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FOR THE rSE OF Petchiintjsi, |atmets, and pechanics^ CO.MPILKl) BY A Bae\rister-a.t-Law Soranta : WILLING AND WILLIAMSON BOB CONTENTS AfFI|)AV1T.>^ I'AUh I o 4(> arbitration Assignments Auctions and Auctioneers lojj Bills and Notes Hjj Bonds j^^ Chattel Mortgages 142 Deeds Kj- Division Courts i^j Insolvency 228 Landlord and Tenant 23(5 Line Fences and Water Courses 2«»5 Master and Servant 27<; mortcjages 28!> Naturalization ;}()5 Partnershii' 31 i> Paten Ts of Invention ... ;>,2.> Wills and Intesta(;v :>;;7 ^ ^r (^Ci THE ONTARIO CABINET LAWYER. CHAPTER I. AFFIDAVITS. An affidavit is a sworn, written statement of facts. Where persons entertain conscientious scru- ples about talcing an oath, an affirmation may be made. The only difference between an affidavit and an affirmation, is this ; the one is sworn to be ti-ue, the other is affirmed. The penalties for making a false affidavit or a ialse affirmation are identical. Affidavits should be written in words at length. It is advisable not to use figuree in the body of the affidavit, although they may be used in the jurat. If any interlineations or erasures are made, the initials of the person before whom the affidavit is sworn should be put in the margin opposite such interlineations or erasures. If* it is necessary to erase any words in an affidavit, do so with the pen and not with the knife. 2 CABINET LAWYE«. AfTidavits lo be uj^ccI in a suit or cause in any of the Courts of Law, as a general rule, recjuire lo be taken before a Commissioner; sometimes, they may be taken before a Juslice of the Peace. The forms given will generally indicate before whom they should be sworn. Ailidavits shoald be written in paragraphs : each paragraph relating, as much as possible, to a dis- tinct subject. This is absolutely necessary in all the Courts, and the same method is recommended in every case. In the margin of an aflidavit not intended for use in Court it is usual to state the name of the County wherein it is sworn. 1. General Form of Ajjidivit. County of [ to wit : ] or United Counties of [ ] and [ to wit : \ ] I, A. B. of in the County of Yeoman {or other proper designation) make oath and say : First. That, &c., &c. {Here state the facts to be sworn to plainly and accurately. If there are several matters to he sworn tOj state them in paragraphs separately. First.— That, &c. Second. — That, &c. Third.— That, &c. Confining each paragraph as much as possible to a distinct subject matter, and commencing each with a new line,) i ,43 AFFIDAVITS. A. B. Swovn before me at " [ ] in tlie County of [ ] this [ ] diiy of [ ] A.D. 18 [ ]. CD. J. P. or a Commissionor, &c., for the County [orU. C.]of[ ]. 2. General Form of Affirmation. ]1 ] I, A. B. of [ in the County of [ ] Yeoman, [or other proper * designat ion) do so\emn]y and sincerely affirm and declare as follows : County of [ to wit : or United Counties of [ ] and [ ] to wit : First.—That, &c., &c. Second. — That, &c., &c. {As in an Affidavit.) Affirmed before me at[ ] in the County of [ ] this [ ] day of [ ] A.D. 18 [ ] CD. J. P. or a Commissioner, &c., for the County of [ ]. [If the affidavit or affirmation is made by more than one person, then the names of the several per- ons should be s'alel in the jurats thus :) \ A. B. mm Ww- 4 CABINET LAWYER. Severally sworn [or] aflirm'id] by the Depo- I nents, A. B., C. D., &c., J. before me, at, &c., [as in the foregoing] . The following is the ^orm of the oath to be admin- istered by the Justice of the Peace, or Commis- sioner, to each deponent. 3. Gath. You swear that this affidavit by you subscribed is true to the best of your knowledge and belief. So help you God. The following is the form of an affirmation. 4. Affirmation. You do solemnly and sincerely declare and affirm as you shall answer to Almighty God at the great day of judgment, that this affirmation by you sub- rcribed is true, to the best of your knowledge and belief. Every affidavit or affirmation should be signed at the foot by the party making the same, but if unable to write, a mark may be made thus : — The mark of + A. B. And whenever an affidavit or affirmation is made by a marksman : that is a person who cannot write his name, the jural must be in the following form Sworn [or affirmed] before me at [ ] in CONTRACTS OR AGUEEMENTS. 6 the County of [ ] this [ ] day of [ ] 18 [ ], and I certify that the foregoing affidavit {or afFirmation") was read over by me (or in my presence) to the said A. B., who appeared perfectly to understand tlie same, and made his (or lier) mark in my presence. C. D. J. P., or Commissioner, &c., &c. CHAPTER IL CONTP VCTS OR AGREEMENTS. A contract is a slipnlatlon or engagement entered into between two or more persons and may be either express or implied. An expres.s contract is one in which all the particidars are specified and agreed upon, at the time of entering into it. An implied contract is one where the particulars are not specified but rest on the mere construction of law. As a general illustration of an implied con- tract, it may be stated, that it will be implied or assumed that a man actually promises to do that which he is legally liable to do. Express contracts are either by parol, or word of mouth, which are called simple confracis, or by deed under seal which are called special contracts. A considera- tion is an essential ingredient in every contract. By consideration, we mean an equivalent offered by the one party and accepted by the other. A CABINET LAWYER, i simple or parol contract, unsupported by a conside- ration cannot be enforced. Thus, if a man should promise to give me $1,000 without any considera- tion or equivalent on my part, he is not bound to perform his promise, and 1 am without remedy if he should break his word. In all contracts by spe- cialty consideration is presumed. Considerations are of two kinds, good and valu- able. A good consideration is tliat of blood or the natural love which a person has to his wife or chil- dren, or any of his near relatives. A valuable con- sideration is such as money, marriage or the like. A special contract is of necessity a written one ; but a simple contract may be either written or ver- bal. There are, however, some simple contracts which the law requires to be in writing in compli- ance with the provisions of several statutes which we will proceed briefly to notice. The first of these is the Statute of Frauds, passed in 1676, in the reign of Charles 11, (29 Car. II, cap. 3) which enacts, (section 4) that in the live follow- ing cases no verbal promise shall be sufficient to ground an action upon, but that the agreement, or at the least some note or memorandum thereof, shall be in writing, and signed by thv3 party to be charged therewith, or some other person thereunto by him lawfully authorized. 1. Where an executor or administrator promises to answer damages oat of his own estate. 2. Where a man undertakes to answer for the debt, default or miscarriage of another person. n CONTRACTS OR AGREEMENTS. 3. Where an agreement is made upon considera- tion of marriage. 4. Where any contract is made of lands, tene- ments or hereditaments, or any interest therein. 5. And lastly, where there is any agreement that is not to be performed within a year from the making thereof. This statute does not give to writing any validity which it did not possess before. A written promise made since this statute, without any consideration, is qnite as void as it would have been before. The statute merely adds a further requisite to the vali- dity of certain contracts, namely, that they sh;ill, besides being good in other respects, be put into writing, otherwise they cannot be enforced. The phrase in the statute "to answer for the debt, default or miscarriage of another person," means to answer for a debt, default or miscarriage for which that other remains liable. The words, '' any agreement that is not to be performed within the space of one year from the making thereof," point to contracts, the complete performance of which is of necessity extended beyond the space of a year. In order to bring an agreeaient within this clause of the statute so as to render writing necessary, both parts of llie agreement must be such as are not to be performed within a year. The clause requiring the " agreement or some memorandum or note thereof to be signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized," has been liberally construed, and any insertion by the party of his name in any 8 CABINET I/AWYER^ lit part of the agreement, either at the beginning or In the body of the document, for the purpose of authen- ticating it, will be equally valid with a signature at the foot ; and it is not necessary that both parties should sign the agreement, for the statute only requires that it should be signed " by the party to be charged therewith." The whole of the agree- ment must be contained in the writing, either expressly or by reference to some other document. And as a " memorandum or note " of the agree- ment is allowed, a writing sufficient to satisfy the statute, may often be made out from letters written by the party, or from a written offer accepted with- out any variation, before the party offering has exercised his right of retracting ; and when corres- pondence is carried on by means of the post, an offer is held to be accepted from the moment that a letter accepting the offer is put into the post, although it may never reach its destination. With reference to contracts for the sale of goods, it is to be observed that the necessary requisites depend partly upon the value of the goods. As to goods under the value of $40, there can be no sale without a tender or part payment of the money, or a tender or part delivery of the goods, unless the contract is to be completed at a future time. Thus, if A. should agree to pay so much for the goods and B., the owner, should agree to take it, and the par- ties should then separate without anything further passing, this is no sale. But if A. should tender the money, or pay but a cent of it to B., or B. should tender the goods, or should deliver any, even the CONTRACTS OR AGREEMENTS. 9 smallest portion of them to A., or if the payment or delivery, or both, should be postponed by agreement till a future day, the sale will be valid, and the property in the goods will pass from the seller to the purchaser. If, however, any act should remain to be done on the part of the seller previously to the delivery of the goods, the property will not pass to the purchaser until sach act shall have been done. Thus, if goods, the weig'^t of which is unknown, are sold by weight ; or, if a given weight or mea- sure is sold out of a larger quantity, the property will not pass to the purchaser until the pri(;e shall have been ascertained by weighing the goods in the one case, or the goods sold shall have been separated by weight or measure in the other. So, if an article be ordered to be manufactured, the property in it will not vest in the person who gave the order until it shall, with his consent, have been set apart for his benefit. With regard to goods of the value of $10 or upwards, additional requisites hav** been enacted by the seventeenth section of the Statute of Frauds, which provides " that no contract for the sale of any goods, wares and merchandise for the price of £10 sterling or upwards, shall be allowed to be good except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earne.^t to bind the bargain or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." 