicable to the Lower Provinces. It will only be necessary here to notice the statutory provisions concerning Protested Bills. In all the Lower Provinces, Protested Bills and overdue notes bear Interest although they may not be drawn with interest. Protested Bills, if drawn upon a person residing in any part of North America, out of the Provinces in which they are made, are subject to five per cent, damages ; and if drawn upon a person in any other country, ten per cent, damages over and above interest. Acceptances of all foreign and inland Bills in Nova Scotia, and of inland Bills in New Brunswick, must be in writing on the Bill. As already stated all Bills and Notes in Prince Edward Island, payable within three years, are exempted from the operation of the usury laws. 2. Currency and Legal Tender of Nova Scotia. — In Nova Scotia, judgments are to be entered and public accounts kept in dollars and cents. The following coins are a legal tender, and their value in the currency of the Province is thus regu- lated by Statute : — N. S. Currency. British Oold Sovereign $5 00 Doubloon 16 00 Peruvian, Mexican, Columbian and old Spanish dollar being of the weight of 416 grains 104 BILLS OF EXCHANGE AND CURRENCY. 303 The British silver crown 125 " half crown C2i " florin 60 " shilling 25 " sixpence ... 12j " four pence 08 3. In Nova Scotia all bank notes aro payable in specie and cannot be issued for a less sum than $20. There are Provincial OF Treasury notes in circulation for as low as twenty shillings currency, which are receivable at the public departments at $4.00 each. No person is compelled to receive at one time a greater amount than f 10 in silver or twenty five cents in copper mx)ney. ; r 4. — Currency of Prince Edward Island. — In Prince Edward Island accounts are still kept in pounds shillings and pence. The following coins are legal tender and their value is declared as follows by an Act of Assembly. ' • ' P. E. Island Currency. British Gold Sovereign 1 10 ■ Doubloon(of not less than 415 grs. weight) 4 16 > American Eagle (weighing 258 grains). ..300 And their subdivisions proportionally. British silver crown piece 7 6 " half crown 3 ' " shilling 16 * and their aliquot parts at the same rate proportionally. U. S., Peruvian, Mexican, Chilian, and Spanish milled silver and Central " . . - American dollar, weighing 412 grains each 6 3 • • The subdivisions or aliquot parts of these ,'•,,, . > , are declared of the following value : The I dollar 3 i dollar 10 I part of a dollar 09 The French 5 franc piece is 56 » •' ' ' and its aliquot parts proportionally. 304 BJLLS OF EXCHANQE AND CURRENCT. I 5. Bank notos in P. E. Island are redeemable in specie, and are as various in form and value as the Banks choose to issue them. The " Bank of P. E. Island " issues notes of 5 shillings, 10s., £1, £2 and £5 currency: The " Union Bank" issues notes of fl, |2, $5 and $20 ; and the " Sum- merside Bank" notes of -fl, $2, .f3, |4 and |8— the dollar of each bank being of the value of 63. 3d. currency or 4s. 2d. sterling — The " Rustic© Bank" issues notes of fl, $2 and $5 — each dollar being of the value of 6s. currency or 4s. sterling. There are also Provincial or Treasury notes in cir- culation of 5s., 10s., £1, £2 and £5 currency, which pass current at par within the Island but are not redeemable in specie. The Island currency is invariably a puzzle and per- plexity to strangers — the general rule is that foreign money is reduced to currency by adding 50 ^ to its sterling value. 6. Silver coin is not a legal tender in one payment for a larger sum than £Q currency. The pence and half pence legally current in the United Kingdom, Canada, Nova Scotia and New Brunswick in the year 1849, are legal tender for ponce and half pence in the Island, but no one is obliged to receive more at one time than Is. 6d. in copper money. Any piece of copper or brass, however, of the shape of a penny, is universally received and passed for change without regard to its legality. The consequence is that the Island is flooded with copper coins of every country, age, and coinage, rendering the copper currency a perfect nuisance requiring tho early attention of the Legislature. 7. New Brunswick Currency. — By the New Brunswick Act regulating currency and legal tender passed in 1852, all accounts might have been kept in pounds, shillings and pence or dollars and cents, and the British sovereign or pound sterling is declared to be of the value of j£1.4s. 4d. or $4.86§ N.B. currency. The American eagle coined after 1st July, 1884, and before Ist March, 1852, and weighing 10 penny- weiglit 18 grains, troy, was declared a legal tender for iJ 2.103. BILLS OF EXCHANGE AND CURRENCY. 805 currency. The gold coins of Great Britain and of the United States coined before the last mentioned day, being multiples of the sovereign or eagle and of proportionate weight, were also declared legal tender. By an Act passed in the following year (1853) the provisions of the Act of 1852 arc extended to gold coins of the United States of similar weight and deno- mination coined after 1st May, 1852, unless restrained by Proclamation of the Lieutenant Governor in Council. No legal value is confeir^d upon foreign silver coin, but the value of British silver coined is fixed as follows : — N.B. Currency. The British Silver Criwn = X'O G 1 " " i f'.j^-a = 3 OJ « " i Crown =r 1 2J " "Vif Crown = 71 8. The Lieutenant Governor by procU.mation in the Royal Gazette, giving six months notice, may stop the circulation of British Silver coins. 9. By •' an Act relating to accounting and currency " passed in 1860, it is rendered imperative that all the public accounts be made up and rendered in dollars and cents ; but any such account may have a second column containing sums in pounds shillings and pence equivalent to the sums stated in dollars and cents. The value of the New Brunswick dollar is declared' to be such that $1 shall be equal to <£! New Brunswick currency, and 20 cents equal to one sliil- ling, and so in proportion for any greater or lesser sum. The dollar is divided into 100 cents, and every cent into 10 mills. By the same Act the United States eagle coined after 1st July, 1834, and weighing 10 dwt. 18 grs. tioy, is made legal tender for $10 and its multiples in the same proportion. No one is obliged to receive more than $10 in silver or 20 cents in copper coin in any one payment The Lieutenant Governor has still the power of stopping the cir- culation of British Silver coin, if necessary, in the manner specified in the Act of 1852. u . ' ■"' " ■" Ill .-..I.- .l-i.* '<■ k; 1 APPENDIX. FORM A. PROVINCE OF QUEBEC, DISTRICT OF of in We . . the district of ' ^ (^Grocers y or as the cote may be,") hereby certify, that we intend to carry on (if previouti to registration they have carried on business, tfiey will state, instead, — have carried on and intend to, &c.") business, as (here ineert name of the business") at in partnership, under the name or firm of , and that we are, and have been since the sud day, the only Members of the said Partnership, Witness our hands, at this day of ' 186 . Witness, Where some of the parties reside out of the Province, the following form may be used : — I, (or We), the undersigned, of hereby certify, that I (or We) have carried on and intend to carry on trade and business as ftt in Partnership with C. D., of and E. F., of and that the said Partaership hath subsisted since the di y of one thousand eight hundred and sixty- , and that We (or lor We and the said O. D., and E. F.,") are, and have been, since the said day, the only members of the said Partnership. APPENDIX. in yr 08 the f on (*/ nes8, they 0, &c.") since the « 16 . ' (vince, the ,nd intend with C. D., e the e thousand or lor We n, mnce the ip. Witness our this thousand Witness : — (or any of our") hands, day at Form B. PROVINCE OF QUEBEC, DISTRICT OF 807 One of 1. I . ( We, the district of ... ^ {Here insert name of buainesa') formerly co-partners, doing business together as such, at the said of under the name and firm of do hereby certify that the said Partnership, heretofore sub- sisting between us, was at the said of on the day of one thousand eight hundred . .: i dissolved. Witness our hands at . . •. - ^ . , ' - thig day of , one thousand Witness : — Form C. PROVINCE OF QUEBEC, | DISTRICT OP ,. I'; I, (or We), the undersigned, do hereby certify that (I, or We) have entered into Partnership under the name and stylo of A. B., & Co., as (here insert description of the business of the firm,) which firm consists of C. D., residing usually at the city of in the district of and Province of ^ * (and if more than one general partner, here add and E. F., usually residing at the 808 APPENDIX. city of in the of ) as geaoral partners ; and O. H., residing usually at in &c., as a special partner, the stud G. H., having contributed (_here ttate the amount} to the capital stock of the said Partnership ; which said part- nership commences on the day of one thousand, &c. and terminates on the day of one thousand, &o. (/r this one thousand, &c. y.i t\ M Dated at day of . ,..,. Signed in the presence of (Name of Witness.) C. D. E. F. G. H. !u'J •-• fc^- ■' •,■ ;V; ■:-^- '.■Vi.,;■■■■!':! ,»;;■■'•■ -'t •'?' .'■xb^-- ■' '■■iL. S '.' * I'll Jl-T'i V , ■ ,1 ;, ,'1 : '•. •■--i ,-i<):^'iijy.^ ?i ■m^ •■ A ■ ■'-■'■! . ..ii -•'\ 4- . /-si . ASSIGNMENT UNDER THE INSOLVENT ACT OP 1864 THIS assignment made between of the first part and of the second part, witnesses (or) i On this day of before the undersigned notaries came and appeared ^ ^y. of the first part, and of the second part, which said parties declared to us notaries: That under the provisions of ^^ the Insolvent Act of 1864" the said party of the first part being an Insolvent, has volun- tarily assigned and hereby does voluntarily assign to the said party of the second part, accepting thereof as assignee under the said Act, and for the purposes therein provided, all his estate and effects, real and personal, of every nature and kind whatsoever. To have and to- hold to the party of the second part as assignee for the purposes and under the act aforesaid. And a duplicate of the list of creditors exhibited at the first meeting of his creditors, by the said party of the first part is hereto annexed. In witness whereof, &c., &c. (or) Done and passed, &c., &c. (L. S.) (L. S.) 810 APPENDIX. A GENERAL FORM OP ASSIGNMENT TO BE EN- DORSED ON ANY INSTRUMENT. KNOW ALL men by these presents, that I, A. B., named in the within for and in consideration of to me paid by C. D., of the of in the County of gen- tleman, do hereby assign unto the said C. D., his executors, and administrators and assigns, all my interest in, under or by virtue of the said existing or hereafter to exist, snak- ing and constituting him, at the same time, my lawful attorney in my name, but for his own use and benefit and at his own cost, charge and expense to take all such stops or proceedings at Law or otherwise for the complete recovery and enjoyment of the assigned promises, with power of substitution. Signed, Sealed and Delivered, this day of A. . D., 186 by me the said A. B. In presence of ) A. B. (L.S.) ASSIGNMENT OP JUDGMENT. THIS INDENTURE, made the day of in the year of our Lord one thousand eight hundred and BETWEEN of the FIRST PART and of the SECOND PART : - ■; WHEREAS the said part of the first part, on or about the day of one thousand eight hundred and recovered a Judgment in the Court of against for the sum of c Damages, and ' Costs, making together the sum of !? • i- ' j^r- ;• i .t i AND WHEREAS the Said part of the first part ha agreed to ASSIGN THE SAID JUDGMENT and all benefit to arise there- from, either at law or in equity, unto the said part of the second part, in manner hereinafter expressed. APPBKDIX. 811 NOW THIS INDBNTURB WITNESSETH, that in pursuance of the said Agreement, and in consideration of the sum of of lawful money of Canada, to the said part of the first part in hand well and truly paid by the said pait of the second part, at or before the execution heruof, the receipt whereof is hereby acknowledged, tht "aid part of the first part hath granted, bargained, eoH sig- ned, transferred, and set over, and by these "^ •> grant, bargiun, sell, assign, transfer, ^ .e > *>" the said part of the second part ov 't'^i.-' • J- ministrators, and assigns. ALL THAT THE SAID HEREINBEFORE MKNTICi. i,'.' i.uMikST* and all and every sum and suras of money now due, and here- after to grow due by virtue thereof, for Principal, interest, and costs, and all benefit to be derived therefrom either at Law or in Equity, or otherwise howsoever. TO HAVE, HOLD, RECEIVE, TAKE AND ENJOY the Same, and all benefit and advantage tliereof, unto the said part of the second part, executors, administrators, and assigns, to and for and their own proper use, and as and for and their own proper monies and efiects absolutely. AND the said part of tlie first pan hereby constitute and appoint the said part of the second part, executors and administrators, to be true and lawful attorney and attorneys in the name of the said part of the first part, or otherwise, but at the proper costs and charges of the said part of the second part execu- tors and administrators, to ask, demand and receive of from the said executors or administrators, the said Judg- ment debt, and premises hereby assigned, and on non-pay- ment of the same or any part thereof, to obtain any execution or executions, or bring, commence and prosecute any action or actions, suit or suits, as well at Law as in Equity, for the recovery of the same, and to use all such other lawful reme- dies, ways and means as the said part of the first part 312 APPENDIX. could or might have used or taken for the recovery of the same, and on receipt or recovery thereof, to sign and give a good and effectual receipt or receipts for the same, with full power from time to time to appoint a substitute or substi- tutes for all or any of the purposes aforesaid, and the said part of the first part do hereby agree to ratify and confirja whatsoever the said part of the second part, executors or administrators, shall lawfully do or cause to be done, in or about the premises. • .■ AND the said part of the second part hereby covenants to indemnify and save harmless the said part of the^ first part from all loss, costs, charges, damages, and expenses by reason or on acccount of any such proceedings as aforesaid. IN WITNESS WHEREOF, the Said parties here to have hereunto set their hands and seals the day and year first above written. Signed, Sealed, and Delivered ) in the presence of [ • ■ ■ : " • ASSIGNMENT OF A DEBT, WITH A POWER OP AT- TORNEY, &c. KNOW ALL men by these presents, that I, A. B., of in consideration of the sum of dollars, paid to me by C. D., of (the receipt of which is hereby acknow- ledged,) do hereby sell, assign, and transfer unto the said C. D., all my claims and demands against F. G., and all actions against said F. G., now pending in my favor, and all causes of action whatsover against him. And the said A. B., doth hereby nominate, constitute, and appoint the said C. D., his executors and administrators, his attorney and attorneys, irrevocable ; and doth give him and them full power and authority to institute any suit or suits against the said F. G., and to prosecute the same, and any siut or suits which are now pending, for any cause or APPENDIX. 