'mmM 10 CABINET LAWYER. And by a still more recent act, (Con. Stat. U. C. 44. s. 11) this enactment "shall extend to all contracts for the sale of goods of the value of $10 and upwards, notwithstanding the goods may be intended to be delivered at some fatuve time, or may not, at the time of such contract, be actually made, procured or provided, or fit, or ready for delivery, or although some act may be requisite for the making or completing thereof, or rendering the same iit for delivery." If an asfreement for sale of o^oods is not to be performed within the space of one year from the making thereof, then, however small be the value of the goods, no action can be brought upon it, unless the agreement, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. It is convenient, though not necessary, that agree- ments should be signed by all the parties thereto ; and where something is to be done on both sides, it is very useful to have them written in duplicate so (hat each party may possess one copy — they do not require a seal in all cases. The forms given will in general indicate when a seal is necessary, and when not. Agreement /or the sale of Freeholds. Articles of agreement made and entered into this day of , 18 , Between A. B. of, &e., [vendor) of the one part, and C. D., of, &c., (purchaser) of the other part. The said A. B. and ' mr^ CONTRACTS OR A&REKMENTS, 11 C. D. do hereby respectively for themselves, their rtspeotive heirs, executors and administrators agree with each other. That the said A. B. shall sell to the said C. D., and that the said C. D. shall pur- chase, All That, &c., [here describe • the pemises) with their appurtenances, and the i'rechold and inheritance thereof in fee simple in possession free from all incumbrances, at or for the price or sum of $ to be paid by the said C. D. unto the said A. B. as follows, that is to say : the sum of :$ part thereof immediately after the signature of these presents, and the sum of ;J being the residue of the said purchase money on the day of next, at which time the purchase is to be completed, and the said C. D. shall, on and from that day have actual possession of the said premises, all outgoings up to that time being dischar<2;ed by the said A. B. That the production and inspection of any deeds or other documents not in the possession of the isaid A. B., and the procuring and making of all certificates, attested, office or other copies of or extracts from any deeds, wills or otiier documents, and of all declarations or other evidences whatso- ever, not in his possession, which may be required, shall be at the expense of the said C. D. That oii payment of the said sums of ^ and $ at the respective times specified for the payment thereof as aforesaid, the said A. B., and all other necessary parties (if any) shall execute a proper conveyance of the said premises with their appurtenances, and the freehold and inheritance thereof in fee simple in possession, free irom all incumbrances unto the 1^ I 12 CABINET LAWYER. said C. D., his heirs and assigns, or as he or they shall direct. That if from any cause whatever the said purchase shall not be completed on the said day of next, the said C. D. shall pay interest at the rate of per cent, on the said residue of the purchase money from that day till the completion of the purchase. In witness whereof the parties hereto have hereunto set their hands. Signed by ihe said A. B. and A. B. C. D., in the presence of C. D. E. F. Agreement for Lease with a riglit to Purchase at a Definite Sum. Articles of Agreement made and entered into this day of ) 18 , B'^tween A. B. of, &c., (lessor), of the one part, anc C. D., of, &c., (lessee) of the other part as follows, namely, The said A. B. hereby agrees to let, and the said C. D. hereby agrees to take, All, &c., (here descrihe the premises), for the term of years to be computed from the day of next, at the yearly rent of J payable quarterly on the day of , the day of , the day of , and the day of , in every year, the first of sucii payments to be made on the day of next. The said A.B. his heirs or as? ^ 'VlHj at the request of the said C D., his exi-c.i! -s admin- istrators or assigns, execute a lease the said premises to the said C. D., his executors, admirds- trators or assigns, for the term and at the rent afore- said, to be payable as aforesaid. In the said lease CONTRACTS OR AGREEMENTS. 13 to be granted as aforesaid, shall be contained cove- nants on the part of the said C. D , his executors, administrators and assigns, to pay the said yearly rent as the same shall become due, and also all present and future taxes, rates, assessments and other outgoings whatsoever in respect of the said premises. And also to repair and keep in repair at his and their own expense, during the whole of the said term, the said premises so agreed to be demised. And also at the like expense to ensure the said premises against loss or damage by fire in the name or names of the said A. B., his heirs or assigns, in some public office to be approved of by the said A. B., in the sum of $ at least, and to keep the same so insured during the continuance of the said term, and at all limes when required, to produce the policy or policies of insurance and the re eipt for the premiums in respect of the same to the said A. B., his heirs or assigns. And also, not to assign, underlet, or part with the possession of the said premises, or any of them, during the said term of years, without the consent of the said A. B. And in the said lease so to be granted as aforesaid, shall be contained a condition authorizing the re-entry of the said A. B., his heirs or assigns, into the said premises on non-payment of the said yearly rent, or any part thereof, for the space of twenty-one days, or in case the said C. D., his executors or administrators shall become bankrupt or insolvent, or shall permit the said lease to be taken in execution, or on breach of all or any of the covenants so to be contained on the part of the t 14 CABINET LAWYER. said C. D. his oxcculors, administrators and assigns in llio said Ica^r iigrerd to be granted as aforesaid. And in the said lease sliall also bo contained a cov- enant on the p.'irl of the said A. 13., that in case the said C. D., his executors or administrators shall, on or be lore the determination of the said term of years, be de^':'OLis of purchasing the interest of the said A. B., or his heirs in the said premises so agreed to be demisi.-d, then he, the said A. B., his heirs or assigns, shall and will take for the purchase thereof the sum of J , and shall and will, u])on payment of the same sum, at the costs and charges of the person or persons requiring the same, convey and assure the freehold and inheritance in fee sim- ple in possession or expectant on the determination of the said term of years, (as the case may be) in the same premises unto the person or per- sons so paying the said sum of $ and his, her or their heirs and assigns, or as he, she or they shall direct. And it is moreover agreed that a counter- part of the said lease shall be executed by the said C. D., his executors or administrators, at his or their own expense, and delivered to the said A. B., his heirs or assigns; and that until such lease or counterpart shall be executed, the rents, covenants and conditions agreed to be thereby respectively reserved and contained, shall, as nearly as circumstances will permit, be paid, observed and performed as if the same had been actually executed. In witness whereof, the parties hereto have here- unto set theJr hands. \ • •v CONTRACTS OR AGUEfiMENTii. 15 Signed in the presence of E. F. A. B. C. D. m Agreement for sah hij way of Lease, rescning I'unhase' Money as Rent, This Agreement, made tiie day of , erne Ihonsand eight hundred and , Between A. B., of, &c., of the first part, and C. D., of, &c., of the seeond part. Whereas, the said party of the second part hath contracted with the said party of liie first part for the purchase, in fee .-simple, of all and singular the land, tenements, hereditaments, and premises here- inafter mentioned to be hereby demised, for tlie sum of [S ] lawful money of ('anada, to be paid on the days and limes and in manner hereinafter men- tioned. And whereas, the said parties are willing and desirous that the said party of the second part shall go into immediate possession and occupation of the said land, tenements, hereditaments, and premises, and receive a conveyance of the fee sim- ple and Inheritance thereof, so soon as the principal sum shall be fully and faithfully paid on the days and times and in manner after mentioned (all and singular other the covenants and agreements here- inafter contained, and which on the part and behalf of the said party of the second part, his executors, administrators, and assigns, are to be paid, fulfilled, performed and kept, having been well and tru' paid, performed, fulfilled and kept, according to tne true intent and meaning of these presents), and that in die meantime the interest on the said principal 16 CABINET LAWYER. i!^ sum should be reserved and paid as rent issuing out ol the said land, tcnomenls, hereditaments, and premises hereby demised. Now, therefore, this agreement wilnesseth, that in conoideratioti of the premises and of tlie rents, covenants, and agree- ments hereinafter reserved and contained, and which on the part and behalf of the said party of the second part, his executors, administrators, and assigns, are to be paid, done and performed. He, the said party of the first part, Hath demised, leased, set, and to farm let, and by these presents Doth demise, lease, set, and to farm let, unto the said party of the second part, his executors, administra- tors and assigns. All that land, tenements, heredit- aments, and premises, situate, lying and being in the in the County of in the Province aforesaid [here describe the premises], together with all outhouses, waters, and water-courses there- on erected, lying or being, and all and singular other the rights, members and appurtenances there- unto belonging, or in any wise appertaining. To have and to hold the said land, tenements, heredit- aments, and premises hereby demised, or intended so to be, with the appurtenances thereunto belong- ing, unto the said party of the second part, his executors, administrators and assigns, from the day of , one thousand eight hundred and , for and during, and unto the full end and term of years from thence next ensuing, and fully to be completed and ended. Subject never- theless to the reservations, limitations, provisoes, and conditions expressed in the original grant •f ^ , MOT CONTRACTS OR AGREEMENTS. 17 lar re- it- Ihcreof from the Crown. Yielding and pay ing llierc- for, yearly and every year during the s.'iid term hereby demised, unto the said party of the first part, his heirs, executors, administrators and assigns, the yearly rent or sum of of lawful money of Canada, in even and equal half yearly payments on the day of and day of in each and every year during the said term, without any deduction, defalcation, or abatement thereof, or out of any part thereof, for or in respect of any taxes, rates, levies, charges, rents, ass(?ssments, statute labor, or other imposition of what nature or kind soever, either already taxed, rated, levied, charged, assessed or imposed, or hereafter to be taxed, rated, levied, charged, assessed or imposed, whether the same be now due, or shall hereafter become due, on the said demised premises or any part thereol", or on the said rent or any part thereof, or on either of the said parties to these presents, their or either of their heirs, executors, administrators, or assigns, or any of them in respect thereof, or any part there- of, by authority of Parliament or otherwise howso- ever, the first payment of the said rent hereby reserved to be made on the day of , in the year of our Lord one thousand eight hundred and Provided always, nevertheless, that on payment of any instalment or instalments of the principal sum hereinafter specified according to the covenant hereinafter contained, for payment thereof, and the true intent and meaning of these presents, the said rent hereby reserved shall from thenceforth be proportionably reduced, so as at no time to 2 I • V 18 CABINET LAWYl^R. exceed the annual interests on such part of tlie said principal sum as shall from time lo time remain due and owing after the payment of such instal- ment or instalments respectively ; And provided, also, that if the said yearly rent or any part thereof, or the said principal sum or any part thereof, shall at any time or times hereafter be Ix'hind and unpaid by the space of thirty days next after any or either of the days on which the same or any part thereof ought to be paid, as herein or hereby pro- vided, according to the true intent and meaning of these presents ; Or, if the said party of the second part, his executors, administrators, or assigns, or any of them, shall at any time assign, or set over, or demise, or underlease the said demised premises, or any part thereof, or in any other manner part with the possession of the same, to any person or persons whomsoever, for all or any part of the said demised term, without the special license or con- sent of the said party of the first part, his heirs or assigns, first had in writing; Or if the party of the second part, or any one acting under or claiming from him, shall at an time during the continuance of these presents commit or suffer to be commited any waste or destruction to any of the timber upon the said land, for any other purpose whatsoever than bringing the land into cultivation ; Then, and in any and every of the said cases, it shall and may be lawful for the said party of the first part, his heirs or assigns, into the said demised premises or any part thereof, in the name of the whole, to re- enter, and out of the same to eject, expel, amove CONTRACTS OR AGREEMENTS. 