313 causes of action, in favor of said A. B., against said F. G., to final Judgment and execution ; and any executions for the cause or causes aforesaid, to cause to be satisfied by levying the same on any personal or real estate of the said F. G., his executors and administrators, and the proceeds thereof to take and apply to his or their own use ; and in case of buying said executions or any real estate, the said A. fi., hereby empow- ers the said C. D., his executors and administrators, to sell and execute deeds to convey the same, for such price or con- sideration, and to such person or persons, and on such terms, as he or they shall deem expedient ; or if he or they prefer it, to execute any conveyances that may be necessary to vest the title thereof in him or them, as all such acts and proceed- ings are to be at the proper costs and charges of the said C. D., without any expense to the said A. B. And the said A. B. doth hereby further empower the said C D., his executors and administrators, to appoint such sub- stitute or substitutes as he or they shall see fit, to carry into effect the objects and purposes of this authority, or any of them, and the same to revoke from time to time at his or their pleasure ; the said A. B. hereby ratifying and confirming all the lawful acts of the said C. D., his executors or adminis- trators, his or their, agent or agents, in pursuance of the fore- going authority. In witness whereof the said A. B. hath hereunto set his hand and seal this day of Signed, Sealed and Delivered w,. in presence of \ ^ (Seal.) A. D., 186 ASSIGNMENT OP LIFE POLICY. ,, THIS INDENTURE made the day of in the year of our Lord one thousand eight hundred and sixty between A. B., of the city of 814 APPENDIX. in the County of merchant '^f the first part, and 0. B., of the same place, merchant of the second part. WITNESSETH that the said A. B., for and in consideration ^f the sum of dollars, of lawful money of Canada, unto him paid by the said B. C, the receipt whereof is hereby acknowledged, assigns, transfers and sets over to the said B. C, his executors, administrators or assigns, a policy for the sum of dollars on the life of the said A. B., ef- fected by the said A. B., with the Life Assurance Company, and numbered as No. with all the interest of him the said A. B., in or under the said policy, and with all the sum or sums of money which may at any time hereafter become payable under, upon or by virtue of the said policy, and with full power to the said C. D., his executors, admin- istrators and assigns, in the name of the said A. B., his ex- ecutors and administrators, to sue for, recover, collect, receive, and give receipts for the same. And the said A. B., for himself, his executors and admin- istrators covenants with the said C. D., his executors, and ad- ministrators and assigns, that he, the said A. B., has the power to execute this assignment of the premises free from incumbrances, and that he and every person claiming by, un- der or in trust for the said A. B., will at the cost charges and expense of the said C. D., his executors, administrators or assigns, do all acts necessary for perfecting this assignment or facilitating the recovery of the said moneys. In testimony whereof the parties hereto have hereunto set their hands and seals the day and year first above written. Signed, Sealed and Delivered ) A B f L S "i c.d! (l!s.') in presence of Vf . E. F. •t ,'i APPENDIX. 315 ASSIGNiMENT OF A POLICY OP INSURANCE BY EN- DORSEMENT. KNOW ALL men by these presents, that I, A. B., within nampd, for and in consideration of the sum of dollars, to me paid by C. D., of (the receipt whereof is hereby acknowledged,) have granted, assigned, transferred, and set over, and by these presents, do grant, as- sign, transfer, and set over, to him, the said C. D., all my right, property, interest, claim, and demand in and to the withiiA Policy of Insurance, which have already arisen, or which may hereafter arise thereon, 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. The conveyance herein made, and the powers hereby given, are for myself and my legal representatives, to the said 0. D., and his legal representatives. In ' witness whereof the said A. D. has hereunto set his hand and seal this day of A. D. 1867 Signed, Sealed and Delivered in presence of ' ' | (Seal.) / ASSIGNMENT OF PARTNERSHIP PROPERTY AND DEBTS BY ONE PARTNER TO ANOTHER FOR A SUM CERTAIN. THIS INDENTURE made in duplicate this day of one thousand eight hundred and sixty between A. B., of the City of in the County of of the first part, and C. D. of the City of :' .' in the County of of the second part witnesseth. That whereas the parties aforesaid were lately co-partners in the business of which partnership was dis- solved and determined on the day of 816 APPENDIX. and whereas there are many debts due by the said firm yet unpaid, and debts owing to the said parties on account of their said co-partnership are still outstanding ; and whereas, it is hereby agreed, that the said party of the second part shall sell, transfer, assign, and set over to the said party of the first part all his interest or share of all the stock in trade, goods, effects and property of every description belonging to or owned by the said firm, and in the debts, choses in action, and sums of money due and owing to the said firm, and that the said party of the first part, shall and will assume all the debts and liabilities of the said firm, and shall discharge, indem- nify and save harmless the said party of the second part against all liabilities arising from the said partnership. Now, therefore, in consideration of the sum of ) .. dollars, paid to the said G. D., and in pursuance of the sud agreement, the said C. D., doth hereby sell, assign, trans- fer and make over to the said A. B., his executors, adminis- trators and assigns, all his interest, right, title, and share in all the stock in trade, goods, machinery, tools, books, lease- hold premises, and effects belonging to the said partnership, of whatever kind or nature; also, all his right and interest, in and to all the debts and sums of money now due or to come due to the said firm, whether the same be by bond, bill, note, or account, or otherwise ; and the said C. D. doth hereby constitute and appoint the said A. B. his executors, adminis- trators and assigns, his attorney and attorneys, irrecovable, to receive all the debts and sums of money above mentioned, to his and their own use aud benefit ; and doth hereby au- thorize the said A. B., his executors, administrators or assigns, to collect, demand and sue for the said debts and ^ums of money, and to use his, the said C. D.'s name, in any way that the collection and recovery of the said debts and demands may render necessary, as well in Court as out of Court, but at his or their own proposed costs and charges, and without any cost or damage to the said C. D. And the APPENDIX. 317 said C. D. doth further authorize the said A. 6. to convey, assign, and transfer to his own name, and for his own benefit and use, all sums of money, goods and effects, real or per- sonal estate, which may be received as taken in the name of the said firm, and to have and to hold the same free from all claims by the said C. D., his executors, administrators or as- signs. And it is further witnessed, that, in pursuance of the said agreement, the said A. B. for himself, his executors and ad- ministrators, doth hereby covenant with the said C. D. his ex- ecutors and adminstrators, that he, the said A. B. and his executors and administrtitors, shall and will pay and discharge, and at all times hereafter indemnify and save harmless the said CD., his executors, administrators and assigns, from all debts, duties and liabilities, which at the dissolution of the said partnership were due and owing by the said firm to any person or persons, for or concerning any matter or thing touching the said partnership, and of and from all actions, ex- penses, suits, costs, judgments and damages, for or concern- ing the said debts, duties and liabilities, unless the said C. D. shall have incurred liabilities or contracted debts, on account of or in the name of the said firm ; for which, if any such exist, the said A. B. does not hereby intend to make himself responsible. In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written. Signed, Sealed and Delivered \ ■ , . 3- i, - j . . in the presence of > ) (.Seal) AGREEMENT TO FREIGHT A VESSEL. THIS AGREEMENT made the day of in the year 186 between A. B., of the City of Kingston, in the Province of Ontario, Forwarder Of the first part, and 318 APPENDIX. C. D., of the same place, owner (or master) of the Schooner " Wave Crest " Of the second part, WITNESSETH that tho said A. B. hereby agrees and covenants with the said C. D., that he, the said A. B., will lade and freight the said Schooner " Wave Crest," for and during the ensuing season of navigation, to commence on the day of instant, when the said Schooner is to be in readiness to receive her first lading at the wharf of Glassford, Jones & Co., in the said city of Kingston, as well on her upward trips from the said city of Kingston to the city of Hamilton, in tho said Province of Ontario, and the interme- diate ports, as on her return trips from the said city of Hamil- ton to the said city of Kingston and the intermediate ports ; and that tho said A. B. will pay to the said C. D. freight on the same, on the delivery of each and every cargo in a safe and sound condition, after the following rates : FreigM from Kingston to Hamilton. Merchandize cents per cwt. Sugars , do do &c., &c., '"■ '■ ■ ' •'« ^ ' '■ Freight from Hamilton to Kingston. Wheat, Corn, &c cents per bush. , Flour do brl. &c., &c., ' And the said C. D. hereby covenants with the said A. B. that for and in consideration of the premises and of the freight to be paid by the said A. B. to the said 0. D. after the rates aforesaid, he, the said C. D., will safely carry all such lading and freight as ho may or shall receive from the said A. B., and deliver the same in as good and sound condition as when so received, according to the respective bills of lading to bo furnished to him by the said A. B. or his agents. And the said C. D. further covenants that he will regularly APPENDIX. 819 ply between the said cities of Kingston and Hamilton and the intermediate ports with his said Schooner '* Wave Crest," as aforesaid, during the entire season of navigation above men- tioned ; and that he will not occupy more than days, unless hindered or delayed by some unavoidable accident, in making a trip from Kingston to Hamilton or from Hamilton to Kingston. And it is further understood and agreed between the par- ties hereto, that the said freight after the rates aforesaid shall include all the costs and charges of transportation, including tonnage, wharfage, transhipment in case it should become necessary, and all and every the charge and charges incident or relative to navigation. And that in case goods, grains, &c., be shipped on board the said schooner at Kingston or Hamilton, for any interme- diate port, or at any intermediate port for either of the said ports, or for any other intermediate port, freight shall not be payable thereon at the rates aforesaid ; but the freight pay- able thereon shall be per cent more per mile more than the rate per mile which would have been charged had said goods, &c., been carried the whole distance from Kingston to Hamilton or from Hamilton to Kingston. And it is further understood and agreed between the par- ties hereto, that all freight and lading shall be delivered to the said C. D. (at or on board of ) his said schooner, and that he shall duly discharge the same at his own cost, at the pr<^ per wharf or other place, in the proper port of discharge. That the said C. D. shall not, at any time, be required to take on board or convey in his said schooner any description of freight other than that coming under the heads above menr tioned (vary to tuit the requirements of the case'). That in case the said schooner shall be detained at any of the said ports by the neglect, default or mismanagement of the said A. B., in procuring freight or otherwise, demurrage shall be payable for the delay occasioned thereby at the rat« 820 APPENDIX. of dollars for each and every day of such delay. And that in case the said A. B., or his agents, shall neglect to procure freight, as aforesaid, for the said schooner, and in consequence of such neglect, the said schooner shall he obliged to sail without freight or without a full cargo thereof, then the said A. B., shall forfeit and pay to the said 0. D. dollars per ton, on each and every ton of freight which may be wanting to make up a full cargo for the said schooner. And that all the said conditi -d, stipulations and covenants shall be binding upon the helirs, executors and administrators of the said parties. In witness whereof the said parties have hereunto set their hands and seal the day and year first above written. Signed in presence of ) A. B. ,i*'rK-;Htf C. D. BOND TO SECURE FLOATING BALANCE AT A BANK. KNOW ALL men by these presents that We, A. B., and C. D., both of the City of in the County of and Province of Quebec, are jointly and severally held and firmly bound unto E. F., and his successors, for the time being managers of the Kingston Branch of the Royal Canadian Bank, in the penal sum of dollars, of lawful money of Canada, to be paid to the said E. F., managers of the said Kingston Branch of the Royal Canadian Bank, or to his suc- cessors the managers of said Branch, or to his or their certain attorneys or assigns ; for which payment well and truly to be made, we jointly and severally bind our and each of our heirs, executors and administrators, for ever firmly by these presents. Sealed with our seals. Dated this day of in the year of our Lord one thousand eight hundred and sixty The condition of the above written bond or obligation is such, APPENDIX. 'y^UKm./ that if tho above bounden A. B. and C. D., their or each of thoir heira, executors or administrators, do and shall well and truly pay or cause to be paid Tshenevcr the said E. T. manager of the Kingston Branch of the Royal Canadian Bank or any of his successors, for tho time being manager of said Branch of said Bank, shall in writing demand the same such sum or sums of money not exceeding in the whole tiie sum of two thousand dollars as shall then at the time of any such demand be due from the said A. B. to the said Royal Canadian Bank, on or as the balance of the account betwee>; the said A. B. and the said Royal Canadian Bank, for prin> cipal, money or interest of money lent or advanced, bills, notes or cheques accepted, discounted or paid, or on any other account w hatsoe ver . Then this obligation shall be void, othersvise be to and re- main in full force and virtue. Witness CHARTER PARTY. THIS CHARTER PARTY made and agieed upon, on the day of in the year of our Lord 186 between A. B. master and owner of the vessel called the " Lion" of hundred tons burthen of the first part and C. D. of the city of .r, of the second part ,^-. , y. WITNESSETH that the said A. £>. hath granted and to freight Ictten, and by these presents doth grant and to freight let, unto the said C. D., his executors, administrators and assigns, the whole tonnage of the hold stern, iheets and half deck of the said vessel from the port of to the port of in the manner following, that is to say The said A. B. is to have the said vessel " Lion" ill readiness to receive the wares, goods and mer- V 822 APPENDIX. chandises of the said G. D. hia agents, factors or assigns, and the goods, wares and merchandises by him or them procured or provided, at the wharf known as wharf in the city of on or before the day of and shall sail from the said port as soon as the said wares, goods and merchandises shall bo properly and safely shipped on board and stowed away in the said vessel, and the weather permits, to the sud city of where the said vessel is to be delivered and discharged of her said cargo within days next after her arrival at the end of the said voyage. In consideration whereof the said C. D. for himself, hia heirs, executors and administrators, doth cove- nant with the said A. B. his executors, admin- istrators and assigns, and every of them, by these presents that he, the sud G. D. his executors, admin- istrators, factors or assigns, will pay or cause to be paid, unto the said A. B. his executors, administrators or aasigns, the sum of dollars for the freight of the said vessel or goods (or so much per ton &c.) within days after the arrival of the said vessel, and discharge and de- livery of the sud wares, goods and merchandises at the said. city of and that in case demurrage should be incurred by the neglect, default or misconduct of the said G. D. his agents, factors or assigns, he the said G. D. will pay to the said A. B. his execu- tors, administrators or assigns, for the same at the rate of dollars per diem, for each and every day during which and for which the said G. D. will be liable for demurrage as aforesaid and that the said dollars will be pud daily as the same shall grow due. And the sud G. D. covenants and agrees that he will have the said goods, wares and merchandises ready and put on board the said vessel within days after he shall be at the said wharf as aforesaid, in readiness to receive them. APPENDIX. 