19 and put llu; said parly of tlie second part, his exe- cutors, administrators and assigns, and the same to have again, le-possess and enjoy, as In his and their first and former estate ; and from the time of any such re-entry by the said party of the first part, his heirs or assigns, the said term hereby demised, or so much thereof as shall be then unexpired, and these presents, and every clause, matter and thing therein contained, shall cease and determine, and forever thereafter be null and void to all intents and puposes whatsoever, anything herein contained to the contrary thereof in any wise notwithstanding. And the said party of the second part doth hereby for himself, his heirs, executors, adminstrators and assigns, covenant, promise and agree, to and with the said party of the first part, his heirs and assigns, in manner following, that is to say ; That he the said party of the second part, his heirs, executors, adminstrators, and assigns, or some of tluMn, shall and will well and truly pay or cause to be paid unto the said party of the first part, his heirs, execu- tors, adminstrators, and assigns, the said yearly rent on the days and times and in manner hereinbefore mentioned, for payment thereof, according to the true intent and meaning of these presents. And also that he the said party of the second part, his heirs, executors, adminstrators, or assigns, or some of them, shall and will, during the said term hereby demised, pay, do, and perform all taxes, rates, levies charges, rents, assessments, statue labor, or other imposition above mentioned, lawfully charged or to be charged, whether the same be now due, or i I I .'mmmmkotfzif immmmt^Ok 20 CABINET LAWYER. shall hereafter become due, on the said demised premises, on the said rent, or on any part thereof, or on any person or persons in respect thereof, or any part thereof, as aforesaid ; And also that he the said party of the second part, his executors, adminstrators, or assigns, or any of them, shall not nor will at any time or times during the said term hereby demised, assign or set over, underlet or underlease, the said demised premises, or any part thereof, or in any other manner part with the possession of the same or any part thereof during any part of the said demised term, without such special license and consent as is hereinbefore spe- cified, as aforesaid ; And also that he the said party of the second part, or any one acting under or claiming from him, shall not at any time, during the continuance of these presents, commit, or sutier to be committed, any waste or destruction to any of the timber upon the same land, for any other purpose than bringing the land into cultivation : And also that he the said party of the second part, his heirs, executors, administrators or assigns, or some of them, shall and will well and truly pay or cause to be paid, unto the said party of the first part, his heirs, executors, adminstrators or assigns, the full and just sum of $ of lawful money of Canada, on the days and times and in manner following that is to say [here set forth the terms and manner in which the purchase money is to be paid]. And the said party of the first part, doth hereby for himself, his heirs, executors, adminis- trators, and assigns, covenant, promise, and agree, CONTRACTS OR AGREEMENTS. 21 i ■I e. to and with the said party of the second part, his executors, administrators, and assigns, in munnoy following, that is to say. That upon tlie due and faithful payment, performance, and fulfilment by the said party of the second part, his executors, administrators, or assigns, of all and singidar the covenants and agreements herein contained, and which on the part and behalf of the said party of the second part, his executors, administrators, and assigns, are to be paid, done, and performed, he the said party of the first part, his heirs, or assigns, shall and will, at the expiration or other sooner determination of the said term hereby demised, upon the request of the said party of the second part, his executors, administrators, or assigns, made to him the said party of the first part, his heirs, executors administrators, or assigns, or any of them, but at the proper costs and charges, in the law of the said party of the second part, his executors, administrators or assigns, well and sufficiently convey and assure, or cause to be well and suffi- ciently conveyed and a-^sured, unto the said party of the second part, and his heirs, in fee simple absolute, or to such person or persons and his, her, or their heirs, in fee simple absolute, as the said party of the second part, his executor, administra- tors, or assigns, shall nominate and appoint, and to such uses as he or they shall direct, all and singu- lar the said land, tenements, hereditaments, and premises hereby demised by such conveyances and assurances in the law, as by the said party of the second part, his executors, administrators or assigns 22 CABINET LAWYER. or his or their counsel learned in the law, shall cr/ may be reasonably devised, advised, or required, freed, and discharged of and from all incumbrances whatsoever : but subject neverlhelesss to the reserva- tions, limitations, provisoes, and conditions expres- sed in the original grant thereof from the Crown : with usual and proper covenants. And it is hereby further expressly agreed upon by and between the said parties, that in case at any time any of the rent or interest aforesaid, or of the purchase money shall remain unpaid by the space of months after the same shall have fallen due^ the party of the first part, his heirs or assigns, shall have full power to re-sell the said land at the best price which can be reasonably got for the same, and thereby utterly extinguish and bar all claim, interest, and title of the party of the second part, and all claim- ing under or by him in the same land — such re-sale to be either for cash or upon credit as the party of the first part, his heirs or assigns, may determine. And that the party of the first part, his heirs or assigns, may in the first place pay himself the expenses of such re-sale, and the whole of the claim due, or to become due, by tlie party oi the second part, or any one claiming by or under him, out of the proceeds of such resale, and pay the balance (if any there be) when collected, over to the party of the second part, or the person entitled thereto ; And that the party of the second part, or those claiming by or under him, shall be answerable to the party of the first part, his heirs or assigns, for any deficiency which may happen i I mmm CONTRACTS OR AGREEMENTS. 23 to be produced by the re-sale between the sum then due and to become due, under these presents, to the party of the first part, his heirs, or assigns, and the proceeds of such re-sale. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered in the presence of A. B. [l. s.] E. F. C. D. [r.. s.] [Note. — The above instrument being a contract or agreement by speciality requires to be sealed as well as signed] . Agreement to hu'dd a House, &c., the Materials to he provided Ly the Builder. Articles of agreement made and entered into the day of , 18 , Between A. B. (builder^ of, &c., of the one part, and C. Ti.^ {proprietor)^ of, &c., of the other part. The said A. B., [builder]^ doth hereby for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said C. D. [proprietor]^ his executors, administrators and assigns, that he the said A. B. [builder] his executors or administrators, shall and will for the consideration hereinafter mentioned, within the space or time of {six calendar months) from the date of these presents, erect, build and completely cover in and finish upon the premises, of the said C. D., [proprietor]^ at aforesaid, a dwelling i I If' mmm U CABINET LAWYER. house and buildings according to the plan and ele- vation set forth in the schedule hereunder written. And also do, perform, and execute, or cause and procure to be done, performed and executed, all and singular other the works mentioned in the schedule hereunder written, according to the plan and elevation therein mentioned or contained, the same to be done within the time aforesaid, and in a good workmanlike and substantial manner to the satisfaction of E. F.. {survey or or architect)^ of, &c., insert name and residence of architect or surveyor) or any other surveyor or architect whom the said A. B., [^builder']^ and C. D., [proprietor'\^ shall for that purpose by some writing under their hands appoint ; such satisfaction to be testified by a writine: or certificate under the hand of the said E. F., [surveyor or architect] or such other surveyor or architect as aforesaid. And also shall and will find and provide such good, pro- per and sufficient materials of all kinds whatso- ever as, together with and in addition to the mate- rials now lying on the said premises, shall be proper and sufficient for erecting the said dwelling house and buildings, and completely finishing the said works. And it is further agreed by and between the said parties that if the said A. B., [buildtr], his executors or administrators shall in any manner neglect or be guilty of any delay whatsoever, in building and completely finishing the said dwelling house, buildings and v/orks as aforesaid, and the said E. P., [surveyor or archi- .tect], or such other surveyor or architect as afore- •IIHiPi mrn i iTWf CONTRACTS OR AGREEMENTS. 25 said shall certify the same by writing under his hand, and the said C. D., [proprirtor]^ shall give or leave notice in writing of such neglect or delay at the place of abode of him the said A. B., [builder], his executors or adminstrators, and the said A. H., [builder], his eyecutors or administra- tors, shall not according to the direction of the said E. F,, [surveijor or architect] or such other surveyor or architect as aforesaid, proceed to complete the said buildings and works within the space of {seven) days after such notice given or left as aforesaid : then and in any such case it shall be lawful for the said C. D., [propriefoi^], his executors or administrators to purchase proper and sufficient materials, and also to employ a sufficient number v>x' workmen to finish and complete the said dwel- ling house, buildings and works, and also that the said C. D., [proprietor], his executors, adminis- trators or assigns,shall and may deduct and retain to himself and themselves the costs of such mate- rials, and all such sum and sums of money as he or they shall pay to such workmen for the comple- tion of such dwelling house, building and works out of the money which shall be due to the said A. B., [builder], his executors or administrators under this agreement; and also that the said A. B., [builder], his executors or administrators, shall not nor will in any manner do, or cause or procure to be done, any act, matter or thing whatsoever to prevent, hinder or molest the said C. D., [proprie- tor], his executors, administrators or assigns, or any person or persons employed by him or them ■mih 56 CABINET LAWYER. from completing and finishing the said dwelling house, buildings and works in manner aforesaid, or in using the materials which shall be on the said premises, and provided by either of the said parties for the doing thereof. And the said C. D., \jproi[iYieior\^ doth hereby for himself, his heirs, executors and administra- tors, covenant, promise and agree to and with the said A. B., \builder\^ his executors and admin- istrators, that he the said C. D., [/jrop/'ie/or], his executors or administrators, shall and will well and truly pay or cause to be paid unto the said A. B., \huilder\ his executors, administrators or assigns, the sum of $ of lawful money of Canada, in manner following, that is to say, the sum of per cent, on the amount o( the mate- rials used in the said buildings and works as they shall proceed, to be ascertained by the surveyor {or architect) for the time being, and his certificate under his hand to be couclusive between the said parlies; and also that the said C. 0., [proprietor'\^ his executors or adminstrators shall and will every week during the progress of the said buildings and works, pay and supply the said A. B., [6m7rfcr] his executors or administrators, with such sums of money as shall be sufficient for paying and dis- charging the wages and labour of the workmen and labourers who shall from time to time be employed in or about the said buildings and works, the amount whereof shall be ascetained by the sur- veyor {or architect) for the time being by a certifi- cate under his hand ; and the remainder of the said mm tmm Contracts or agreements. 