828 - And tho aaid A. B. covenants that tho said ressol now is and at all times during the said voyage shall be, at the best endeavor of the said A. B. his executors and administrators, at his and their own costs and charges, made and kept in all respects seaworthy, and properly provided with men and every thing else proper and requisite for and daring tho said voyage. In testimony whereof the said parties have hereunto set their hands and seals the day and year first above written. Signed, Scaled and Delivered in ) A. B. (Seal.) A. B. (Seal.) presence of ■^■-i- .-.! '■ CERTIFICATE OF ACKNOWLEDGMENT BY A MAR- RIBD WOMA.>f CONVEyiNG HER SEPARATE ESTATE IN LAND. I, (or we, inserting the name, ^c.) do hereby certify that on this day of at the within deed was duly executed in my (in our') presence by A. B., of , wife of one of the grantors therein named, and that the said wife of the said at tho said time and place being examined by me (or ms) apart from her husband, did appear to give her consent to convey her estate in the lands mentioned in the said deed freely and voluntarily, and without coercion or fear of coercion on the part of her husband or of any other person or persons whatsoever. ■i' e\ ' ■ CHATTEL MORTGAGE IN ONTARIO. THIS INDENTURE, made the day of in the year of oar Lord one thousand eight hundred and under the provisions of " An Act respecting Mortgages and Sales of Personal Property," between 824 APPENDIX. of tho first part, and ' ' of the second part, WITNESSETH that tho said part of the first part, for and in consideration of the sum of of lawful money of Canada, to in hand well and truly paid by the said part of the second part, at or before tho sealing and delivery of these presents, the receipt whereof is hereby acknowledged, granted, bargained, sold and assigned, and by these presents do grant, bargain, sell and assign unto the said part of the second part, executors, administrators and assigns, all and singular the goods, chattels, furniture and household stuff, hereinafter particularly mentioned and expressed, that is to say — / (jupecify property carefully') TO HAVE AND TO HOLD all and singular the said goods, hereinbefore granted, bar- gained, sold and assigned, or montioicd, or intended so to be, unto the said part of the second part, executors, administrators and assigns, to the only proper use and behoof of the said part of the second part, executors, ad- ministrators and assigns, for ever : provided always, and these presents are upon this condition, that if the said part of the first part, executors or administrators, do and shall well and truly pay, or cause to be paid, unto the said part of the second part, executors, adminis- trators or assigns, the full sum of with interest for the same from the date hereof at the rate of per centum per annum, pay- able as follows, that is to say then these presents, and every matter and thing heroin contained, shall cease, determine and be utterly void to all intents and pur- poses, anything herein contained to the contrary thereof in anywise notwithstanding. And the said part of the first •I I part, for executors and administrators, all APPENDIX. 825 and singular tho said goods, chattels and property by those presents unto the said part of the second part, ex- ecutors, administrators and assigns, against tho suid part of tho first part, executors and administrators, and against all and every other person and persons wliomso- evcr, shall and will warrant and forever defend by tlu'so pro- sent. And the said part ofthe first part do hereby for heirs, executors and administrators, covenant, promise and agree to and with the said part of tho second part, executors, administrators and assigns, that tho said part of tho first part, executors or admin- istrators, or some or ono of them, shall and will well and truly pay, or cause to bo paid, unto tho said part of the second part, executors and administrators or assigns, tho said sum of money in the above proviso mentioned, with interest for tho same as aforesaid, on tho day and time, and in tho manner above limited for the payment thereof. And also, in case that default shall bo made in the payment of the said sum of money in the said proviso mention^'d, or the interest thereon, or any part thereof, or in case tho said part of the first part shall attempt to sell or dispose of, or in any way part with the possession of the said goods and chattels or ar.y of thom, or t.o remove the same or any part thereof out of the County of without tho consent of the said part of the second part, executors, administrators or assigns, to such sale, removal or disposal thereof, first had and obtained in writing, then and in such case it shall and may be lawful for tho said part ofthe second part, executors, admiuistratora or assigns, with or servant or servants, and with such other assistant or assis- tants as may require, at any time during the day to enter into and upon any lands, tenements, houses and pro- mises wheresoever and whatsoever, where the said goods and chattels, or any part thereof may be, and for such persons to break and force open any doors, locks, bolts, fastenings, 326 ilPPENDIX. hinges, gates, fences, houses, huildings, enclosures and places, and any door, lock, bolt, fastening, hinge, gate, fence, house, building, enclosure and place, for the purpose of taking pos- session of and removing the said goods and chattels ; and upon and from and after the taking possession of such goods and chattels as aforesaid, it shall and may be lawful, and the said part of the second part, executors, administrators or assigns, and each or any of them, is and are hereby au- thorized and empowered to sell any the said goods and chat- tels, or any of them, or any part thereof, at public auction or private sale, as to or any of them may seem meet, and from and out of the proceeds of such sale in the first place to pay and reimburse and all such sums and sum of money as may then be due by virtue of these pre- sents, and all such expenses as may have been incurred by the said part of the second part, executors, admin- istrators or assigns, in consequence of the default, neglect, or failure of the said part of the first part, executors, admiiustrators or assigns, in payment of the said sum of money, with interest thereon as above mentioned, or in con- sequence of such sale or removal as above mentioned, and in the next place to pay unto the stud part of the first part, executors,. administrators and assigns, all such surplus as may remain after such sale, and atler payment of all such sum and sums of money, and interest thereon, as may be due by virtue of these presents at the time of such seizure, and after the payment of the costs, charges and expenses incurred by such seizure and sale as aforesaid. Provided always, nevertheless, that it shall not be incumbent on the said part of the second part, executors, administrators or assigns, to sell and dispose of the said goods and chattels, but that in case of default in payment of the said sum of money, with interest thereon as aforesaid, it shall and may be lawful for the said part of the second part, ex- ecutors, administrators or assigns, peaceably and quietly to APPENDIX. m have, hold, use, occupy, possess and enjoy the said goods and chattels, without the let, molestation, eviction, hindrance or interruption of the said part of the first part, executors, administrators or assigns, or any of them, or any other persons or person whomsover. And the said part of the first part do hereby further covenant, promise and agree to and with the sud part of the second part, executors, administrators and assigns, that in case the sum of money realized under any such sale, as above mentioned, shall not be sufficient to pay the whole amount due at the time of such sale, that the said part of the first part, executors or administrators, shall and will forthwith pay or cause to be paid unto the said part of the second part, executors, administrators and assigns, all such sum or sums of money, with interest thereon, as may then be re- maming due. In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first ubove written. Signed, Sealed and Delivered | :■; in presence of :'r 1. .hy-: AFFIDAVIT OF CHATTEL MORTGAGE. ONTARIO. ) I, n County of > • ■ ';> • - TO WIT : ) of the of in the County of the Mortgagee in the with in Bill of Sale, by way of Mortgage, make oath and say — 1st, That the Mortgagor in the an- nexed Bill of Sale, by way of Mortgage, named, is justly and truly indebted to me the Mortgagee there- m named in the sum of .. , ;• -,, in the said Mortgage mentioned. 2nd, That the said Bill of Sale, by way of Mortgage, was 828 APPENDIX. executed in good faith, and for the express purpose of secur- ing the payment of the money so justly due as aforesaid, and not for the purpose of protecting the goods and chattels men- tioned in the said Bill of Sale, by way of Mortgage, against the creditors of the said the Mortgagor therein named, or preventing the creditors of the said the Mortgagor therein named, from obtaining payment of any claim against him, the said Mortgagor. Sworn before me at the of in the County of this day of A.D. 18 r \ A Commissioner for taking aJiJavils in Queen's Bench in and for the said County ■.I i'',i » I, of the make oath of and say — Ist, ONTARIO. County of TO wit: in the County of that I was personally present and did see the annexed Bill of Sale, by way of Mortgage, duly signed, sealed and delivered by the parties thereto ; 2nd, that the name set and sub- scribed as a witness to the execution thereof is of the proper handwriting of me this deponent. Sworn before me at the of in the County this day of A.D. 18 -■■'--■ %i: f 'j ' r Jl Commissioner for taking affidavits in the Queen's Bench in and for the said County U APPENDIX. 329 COMPOSITION WITH CREDITORS. To all to whom theso presents shall come : we whose names are here under written and seals affixed, creditors of A. B. of the citj of the county of Province of Ontai'io, Trader, send greeting. Whereas the said A. B. is justly indebted to us his said several creditors, in diflFerent sums of money ; but by reason of sundry losses, disappointments and other damages, happened unto the said A. B. he is unable to pay and satisfy us of our full debts, and therefore we, the said creditors, have resolved and agreed to undergo a certain loss and to accept of cents for every dollar owing by the said A. B. to us the several and respective creditors aforesaid, to be paid in full satisfaction and discharge of our several and respective debts. Now know ye that we, the said creditors of the said A. B. do for ourselves, severally and respec- tively, and for our several and respective heirs, executors and administrators, covenant, promise, compound and agree to and with the said A. B. by these presents, that we, the said several and respective creditors, shall and will accept, receive and take of and from the said A. B. for each and every dollar that the said A. B. owes to us, the said several creditors, the sum of cents, in full satisfaction and discharge of the several debts and sums of money that the said A. B. owes us ; to be paid to us, the said several creditors, within months next ensr'\, the date of these presents And that neither we, the said several and respective cred- itors, nor any of us, shall or will, at any time or times here- after, sue, arrest, molest or trouble the said A. B. or his goods and chattels, for any debt or other thing now due and owing to us or any of us, his respective creditors, provided that he shall well and truly pay or cause to be paid 330 APPENDIX. the said sum of cents for every dollar he owes us respectively, within the said space of months next ensuing the date hereof. In testimony whereof we have hereunto set our hands and seals respectively the day of in the year of our Lord one thousand eight hundred and sixty Signed, Sealed and Delivered in ^ (Seal.) presence of > (Seal.) '- RENEWAL OP PARTNERSHIP TO BE ENDORSED ON THE PARTNERSHIP DEED. Whereas the partnership witnessed by the within deed by the terms thereof, will expire on the day of A. D. 186 (or has expired). And whereas the parties to lai-^. deed desire to continue the said partnership as it has heretofore exbted. Now therefore this memorandum witnesses that the said partnership is by the agreement of the undersigned renewed and continued between them upon the terms, stipulations and conditions, and with respectively the same agreements and convenants, as are witnessed by the within deed, for the further term of years from the date of this memoran- dum. In testimony whereof, the parties hereto have hereunto set their hands and seals this day of A. D. 186 Signed, Sealed and Delivered 1 A. B. L.S. in presence of J C. D. L.S. E. T. L.S. H. ENDORSEMENT OP DISSOLUTION ON PARTNERSHIP DEED. The partnership witnessed and formed by the within deed is by mutual consent of the undersigned hereby wholly dissolved this day of A. D. 186 except so far as it may be necessary to continue the same for the final liquidation APPENDIX. 331 and adjustment of the business thereof, and the said exception shall be and continue in force until such final liquidation and adjustment, and no longer and for no other purpose. In testimony whereof, &c. Signed and Sealed ) ,j * ;■ ? L.S. in presence of ) L.S. NOTICE OP DISSOLUTION FOR PUBLICATION IN GAZETTE. Notice is hereby given that the partnership heretofore carried on by Messrs. A. B. and C. D. under the name, style and firm of " B. D.," at the City of in the Province of Ontario, was this day dis- solved by mutual consent, and all parties indebted to or having claims against the said firm are hereby notified to pay their said debts or render their accounts to the said A B who is authorized to wind up the affairs of the said partnership. Dated at &o., this day of 186. A. B. 0. D. NOTICE TO DISSOLVE PARTNERSHIP WHEN THE DEED CONTAINS A POWER TO DISSOLVE. Sir, I hereby give you notice that I intend to dissolve the part- nership now subsisting between us on the day of A. D. 186, being at the expiration of months from the date of this notice ; in pursuance of a power to that effect contained in our deed of partnership. Dated and si«;ned at in the of day of To, C. A. D. 186 D. of &c., &c. A. this B. 332 APPENDIX. NOTICE OP EXPULSIONS FROM PARTNBllSHIPS UNDER A POWER CONTAINED IN THE DEED. Sm, Take notic9 that under and by virtue of a power of expulsion contained in our partnership deed, I intend at once to dissolve the partnership now subsisting between us, on account of your negligent and improper conduct and on account of your having in violation of your agraerae nts con- tained in and your duty under and by virtue of the said deed, wilfully, negligently and improperly, &c., (^describe the acts or negligence complained of). Also, take notice that by virtue of the power aforesaid, and of your said violation of said agreements in our said deed of partnership contained, I do expel you from the said partnership and declare it now and henceforth dissolved, and that the business thereof shall henceforth be carried on in my own name only. But this notice shall in no wise prejudice any remedy or rcoiedlos which either of us may be entitled to as against the ether for the breach or non-performance of any covenant, con- dition, stipulation or agreement in our partnership deed con- tained, previous to the dissolution of partnership. Dated at this day A.D. 186 To, C. D. -:,. of &c., &c. A, >■ J. B. !■: .'-il' RELEASE OF INTEREST IN PARTNERSHIP BUSINESS BY ONE OF TWO PARTNERS TO THE OTHER. THIS INDENTURE made the in the year A. D. 1867, between A. of in the county of merchant, of the first part, and C. ' r^- day of ■ '' ' B. of the Province of Ontario, D. of the APPENDIX. 883 same place, merchant of the second part, witnesseth that ' ' WHEREAS an agreement for determining the partnership business heretofore carried on by the said A. B. and C. D. under articles bearing date the day of 186 has been entered into by the said parties. AND WHEREAS One moicty of the profits of the said bu- siness has been received by the said A. B. up to the day of 186 AND WHEREAS doUars being the value of the interest of the said A. B. in the said partnex*- ship business, as ascertained by a taking of stock and an account of the partnership property had on the day of A. D. 186 has been secured to the said A. B. by a bond bearing date the day of A. D. 186 AND WHEREAS the Said A. B. has been by a bond bearing date tho day of A. D. 18 fully indemnified against the partnership liabilities : Now, therefore, in consideration of tho premises and of dollars paid by the said C. D. to the said A. B. the receipt whereof is hereby acknowledged, the said A. B. does by these presents sell, assign, transfer, grant and release unto the said C. D. his heirs, executors, administrators and assigns, all the interest of him the said A. B. in the said partnership and in the property and business thereof (^and in the premuea wherein the said business in transacted} with full power to the said C. J). his administrators and assigns, in the name of tho said A. B. his executors or administrators, to collect, receive and recover all and singular tho debts due or accru- ing due to the said firm, and all the legal claims and de- mands which the said firm now has, or hereafter would have had against any person or persons whatever, with full power 884 APPENDIX. to institute any aotions at Law or suits in equity for the pur- poses of collecting said debts and enforcing; said claims, and with power to give receipts for the same, providing always, and it is hereby expressly agreed that in case any expense shall be incurred in the collection of said debts or enforcing of said claims, the same shall be borne wholly by the said C. D. and the said G. D. shall at all times keep the said A. B. indemnified therefrom. For and in consideration of the premises the said parties hereto do mutually release each other, and each of their exe- cutors, administrators and assigns, from all demands and claims in respect to the said partnership and from all legal and equitable proceedings for enforcing the same ; providing always that none of the parties to the bond given by the said C. D. to the said A. B shall be hereby in any manner released from their liability upon said bond. In testimony whereof the said parties &c. Signed, Sealed and Delivered in ) A. B. (L. S.) presence of > C. D. (L. S.) E. T. ) POWER OF ATTORNEY. KNOW ALL MEN BY THESE PRESENTS THAT I, A. B., of the of in the County of and Province of merchant. . DO hereby make, nominate, constitute and appoint C. D. of the of in the County of and province merchant. my true and lawful attorney for me and in my name, place and stead, and for my sole use and benefit to (« 886 APPRNDIX. NOTICE REQUIRING INSOLVENT TO MAKE AN ASSIGNMENT UNDER THE INSOLVENT ACT OP 1864. Inbolvcnt Act of 1864. TO (name) (residence) (description of Insolvent) You are hereby required to make an assignment of your estate and effects under the above act, for the benefit of your creditors. (Place) (date) (Signature of Creditor) AFFIDAVIT IN PROOF OF CLAIM AGAINST ESTATE OF INSOLVENT. Insolvent Act OF 1864. In the matter of A. B. An Insolvent, and C. D., . Claimant I, C. D., of (t'esidence) (addition) being duly sworn, depose and say : 1. I am the clamant (or the duly authorized agent of the claimant in this behalf and have a personal knowledge of the matters hereinqfter deposed tOy or a member of tJie firm of claimants in the matter^ and the said firm is composed of myself and of E. T., of 2. The Insolvent is indebted to me {or to the claimant) in the sum of dollars, for (state nature and particulars of claim , referring y if desired, to accounts or documents annexed^ 3. I (or the claimant) hold no security for the claim or I (or the claimant) hold the following and no other security for the claim, namely {state the particulars of the security.) Sworn before me at this day of \ And I have signed &c. DEBTORS MAY BE ARRESTED IN THB STA.TE OF N E:^\^ YORK 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant ia not a resident of the State, or is about to remove therefrom, or •where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property. 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudu- lently misapplied, by a public officer, or by an attorney, soli- citor, or counsellor, or by an officer or agent of a corporation, or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct, or neglect in office or in a professional employment. 3. In an action to recover the possession of personal prop- erty unjustly detained, where the property or any part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the Plaintiff of the benefit tliereof. 4. When the Defendant has been guilty of a fraud, in contracting the debt or in incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit. • ? w 888 DEBTORS MAY BE ARRESTED. 5. When tho Defendant has removed or disposed of his property, or is about to do so with intent to defraud his creditors. The property of Debtors may he attached. — In actions against Foreign corporations or against non-residents, or against absconding or concealed debtors, or whenever any person or corporation is about to remove any of his or its pro- perty fromjthe State, or has assigned, disposed of, or secreted, or is about to assign, dispose of or secrete any of his or its property with intent to defraud creditors. In the United States^ Court : — Debtors may be compelled to go into Bankruptcy, and submit to a decree dividing their property equally amongst all their creditors. When the Debtor shall depart from the State or district, with intent to defraud his creditors, or being absent, shall, with such intent, remain absent, or shall conceal himself to avoid the service of legal process, or shall conceal and remove his property to avoid its being attached, or shall make any as- signment, gift, sale, conveyance, or transfer of his property, or who has been arrested on mesne process, or who has been actually imprisoned seven days in an action founded on con- tract, or cause his property to bo taken on legal process with intent to give a preference to his creditors, or who, being a banker, merchant, or trader, fraudulently suspends payment, and doeg not resume payment of his commercial paper within a period of fourteen days. Hull & Childs, ATTORNEYS & COUNSELLORS-AT-LAW, Solicitors 8c Counsellors in Bankruptcy, Practice in all the State and United States Courts, No. 41 PARK ROW, TIMES BUILDING, NEW YORK. Anr.03 O. Hull, Dar. B. Childs, Herb:rt G. Hull. UNITED states' CARDS. 839 Ebenezer Gay, No. 41 COURT STREET, BOSTON, MASSAC laSETTS, U.S.A. REFERENCES: Ex-Governor John A. Andrew ; Hon. Charles Sumner, United States Senator from Massachusetts }, Hon. Dwi|-ht Foster, Judge of the Supreme Judicial Court ; Hon, Marcus Morton, Judge of the Superior Court, Personal attention given to securing and collecting claims before process of law is resorted to ; unless instructions arc given »o v. e at once, or it shall seem expedient, in the particular case, (o do so. 340 UNITED states' CARDS. Edward Y. Swift, ATTORNEY & COUNSELLOR-AT-LAW, DETROIT, MICHIGAN. Smith W. Weed, ATTORNEY & COUNSELLOR-AT-LAW, » PLATTSBURGH, NEW YORK STATE. Mattocks & Mason, COUNSELLORS & ATTORNEYS-AT-LAW, DICKEYS' BUILDING, CHICAGO, ILLINOIS. p. O. Box 1969. . V. George Wadsworth, ATTORNEY and COUNSELLOR-AT-LAW, / BUFFALO, NEW YORK. ONTARIO CARDS. 341 Robinson, Beatty & Chadwick, BARRISTERS & ATTORNEYS, NOTARIES PUBLIC, &c., Offices— No. 68 CHURCH STREF.T, (Two Doors South of Adelaide Street), TORONTO. Honble. John Beverly Robinson, William H. Beatty. Edward M. Chadwick. Solicitors to the Corporation of the City of Toronto, The Western Canada Permanent Building and Saving Society, &c., &c. 342 ONT*niO CARDS. Britton & Price, BARRISTERS AND ATTORNEYS-AT-LAW, Solicitors in Chancery, Conveyancers, Notaries Public, &c.. MACKAY'S BUILDINGS, CORNER OF KING AND BROCK STREETS, KINGSTON. C. W. B. M. Britton, B. A. C. V. Price, L. L. B. ONTARIO CARDS. 343 D. O'Connor, BARRISTER AND ATTORN EY-AT-LAW, Solicitor in Chancery, Notary Public, &c., OTTAWA, ONTARIO. Richard Bayley, BARRISTER, ATTORNEY AT-LAW, SOLICITOR IN CHANCERY, NOTARY PUBLIC, &c., REDOUT STREET, LONDON, ONTARIO. 844 ONTARIO CARDS. Burton & Bruce, BARRISTERS, HAMILTON, ONTARIO. Herbert S. McDonald, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery & Bankruptcy, Conveyancer, Notary Public, &c., BROCKVILLE, ONTARIO. COLLECTIONS IN ONTARIO WILL MEET WITH ATTENTION. UEFERENCES :— T. B. Anderson, Esq., Montreal. HcBBre. Jno. McDonald ii Co., Wellington Street, Toronto. John R. Bacon, Esq., f)H South Street, New York. B, P. Colton, Esq., Uannnoqne. R. P. Jellett, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, &c., BELLEVILLE, ONTARIO. Philip Low, CROWN ATTORNEY AND CLERK OF THE PEACE, Solicitor in Chancery, Notary Public, &c., PICTON, ONTARIO. ONTARIO CARDS. 845 Morgan Jellett, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, &c., STIRLING, ONTARIO. B. C. Davy, . BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, &c., NAPANEE, ONTARIO. John D. McDonald, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, &c., RENFREW, ONTARIO. T. M. Fairbairn, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, &c.. PETERBORO, ONTARIO. 346 ONTARIO CARDS. i W. p. Brown, BARRiSTLR AAD ATTORNEY-AT-LAW, Solicitor in Chancery, Conveyancer, Notary Public, &c., KINCARDINE, ONTARIO. A. M. McKenzie, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Conveyancer, Notary Public, &c., ALEXANDRIA, ONTARIO. D. Shade Gooding, BARRISTER AND ATTORNEY-AT L4W, Solicitor in Chancery, Notary Public, Sec, WEST STREET. GODERICH. Frank Tyrrell, Jr., BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, &(-., M.ORRISBURGH, ONTARIO. ONTARIO CARDS. 847 D. A. Creasor, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, and Insolvency, Conveyancer, &c. OFFICE IN PARKER'S BLOCK, POULETT STREET, owen sound, ontario. George Moberly, BARRISTER AND ATTORNEY-AT-LAW, Notary Public, Conveyancer, Solicitor in Chancery, &c., HuRONTARio Street, . collingwood, ontario. Thomas Deacon, BARRISTER AND ATTORNEY-AT-LAW, NOTARY PUBLIC, Commissioner in Queen's Bench, Conveyancer, &c. ; a Commissioner in the Pro- vince of Ontario for taking Affidavits to be used in the Province of Quebec, PEMBROKE, ONTARIO. James Bethune, LL.B., BARRISTER, SOLICITOR, &c.. CORNWALL, ONTARIO. 348 ONTARIO CARDS. E. A. Bates, LAW, CHANCERY, CONVEYANCING, OFFICE— MADAWASKA STREET, ARNPRIOR, ONTARIO. Charles Francis, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, Conveyancer, &c., TRENTON, ONTARIO. . . i' Messrs. D. D. Young & Co., Quebec ; Rc*H>Nr» . ) R°n"=o H- Stephens, Esq., Montreal ; ivEFERKNcis . <. ^ Tjjojppson, Esq., Manager Commercial Bank, Belleville j ( Messrs. Gilmour & Co., Trenton. Calvin Brown, BARRISTER AND ATTORNEY-AT-LAW, Solicits ' in Chancery and Bankruptcy, Solicitor for the St. Catherines Agency of the Royal Canadian Bank, ST. CATHERINES, ONTARIO. J. W. H. Wilson, BARRISTER, ATTORNEY, and SOLICITOR, BRADFORD, r PROVINCE OF ONTARIO. ONTARIO CARDS. 849 George W. Malloch, B.A.', ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, Commissioner for taking Affidavits, Conveyancer, &c., PAISLEY, - COUNTY OF BRUCE, PROVINCE OF ONTARIO. " ' St^" Money to Lend upon Mortgage, The issuing of Patent Deeds for Lands, and other business in the diflerent Government Departments, attended to with promptness. REFERENCES :— C. J. Cnmpbell, Esq., Manager of Commercial Bank, Toronto ; Geo, Malloch, Esq., Judge County Court, Brockvllle ; Wni. B. Wells, Esq., Judge County Court, Chatham : John U. Malloch, Esq., Judge Couuty Court, Perth ; Rev. J. 0. Usher, Rector o£ Grace Church, Brantford. David Smart, ATTORNEY-AT-LAW, Solicitor in Chancery and Insolvency, Conveyancer, Notary, Solicitor for the Ontario Bank, &c., PORT HOPE. Collections, Matters in Insolvency, and Land Agency promptly attended to. REFERENCES:— Messrs, A. R..McMastcr & Bro., Toronto. Thompson ii Burns, " Thomas ii Ash, Brantford. B, E. Charleton, Esq,, Hamilton. Messrs. George Winks & Co., Montreal, Will. Darling & Co., " Kirkwood, Livingston & Co., " Geo. Robertson & Son, Kingston. The President, Cashier, and Managers of the Ontario Bank. 860 ^ ONTARIO CARDS. R. & J. F. Dennistoun, BARRISTERS, ATTORNIES, & SOLICITORS, LINDSAY, i PROVINCE OF ONTARIO. Robert Dennutovn, Q.C. J, F. Dennistoun. James H. Benson, BARRISTER AND ATTORNEY-AT LAW, Solicitor in Chancery, Conveyancer, &.C., SEAFORTH, X PROVINCE OF ONTARIO. C. R. HORNE, BARRISTER AND ATTORNEY-AT-LAW, WINDSOR, PROVINCE OF ONTARIO. Shaw & Paterson, BARRISTERS AND ATTORNIES-AT-LAW, Solicitors in Chancery, Notaries Public, &c., • WALKERTON, PROVINCE OF ONTARIO. ONTARIO CARDS. 861 Cornelius Harper, ATTORNEY-AT-LAW, Solicitor in Chancery, Conveyancer, Notary Public, Sec, OFFICE— Over the Store occupied by J. A. MILLER, Esq., DURHAM, COUNTY OF GREY. NoHMAN F. PaTERSON, BARRISTER, ATTORNEY, SOLICITOR, Notary Public, Sec. BEAVERTON, ONTARFO. LouNT k Boys, BARRISTERS, ATTORNEYS, SO.. ^[TORS, Notaries Public, &c., BARRIE, COUNTY SIMCOE, ONTARIO. Samuel H. Cochrane, L.L.B., COUNTY CROWN ATTORNEY, Barrister, &c.. WHITBY, ONTARIO. 852 ONTARIO CARDS. S. B. Faiiibanks, SOLICITOR, NOTARY PUBLIC, &c., OSHAWA, ONTARIO. J. M, Bates, ATTORN EY-AT-L AW, Solicitor in Chancery, Notary Public, Conveyancer, &c., MERRICKVILLE, ONTARIO. Messrs. Blair & Guthrie, BARRISTERS, ATTORNEYS, & SOLICITORS, GUELPH, ONTARIO. Hon. A. J. Ferguson Blair, Q.C. - - * '* Donald Guthrie. Robert Swanton Appelbe, BARRISTER, ATTORNEY-AT-LAW, f Solicitor in Chancery, Conveyancer, &c.. \ OAKVILLE, COUNTY OF HALTON. ONTARIO CARDS. 853 Cummins, Coyne, & Clark, BARRISTERS AND ATTORNEYS-AT-LAW, Solicitort in Chancery St Iniolvency, Conveyanceri, Notarie* Public, A:c., OFFICE, CHISHOLM'S BUILDINGS, Main Street, BRAMPTON, C.W. J. P. Cummint. John Coyne. J. P. Clark. OSLER & BeGUE, BARRISTERS AND ATTORNEYS-AT-LAW, Solicitors in Chancery, Notaries, and Conveyancers, DUNDAS, ONTARIO. Office, Moore's Bvildinm, Main Street. * B. B. Osier, LL.B. T. H. A. Begue, LL.B. Edward Horton, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery Se Bankruptcy, Notary Public, Conveyancer, &c., ST. THOMAS, ONTARIO. Mackenzie & Gurd, BARRISTERS, &c., SARNIA, ONTARIO. J. A. Mackenzie. R. G. Gurd. X 354 ONTARIO CARDS. Alexander Millar, BARRISTER AND ATTORNEY-AT-LAW, SOLICITOR, &c., berlin, county of waterloo, ontario. David T. Buncombe, BARRISTER, ATTORNEY-AT-LAW, Solicitor in Chancery, &c., SIMCOE, NORFOLK CO., ONTARIO, . A. G. McMillan, BARRISTER \W ATTORNEY-AT-LAW, Solicitor in Chancery, Conveyancer, Notary Public, &c., &c,, : ELORA, WELLINGTON CO., ONTARIO. i/» Shaw & Hall, BARRISTERS, ATTORNEYS- AT-LAW, ( Solicitors, &c., PERTH, ONTARIO, -•■}J [^Uihi OFFICE : TERRIER'S BLOCK, GORE STREET. W. M.'Shaw. F. A. Hall. ONTARIO CAKDS. 