27 sum of$ , within days (or months) next after the said dwelling house, buildings and prem- ises shall be completely built, done and finished to the satisfaction of the said E. F., [surveyor or architect]^ or such other surveyor or architect as aforesaid, the same to be testified in writing under his hand. And it is hereby declared and agreed by and between the said parties hereto, that in case the said C. D., [proprietor']^ his executors, admin- istrators or assigns, shall direct any more work to be done in or about the said dwelling house, buildings and works than is contained in the schedule hereunder written, then, and in such case the said C. D., [proprietor']^ his executors or ad- ministrators, shall pay or cause to be paid unto the said A. B., [builder]^ his executors or administra- tors, so much money as such extra work and the materials used therein shall cost or amount unto, anything hereinbefore contained to the contrary notwithstanding; and that if it shall be thought proper by the said C. D., [proprietor]^ his execu" tors, administrators or assigns, to diminish or omit any part of the work specified in the said schedule hereunder written, then and in such case the said A. B., [hiiilder]^ his executors or administrators shall deduct and allow out of the said sum of $ so much money as the work so to be diminished or omitted shall amount unto, upon a reasonable valu- ation, anything hereinbefore contained to the con- trary notwithstanding ; and all allowances or deduc- tions for such extra or omitted works respectively shall be ascertained and settled by the said E F,, i il CABINET LAWYER. [surveyor or architect]^ or such olhor surveyor or architect to be appointed as aforesaid. And it is hereby covenanted and agreed by and between the said parties hereto that if any dispute or difference shall happen or arise between them, their or either of their executors, administrators or assigns ; or between either of them, and the said E. F., [survtyor or architect]^ or such other surveyor or architect to be appointed as aforesaid : touching or concerning the said dwelling house, buildings and works hereby contracted to be made and done as aforesaid, or touchinjj or concerning any other mat- ter or thing whatsoever relating thereto, or to the additional or extra work as aforesaid, then such dispute or difference shall be left to the determina- tion and award of three indilTerent persons, one to be named by the said A. B., [builder], his execu- tors or administrators, and another by the said C. D., [proprietor], his executors, administrators or as- signs, and the third by the said two persons so named by each of them the said parties or his executor.-j, administrators or assigns. And eacli of them the said parlies hereto doth heieby for him- self, his heirs, executors and administrators, cove- nant and agree with the other of them, his execu- tors and administrators that they the said parties respectively and their respective executors and administrators shall and will severally stand to abide by, perform and keep the award and determi- nation of the said three persons so to be chosen, or of any two of them, touching the said several mat- ters of dispute or difference as aforesaid, so as the \J\ -I-**' t. '__ .^ J^.^A. ^mm CONTRACTS OR AGREEMENTS. 29 sam3 award and determination be made in writing under the hands and seals of the said arbitrators or some two of them, within two calendar months next after such dispute or diHerence shall arise. And it is further agreed by and between the said parlie--', that the submission hereby made, shall, at the option and expense of eillicr of the said parlies requiring the same, be made; a rule of either of the Superior Courts of Law or Equity in Ontario; and that the costs and charges attending any reference or arbitration as aforesaid shall be in the discretion of the said arbitrators, or any two of thern, and shall be paid and satisfied pursuant to their award. In witness whereof, the said parties to these pre- sents have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l. s.] Y. Z. C. D. [l. s.] Anotlicr Form. An agreement made the day of 18 Between A. B., of, &c., {Builder)^ of the first part, C. D., of, &c , (Surety)^ of the second part, and E. F., of, &c., of the third part. Whereas, the said E. F., is possessed of a piece of ground situate at {describe the premises) upon which he is desirous of erecting a dwelling-house and offices according to the elevation, plans and specifications prepared for that purpose by W. M., architect and surveyor, and under the direction and to the satisfaction of the said W. M., or other archi- 30 CABINET LAWVER. II' m ! \ toct or surveyor for Ihc time being of the said E. F., his executors, administrators or assigns : which said ehivation, [)lans and specifications, are marked with the letters A, B, C, D, E, F, and G, and are signed by the said A. B., C. 1). and E. F., and the said specification is contained in the scliedule hereunder written, or hereunto annexed ; and the said A. B. has proposed to erect and complete the said dwell- ing-house and offices, and to make and execute all other works mentioned and specified in the said elevation plans and specification, wilhin the time hereinafter limited for that purpose, and according to the stipulations and agreements hereinafter con- tained, at or for the price or sum of $ : wliich proposal the said E. F. hath agreed to accept on the said A. B., together with the said C. D., as his surety, entering into the agreements hereinafter contained. Now it is hereby witnessed, That tliC said A. B. and C. D. do, for themselves, their heirs, executors, and administrators, and each and every one of them doth for himself, his heirs, executors and adminis- trators, hereby agree with and to (he said E F., his executors, administrators and assigns, in manner following: (that is to say) That he, the said A. B., shall, at his own cost and charges, forthwith erect and complete, make and execute, with all proper and necessary materials, workmanship, and labour, of the best kind in every respects, and in the most substantial and workmanlike manner, upon the said piece of ground, a dwelling-house and offices be- hind the same, with the appurtenances, and all t-^ ■"if CONTRACTS OR AGREEMENTS. 31 Other works, matters and things mentioned and specified in the said elevation, plans, and specifica- tion, under the direction and to the satisfaction of the said VV. M., or other the architect or surveyor for the time being of the said E. F., his executors, administrators or assigns ; and for that purpose shall find and provide all proper and necessary materials, implements and machinery ; and shall make good all damages which may be occasioned either tothe saiddwelling-lioiise, oHices, and works, or any of them, or to adjoining buildings, by the execution of the same works or any of them ; and shall cleanse all drains and cess-pools in or al)out the premises, and carl and clear away at such limes and in such manner as shall or may be directed by the said W. M., or other architect or surveyor as aforesaid, all surplus earth and waste or useless materials, implements and machinery, which may from time to time remain during the execution of the same works, or at the completion thereof; And shall at his own cosis and charges from lime to time, until the said dwelling-house, offices and works shall be erected, completed, made, and exe- cuted, insure or cause to be insurccl, in the joint names of the said E. F., his executors, administra- tors or assigns, and of the said A. B., his executors or administrators, and for the sum of 3 , all and singular the erections and buildings for the time being standing on the said piece of ground, to the full value thereof, in some public insurance oflice to be approved of by the said E. F., and shall deliver the policy of insurance to the said E. F., i 32 CAH1NET LAWYRR. his exoculcn's, adminislrators or assigns, ;ind siiall profincc and show to the said E. F., his oxocutors, achninistrators or assigns, the rncoipts for llie prc- niiiun of insurance, when recjucsted so to do ; and that in case of fire, all the moneys to be recovered by virtue of such insurance shall forthwith be ap- plied in reinstating the premises, under the direc- tion and to the approbation of the said W. M., or other architect or surveyor as aforesaid : and that the said A. B., shall well and sufficiently cover in or cause to be covered in, the dwelling-house and oflicos so to be erected as aforesaid, before the day of , and shall complete, make and execute, or cause to be completed, made and executed, all and singular the said dwelling-house, offices and other works, in manner aforesaid, and according to the true intent and meaning of these presents, be- fore the day of : and that if the said A. B,, his executors or administrators, shall not so well and sufficiently cover in the said dwelling-house and offices before the said day of , or shall not so complete, make and execute, the said dwell- ing house, offices and works before the said day of , then, the said A. B., and C. D., their executors aiA administrators shall pay to the said E. F., his executors, administrators and assigns, the sum of Jjj , for every week during which the said dwelling-house and offices shall remain uncov- ered in after the said day of and the like sum for every week the said dwelling-house, offices and works shall remain unfinished after the said day of ; which suras may be recovered CONTRACTS OR AGREEMENTS. 33 as licjiiiclatt'd damnges, or may be deducted from the sums payable to the said A. B., his executors and administrators, under this agreement, provided always tiiat in caso llie said E. F., his executors, administrators or assigns, or his or tiieir surveyor or architect, shall require any extra or additional works to be done, or shall cause the works to be delayed in their commencement or their progress, the said A. 15., his executors or administrators, sliall Ix) allowed to have such additional time tor covering in and finishing the said buildings and works, beyond the said days above fixed, as shall have been necessarily consumed in the performance of such extra or additional works, or as shall have been lost by the delay caused by the said E. F., his executors, administrators or assigns, or his or their surveyor or architect as aforesaid : and the said payments for delay shall not become payable until after the expiration of such additional tliae or limes. And the said A. B. and C. D., for themselves, their executors and administrators, do hereby further agree with the said E. F., his executors, adminis- trators and assigns, that in case the said W. M., or other architect or surveyor as aforesaid, shall be dissatisfied with the conduct of any workman em- ployed by the said A. B., his executors or adminis- trators, in the said works, or with any materials used or brought upon the said premises for the pur- pose of being used in the said works, and shall give notir^e thereof in writing under his hand to the said A. B., his executors or administrators, he, the said A. B., his executors or administrators, will forth" 1] M 'l:! V li 34 CABINET LAWYER. with discharge such workman from the said workgf and remove the said maiei'-als ; and that in case the said A. B., his executors or administr-ators, shall not, in the judgment of the said W. M., or other architect or surveyor, as aforesaid, employ a sufficient number of workmen in the execution of the said works, or have on the premises a safHcient quantity of materials or implements of proper qual- ity for the said works, and the said W. M., or other architect or surveyor as aforesaid, shall, by writing under his hand, require the said A. B., his execu- tors or administrators, to employ an additional number of workmen, or bring upon the premises an additional quantity of materials or implements of proper quality, and shall specify in such notice the number and description of additional workmen to be employed, and the quantity and description of additional materials or implements to be supplied, the said A. B,, his executors or administrators, shall forthwith employ in the said works such addi- tional number of workmen, and shall forthwith bring upon the premises such additional quantity of materials or implements for the said works ; and that in case he shall refuse or neglect for the space of seven days to comply with any such notice or request, it shall be lawful for the said W. M., or other architect or surveyor as aforesaid, to dismiss and discharge the said A. B., his executors or administrators, irom the further execution of the said works, and for the said E. F., his executors, administrators or assigns, to employ some other person to complete the same ; and that in such case ■* ■4 ■4 'M 1 ;* CONTRACTS OR AGREEMENTS. 