855 MoNCRiEFF & Geary, BARRISTERS AND ATTORNEYS-AT-LAW, Solicitors in Chancery, PETROLIA, ONTARIO. George MoncricfF. John Geary. ■ ■ -I I ■ ■ ■■■ — ■—■ I. ^ ^1 ■ I -.■■■^MIIM.I n il. ■ I. ■ — hll . — J. W. Kerr, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, &c , , COBOURG, ONTARIO. Hugh Richardson, BARRISTER, ATTORNEY-AT-LAW, , Solicitor in Chancery, Notary, &c., WOODSTOCK, ONTARIO. S. Malcomson, BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public> &c., &c., Scz , CLINTON. ONTARIO. ,. Hall. 356 ONTARIO CARDS. O'Hara & Douglas, BARRISTERS, ATTORNEYS & SOLICITORS, CHATHAM, ONTARIO. Robert O'Hara. William Douglas. J. Fletcher Cross, LL.B., BARRISTER AND ATTORNEY-AT-LAW, Solicitor in Chancery, Sec, FERGUS, ONTARIO. Hugh McMahon, BARRISTER AND ATTORNEY-AT-LAW, BRANTFORD, ONTARIO. John Livingston, LL.B., BARRISTER, ATTORNEY-AT-LAW, Solicitor in Chancery, Conveyancer, tec, GEORGETOWN, ONTARIO. ONTARIO CARDS. Edgar Backer, ATTORNEY-AT-LAW, SOLICITOR, Notary Public, Conveyancer, &c., DUNVILLE, ONTARIO. 357 Smart & Bell, SOLICITORS, &c., CALEDONIA, HALDIMAND COUNTY, ONTARIO. Jones & M'Dougall, BARRISTERS AND ATTORNEYS-AT-LAW, SOLICITORS IN CHANCERY, Conveyancers, Notaries Public, and Commissioners in B. R,, &c., ST. MARY'S, C, W. C. S. Jones. A. M'Dougall. W. Nicholas Miller, L.L.B., . BARRISTER & ATTORNEY-AT-LAW, &c., OFFICE: COMMERCIAL BUILDINGS, GALT, ONTARIO. 358 ONTARIO AND QUEBEC CARDS. Macneil Clarke, M.P i^, BARRISTER AND ATTORNEY-AT-LAW, Notary, &c., PRESCOTT, ONTARIO. Henry Hart, ATTORNEY-AT-LAW, Solicitor in Chancery, Notary Public, OFFICE— RIVER STREET, LOWER TOWN, , PARIS, C. W. Brown & Wells, BARRISTERS, NOTARIES, &c., INGERSOLL, ONTARIO. P.J.Brown. - Thomas Wellr Peter O'Brien, BARRISTER AND ATTORNEY-AT-LAW, Notary, &c., L'ORIGNAL, ONTARIO. QUEBEC CARDS. . 359 John Dunlop,. ADVOCATE, HAS REMOVED HIS OFFICE to 67 ST. FRANCOIS XAVIER ST., MONTREAL. D. D. BONDY, ADVOCATE, OFFICE AND RESIDENCE, 585 CRAIG STREET, MONTREAL. Collections in the Counties of Vaudreuil and Soulanges promptly attended to. M. M'Leod, ADVOCATE, &c., AYLMER, OTTAWA CO., ^UE^EC. Chagnon, Sicotte 6c Lanctot^ ADVOCATES, crry of st. hyacinthe, Attend thr Courts in th« Oi*¥ict of V, Hyacinthe, comprising within its limits the Counties U/t, M. Lanctot. 360 QUEBEC OARDS. John Popham, ADVOCATE, SOLICITOR FOR PATENTS, 67 ST. FRANCOIS XAVIER STREET, MONTREAL. .. J. W. & W. Cook, ADVOCATES, &c., QUEBEC, PROVINCE OF QUEBEC. P. C. Dancereau, ADVOCATE, &c., BEAUHARNOIS, QUEBEC. QUEBEC CARDS. G. I. Barthe, ADVOCATE, &c., SOREL, PROVINCE OF QUEBEC. 361 Sanborn & Brooks, ADVOCATES, SHERBROOKE, province of QUEBEC. COLLECTIONS PROMPTLY MADE. Attend Courts at Sherbrooke, Arthabaska, Drummondville, Cookshire, Danville, and Richmond. Hon. J. S. Sanborn, Q.C. E. T. Brooks. Hall & Johnston, ADVOCATES, &c., STANSTEAD, PROVINCE OF QUEBEC. Huntington, LeBlanc & Noyes, ADVOCATES, WATERLOO, C. E. L, 3. Huntington, Q.C,, Jos. LeBlanc, J. P. Noyes, 862 QUEBEC AND NEW BRUNSWICK CARDS. G. B. Baker, ADVOCATE, COWANSVILLE, C. E. Charles W. Weldon, ATTORNEY-AT-LAW, NOTARY PUBLIC, &c., SAINT JOHN, NEW BRUNSWICK. OFFICE— s PRINCESS STREET (Corner of Prince William Street), W. V. Whiteway, Q^C, BARRISTER AND ATTORNEY-AT-LAW, No. 257 DUCKWORTH STREET, ST. JOHNS, NEWFOUNDLAND. Mr. A. J. Smith, BARRISTER AND ATTORNEY-AT-LAW, Notary Public, Conveyancer, &c., DORCHESTER, NEW BRUNSWICK. NEW URUNSWrCK CARDS. 868 WiNSLow & Edgar, BARRISTERS AND ATTORNEYS-AT-LA\V, NOTARIES PUBLIC, ' Solicitors, Conveyancers, Fire and Life Insurance Agents, Real Estate Brokers, WOODSTOCK, N. B. John C, Winslow. James Edgar. MONTREAL — ACCOUNTANT AND OFFICIAL ASSIGNEE. Andrew B. Stewart, ACCOUNTANT, OFFICIAL ASSIGNEE, MERCHANTS' EXCHANGE, St, Sacrament Street, MONTREAL. A Commissioner for taking affldavits to be used in the Superior and Circuit Courts. 864 HALIFAX CARDS. James & Foster, '.. BARl^ISTERS, ATTORNEYS, SOLICITORS, NOTARIES PUBLIC, &c. HALIFAX, NOVA SCOTIA. T! \y PRINCE EDWARD ISLAND CARDS. 36') Palmer & Macleod, BARRISTERS AND ATTORNEYS- AT-L AW, NOTARIES, &c,, CHARLOTTETOWN, P. E. ISLAND. Chs. Palmer Malcolm Macleod . > A ,.'^.. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 8 |25 ■^ ^ 12.2 It us ■ 40 11.25 III 1.4 iy£ 1.6 # V y^ Photographic Sciences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. 145*0 (716)872-4503 \ N? \ \ .1. '^ INDEX TO ONTARIO. Page Abandonment. — See Maritime Insurance, 158 Acceptance — Of Bills of Exchange, see Bills of Ex- change, 99-100 Of goods, see Sale Contract of, 127-128 Account — As between partners, 26 Actions, Limitation op — See limitation Statutes of, 32 Actions at Law. — See Bills of Exch inge, 1 23 Admission— By agent binds principal, 45-46 Advances — By agent when to be repaid, 49 Affreightment — Two classes— by Charter-party and. in general ship, 140 VfYisX^ij Charter-party, 14i General stipulations, 140-141 Implied contracts on part of master 141 Within what time must sail, 141 Usual pro -ective clause, 141 Merchant must load as agreed or pay demurrage,... 141-142 When possession of ship passes, 142-143 Ingeneral ship, 143 Bill of lading is the contract, 143 What bill of lading is, '. 143 Assignable by endorsement, 14S Master must deliver goods upon presentment of bill of lading, 143 Duty of master as to keeping goods, 143 Effect of assignment of bill, 144 Freight must be paid according to contract, 144 Lien for freight, 145 Primage. — What, 145 Average. — What, 145 General average for safety of ship, 145-146 I 8C8 INDEX TO ONTARIO. ^ Page Affreightment — Continued. Salvage.— "What, 146 Who entitled to, 146 Whonotintitled, 146 Agent — Vide principal and agent, 34-50 Alteration — Of property insured, 162 Alteration of Instruments. —See Bills of Exchange, 114-115 General rule as to, 114 Effectof with consent of parties, 114 May render the ^instrument void, without extinguishing debt, 115 Otherwise, when, 115 Who must explain alterations on face of instrument, 115 Appointment — Of agent, how, 35 Appropriation — Of payments, 106 Arbitration. — When by order of Judge, 185 Arrest. — Must because of action amounting to $100, 180 What affidavit necessary, 189 If bail filed, how to proceed, 189 Assignment — Of collaterals. Sec Guarantee, 168 In insolvency. See Insolvenci/y 191 Assignment op Policy. — See Fire Insurance, 1 64 Assignee. — See Insolvency, 196-197-198 At and FROM — Constructic >>Cisewordsin Polioies, 154 Attachment— Of debts 180-188-189 In insolvency, 195-196 Auctioneer. — Age it of both parties to bind under statute of frauds, 130 Average. — What, 146 When allowed, 145-146 Bankruptcy — Principal position, upon redeeming goods pledged by agent, 42 See Insolvency, 190-205 Bailment — DiflFerence between it and sale, 124 Bail— See Arrest, 189 Barratry— What, 152 Is covered by Insurance, 152 INDEX TO ONTARIO. |8# Toge. Bills of Exchangk and Promissory Notes — Their Definition, &c. Bill what, 75 Form of, 75 How accepted, ., 75 Essentials of Bill 75 Must be in writing 75 Uncunditlonal payment of money, 75-77 At a certain time, 75-77 Effect of want of one of these essentials, 76 Legal cflFe'^t of drawing a bill, 76 '* ** accepting '* 76 '« " endorsing ** 76 The contracts are simple contracts, 76 But differing in what, 76 Assignability, 76 Consideration presumed 76 ' Bills and nct«s liable to seizure under execution, 76 Note, What, 77 No particular form of words necessary, 77 Form of, 77 - Parties ..o, 77 Cannot be made by a man to himself, 77 But if endorsed it is to bearer, , 77 The promise must be unconditional 77 The amount must be ascertained, 77-78 May be payable by instalments, 78 Must be presented and protested at each dishonor, 78 Cannot be endorsed for less than sum due, 78 A note may be joint and several, ,.... 7g When ajoint • 78 When joint and several, 78 Checks — Resembles , a bill of exchange, 78 ' Subject to same rules, 78 Differ as to time of falling due, 78 Diligence required in presenting, 78-79 Effect of post-dating a check, 79 When bank must pay check, 79 Y INDEX TO ONTARIO. Page Bills on Exchange and Pro^iissory Notes — Continued. 'yonsequence of not paying, 79 Effect of marking a check good, 79 Must then be stamped, 79 ;-. Is evidence of payment, 80 A check accepted is payment until dishonor 80 When evidence of party having received the money 80 If check is dishonored the parties' right revives as to the original debt, 80 Effect of death of drawer, 80 Effect of fraudulently altering a check, 80 When drawer's negligence has induced it, 80 / ' How several parties, not partners, must sign, 81 If all cannot sign, equity will relieve, 81 . I. 0. U.— What it is 81 ': When required to be stamped, 81 What it is evidence of, 81 Capacity of Contracting Parties and their Liability An agent may make a bill or note, 81 No particular form of appointment necessary, 81 An infant cannot bind himself, 81 Nor a married woman by bill or note, 81 Except when, 81 Other incapacities, 81-82 How agent's authority may be restricted, 82 I Effect of words, " per procuration," 82 ; Necessity of enquiring into agent's authority, 83 Authority to draw is no authority to endorse, 83 t Effect of agent exceeding his authority, , 83 - When agent may become personally liable, 83-84 Each partner may bind firm by bill or note, 85 Cannot by a joint and several note, 85 Partners for other than trading purposes cannot, 85 r I Effect of a man drawing a bill who'b a member of two ' r firms, each using thestyle, 85 . ' / Effect of admitting new partners,.... 85 ( •' of taking security from one of several partners,.... 85 80 80 80 80 81 81 81 81 81 ILITY f 81 81 81 81 81 1-82 82 82 83 83 83 183-84 85 85 85 85 85 85 , INDEX TO ONTARIO. 871 Bills op Exchange and Promissory Notes— Continued. Pago When secret or dormant partner is liable 85 Whon nominal or ostensible partner is liable, 85-86 Ai'ter dissolution no power to bind if notice has been '- given, 86 '•' A scc.et partner need not give notice, 86 If dissolution by death, no notice required, 86 Effect of, after ratification,; 86 Liability of an adult joined mth an infant, 87 An infant may convey title, 87 Effect of a woman holding bills marrying, 87 Agreements intended to control the operation of a Bill or Note. — May be either verbal or written, 87 Written either upon instrument or other puper, 87 At the time of or subsequent to the instrument, 87 Different effect of various agreements, 87 Stamps— ESeci of 27 and 28 Vic, chap. 4, 87-88 Necessity of recognizing the difference between inland and foreign bills, 88 What stamps necessary, 88-89 What instruments require to be stamped, 89 .' Exemptions, 89-90 Are to cancelled at time of affixing, 90 Any subsequent holder of an unstamped bill may l^al- > ize it by Mffizing double stumps, 90 Double stamps must be added within a reasonable time, 90 How want of stamp to be raised by plea, 90 ^ Want of stamp renders instrument invalid, 91 ^ Also parties to it liable to penalty, 91 How penalty excused, 91 '^■- Consideration — Whatis in law, 91 Difference between bills and notes, and other simple con- tracts, 91 How want of consideration may be shown, 91 ; ' ^ When burden of proof of is thrown on Plaintiff, 92 Mere absence of consideration does not, 92 ; What L necessary between remote parties, 92 372 INDEX TO ONTARIO. ••'-■ — ■ ." Page Bills of Exchange and Promissory Notes — Continued. If intervening holder gave value, effect of, 93 Failure of consideration, 92 Value, amount, nor quality of goods given for a bill no defence, 02 What is good consideration., , 93 Effect of fraud or illegality in inception, 93 Fraud committed as to third persons, 93 A note given to get creditor to sign an insolvent's dis- charge, 93 Void, even as to his dividend, -93-94 Even if given by third party, 94 If given after discharge, good, ........ 94 An innocent holder may recover, 94 Illegalit;r of consideration, 94 What considered illegal considerations, 94 Usury — In effect done away, 94-95 Transfer — If payable to bearer or order is transferable, . 96 If to bearer, by mere delivery, 96 '. If to order, by endorsement, 96 The endorsor is liable, 96 "When subsequent endoi so may be liable to prior, 97 How liability to be avoided upon endorsement, 97 Effect of a conditional endorsement, 97 Endorsement admits all prior signatures, 97 Effect of striking out endorsement, 97 Endorsee's right of action, 97 How transferrer may be compelled to endorse, 97 Effect of re-endorsement, 97-98 Endorsement by trustee in breach of trust, 98 Effect of transfer by more delivery, 98 It contains no guarantee, 98 If given for pre-existing debt l!8 It warrants the genuineness of the signatures, 98 Rights upon bill taken before due, ;. . 98 '^ No right to retain against lawful owner, a'bill not made \ payable to bearer by blank endorsement, 98 t-'T 92 92 92 93 93 93 93 13-94 94 . 94 . 94 . 94 . 94 J4-95 . 9'J 96 96 96 97 97 97 97 97 97 97 97-98 98 98 98 1)8 , 98 . 98 . 98 INDEX TO ONTARIO. 878 Pago Bills of Exoh/ngk and Promissory Notes — Continued. Danger of taking bill over due, 98 Must take it subject to equities attached, 99 But only tbose attached to instrument itself, 99 May be endorsed over before acceptance, 99 > > Danger of endorsing blank notes 99 Cannot bo endorsed for part of the sum due, 99 Effect upon transfer of a release, 99 The husband and not the wife must transfer by endorse- ment, 99 Equity will restrain a transfer, 99 .. ' Presentment for Acceptance — Only applies to bills, 99 ':. What it is, 100 When must be made, 100 I- There is no laches while bill in circulation, 100 iu When presentment excused, 100 «• Acceptance — Must be in writing, 100 rv Effect of acceptance, 100 Who may accept a bill, 101 r I May be in general or qualified mar.ner, 101 What a general acceptance amounts to, 101 V A conditional acceptance, 101 -v A partial acceptance 101 ' I A conditional or partial acceptance may b > fused, 101 When an acceptance will restrict as to place o? payment,. 101 r, Cannot be revoked, 101 •^ It admits drawer's ability, 101 $' How acceptor is relieved of his contract, 101 >: Acceptance for Honor. — What, 100 Presentment for Payment. — When necessary to charge maker or acceptor, 102 '<> Where it should be made, 102 -f-i Effect of not presenting, 102 f What excuses presentment, 10^ ■ i'-' How made if maker or !' When notice is waved, 103-104 ''*; Protest. — What evidence of, 104 "' Payment. — To whom made, '. 104 ''! When payment to another than rightful holder is good., 105 '■ ' When not good, 105 I Upon what day to be made, 105 Effuct of payment by maker or acceptor, 105 " " '^ drawer or endorser 105 Payment before due, and endorsed after, 106 ' Of bill or note payable on demand, 106 ' If holder appoint maker Jiis executor, it is equal to pay- ment, 106 Set off is not payment, 106 •I Payment supra protest. — What it is, 106 Bights of party so paying, 106 Appropriation of Payments. — As the party paying i • directs, 106 '■ ' Next as creditor sees fit <.... 106 - Thirdly, to such debt as is most burdensome, 106 ■ Fourthly, if debts are equal, then in priority of time,... 107 Lastly, on open account to items according to priority, . . 107 - ■ What isprimu/acie evidence of payment of a.bill or note, 107 - ' Tenderof part isnotgood, 107 INDEX TO ONTARIO. 876 r»go Bills of Excdange and PaoMissoRY Notes — Continued. Satis/action — Of eimple contract, bill or note, 107 What is a satisfaotion 108 One of several joint creditors may accept, 108 By third party, 108 ' Relinquishing a suit, good aatisfuotion, 108 JJe/in^UwAmen/— By higher security, , 108 Judgment not until satisfied, 108 ' A collateral security need not, 109 Suspension — By renewal, 109 By verbal agreement, 109 . /?c?ca«c.