35 I 1 ■M ihe sum agreed to be paid to such otlier person to complete the said worlvs (such sum being approved by the said W. M., or other arcliitect or surveyor as aforesaid) shall be deducted from the said sum of S , and the balance, after making any other deductions which the said E. F., his executors, ad- ministrators or assigns, shall be entitled to make under this agreement, shall be paid by the said E. F., his executors, administrators or assigns, to the said A. B., his executors omdministrators, in full for the work done by him or them, at the expiration of two months after he or they shall have been so dis- charged as aforesaid : And it is hereby further agreed by and between the parties hereto, that all the materials brought upon the said piece of ground for the purpose of being used in the said buildings, except such as shall be disapproved of by the said W. M., or other architect or surveyor as aforesaid, shall, immediately they shall be brought upon the said premises, become the property of the said E. F., his executors, administrators or assigns, and shall be used in the said works. And the said E. F. doth hereby, in consideration of the works so agreed to be done by the said A. B., agree with the said A. B., his executors, admin- istrators and assigns, that he, the said E. F., his executors, administrators or assigns, will pay to the said A. B., his executors, administrators or assigns, the said sum of $ , in manner fol- lowing, that is to say : the sum of $ within one week after the said W. M., or other architect or surveyor as aforesaid, shall have certified in writing 36 CABINET LAWYER. to the said E. F., his executors, administrators or assigns, under his hand, that work to the value of # has been done under this agreement and the further sum of $ within one week after the said W. M., or other architect or surveyor shall have certified as aforesaid, that further work to the value •of ^ has been done under this agreement, and so on shall pay S for every $ worth of work so certified as aforesaid, until the whole of the said works shall be finished, and shall pay the balance remaining unpaid within one month after the said works shall have been completed and finished to -the satisfaction of the said W. M., or such other architect or surveyor, and the said W. M., or such other architect or surveyor, shall have certified to the said E. F., his executors, administrators or assigns, that the said works have been ompleted and finished to his satisfaction. Provided always, and it is hereby further agreed by the parties hereto, and particularly by the said A. B., and C. D., that if the said E. F., his executors, administrators, or assigns, shall at any time be desirous of making any alterations or additions in the erection or exe- cution of the said dwelling-house, offices and other works, then and in such case, the said A. B , his executorsor administrators, shall make and execute such alterations and additions to the satisfaction of the said W. M., or such other architect or surveyor ; and the sum or sums of money to be paid or allowed between the said parties in respect ol such alterations and additions shall be settled and ascer- tained by the said W. M.,Gr such other architect or mm IMMMi CONTRACTS OR AGREEMENTS. 37 surveyor, whose determination shall be final. Pro- vided always, and it is hereby further agreed, that in the settling and ascertaining the said sum or sumsol" money, the said W. M., or sueh other archi- tect or surveyor, shall not include any charge for day work, unless an account thereof shall have been delivered to the said E. F., his executors, adminis- trators or assigns, or the said VV. M., or such other architect or surveyor, at the end of the week in which the same shall have been performed. Pro- vided also, and it is hereby further agreed, that no such alteration or addition shall release he said A. B. and C. D., their executors or administrators, or any or either of them, from the observance and performance of the agrec^mentr. herein contained on the part of the said A. B., his executors or admin- istrators, to be observed and performed, so far as relates to the other parts of the said dwelling-liouse, offices and works ; but that the same agreements shall in all respects be observed and performed in like manner as if no such alteration or addition had been directed. Provided also, and it is hereby agreed, that if the said W. M. shall die, or cease to act as the surveyor and architect of the said E. P., his executors, administrators or assigns, and the said A. B., his executors or administrators, shall be dissatisj[ied with the surveyor or architect for the time being, appointed by the said E. F., his execu- tors, administrators or assigns, in the room of the said VV. M., then it shall be lawful for the said A. B., his executors or administrators, at his own expense to employ a surveyor or architect on his I, I 1 ) 38 CABINET LAWYER. behalf in the adjustment of the accounts, to act with the surveyor or architect for the time being of the said E. F., his executors, administrators or assigns; and in case of disagreement between such two sur- veyors or architects, they shall be at liberty to nominate a third ; and the said three surveyors or architects or any two of them, ghall and may exer- cise all the powers and discretion which the said W. M. could or might have exercised under or by virtue of these presents if he had lived or continued to act as the surveyor or architect of the said E. F., his executors, administrators and assigns. And it is hereby further agreed that if the said A. B., his executors or administrators, shall so employ as sur- veyor or architect on his or their behalf, he shall be nominated within ten days after the said A. B. shall be informed of the appointment of the surveyor or architect so appointed by the said E.F. , his executors administrators or assigns, and notice in writing of such nomination by the said A. B., his executors or administrators, shall forthwith be given to the said E. F., his executors, administrators or assigns. In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written. A. B. (l. s.) Signed, sealed and delivered C. D. (l. s.) in the presence of Y. Z. E. F. (L. s.) THE SCHEDULE ABOVE REFERRED TO. {Here copy the Specification, i ' ' ■1^ CONTRACTS OR AGREEMENTS. Sub-Contract between a Builder and a Carj)entcr. 39 or tors of Lors the ;ns. cnts day 'an An agreement, made the day of 18 , Between A. B., of, &c., {Builder) and G. II., of, &e., (Carpenter), Whereas, the said A. B., hath entered into a contract with E. F., of, &c., to erect a dwelling- house and offices according to certain plans, eleva- tions and specifications referred to in s;iid contract, under the superintendence of VV. M., or other archi- tect of the said E. F., which contract is dated the day of ; Now it is hereby agreed that in consideration of the sum of $ to be paid by the said A. B., his executors or administrators, to the said G. H., his executors or administrators, as hereinafter mentioned, the said G. H., his exe- cutors or administrators, will do all the carpenter's work necessary to be done for the completion of the said contract in the manner, within the time, and according to the plans and specifications mentioned and referred to in the said contract, and will pro- vide all materials and implements necessary for the performance of such work, and will in all things abide by, perform, fulfil and keep the terms and stipulations of the said contract, so far as the same are applicable to such carpenter's work. And it is further agreed that in case the said A. B., his executors or administrators, shall become liable under the said contract to pay any damages or pen- alty by reason of the default or delay of the said G. H., his executors or administrators, in the perform- ance of the work agreed to be performed by him> ^mrr-^ i II 40 CABIIVET LAWYER. then that the said G. H., his executors or adminis- trators shall pay to the said A. B., his executors or administrators, ihe amount of such damages or pen- alty, and that in case thai the said W. M., or other architect appointed to superintend the works under the said contract shall disapprove of the work done by the said G. H., his executors or administrators, or the materials used by him, or the manner in which such work is done, or in case the said G. H., his executors or administrators, shall refuse or neglect forthwith on request by the said W. M., or other architect as aforesaid, tore-execute such work with ihe materials and in the manner required by the said W. M,, or other architect as aforesaid, it shall be lawful for the said A. B., his executors or administrators, to dismiss and discharge the said O. fl., his executors or administrators from the further performance of such work, and employ some other person to compkte the same, and to deduct the costs of such completion from the sum which would otherwise be payable to the said G. H., his executors and adrriinistrators, under this agreement. In consideration whereof the said A. B., agrees to pay to the said G. H., his executors or administrators, the sum of ^ in manner follow- ing, that is to say : 75 per cent, of the contract price for the work done by the said G. H., his executors or administrators, during any week, on the Saturday in every week during the continuance of the said works, and the balance within one month after the completion of the said dwelling- house and offices. aniMHimtt CONTRACTS OR AGREEMENTS. 41 iling- In witness whereof, the said parties to these pre- sents have hereunto set there hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l. s.] Y. Z. G. H. [l. s.] [NToTE. — This form of sub-contract may be adapted to any particular ivork on a buildings as bricklayers^ painters\ ^'c] Bond from a Builder and two Surcfics for the due per- formance of a Contract. Know all men by those presents, That I, A. B., (builder)., of, &c., am held and firmly bound nnto E. F., of, &c., in the penal sum of $1,000, lawful money of Canada, and that we, G. II., {surety), of, &c., and J. K., (other surety), of, &c., as the sure- ties for the said A. B., his executors and adminis- trators, are severally and respectively held and firmly bound to the said E. F , in the penal sum of $1,000 each, lawful money aforesaid, all the said several sums to be paid to the said E. F., or his certain attorney, executors, administrators or as- signs, for which payment to be well and truly made by me the said A. B., I, the said A. B., bind myself, my heirs, executors and administrators, and every of them, firmly by these presents, and for which several payments to be well and truly made by us, the said G. H. and J. K., respectively, we the said G. H. and J. K., respectively, bind ourselves respectively, anl our respective heirs, executors and v\ I m ■nfT' 42 CABINET LAWYER. administrators, and every of them, firmly by these presents. Sealed with our seals. Dated this day of 18 . Whereas the above boiinden A. B., (builder), has entered into a contract and agreement in writing with the said E. F., dated the day of 18 , whereby he, the said A. 13., has contracted and agreed with the said E. F., to do the whole of the works in erecting and completely finishing a certain dwelling-house and premises, with the out- buildings belong thereto, in every respect agree- ably to the drawings, agreements, conditions, clauses and particulars, mentioned, specified and contained in a certain paper, writing or specifica- tion annexed to the said contract. And whereas, at the time of entering into such agreement as aforesaid, the said A. B., and his said surities, the said G, H. and J. K., agreed to execute the above written bond or obligation for the due performance of the several work^ so con- tracted to be done as aforesaid, according to the specification aforesaid. Now, therefore, the condition of the above written bond orobliojation is such that if the above bounden A. B., his executors or administrators do and shall, within calendar months from the date of the above written bond or obligation, do, perform, exe- cute and completely finish, or cause to be done, per- formed, executed and completely finished, all and 8in«:ular the several buildinsfs and works mentioned and specified in the hereinbefore mentioned specifi- cations, conformably to the said specification in alj J .'■-?■ ■W', CONTRACTS OR AGHEEMENTJ. 