— What it is, 109 Of bill before duo binds parties to it, 109 When subsequent 2)0}ia^(2e holders, 109 If after due, binds all parties 109 To one joint maker good to all, 109 Of one joint debtor, of all, 109 A covenant not to sue equal to releaso to sureties, 109 *: Beleose of bill releases collaterals, 110 Principal and Surety. — How attaches in bills and notes, 110 Who are, 110 Rule as to discharge, 110-111 ,M Ground of rule, Ill '< Exception to rule Ill Effect of taking a renewal bill, Ill '', A composition discharges surety Ill ;> Avoided by agreement, Ill A surety's right against the principle, Ill Liability of several sureties, Ill Distinct liabilities at law and in equity among sureties as to each other, 112 Interest. — May be matter of contract, 112 'v^, If none mentioned, six per cent, 112 When counted from on bill or note, 112 When interest runs to, 112 Ceases on tender, 112 Surety liable for, 112 }J76 INDEX TO ONTARIO. Pt|0 Bills of Exohanob and Pbomissort Notes— Continued. How interest to be computed if payments made at dif- ferent times, 112-113 Damages in addition to interest upon bills payable out of tbe province, 113 When ton per cent additional, 113 " four " «• 113 At what rate of exchange to be paid, 113-114 If parties cannot Dgree on the exchange bow to be settled, 114 I Alteration of bill or note. — General rule as to alterations in written instruments, ^.. 114 I Effect of alteration with consent of all parties, 114 >' An altered bill or note should be re-stamped, 1 14-1 1 5 t Every alteration appearing on face of bill or note should be inquired into, 115 ! When an alteration may be legally made, 115 It may avoid the instrument, but not extinguish debt, .... 115 < Otherwise, when, 115 4 Holder must explain alterationson face of bill or note,.... 115 i When renewal bill given for an altered one may bo void,. . 115 Forgery of BilU and Note». — ^qq Forgery, 115 Limitation of actions. — See actiona limitationt of — < Statute of limitation, IIG Six years bars right upon bills and notes, 116 Exceptions to rule, 117 Desirability, 117 Partyout of theoountry 117 In case of joint debtors one may be sued, 117 Does not destroy thedebt, 117 Only bars the remedy, 117 Destroys the debt in Quebec, 117 How debt taken out of statute, 117 By acknowledgement,. 117 Acknowledgement must be in writing, 117 By payment, 117 How to be endorsed on bill 118 By issue of writ, 118 INDEX TO ONTARIO. 877 I'nge Bills of Exohanqv and Prommsort Notes— Continued. Lost Bill or Note. — Finder aoquiros no interest, 119 ;■ ; But may give title, 119 Loser should at onoe give notice, 119 / - Effect of notice, / 119 '.:■ t Demand of payment must be made, though bill lo»t, 119 '.: ' And notice of dishonor, 119 ? . Indemnity should be given to payer, 119 , How recovered upon, 119-120 Effect of loss after action, 120 . How far a bill or note t« considered payment, — Not of ';" pro-existing debt unless agreed to bo, 120 Simply suspension of remedy, 120 How it may become a satisfaction, 120 f'l May have remedy on note, bill and original debt, at same ■>i time. 120 i '< Is payment of immediate consideration, 120 -.;• Bill taken for sale of goods is payment, 120 When of a specialty debt 120 ! Until actual payment only a collateral, 120 i Taken ftrom one partner is payment of debt of firm, 120 ' Unless agreement to the contrary, 121 V f Bcmovesa lien fromgoods, 121 •Mr When not so as to remove lien, 121-1 7!^ '^1 ^ No effect if party giving it knows at time it is no good, . 121 '/ ' Payment within statute of frauds, 121 ' ' Foreign Bills and Notes. — All are prima facie inland, 121 V.' ) Distinction between inland and foreign, 121 V,: Form of foreign, 121 Drawn in sots, 121 Principles of law controling foreign bills, 121-122 How days uf grace to be regulated, 122^ Also protest, notice, &c., 122 Effect of general acceptance, 122 Liability to arrest on foreign bills, 122 United States currency, effect on, 122 Sentedi! by action on Bills and notes. — Who may sue, .... 123 I 378 INDEX TO ONTARIO. Page Bills of Exchange and Promissory Notes — Continued. Who may be sued, 123 Effect of suing parties in one or separate actions, 1 23 ,'; In what court to be brought, 123 , When tender of amount a defence, , 123 When court will stay proceedings for want of consideration , 1 23 Bill of Lading. — See affreightment, 143 Bill of Sale— Of chattels, 211 How executed and filed, 212 Bottomry. — What, 147 Who may enter into, 147 • >• When master of vessel may, 147 '^i Who can advance upon, 147 r.i Rule as to priority, , 147-148 5ro7<«r.— Who is 36 '<: Has not possession of goods, 36 ',-v Mere power to sell, 36 Can not effect principal's rights with his own liabilities,... 43 Buying and Selling.— What amounts to contract of, 130 Effect of contract, 130 Capture. — See JIfaritime insurance, 151 Carriers. — A common carrier, who is, 137 When Railway and Steamboat Coy's, are,... 137 Must carry goods offered, 138 Except when, 138 Must take proper care of them, 138 ' Liable for every loss, except by God and the Queen's enemies, and piracy at sea, 138 ': Liable until actual delivery, 138 • Liability limited by special agreement, 138-139 Often liable for goods beyond their own line of carriage, 139 ' How contract with implied, 131) Who should sue for damages, 139-140 Measure of damages, 140 Speculative or trade profits not recoverable, 140 Charter. — See Corporations, 53-56 C HART BR-P ART Y. — See affreightment, 14q INDEX TO ONTARIO. 379 I'ajte Chattel Mortgage.— How executed, 210 Must be registered within five days, 210 Takes eflFect from execution, 210 V EflFect of any omission, 211 ; Must be renewed every year, 211 i? How renewed, 211 May secure future advances, 212 Check. — See Bills of Exchange,... ., 78-79 Collection of Debts. — Who may sue, 174 Common law courts, 174 Division Courts. — Remarks, 174-175 ^ ^j- Its Officers. — Judge, 175 Clerk, 175 Bailiif, 175-176 Jurisdiction. — Personal actions for debt or damages,... 176 ': > Claims for money due, 176 f ;f Cause of action can not be divided, 176 ?>i In replevin, 176 Where suits may be hrovght. — Where cause of action arose, or defendant lives, 177 f: Meaning of " cause of action," 177 S ' Service of Process. — Must be personal, 178 Except claim under $8, 178 How long before court, ^ 178 • Ai • Truil. — Parties appear in person, 1 78 if ^ Or by s^rent or attorney, 178 Effect of non-appearance, 178 Evidence '. 178 Judgment, 178-179 H What defence may be set up, 178 - How, 178-179 Execution. — Issued in what time, 179 . How enforced, 179 If defendant removes, 179 Cannot issue against lands, 179 Except upon transcript, 179 Rights of landlords — Protected in their rent against execution, 180 I ' 380 INDEX TO ONTARIO. Pago Collection of Debts — Continued. For what amount 180 Attachments. — When may issue,* 180 How executed, 180 Examination of Judgment Debtor, — Who may examine, 181 In what manner, 181 When order committing will be made, 181 General result of, 181 Time of holding, 182 County Courts. — Jurisdiction, 18J Time of holding, . 182 i. Practice, 182 ' Superior Courts. — Queens Bench and Common Pleas,. 182 Jurisdiction, 183 Sittings, 183 Practice in County and Superioi Courts. — Similarity,. 183 Commencement of action, 184 ti Writ of summons, 184 When specially endorsed, 184 Effect of, 184 Appearance by defendant, 184 Declaration, 184 Pleas, 184 When case may be brought from superior to county court, 185 Judyment. — What founded upon, 185 When referred to an arbitrator, 185 i. When judgment entered, .' 185 Certificate of Judge, 185 Execution upon u 186 What liable under, 186 Exemptions, 186 ' Prior liens, 186 How obtained against lands, 187 '■' Lands when sold, 187 ^•' Interpleader' -rVf hat, 187 i Examination of Debtor, 187-188 Garnishee.— Wh&t, 188 INDEX TO ONTARIO. 881 Pago Collection of Di!bts — Continued. What may bo garnisLeed, 188 '<': Priority of orders, 188 How enforced,. 188 Attachment. — When may issue, 188-189 Writ how executed, 189 ' Priority of writs, 189 Ir' ^JTe«<.— When, 189 Foreign judgment. — How sued upon, 190 Company. — See joint stock companies, ^ SO-SS Contracts. — When considered made with agent. 44 ' , --■^^:- . «*' t y^ principal, 44 " '« « neither, 44 ■ What interest courts of law recognize, 44 -' How agent should be authorised to contract, 44 ' How he should contract, 45 Consideration, — When illegal in contracts, 94 Effect of. 136 See Guarantee, 166 '■ See Bills of Exchange,... 91-94 Contribution. — See Guarantee, 167-168 CoNOEALMENT-^Of material facts avoids policy, 162 Convoy. — What, 155 Warranty to depart within policies, 155 Corporations. — How created, 53 ' Existence,' how continued, 54 Power to contrdct — By corporate seal, 54 When need not be under seal, 54 Contract must be with corporation itself, 54 ' ' ' Not with its head or individuals, 54 Sufficient if styled in substance, 54 When it can hold lands, ^ 54 Trading companies have extended powers of contracting, 54 ' * ' Liability of Corporations. — Upon what contracts, 55 i-'iV When contract not under seal, 55 For goods, &c 55 Dissolution. — By death .' 66 w 382 INDEX TO ONTARIO. Pnge Corporations — Continued. By surrender, , 56 ?■ By forfeiture, 56 By act of parliament, 56 Creditors. — Rights, &c., of against an insolvent estate,.! 97-1 98 Courts. — Division Court. See collection o/ debts, 174 County Court. " « " 182 Superior Court. " " " 1S2 Covenant. — Not to sue one partner no discharge to others,. 30 Damages — For not accepting goods, 133 Measure of, 133-134 When goods must be tendered before action, 134 Debt. — Contracts of, what, , 136 Duty of debtor. — Should tender payment, 130 When goods, &c., arc payment, 136 How tender to bemade, 136 Effect of not delivering note as agreed, 137 Duty of Creditor. — To receive payment, 137 Consequence of refusing, 137 A receipt for debt, when conclusive evidence, 137 Debtor.— Examination of, 181-187-188 Duties of, 131-132-133 Declaration. — On registry of ships, its contents, 64-G5 Delivery ok Goods. — Liability for not delivering,.... 131-132 When excused, 131 ; When considered as done, 131 Within what time to be done, ^ 131 What is reasonable time, 131 Delivery of note for purchase, 137 Demurrage. — What, 141 Deviation. — Its effect on policy, 156 Discharge. — In insolvency. See Insohenci/, 202-203-204-205 Of liability on bill or note, 107-108-109 Of guarantees, 166-167 Dissolution. — Of corporations, 5S Of partnerships, 20-21-22 Distributionop Loss. — See Fire Insurance, 164 INDEX TO ONTARIO. 383 FoRe Dividends. — From insolvent estate, 198-199 Division Court. — See collection of debts, IT^ Its jurisdiction, 176 Dormant Partner. — See Partnership 27-28 Earnest. — See sale, contract of, 128-129 Enemies. — Perils by. See Maritime Insurance, 151 Carriers not liable for acts of, 138 Examination — Of judgmient, debtor, 181-187-188 Of insolvent. 8eo Insolvenct/, 204-205 ExECDTOR. — Of partners, liability, 26 Execution. — See collection of debts, 1 79-1 86 Against lands, 187 Extinguishment.— See WW* o/ca!cAan^ Distribution of loss. — Insured not compelled to divide ..'. his loss, 161 «' Unless provided by policies, • 164 Insurers mny compel contribution, 164 t Assignment of Policy. — Only by consent of insurer,. ... 164 •• How signified 164 If property sold policy must be assigned, 164 After loss may be assigned without consent,'. 164 Fl«M.— See Partnership, 19 Forbearance. — To sue principal does not discharge se- curity, 167 Forgery. — What it is,.. 115 Penalty for, 115 A forged bill carries no rights, 115-116 When money paid may be recovered back, 116 5 When he can not, 116 ; When the sum has been increased by forgery, effect,. ... 116 If induced by drawers negligence, 116 Fraudulent CoNCBALMENx.—See Fire Insurance, 162 Frauds, Statute op, — A bill or note is payment under sec. 17 121 Contracts of sale under sec. Sale contracts of, 1 26-127 ^ea guarantee, 165 Fraud.— Who affected by it in contracts, 134 What considered fraud, , 134 When misrepresentations are, 134 " " are not 135 When mere concealment of truth is, 135 It avoids the contract, 135 , Puffers employed at an auction may, 135 INDEX TO ONTARIO. 385 » I'age Fraud — Continaed. Contract must be avoided at once upon knowledge of tho fraud, 135 Against provisions of insolvent act, 199-200-201 Fraudulent conveyance, against 13 Eliz., o. 5, 207 What property conies within statute, 207-208 May be fraudulent against after indebtedness, 208 Fraudulent convey'^.noes, against 27 Eliz., o 4, 208 Preferential liens, fraudulent, 208-209 What considered not, 209 Alteration of books, &c., 209-210 Penaltiei, 209 Freight. — See Affreiffthmmt, 140 Oabnishee. — What, 188 Whengranted, 188 How served, 188 What may be garnisheed, 188 Priority of orders, 188 How enforced, 188 Payment under, 188 General Averaqe. — Bee affreightment, 145-14G Generalship — What, 143 Good Will.— What it is 72 Iteoognized as a valuable interest, 72 How its value to be estimated, 72 Not recognised where profits of the business arise from personal skill, 73 When good will passes with sale of business, 73 Belongs to the estate in case of a dissolution of a firm, . 73 In case of death it does not survive to continuing partners, 73 If one partner retires it goes to continuing partner, 73 May be otherwise by special agreement, 73 Grace. — Days of, on bills and notes, 102 Guarantees — ^What, 165 How differs from warranty, , 165 What constitutes, — By stat. of frauds, 165 Must be in writing 165 INDEX TO ONTARIO. .'■'■- Pago Guarantees — Continued. May be signed by agent, 165 A consideration required, 165 By sec. 1, chap. 45, 26th Vie. coasideration need not appear in writing, 165 Must still exift and be pruvcd, 165-166 The consideration. — What is su£Bcient, 166 If after goods sold and delivered 166 Not necessary if party takes position of principal 166 ' , Jlom discharged. — By act of creditor afifcctiog guarantor^ 166 By stipulating with debtor 16 By giving further time, 167 ' Not by a conditional agreement, 167 Nor by delaying to sue, 167 Kcimbursement. — When guarantor may look to principal for 167 Also for any sum as soon as paid, 167 Contribution, — What, 167 Though surety arises under different instruments, 167 Difference in equity and law, 167-168 - Assignment of collaterals. — Surety entitled to on pay- ment, 168 Of judgment debt, 168 Stands in position of creditor, 168 Representations in nature of guarantees. — None unle^'S in ' writing, 168 Signed by party to be charged, 168 Illegality in Considebation. — What are illegal cosidera- tions, 94-136 Effect if upon contract, 136 Indorsement— Of bills and notes 96-97-98-99 Indulgence. — To one party to bill or note when it discharges others, Ill ' To principal discharges surety, % 166-167 Infants. — Power to contract, 18 Not liable on trade contracts, 18 Cannotratify a debt contracted in infancy except by writing, IS INDEX TO ONTARIO. 887 Infants.— Continued. May enforce a oontraot, 18 '' Can act as agent, 18 Inland Bills. — SeoBilh of Exchange, 88 Insolvent. — See Intolvency 190 iNsnaANOE. — See Maritime Insurance, 148 Sec Fire Insurance, 160 Insolvency. — Generaleffectof act cf 1864, 190 Division of act, 190 TbwAom ace a/)/)2ie«~Both traders and non-traders, 190-191 Exception as to non-traders, 191 Who is a trader, 191 Voluntary assignmtnts. — Whomaymake, 191 Doubtful if it can be when no estate, 191-192 Formalities done away by act of 1865, 192 Must be to official assignee within province and county 192-193 Difference of opinion in Lower Canada, 192-193 Assignee when appointed by creditors, 193 Property conveyed. — What by assignment, 193 Exceptions,...., 193 Compulsory liquidation. — When estate subject to, . 194-195 i'. Writ of attachment. — How obtained, • 195 Upon debts not due, 196 Sheriff must take possession under, 196 '' Gaurdian uuder, 196 ■ Assignee. — Duties of, 196-198 Powers, 196-197 How removed for misconduct, 197 Creditors. — What to vote at meetings, ^ 197-198 What debts may be proved, 197-198 How claim questioned, 197 ""■'- Diut<2enci«.— When payable, 198 ''• What creditors entitled, 198 r ! Upon what amount, 198 How debts to rank for 198-199 When insolvent owes as an individual and member of a firm,.." 199 88S INDEX TO ONTAHIO. Page IirsoLVKNOT — Continued. Clerks prior lien to dividends, 196 Frauds and Fraudulent Preferences. — What are by the act, 199-200-201 What neoessary to constitute fraud, 201 DUcharge.—U(m obtained, 202-203 Creditors may oppose, 202 Orounds for opposing, 202-204 When order is final, . 203 Notice of application for 202-203 Insolvent should be present on application for, 204 Effect of, 205 When void 204 Examination o/In$olo6nt. — When he may bo examined, .204 Before whom, ; 204 By whom, 204 Other parties liable to examination, 204-205 Instructions.— Of agent, how construed, 37 Inspection. — Ri»htof by purchaser, 132 Intsrest.— S act of partners, 58 By insolvency, 58 > ( How dissolution should take place...... 58 Effect of dissolution, 58 Liquidation.— In Insolvency. — Seelntolvencif, 194-195 Loss.— See •Maritime Insurance, 157-158 See Fire Insurance, IG'i Of bill or note, 119 Lost or not Lost. — Meaning of words in policy, 154 Markets overt. — None in Caniidu, 12.'> Married Women. — Right to alienate, 01 See Women Married, 212 Maritime Insurance — What, 148 Facts necessary to prove upon loss, 148 ., The Polict/.— Voyage or time,. 148 Valued or open, 148-149 , V Principal parts o/poliey, — Name of the insured, 26 Surviving partner entitled to an allowance for services, . 26 Bights of thiid parties against pariners. — Powor of ' ' special partner, 26-27 Each partner agent for rest — to what extent, 27 INDEX TO ONTARIO. 897 rage Partnbrship — Continued. Agency only extends to trading partnerships, 27 Agency not restrainable by private arrangement, 27 Dormant partner's liability, 27 Dormant may be joined in an action, 28 When agent or principal may be charged, 28 When firm liable for goods used by one partner, 28 When firm not liable, 28 Partnership may claim the benefit of a contract by one, 28 Endorsing, nor becoming security not ordinarily within the purposes of a partnership 28 Transfer of partnership, security may be good in part only, 29 Subsequent approval is equal to prior authority, 29 Cannot bind the rest by deed of grant unless authorised by deed, 29 Can execute a deed of release, 29 A covenant not to sue one partner is not a release, 30 A release granted by one partner in fraud is void, 30 A firm is bound by the representations of one of its members within the partnership business, 30 Not bound if beyond it and his authority, 30 An incoming partner is not liable to old debts, 30 He may become so by agreement, 30 When dormant partner's liability ends, 30 How a creditor may accept the new for old firm's liability, 31 A retiring partner cannot avoid existing liability, 31 How he may protect himself against subsequent liability 31 Notice actual and implied, 31 Liability of deceased partner's estate, 31 Liability of personal representatives, 32 No partner can lose benefit of statute of limitations. 32 Acknowledgment to take debt out of statute must be in writing, 32 One partner can not as to another, 32 It maybe by an agent, duly authorized, 32 Liability may be continued by part payment, 32 398 INDEX TO ONTARIO. Partnership — Continued. ... , ,i What payment ia necessary 32-33 Rights of partners against third persons, — Actions upon sealed instruments, 33 When firm must sue or be sued jointly, 33 Bight of firm to contracts made in nume of one partner, 33-34 Right of defendant to a defence, 34 On loan of partnerships money by a single partner, 34 Collateral liability given to one may insure to all, 34 Liabilities to firm may bo released by one partner, 34 One partner may accept, accord and satisfaction for all,. 34 A tender to one is good to all, 34 PliEDQE. — Insured against 150-151 Pirates. — Perils by, 151-152 PiLLAQE. — Of principal's goods by agent unvalid at common law, 47 When valid by statute, 47 Post Dating.— Check, eflfect of, 79 Phesentment.— Of bill for acceptance, 99-100 For payment, 102 PRIMAQE. — What, 145 Principal and Agent. — Who is an agent, 34 Who may appoint an agent, and what for, 34-35 When an agent may, 35 Who may be agents, 35 Infants, 35 Married women, 35 Appointed how, 35 By bare words, 35 By mere conduct of principal, 35 When it must be by deed 35 Special and general agent, distinction, 3G Agents authority, when limited or unlimited, 36 Brokers and factors, distinction between, 30 Duties of an agent. — Must use due skill and care, 37 Must aci in good faith 37 Must follow his instruciioLis closely, 37 INDEX TO ONTARIO. 399 rago Principal and Agent — Continued. Should sell only for the prico limited by his instructions, 37 If no instructions, then for what goods are worth, 37 Not upon credit, unless that bo usual, 37 An agent's liability 37 When agentshould insure, 37 Must keep the goods carofully, 37 Whiit damages agent is liable for, 38 Agents duty in purchasing goods, 38 How accounts are to be kept, 38 nights of principal against agent. — Distinction botween remunerated and unrcmunerated, 38 Liable for damages in exceeding authority, 38 But if gain results it belongs to his employer, 33 The measure of damages against an agent, 39 iVIust have competent skill, 39 Agent employed to sell must not become purchaser 39 Except under peculiar circumstances, 39 Cannot dispute principal's title, 39 Except when, 39 Principal entitled to all increase made of hb property,. . 39 Also interest on his own money, 39 When court of chancery will interfere, 40 When agent may disregard instructions,... 4U When agent is liable to principal at law, 40 Effect of agent blending principal's property with his own 40 When agent criminally liable for misapplying money or securities, , 40 Fine and imprisonment, 41 When criminally liable for misapplying any chattel or valuables, &c 41 Criminal liability of factor or agent, 41 When iiot liable, .41 Effect of principal redeeming goods pledged by a bank- rupt agent, 42 Rights of principal against third parties, — Principal may adopt agent's contracts, 42 400 INDEX TO ONTARIO. Principal and Aqent — Oontiouea. Must adopt it wholly, 42 A purchaser from agent must pay principal, subject to his equities against ugenf, 42 His right to adopt contracts made in agent'sname, 42 Subject to what conditions, 42-43 If purchaser knew he was dealing with an agent, 43 No equities of an agent is a broker, 43 When principal may recover back property sold, 43 ' Why principal should sue in his own name, 43 Must do so if contract by deed, and with him, 44 Otherwise if with agent, 44 When considered made with agent 44 When considered made with principal 44 When considered made with neither, 44 May avail himself with agent's evidence, 45 Rights of Third Persons against Principal. — Upon what they depend, , 45 When inferred from principal's acts, 45 Inclination of the courts to hold principal liable, 45 Authority to draw bills gives none to endorse 45 It may be evidence for a jury upon the authority, 45 Agent may bind after authority withdrawn, 45 Cannot bind outsideof his employmentor authority,.... 45 A merchant's clerk no right to receive money outside of the business, 45 The principal may subsequently ratify the acts and become liable and release agent, 46 A general agent cannot be restricted by private orders, 46 A particular agent may 46 An undisclosed principal is liable, 46 Even if contract in writing, 46 Not if by deed, 47 When principal is liable for agent's misconduct ur negU- gence, ■ 47 When not so liable, 47 An agent could not pledge the goods of his principal at common law, 47 INDEX TO ONTARIO. 401 Fage. Principal and Agent. — Continued. He may by force of a provincial statute, 47 In what cases and for what purposes, 47 To what extent, 47 When he cannot, 47 Agent's liability for fraudulently doing so, 48 Rights of Third Parties against Agents. — An agent contracting for a disclosed principal incurs no liability, 48 Unless principal is irresponsible, 48 May make himself liable by writing, 48 If acting without authority, ho is personally liable, 48 As to nature and extent of his liability, 48 If he contract in his own name, 48 If in name of a misrepresented principal, 48 If he exceed his authority, 48 When liable for money received 49 When payment over to principal will not relieve, 49 Liable for his torts, 49 Not liiiblo for misrepresanting goods, 49 Is liable if principal as well as agent, 49 Rights of Agent against Principal. — To receive his pay, 49 Amount how fixed, 49 How he may lose all right to recompense, 49 What entitles him to it, 49 May charge principal with advances made in the regular course pf business, 49 Also if made upon some emergency, 50 When entitled to indemnity, 50 Principal and Surety. — See Suretg, 110-111-165 Protest. — Of bills and notes, 103 Promissory Notes. — See Bills of Exchange, 75 Property. — In goods passes to vendee, when, 127-128 Purchaser. — See Sales, contract of, 131 Must receive goods, 131 And pay for them as agreed, 131 Should tender bill, if goods purchased for one, 131 When purchasers may repudiate,., 132 Need not accept goods without inspection, 132 AA 402 INDEX TO ONTARIO. Tiro Reoapturk. — Seei/cirt^me Iiuurance, 158 Receipt — .Of goods, see Sale contract of, 127-128 For pnymont not conolusive evidenco unlesa under seal, 137 Registry. — Of vessels, 64-65 Of chattel mortgage, 210 Of bill of sale 212 Reimbursement.— See Guarantee, 167 Release.— What it is, 109 Of one joint debtor of all, 109 By one joint creditor binds all, 110 Covenant, how far, 109 Effect of, as to securities, 110 Railway. — Liable as common carriers 137 Rent. — Protected from executions, 180 Representations. — See Fire Insurance, 162 See Guarantee, 168 Responuentia. — What 147 See Liens Maritime, 147-148 Sale, Contracts op. — Jlemarks upon, 124 What, 124 Distinguished from bailiaent, 124 Simple contracts, how divided, 124 Express contracts, 124 Implied contracts, 124-125 ' Who may sell. — Generally the party having the property, 1 25 Exceptions to rule, 125 If executions against party, 125 If insolvent, 125 Requisites of contract of sale. — At common law, 125 Effect of statute of frauds, 125-126-127 If not to be completed within one year must be in writing, 126 How writing must be signed, 126 What it must contain, 126 May be in several writings, 126 Of goods over ten pounds sterling must bo in writing — or effected by part payment or acceptance, 126 INDEX TO ONTARIO. 403 I'Igl Sale, Contract of — Continued. Does not extend to contracts to make and deliver 127 Made applicable to all such contracts umountinnma/acte egent of all, 71 How fur one part owner agent of rest 71 One may his share without consent of others, 71 Mortgage on Ships Keel. — May be given as soon as keel laid 71 For advances to complete vessel, 71 Attaches to whole of vessel, 71 ' It may pass the legal property in the vessel, 71 INDEX TO ONTARIO. 407 Page Shipping — Continued. So mortgagee maysell andgive title, 71 Reserving the mortgagers equitable interest, 71 Must be passed before a notary, 71 Must be registered, 71 What contract must contain, 71-72 No second mortage can be given without consent of first 72 mortgagee, 72 If given, void 72 Stamp Act. — See Bills of Exchange, 87-91 Steamboats. — Liable as common carriers, 137 Stoppage in Transitu. — Right to stop. — While goods arc in transit, 169 Until goods in hands of buyer as owner, 169 Whopossesses the right. — Notamere surety, 170 A commission agent purchasing as principal may, 1 70 Jlow defeated. — By delivery to purchaser, 170 By delivery of part, 170 By assignment of Bill ot Lading, 170-144 Itmustbe bona fide 170 An assignment by way of pledge will not, 171 How exercised. — Need not make actual seizure 171 Notice is sufficient, 171 Must be to person in actual possession 171 Effect o/.— Gives an equitable lien 171 Sittings of Courts. — Division Court, 182 County Court, 182 Superior Court, 183 Superior Courts. — See Collection of Debts, Surety.— See Bills and Notes, 110-111 See Guarantee, 165 Composition discharges surety, Ill Avoided by agreement, % Ill Surety's right against principle, Ill Liability of several sureties, Ill Distinct liabilities in law and at equity among sureties as to each other, 112 408 INDEX TO ONTARIO. Tender — Of part is not good, 107 How to be made, 13G When of Goods, good, 13G Effect of refusing, 137 To one partner is good to all, 34 Transitu. — See Stoppage in Tr(nisitii 169 Transcript of Judgment. — From Division Court, 179 Transfer.— Of bill or note, 90-97-98-99 Trader.— Who in Ontario, 17-190-191 Infants qualified, 18 Married women cannot be at law, 18 Married women may in equity to a limited extent, 19 Usury. — In effect abolished, 94-95 Usage. — Agent governed by, when, 37 Valued Policy, 149 Vendee.- -Duties of, 131 Their priorities in vessels against each other, 68 Vendor. — Duties of. — Scq Sale contract of, 131 Delivery of goods, 131 Liability for not delivering, 131 When goods considered delivered, 131 When excused, 131 In what time must be delivered 131 VESSELS. — See Shipping, 03 Voyage. — Sgg Maritit.tc lamrance, 156 I N D E X LAWS OF PROVINCE OF QUEBEC. VtLge Abandonment — See MarUime Insurance, 27yl Account — As between Partners, 221-225 Account — The proof of, 247 Action — Limitation of Bills and Notes 222 do on Mercantile Accounts 2-19 do on Foreign or Local judgments, 273 Agkncy — Definition of. 22.5 When presumed to be gratuitous, 22G Limit of Agent's power to bind his principal,... 226-229-237 Liabilities of Agent to his principal, 220 Rights of Principal on the estate of an insolvent Agent, 228 How Agent must bo remunerated in absence of a fixed price, 228 The liabilities of Principal to Agent, 228-229 Liabilities of Principal to third person, 229 Power of agent to dispose of Goods entrusted to him to sell »s if he were the owner 230 How principal may ratify acts of the agent, 230 Principal liable for certain damages committed by the a/ent, 230 Rights of third parties against agent, 230-23 1 How an agency may terminate, ,233 Arrest — See Capias. See Insolvency, Bills of ExcHANaE and Promissory Notes — When Bills and Notes should be stamped, 243 Presentment of Bills and Notes, how regulated, 244 Days on which Bills and Notes cannot be presented, .... 244 Limitation of action on, 244 410 INDEX TO LAWS OP PROVINCE OF QUEBEC. Page Bills oP Exchange and Promissory Notes — Continued. Effect of release of a joint debtor on a Bill or Note on his co-debtors, 245 Interest on, bow regulated, 245 Bill op Lading — May ba transferred without indorsement, 251 Brokers — Difference from Fnctors and Commission agents, 232 Their power to bind both parties to a contract, 232 Capias — How and when it may be obtained, 270 When claim founded on unliquidated damages, — how obtained, 271 How debtor may contest Capias, 271 Effect of quashing Capias, 271 Defendant's liabilities when Capias is maintained, 272 Who cannot be arrested by Capias, 272 In what civil cases all persons may be arrested, 272 When Capias may issue after assignment by Debtor under Insolvent Act, 274 Carriers — Extent of liability, , 250 How damages arc estimated, 250 Carriers by Sea — See Delivery, Bill Lading, Demurrage. Intent of lien proposed by common carriers, on the goods for freight, 267 Corporations— See 233 CIjI&^ks— Merchants. — His presumed power, 230 How contract between master and clerk may bo proved,. 258 How it may be terminated or continued, 258 By what rules of law it is usually governed, 258 When employer may dismiss his clerk, 259 When tender of services must be made by clerk wrong- fully dismissed, 259 Employer may not retain wages due the clerk, on ground of breach of contract, 259 Effect of Insolvency of employer on salary of and con- tracts with clerks, 259 Courts op Justice — Their number and jurisdiction, 269 Credit — When debt may become due although term of cre- dit be unexpired, 274 INDEX TO LAWS OF PROVINCE OF QUEBEC. 