43 these r),has writing racted liole of hing a lie out- agree- litions, ed and jcifica- o such rid his eed to on for ?o con- o the ,vritten onden diall, of the n, exe- le, per- il and itioned jpecifi- in aU ^mi respects whatsoever, and in a good and workman- like manner: Then the above written bond or obligation shall be void, but otherwise the same shall remain in full force and virtue. Signed, sealed and delivered in the presence of A. B. [l. s.] Y. Z. G. H. [l. s.] J. K. [l. s.] Contract to do Re^palt's, ii'c. An agreement made the day of 18 , Between A. B., of, &c., and C. D., of, &c. The said A. B. agrees to do all the works here- under specified in the best and most workmanlike manner, and to provide for such works all neces- sary materials and things of the best quality, and to complete and finish the said works on or before the day of next, and in ca!?e the said works shall not be finished on or before the said day of , to pay or allow to the said C. D., out of the monies payable under this agreement, the sum of $ , for each day during wiiich the said works shall remain unfinished after the said day of , and in case the said C. D. shall require any additions or alterations to be made to the works hereunder specified, to execute such additions and alterations in the best and most workmanlike manner, with material of the best quality. And it is hereby agreed that in case any additional works shall be required by the said C. D. or in case the said C. D. shall delay the execu- tion of the said works, the said A. B., shall have 11 44 CABINET LAWYER. such additional time for the performance of the said works after the said day of , as shall be equivalent lo the time consumed in the execution of such additional works, or to the time during which tiie said C. D. shall have delayed the said works, and that the payments for non-com- pletion as aforesaid, shall not be payable until after the expiration of such additional time. And it is hereby further agreed that materials brought upon the premises of the said C. U , for the purpose of being used in the said works, shall, if of proper description and quality, immediately become the property of the said C. D. And the said C. D. agrees to pay to the said A. B., for the said works, the sum of J , within one week after the same shall be finished. Witness the hands of the said parlies. Signed in the presence of A. B. Y. Z. C. D. Agreement for sale of Merchants^ StocJ^, This agreement made the day of 18 , Between A. B. of, &c., merchant, of the one part, and C. D., of, &c., merchant, of the other part. The said A. B. agrees to sell, and the said C. D. agrees to buy, all the stock of goods, wares and merchandise, now being in and upon the store occupied by the said A. B. at aforesaid, at the invoice price thereof (or at the sum of $ or otherwise as agreed upon) an account of such goods, wares and merchandise being taken by the parties hereto in the presence of each other, [And it is ^fi CONTRACTS OR AGREEMKNTS. 45 of the , as in the e time elayed n-com- lil after nd it is it upon pose of proper me the C. D. works, le same B. D. 18 , ne part, art. d C. D. res and le store said, at S or \ goods, parlies nd it is hereby agreed that any of the said goods, wares or mercliandise, wliich may be damaged, shall be ap praised and valued by throe disinterested persons, each of the parties hereto selecting one of such per- sons and the two so selected appointing the third, and that the price set upon such damaged goods, wares and merchandise, by the said three persons, or any two of them, shall be substituted for the invoice price Ihereof, and that within ten days after the value of the said goods, wares and merchandise, shall hive been ascertained as aforesaid, tlie said C. D. shall pay the amount thereof to the said A. B.] And ihe said A. B. agrees to make, exe- cute and deliver unto the said C. D., a good and sufficient bill of sale of the said goods, wares and merchandise, and to give to the said C. 1). quiet and peaceable possession ihereof upon j)ayinent to him, the said A. B., by the said C D., within the time before specified of the invoiced [or apjirai^ed] value as aforesaid. Witness, &c., {complete as in last form) [If desired J the clause for appraising da:nas;ed goods can be made applicable to ttie entire stock. The clause between brackets will be I ft out if a fixed sum is agreed on.] Agreement for Sale df Grain. Memorandum of agreement made the day of 18 , Between A. B., of, &c., of the one part, and C. D., of, &c., of the other part. The said A. B. agrees to sell to the said C. D. five thousand 4G CABINET LAWYER. bushels of wheat, to he delivered to the said C. D., at, [ ] oti or before the first day of January next, free of all charges, at the price or sum of per bushel. And the said C. D. agrees to purchase the said wlieat, and to pay therefor at the rale aforesaid, upon delivery as aforesaid. And the said A. B. hereby guarantees and warrants the said wheat to be good, clean and mere able grain. Witness the hands of the said parlies. Signed in the presence of A. B. Y. Z. C. U. CHAPTER III. ARBITRATION. Instead of the ultimate remedy of an action at law or suit in equity, recourse is sometimes had for the settlement of disputes to the more amicable ex- pedient of arbitration. And in some transactions, especially in articles of co-partnership between tra- ders, it is usual to stipulate that if any dispute shall arise it shall be referred to the determination of two indifferent persons as arbitrators, or of their umpire, who is usually, and very properly required to be chosen by the arbitrators before they proceed to take the subject in question into consideration. And it ill - miMi AnniTR \T(o.v. 47 is agreed that the award in writing of tlu arbitra- tors, or of liieir nmpirc in the case of their disni?ree- niont, shall be binding and conchisive on ulJ par- ties. It is generally also further provided, that in case either parly should negleet or refuse for a given time to apj)oint an arbitrator, the arbitrator chosen by the other party may make an award, which shall be bmding on both. As the Courts of Law and Equity have full juris- diction on all questions arising out of agreements of any kujd, it ibllows that they ri'tain a jvu'isdic- tion over mailers which the parties themselves have agreed should be referred to arbitration. Nolwith- standing, therefore, an agreement to refer disputes to arbitration, either party may bring the matter into Court ; althou'di if the agreement should con- tain an express covenant not to sue, and especially if arbitrators be actually named, it seems that such covenant may be effectually pleaded in bar to any suit in equity. And without such a covenant, the circumstances of the parties having agreed to refer to arbitration will induce a Court of Equity to pause before granting to any of them summary re- lief on a point which they have expressly agreed to settle by amicable means. If however, one of the parties should, notwithstanding his agreement, re- fuse to name an arbitrator, the Court of Chancery will not entertain a bill to compel him to do so, neither will it substitute the Master for the arbitra- tors ; for the Court acts only when it has it in its power itself to execute the whole contract in the terms specifically agreed upon. 48 CABINET LAWYER. 1 The reference of disputes to arbitration appears to have been early adopted by Courts of Law, with l^he consent of the parties to an action, in cases where the matter in dispute could be more con- veniently settled in this mode. A verdict wa? taken for the plaintiff by consent, subject to the award of an arbitrator agreed upon by the parties, and the reference was made a rule of Court. This plan is still continually adopted. The arbitrators and the parties to the reference by this means be- come subject to the jurisdiction of the Court, which has power to set aside any award which may appear to have been given unjustly or through mis- take of the law; or, if the award be; valid, its per- formance may be enforced by the Court. In order to extend the bene fits of this mode of submission to arbitration to all c;incs of cortroversies between merchants and traders or others concerning matters of account or trade or other matters, an act of Par- liament was passed in the reign of William the Third, intituled "An Act for determining the difier- ences by Arbitration" (9 & 10 W. III. c. 15). This Act empowers all merchants and traders and others desiring to end by arbitration any controversy for which there is no other remedy but by personal action or suit in equity, to agree that their submis- sion of their suit to the av.'ard or umpirage of any person or persons shall be made a rule of any of Fler Majesty's Courts of Record which the parties shall choose. And it provides that in case of diso- bedience to the arbitration or umpirage to be made pursuant to such submission, the party neglecting MM AFBITRATION. 49 or refusing to perform and execute the same, or any part thereof, shall be subject to all the penalties of contennning a rule of Court when he is a suitor or defendant in such Court. And the process to be issued accordingly shall not be stopped or delayed in its execution by any order, rule, command or process of any other Court, either of law or equity, unless it shall be made appear on oath to such Court that the arbitrators or umpire misbehave themselves, and that such award, arbitration, or um- pirage was procured by corruption or other undue means. It is also further provided that any arbitra- tion or umpirage procured by corruption or undue means shall be judged void, and be set aside by any Court of Law or Equity, so as complaint of such corruption or undue practice be made in the Court where the rule is made for submission to such arbitration or umpirage, before the last day of the n xt term after such arbitration or umpirage is made and published, to the parties. Previously to a recent statute, either party might have revoked his submission, and thus determined the authority of the arbitrators; and this may still be done, if the submission relate to criminal mat- ters, which are not within the statute. But it is now enacted (Con. Stat. U. C, c. 22, s. 179) that the power and authority of any arbitrator or umpire, appointed by or in pursuance of any rule of Court or Judge's order, or order of nisi prius, in any action, or by or in pursuance of any submission to reference containing an agreement that such submission shall be made a rule of any of Her Majesty's Courts of ■ u ^4 iffl' 50 CABINET LAWYER, Record, shall not be revocable by any party to such reference without the leave of the Court by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave oi a Judge. And the arbitrator or umpire is empow- ered and required to proceed with the reference notwithstanding any such revocation, and to make such award although the person making such revo- cation shall not afterwards ali"^nd the reference. And the Court, or any Judge thereof, may, from time to time enlarge the term for any such arbitrator making his award. The Court, or any Judge, is also empowered under an^ such reference, by rule or order to command the attendance and examina- tion of witnesses, or the production of any docu- ments. And if in any rule or order of reference, or in any submission to arbitration containing an agree- ment that the submission shall be made a rule of Court, it shall be ordered or agreed that the wit- nesses upon such reference shall be examined upon oath, the arbitrator or umpire, or any one arbitrator, is authorised and required to administer an oath to such witnesses, or to take their affirmation in cases where affirmation is allowed by law instead of oath : and any witness wilfully and corruptly giv- ing false evidence shall be deemed guilty of per- jury, and shall be prosecuted and punished accord- inf^ly. But an express order or agreement that the witnesses shall be examined upon oath is not now necessary; for every arbitrator or other person, hav- ing-, by law or by consent of parties, authority to hear, receive, and examine evidence, may adminis- Hi ARBITRATION. 51 ter an oath to all such witnesses as are legally- called before them respectively. The authority of arbitrators is liable to be deter- mined not only by a revocation of the submission^ but also by the death of either of the parties pre- viously to the making of the award. In order to obviate this inconvenience, it is now usual to insert in the order or rule of Court, by which reference is made to arbitration, a provision that the death of either of the parties shall not operate as a revoca- tion of the authority of the arbitrators, but that the award shall be delivered to the executors or admin- istrators of the parties, or either of them, in case of their or his decease. And the same stipulation may be affectually made in a submission to arbitra- tion by private agreement. When no time is limited for the making of the award, it must be made within a reasonable time ; but if a given time be limited, the award must be made within that time, unless the time for making it be enlarged. And if the award is required to be made and ready to be delivered to the parties by a certain day, it will be considered as ready to be delivered if it be made, unless the arbitrators should fail to deliver it to either of the parties, on request made for that purpose, on the last day. The sub- mission to arbitration frequently contains a power for the arbitrators or umpire to enlarge the time for making the award ; and in this case the time may be enlarged from time to time by such arbitrators or umpire, provided the enlargement be made on or before the expiration of the time originally limited \ 'i:''''!" ii'i 52 CABINET LAWYER. for making the award. And if the submission be made a rule of Court, then, whether the arbitrators or umpire have power to enlarge the time or not, the Court or a Judge thereof, has power to enlarge the time under the provisions of the statute above mentioned. And should no enlargen.ent be for- mally made, yet the parties may, by continuing their attendance on the reference, or by recognizing the proceedings under it, virtually empower the ar- bitrators or umpire to make a valid award subse- quently to the time originally limited. In proceeding in the business of the arbitration, the arbitrators are bound to require the attendance of the parties, for which purpose notice of the meet- ings ol the arbitrators should be given to them. But if either party neglect to attend either in person or by attorney after due notice, the arbitrators may proceed without him. In taking the evidence the arbitrators are at liberty to proceed in any way they please, if the parties have due notice of their proceedings, and do not object before the award is made, but in order to obviate any objection, they ought to proceed in the admission of evidence ac- cording to the regular rules of law. The award siiould be signed by the arbitrators in each other's presence, and when made it must be both certain ami final. Thus, if the award be that one party enter into a bond with the other for his quiet enjoy- ment of certain lands, this award is void for uncer- tainty ; for it does not appear in what sum the bond should be. On the question of finality many cases have arisen. If the arbitrators be (mpowered ARBITRATION. 