411 I'ago CaEDiT — Continued. Effect of non-performance by debtor of conditions of credit 249 Debt. — When debt may become due although the term of payment is unexpired, 274 Defects. — Seller's liability for defects ir- things sold, 247 Delivery. — Within what time delivery of goods from ship must be taken, 251 Time allowed for discharge of cargo, 251 Demurrage. — How regulated 25 1 Desiq:^ —Eegistration of; How obtained, 241 Duration of, for seven years, in certain articles, 241 Duration for three years on what articles, 242 Date of registration must appear on each article, the design of which has been registered, 242 Penalty for infringement of design registered, 242 Kcgistcred designs, assignable, 242 Execution of JuDa.MENT. — When and how they may be executed, 269 See Seizure before Judgment See Capias. When execution of judgment may secure privilege to seizing creditor, ^ 274 Factors.— Definition of, 232-233 Fire Insurance. — EflFect of Assignment of Policy without notice, 252 When notice of assignment is necessary, 252 Liabilities of insurance companies at common law, 252 ' How liabilities at common law may be modified, 253 Necessity for examining conditions annexed to a policy, 253 How value of thing invested is proved, 253 llights of insurer after payment, 255 How mutual fire insurance companies are governed, 254 Freight. ■ , ; Guarantee. — Definition 260 How contracted, 260 412 INDEX TO LAWS OF PROVINCE OF QUEBEC. I'Bge Guarantee — Continued. Effect of insolvency of surety, 2G0 Extent of surety's liability, 260 Liabilities of joint sureties, 261 EfiFect of insolvency of a surety on Insurance Company's surety, 261 EfiFect of guarantee between debtor and his surety, 261 Effect of suretyship between the sureties, 262 How suretyship may be extinguished, 262 When surety may sue the debtor although delay may have been given by creditor, 262 Holidays. — Their eflfect on the maturity of bills and notes, 244 Interest.- On bills and notes, 245 On open accounts, 245 How effected by tender, 249 Agents right to interest on advances, 245 Insurance. — Maritime — See, 251 Sec Fii'e Insurance Insolvency. — As it effects salary and contracts with clerks, 259 Effect of insolvency of a surety, 260 EfiFect of insolvency of a surety on his co-surety, 261 Rights of creditor to seize insolvent's persons and pro- perty, 194 When and how it may be exercised when discharge of insolvent will not bo confirmed, 274 Legality of assignment when made to an official assignee living in a district other than that of insolvents, 274 Joint Stock Companies. — See 233 Judgments. — *S^ee Execution. EfiFect of registration of Judgments, 273 How foreign judgments may be recovered, ,...■ 273 Limitation of action on foreign judgments, 273 Lease. — Obligations of lessor, 254 Lessor's privileges on property in premises leased for rent, 255 When lessor may rescind the lease, 255 Obligations of the tenant, 25G INDDX TO LAWS OF PROVINCE OF QUEBEC. 413 I'ago Lkase — Continued. Wltr.i tenunt may ."sublease, 25B What assignee may do with insolvent's lease under the Insolvent Act, 257 Lessee's rights as regards repairs and improvement, .... 2,')7 How leases may be terminated or renewed, 257 The effect of sale of premises on the lease, 258 Lien — Maritime, See 251 See Pledge. Minors. — When they may contract, 210 I'aymknts. — Place of payment, 247 Who must pay expenses, attending payment, 248 Duty of debtor to notify creditor of his readiness to pay, 248 How tender of payment must be made, 248 Rights of creditor, on refusal by debtor to deliver bill or note in payment, 240 Effect of tender, 240 Receipt for payment may be explained or contradicted by verbal evidence, 240 Pledge. — Definition, 20U How pledge or lien may be Kcquired, 26l> By what person it is acquired by mere operation of law,. 2GG May be acquired by usage, 2G7 General Liens — What they are, 2G7 Special or particular liens — Definition of, 2G7 Rights of possessor of a lien or pledge, 2G7 How and when goods pledged may be sold by the holder, 2G8 Rank of priority of lion?, 2GS How liens may be lost 2G8 Extent of lien possessed by common carriers, 2G7 Partnership — Definition of, 210 How formed, 210 How dissolve ., 220 Rights of partners between themselves, 221 Liabilities of partners to each other, 221 Rights of third persons against partners, 22 1 How a person may release himself from liability as a partner, 222 414 INDEX TO LAWS OP PROVINCE OF QUEBEC. I'ngo Partnership — Continued. E£fcct of Statute of limitation on partnership liabi- lities, 222 Extent of Liabilifi/ of non-commercial partners, to third parties, 223 Partnership Limited. — Definition of, 223 Liability of general partner, 224 Effect of fulso statement in registration of partnership, . 22-1 When special partner may become liable as a general partner, 221 When payment to a special partner by tie firm must bo returned to the latter, 224 Effect of insolvency of firm on the special partner, 225 When dissolution takes effect, 225 Liability of general partners to render an account to special partner, 225 Patents. — Who may obtain a patent, 236 What may bo patented, 236 Duration of a patent, 236 Patents may be obtained by the representatives of inventor, 237 Patents in foreign countries, when may bo extended to Canada, 237 Inventions of foreigners — when may be patented here by a Canadian, 237 How patents muy be obtained, 237 Patented articles must be so marked, 238 When Letters patent may be annulled, 238 When patent may be amended, 238 Assignment of patents, 239 Eights of patentees, 239 When sale of thing invented, before issuing of patent and not affect validity of patent, 239 Patent. — For Trade Marks and Designs. See Trade Mark. ^Sec Dbsions. Promissory Notes. See Bills of Exchange. Receipt. — Not conclusive evidence of payment, 249 INDE.. lO LAWS OP PROVINCE OP QDEBEO. 415 raffo Stoppaqk IN Transitu. — Definitior,, 263 When right of Htoppago may be exercised 2C4 Right to retake possession, after deliveiy of goods. See vendor's privilege, Hale. — The «ffeot of seller not being the owner, 246 When goods lost or stolen may be recovered from purchaser,.. 246 Who may not buy or sell, 246 Formalities regarding sale under statute of frauds 247 Seller's liability fur defects in things sold, 247 Seller's privil^es on things sold, through non-payment of price, or insolvency of purchaser, See vendor's privilege. Seizure Before Judgment. — See vendor's privileges. See Insolvency. See Capias. When and how effects of debtor may be seized before judgment, 270 Stolen Goods. — When may be recovered from purchaser, . 246 Trade Mark. — What is deemed a trade mark, 240 How trade marks can bo registered, 240 Penalty for infringing trade mark.«, 240 Traders. — Who are considered surety, 218 Vendor's Privileges. — Ste Stoppage in Transitu. Right to retake possession of goods after delivery, when itcan be enforced, 265 Rights of being paid in preference, on goods sold, and seized by another creditor, when it may be claimed,.. 265 The privileges of the vendor where the purchaser is not a trader, 2G6 Warranty. — Sellers warranty against defects 247 Women Married. — When may be traders, 219 INDEX TO NOVA SCOTIA, NEW BRUNSWICK AND PRINCE EDWARD ISLAND. rage Absent or Absconding DsBioas. — Practice in Nova Scotia, 280 Attachment to issues for twenty dollars, 280 , Upon affidavit, 280 Debtor's agent must, upon service of summons, disclose what eflfects absent debtor has 280 When gods attached of a perishable nature are to be sold, 280 Preeccds to respond to the judgment, 280 Absent debtor may appear to summons at any time before judgment, 280 Ho or his agent u»ay release the property attached by putting in speciul bail, 280 Also must appear for personal examination if notified to do so, 280 If appearance be not entered within six months, plain- tiflTs damages may be assessed by the court, 280 Suit cannot proceed unless some property has been attached 280 Or agent shall admit having goods and cficcts in his possession, 280 Debtor entitled to a rehearing at any time within three years 280 Plaintiff cannot issue execution until he gives security for repayment of monies levied, 280 Absent or Abscondinq Debtors in Prince Edward Island— Practice, 290 BB wm yi 418 INDEX TO LOWER PROVINCES. PBft Absent or AnscoNDiNo Debtors in New Brunswick — Practice, 296 Actions at Law— (Sco legal reraodics.) Attachment. — (Sco ubsent or absconding debtors). BiLi,8 OP Exchanqe and Promissory Notes.— Principles of law rclutiug to Bills of Exchange and Promissory NotcH in Ontario, applicable to the Lower Provinces,. 302 Statutory provisions concerning protested Bills, 302 All protested bills and overdue notes to draw interest though not drawn with interest, 302 Protested bills, if drawn upon any porson in North America out of the province in which made, subject to five per cent damages, 302 If drawn on a person in any other country, subjoot to ten per cent damages, 302 Acceptances of foreign and inland bills in Nova Scotia must be in writing on the bill, 302 Acceptances of inland bills in New Brunswick to be in writing on the bill, 302 Bills and notes in Prince Edward's Island, payable within three years exempt from usury law, 302 Bill of Sale. — (See security for debts.) Capias — (See Legal Remedies). Currency and Legal Tenders of Nova Scotia. — Judgments to be entered and public accounts kept in dollars and cents, 302 Value of coin in circulation fixed by Statute, 302 Bank notes payable in specie and cannot be issued for less than twenty dollars, 302 Currency of Prince Edward Island, 303 Value of coin in circulation fixed by act of assembly,... 303 Currency of New Brunswick, 304 Value of coin fixed by Statute, 304 County Court. — (See Legal llemedies.) Damages. — Protested Bills subject to damages, 302 Debtor— Liable to arrest. (See absent or absconding debtors). ^..,-; r;;,/ INDEX TO LOWER PROVINCES. 410 rift Execution. — (See Legal Remedies.) Inbolvkncy 299 Qeneral working of tbo insolvent luw now in force 299 Want of a proper organized Bankrupt luw, 300 Justice of the Peace Courts. judqments. JoDOMENT Security. (See Legal Remedies.) Legal Remedies. Jurisdiction of Justices of the Peace in Nova Scotia in civil cascH, 281 One, when the dealings do not exceed twenty dollars,. . . . 281 Two, when the dealings exceed twenty dollars, .. , 281 When either party may have trial by jury of three persons, 381 Summons to issue on filing particulars of claim with the Justice, 281 To bo served upon defendant five days before the return, when amount under forty dollars, 281 Ten day?, >tub.'i amount forty dollars and over, 281 Plaintiff may arrest defendant upon affidavit, if debt exceeds four dollars, 2S1 Form of affidavit, 282 Execution after judgment to issue agaiust defendants goods, 281 If no goods debtor may be committed to jail 281 Either party moy appeal case within ten days to Supreme Court 282 Must give bond to prosecute appeal, 282 Supreme Court of Nova Scotia. Has same powers that are exercised by the Courts of Queen's Bench, Common Pleas, Chancery and Exche- quer of England, 282 Sittings of the Courts, 282 «^^ When at Halifax, 282 " " Lunenburgb, : 282 « "Queens, 282 420 INDEX TO LOWER PROVINCES. / Page SuHREMK Court op Nova Scotia — Continued. When at Shelburnc, 2S2 " "Yarmouth, 283 " " Kings, 283 <' " Digby, 283 " "Annapolis, 283 " " Hants, 283 '• " Co'.ciiester, 283 " " Cumberland, 283 " " Cape Breton 283 " "Victoria, 283 " "Inverness, 284 " "Richmond, 284 " " Guyshorough, 284 " " Antigonish, 284 " " Pictou, 284 Jurisdiction of Court, 284 Actions commenced by writ of Summons, 284 Must contain declaration or statement of the ground of action 284 When writ returnable, a 284 When judgment may be entered; when defendant may bo held to bail, 285 When notice of trial may be served, 285 General issue abolished, 285 Plea n)ust specify particularly and concisely the facts to be set up, , 285 British subjects and aliens residing out of the Province can be served with writ of summons, 285 Upon what cause of notion 285 Practice on obtaining judgment, 285 Small debt Courts, Prince Edward Island, 287 Jurisdiction, 287 Practice in obtainingjudgment 287 Either party can appeal to the Supreme Court, 285 Y Judgments do not operate as a lien on land, 287 Supreme Court, Prince Edward Island, 2S7 INDEX TO LOVER PROVINCES. 421 Pago Supreme Court of Prince Edward Island. Jurisdiction, 287 Sittings of the Court, 286 " Queen's County, 286 Prince County 286 King's County, 286 Practice of the Court, 286 Province OF New Brunswick. • Justice of the Peace Court, 292 Practice 292 Jurisdiction of City of Court St. Johns, 292 County Court, 292 Practice of the Court 293 Jurisdiction; 292 Sittings at Charlotte, 292 " Carleton 292 "Victoria, 293 " York, 293 " Sunbury, 293 "Queens, 293 " Kings, 293 "St. John, 293 "Albert 293 • "Westmoreland, 293 "Kent 293 " Northumberland, 293 " Gloucester, 293 " Restigouche, 293 Supreme Court, 294 ' Terms, 294 Sittings of the Court, 294 MOilTGAGE. aMoRTOAGE Security. ■Mortqage, Registration of. x^- . Memorial OF Judgment. . ■ • (See Legal Remedies.) . ■.,;^ ; '• - Personal Security. -i 422 INDEX TO LOWER PROVINCES. Pftgo Personal Property. — Security on Promosory Notes. — See Bills of E'.change and promissory notes. Registration op Judgment. . Registration op Memorial. (See Legal Remedies.) Security for Debts, 275 Security which a debtor may oflFer, 275 On Real Estate by mortgage, 275 By Judgment, 275 Kature of mortgage security, 275 General remedies,.. 275 In case the mortgagor shall neglect to pay the amount due on the mortgage, 275 Sheriffs deed can convey Real Estate, 276 How foreclosure of mortgage effected in NewBrunswick, 270 In Prince Edward Island, 276 How surplas disposed of, 276 Judgment security, 276 How obtained, 276, 277 From what time judgments bind land in Nova Scotia, . 277 When execution may issue, 277 When land can be levied on when sold, 277 How a creditor whose judgment has been subsequently registered may gain priority, 277 Effect of Registration of Memorial of Judgment in New Brunswick, 277 How long lands to be bound thereunder, 277 Effect of Judgment recovered in the Supreme Court of Prince Edward Island 277 An immediate lien upon lands, 277 What effect Registry of Memorial, 277 If Judgment entered upon warrant of attorney, 277 What necessary to express in the warrant to bind lease- hold lands, 277 Length of time Sheriff must advei-tise freehold estate,... 277 Leasehold estate, 277 INDEX TO LOWER PROVINCES. 428 ^g9 Security for Debts — Continued. How long Sheriff must advertise freehold estate in Prince Edward Island, 278 How long household, 278 Security on Personal property, 278 How obtained, 278 Bills of sale, effect of, 278 To be filled with the Registrar of deeds of the Country where maker resides, 278 By Act of Assembly, provision made for filing elsewhere, 278 Bill of sale, unregistered, valid between the parties,... 278 Void against a registered one from the same grantor,... 279 Also against Sheriffs Officers sezing the property under legal process, 279 No provision for registering Bills of sale in New Bruns- wick, 279 Personal security in Prince Edward Island, the guaran- tee of a third person must be in writing, and contain a promise to pay and set out a valid con-ideration,.., 279 In Nova Scotia and New Brunswick is good if in writing, showing no consideration,...., 279 INDEX TO APPENDIX. rago Agreement. To freight a vessel, 317 Affidavit. In proof of claim against estate, 338 Of Execution of chattel mortgage, 33G ASSIQNMENT . Notice for service upon insolvent, 336 Under Insolvent Act, 309 General form by endorsement, 310 Of judgment debt, 310 Of debt with power of attorney, 310 Of Life Policy 313 Of Policy by endorsement, 315 Of partnership property, 315 Bond — To secure balance to bank, 320 Charter Party 321 Certificate — By married women 323 Chattel Mortgaqe, 323 Composition — Deed of, 329 Insolvency. Notice to assign, 336 Affidavit proving claim against e&tate, 336 Partnership. Agreement of for registration in Quebec, 300 Special " " 307 Bencwal by memorandum, 330 Endorsement of dissolution 330 Notice dissolution for publication, 33 1 " *' in Quebec, 307 Notice topartncrs, 331 Notice of Expulsion, 332 Belease of interest in, 332 Power of attorney, 334 Bevocation of, 335 336 33G 336 309 310 310 310 313 315 315 320 321 323 323 329 336 336 306 307 330 330 331 307 331 332 332 334 335