6S to decide all matters in difference between the par- ties, the award will not necessarily be wanting in finality for not deciding on all snch matters, unless it ^ippear to have been required \hat all such matters should be determined by the award. If the award reserve to the arbitrators, or give lo any other per- son, or to one of the parties, any further authority or discretion in the matter, it will be bad for want of finality. And if the award be that any stranger to the reference should do an act, or that money should be paid to, or any other act done in favor of, a stran- ger, unless for the benefit of one of the parties, such award will be void. An award, however, may be partly good and partly bad, provided the bad part is independent of and can be separated from that which is good. But if by reason of the invalidity of part of the award, one of the parties cannot have the advan- tage intended for him as a recompense for that which he is to do, according to that part of the award which would otherwise be valid, the whole will be void. If it should appearon the face of the award that the arbitrators, intending to decide a point of law, have fallen into an obvious mistake of the law, the award will be invalid. But where subjects involving questions both of law and fact are referred to arbi- tration, the arbitrators mav make an award accord- ing to what they believe to be the justice of the case, irrespective of the law on any particular point. When the submission to arbitration is not made the rule of any other Court, the Court of Chancery, according to the ordinary principles of equity, has P • : ! ; \m '.nr I J : h 64 CABINET LAWYEfi. power to set aside the award for corruption or other misconduct on the part of the arbitrators, or if they should be mistaken in a plain point of law or fact. If the submission be made a rule of Court under the above mentioned statute of Wm. III., the Court of which it is made a rule has power to set aside the award, not only on the grounds of corruption or undue practice mentioned in the act, but also for mistakes in point of law ; and no other Court has a right to entertain any application for this pur- pose. The application to set aside the award must, however, be made within the time limited by the act. But although the time limited by that statute may have expired, yet, if there be any de- fect apparent on the face of the award, the Court will not assist in carrying it into effect by granting process to enforce it. If the submission to arbitra- tion be made by rule or order of the court in any cause independently of the statute, the Court still retains its ancient jurisdiction of setting aside the award on account of either misconduct of the arbitra- tors, or of their mistake in point of law. In analogy, however, to the practice under the statute of Wm. III., the Court in ordinary cases requires applica- tion lor setting aside the award to be made within the time limited by that statute ; but upon sufficient grounds it will grant such an application, though made after the expiration of that time. Sometimes power is reserved to the Court to refer the matter back to the arbitrators for further examin- ation, in the event of any application being made to the Court on the subject of the award. la ARBITRATION, 55 ihis case the application must be made within the same time as an application to set aside the award. It* an umpire be appointed, his authority to make an award commences from the time of the disa- greement of the arbitrators, unless some other pe- riod be expressly fixed ; and if, after the disagree- ment of the arbitrators, he make an award before the expiration of the time given to the arbitrators to make their award, such award will nevertheless be valid. The umpire must be chosen by the arbitra- tors in the exercise of their judgment, and must not be determined by lot, unless all the parties to the reference consent to his appointment by such means. In order to enable him to form a proper decision, he ought to hear the whole evidence over again, unless the parties should be satisfied with his de- ciding on the statement of the arbitrators. And the whole matter in difference must be submitted to his decision, and not some particular points only on which the arbitrators may disagree. An award for the payment of money creates a debt from one party to the other, for which an action may be brought in any Court of law. But when the award is made a rule of Court, its performance may be enforced by execution. And where the reference is made by order of the Court of Chan- cery, or where the award requires any act to be done which cannot be enforced by an action at law, equity will decree a specific performance. It often happens that the matters to be referred are of too complicated a nature to admit of sue- I -? ii 4 i 5d CABINET LAWrER, cespful carriage without the intervention of a pro- fessional man. The foregoing observations and following forms are not intended to apply to such matters : they are meant for plain and simple cases only. Arbitration Deed. This Indenture, made the day of , 18 , Between A. B.. of, &c., of the one part, and C. D., of, &c., of the other part. Whereas, certain differences have arisen between the said A. B. and the said C. D., respecting, &c., [here state concisely the suhj ecf -matter in dispute^ or., if all matters in difference are rferred., you had better not state such subject-matter at all] : and it is agreed by and between the said A. B. and C. D. to refer the said differences [or all matters in difference betwen them] to the award, order, final end and determination of U. V., of, &c.. and X. Z;, of, &c., arbitrators, nominated by the said A. B. and C. D., respectively ; and in case they disagree about making an award, or fail to make an award, before the day of next, then to the award, um- pirage, final end and determination of such um- pire as the said arbitrators shall by writing under their hands, endorsed on these presents, before they enter upon the consideration of the matters referred, nominate and appoint. Now this indenture witnesseth that they, the said A. B. and C. D., do, and each of them for himself, severally and respectively, and for his several and respective heirs, executors and administrators, doth vm i rii" I f r • " " " ARBITRATION. 67 covenant, promise and agree with and to each ollie r. his executors and administrators respecliv(dy, that the said differences [or all mailers in diffirenc] between llie said A. B. and C. D., be, forlhwilh referred to ihe award, order, arhilrainent, final end and delermination of the; said U. V. and X. Z. ; and in case they disagree about making an award or fail to make an award, before the day of next, then to the award, umj)irage final end and determination of such umpire as ihe said arbitra- tors shall, by wriliiiir under their hands, endorsed on these presents, before ihey enter upon the con- sideration of the matters referred, nominate and appoint : so as the said arbitrators or umjjire do iTiake and publish his or their award or umpirage in writing under his or their hands of and concern- ing the premises, ready to be delivered to the parties or to either of them, or, if they or either of them shall be dead before the makini' of the award or umj)irage, to their respective personal represen- tatives who shall require the same, on or belore the day of next, or on or before any other day to which the said arbitrators or umpire shall, by wriiing signed by him or them, endorsed on these presents, from time to time enlarge th^ time for making such award or umpirage ; and thai the said A. B. and C. D. respectively, and their respec- tive executors and administrators shall and will perform, fulfil and keep the said award or umpirage so to be made as aforesaid, and that the death of either of the said parlies shall not operate a^ a revocation of the power and authority of the said i :^ r^ 58 CABINET LAWYEH. ■if J ;i arbitrators or umpire to make said award or umpi- rage ; and tliat all costs and charges of this refer- ence and of the said award shall be in the discre- tion of the said arbitrators or umpire, who shall direct and award by whom and to whom and in what manner the same shall be paid ; And, further that the said A. B. and C D., and each of them, shall and will produce unto and deposit with the said arbitrators or umpire, all deeds, books, papers, evidences and writings, touching or relating to the matters in difference in their respective possessions or power as the said arbitrators or umpire shall think fit: And that each of them shall and will submit to be examined upon oath, if thought neces- sary by the said arbitrators or umpire, and will, as far as in them lies respectively, do all such other acts and things as the said arbitrr.'ors or umpire shall require for the better enabling him or them to make the said award : And, further, that if either of the said parties shall obstruct or prevent the said arbitrators or umpire from making an award by affected or wilful delay, or by not attending after reasonable notice, and without such excuse as the said arbitrators or umpire shall be satisfied with and adjudge to be reasonable, it shall be lawful for the said arbitrators or umpire to proceed ex parte : And, further, that neither of them, the said A. B. and C. D., shall and will prosecute any action or suit in any Court of Law or Equity against the other of them, of and concerning the premises, until the said award be made and published : And fur- ther, that this submission may be made a rule of ' 'i*r-m, ^ fK iimii^ w" * ^ '* "" *' - *Vi ■ AtlDlTRATION. 59 Her Majesty's Court of [ ] if that Court shall so please : And, further, that the said arbitrators or umpire shall take the said arbitration at [ ] aforesaid, and shall have power to call for and examine all witnesses upon oath, and have the assistance of accountants in adjusting and ascer- taining the state of the accounts of the said parlies in diflerence. In witness whereof, the said parties to these pre- sents have hereunto set there hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l. s.] E. F. C. D. [l. 8.] Another Form . This Indenture, made the day of 18 , Betvveen A. B., of &c., of the first part, and C. D., of, &c., of the second part. Whereas, disputes and differences have arisen, and are now depending, between the said parties of the first and second parts in reference to [state matters in dispute], and in order to put an end thereto, and to obtain an amicable adjustment there- of the said parties of the first and second parts have respectively agreed to refer the same to the award, order, arbitrament, final end and determina- tion of U. v., of, &c., and X. Z., of, &c., arbitra- tors, indifferently choaen, by and on behalf of the said parties respectively : And in the event of the said two arbitrators hereby appointed not being able to agree within one month from the date of i. 60 CABINET LAWYER. * '! ill , ^ ill I these presents upon their said award, then it shall and may be lawful for them to appoint some fit per- son as third arbitrator, by a memorandum, in writ- ini^, under their hands, to be endorsed on these presents ; and the award of any two of thoin shall be final jmd conclusive, both at law and in equity, upon both of the said parties hereto: such award to be mad(! in writing on or before the day of next. Now this Indenture witnesseth, that the said parties hereto do, and each of them doth, each for himself severally and respectively, and for his and thcjir respective heirs, executors and adminis- trators, covenant, promise and agree, to and with each other, his and their heirs, executors and ad- ministrators, well and truly to stand to, obey, abide by, observe, perform, fulfil, and keep the award, order, arbitrament and final determination of the said arbitrators hereby appointed ; or, in the event of it having been necessary to appoint such third arbitrator as aforesaid, to stand to, obey, abide by, observe, perform, fulfil and keep the award, order, arbitrament, and final determination of any two of them of and concerning the premises aforesaid or any thing in any manner relating thereto, so as such award be made in writing, under their hands, or under the hands of any two of them (in the event of any such appointment as aforesaid), on or before the day of n Kt And it is hereby agreed, tha said arb rators shall be at liberty, by writing, i. der tbr^ir hands, or the hands of any two of them, respecti ely endorsed ARBITRATION. 61 on tlifse presents, to enlarge the time for nriaking the said award when and as often and tosnrli times as they shall think fit. And also, that all the eosts and ehargcs attending the said arbitration shall be in the diseretion of the said arbitrators hereby ap- pointed, or in the event of such appointment of a third arbitrator as aforesaid, of any two of ihetn so making their award as aforesaid, and shall be paid and satisfied pursuant to their award. And also, that these presents may be made a rult; of Her Majesty's Court of Queen's Bench or Common Pleas, at Toronto. And for the full performance of the said award so to be made as aforesaid, the said parties hereto bind themselves, severally and respectively, their several and respective heirs, executors and admin- istrators, each to the other of them respectively, in the penal sum of [ ] lawful money of Canada, firmly by these presents. In witness whereof the said parlies to tlicse pre- sents have hereunto set their hands and affixed their seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l. s] E. F. C. D. [i-. s.] ArhUration Bond. Know all men by these presents, That I, A. B., of, &c., am held and firmly bound to C. D., of, &c., in the penal sum of [ ] of lawful money of Canada, to be paid to the said C. D., or to his cer- tain attorney, executors, administrators, or assigns, 11 i i p 62 CABINET LAWYER. '■ i: for which payment to be well and truly made I bind myself, my heirs, executors, and administra- tors firmly by these presents. Sealed with my seal. Dated this day of , 18 . Whereas disputes and differences have arisen, and are now pending, between the above-bounden A. B. and the said C. D. touching and concerning [state subject-matter in dispute as in deed] And whereas the above-bounden A. B., and the said C D., have agreed to refer such disputes and differences, as well as all actions, suits controver- sies, accounts, reckonings, matters, and things in any wise relating thereto, to the award, arbitra- ment and determination of U. V. and X. Z., arbi- trators nominated, appointed and chosen, as well as by and on the part and behalf of the above-bounden A. B. as of the said C. D., and who have consented and agreed to accept the burthjn of the said arbi- tration. Now, the condition of the above- written bond or obligation is such, that if the above-bounden A. B. do and shall well and truly submit to, abide by, and perform, the award, arbitramenc and determi- nation of the said arbitrators so nominated, ap- pointed and chcsen as aforesaid, touching and con- cerning the matters in dispute between the above- bounden A. B. and the said C. D. and so referred to them, the said arbitrators as aforesaid (provided such award be made in writing under the hands and seals of the said arbitrators, ready to be de- livered to the said parties, or such of them ^s shall ARBITRATION. 68 apply for the same, on or before the day of , one thousand eight hundred and ) : Then this obligation shall be void, otherwise to be and remain in full force and virtue. And the said obligoi hereby consents and agrees that this Bond of Sub- mission and the Award to be made thereunder shall and may be made a Rule of Court of any of the Superior Courts of this Province. Signed, sealed and delivered in the presence of E. F. A. B. [l.s] [Note. — A similar bond must be executed by C. £>., substituting C. D. for A. B. wherever it occurs.^ Appointment of an Umpire, We, the within-named U. V. and X. Z., do here- by nominate and appoint U. U., of , to be umpire between us in and concerning the matters in diflference within referred [on condition that he do, within days from the date heieof, by some writing under his hand, accept the umpirage]. Witness our hands this day of , 18 . U. V. Witness, W. W. X. Z. [Note. — The foregoing appointment should be endorsed on the arbitration deed or bond. Enlargement of Time for Making Award. We, the undersigned arbitrators, by virtue of the power to us given for this purpose, do hereby ap- '1 i 64 CABINET LAWYER. ii f poir/i, extend, and [if a second enlargement^ " fur- ther"] enlarge the time for making our award until the duy of next, on or before which said day our award in writing of and concerning the matters in difference within mentioned and referred to ns 8 hall be made and published. In witness av hereof, we have set our hands the day of , 18 . Witness, A. B. VV. W. C. D. Note. — The observadon appended to the last form apply to this and the two next forms], Eidargement of Time hy the Parties. We, the within-named A. B. and C. D., for our- selves severally and respectively, and for our several and respective heirs, executors and administrators, do hereby give, grant and allow unto the within- named arbitrators further time for makini? their award of and concerning the several matters within referred to them, until the day of next. In witness whereof, we have hereunto set our hands [or^ if the submission was by bond or deed, say, " our hands and seals "], the day of 18 . Signed, [or Signed sealed and delivered] in the presence of A. B. [i.s.] W. W. C. D. [L.S.] Aijpointment of Third Person as Additional Arbitrator. We, the wilhin-named U. V. and X. Z., do by this memorandum under our hands [made before ARBII RATION. 65 We enicr ot proceed in the arbitration within men- tioned] nominate and appoint JNlr. X. Y., of , ?ne third person or arbitrator, to whom, together with ourselves, all matters in difference between the said parties within mentioned shall be referred, •accordins: to the tenor and efl'ect of \h^ within submission. Witness our hands this day of , 18 . Signed in the presence of U. V, Oath to he administered hff Arbitrator to a Witness. You shall true answer rnake to all such questions as shall be asked of you by or before rm; touching •or relating to the matters in difference between A. H. and C. D. referred to my award [or " to the «ward of myself and G. H."], without favor or affection to either party ; and therein you shaU- -speak the trnth, the whole truth, and nothing hni the truth. So help you God. ■Appointment hy Arbitrator for attendance before him: B. ] I appoint , the day of next, V, K at o'clock in the evening, at , for t). J proceeding in this reference. Dated the •day of , 18 . A. A. To Messrs. A. B. and ^ {The arbUrator^s signa" C. D., and their re- I ture^ or the signature spective attorneys or | ofoneormoreofthemy agents, and all others j if more than one.) whom it may concern. J if 66 CABINET LAWYER. If fl Pcrtmptory Appointment fcr (lie Same Purpose I appoint y the day of instant [or "next"], at o'clock in the noon pre-' cisely, at , peremptorily to p?oceed upon and conclude the reference now pending before nf>e be- tween A. B. and C. D. : And I hereby give notice^ that in case of non-arttendance of either party, I shall nevertheless proceed, and inimedialely make my award. Dated the day of , 1& . E. F., Arbitrator. To Messrs. A. B. and C. !>., and tli«ir respective Attorneys or agents, and all others whom it may concern. General Form of Award, To alt to whom thesf? jTresents shall come, I, A. A., of, &c., send greeting: [&c. procred tore- e'te tie wstmment by which the parties referred tor arbitratioriy and so much of its termi^ as may be essential lo show the authority of the arbitrator or umpire vnlh respect to the subject-matter of refer- ence^ and the time, power of enlargement, and man- ner of making the award. Thus if it be by indtn- tuTCy the recital maxjbe as follows : Whereas by an indenture beariogf date, &e., and made between^ &c., I'eciting tl.'^t various diflferonces had arisen , &c.," so staling all that may be material to warrant the following award, and theri proceed thus : Now know ye that I, the said A. A., having taken upont myself the burthen of the said arbitration, and hav" ing heard and duly considered all the allegations? ARBITRATION. 67 and evidence of the said respeclive parlies of and concerning the said matters in difference so referred as aforesaid, do make this my award in writing of and concerning the said matters in difference so referred, and do hereby award, order, determine and direct that [&c. conclude ivi/h a distinct slaU- ment of the arbitrator's decision on alt the points referred to him.] In witness whereof, I have licreunto s( t my hand this day of 18 . Signed in the presence of A. A. W. W. Award where the Suhmission icas hy mutual Bonds. To all to whom these presents shall come, I, A. A., of, &c., send greeting ; Whereas on ? by a bond made and sealed with the seal of C. I)., of, &c., he became held and firmly bound unto A. B., of, &c., in the penal sum of ^ : And whereas on the day and year aforesaid the said A. B., by another bond sealed with his seal, became held and firmly bound unto the said C. D.. in the like penal sum, with conditions written under the said several bonds that the said A. B., his heirs, execu- tors and administrators, and the said C, D., his heirs, executors and administrators, should well and truly stand to, abide by, perform, fulfil, and keep the award, order, and final end and determi- nation of me, A. A., an arbitrator indifferently named and elected, as well on the part and behalf of the abovc-bounden A. B., as the above-boundcn *1. r i 163 CABINET LAWYER. C. D., to arbilrale, award, order, judge and deteN mine of and concerning [&c. here set out such parts ■of the b md as bear upon the award^ and state the •enlargement, if any]. Now, I, the said A. A., having taken upon myself the burthen of the said arbitration, and liaving heard and duly and maturely weighed and considered the several alle- gations, vouchers and proofs made and produced on both sides, do in pursuance of the said submis- sion make and publish this my award of and con- cerning the said premises in manner following ; that is to say, I do award [&c.]. In witness, &c. (as in last form.) Signed in presence of A. A. W. W. Award where the Submission was by agreement, and stating an assent to an enlargeinejit. To all to whom these presents shall come, we A. A., of, &c., and T. A., of, &c., send greeting : Whereas, by a certain agreement in writing under the hands of A. B., of, &c., and C. D-, of, &c., bearing date on or about the day of last reciting that [&c. hre set out such pa ts of the agreement as bear upon the award :] And whereas by an endorsement on the said agreement, bearing date on or about the day of last under the hands of all the said parties to the said agree- ment, they the said parties mutually and recipro- cally consented and agreed that the time for the said arbitrator's making the said award should be ARBITRATION. 69 i'3 enlarged to the day of then next, and that thoy would in all other rcjspects abide by the terms of the said agreement. Now know ye that we the said arbitrators having taken npon ns the burthen of the said reference, and having examined all such witnesses as were produced before us by the said pr r "es respectively, ;.nd having fully weigh- ed and considered all the allegations, proofs and vouchers made and produced before us, do award [&c.]. In witness, &c., [as in preceding forms]. Signed in the presence of A. A. VV. W. T. A. Clauses which may he inserted in an Aw((rd where they suit the circumstances. 1. I award that C. D. do pay to A. B. the sum of$ within days after demand. 2. I award that A. B. do pay to C. D. the sum of $ within days after demand. 3. I award and direct that C. D. do, within one month after demand, pay to the said A. B. the sum of $ , and that the said A. B. do, upon such payment, deliver to the said C. D. a good and suffi- cient conveyance in fee simple, free from incum- brances of all and singular, &c., [dcscrihe lands], 4. I award and direct that the said A. B. do pay to the said C. I), the sum of $ , and that there- upon the said A. B. and C. I), do execute and deliver the one to the other good and sufficient releases of all claims and demands which they may have one against the other. i n\ 70 CABINET LAWYER. u 5. I award ihal the costs of the reference and award be paid by C. D. to A. B. G. I award that each party bear liis own costs of ihe reference, and that the costs of the award be paid by the said A. B. [or C. D., or in equal por- tions by the said A. B. and C. 1).J 7. I award and direct that the said C. D. do pay to the said A. B., the costs incurred by the said A. B., of, and incidental to, the reference and award, [ivhen the arbiiralor is to ascertain the amount add the following words] and I assess the amount of the said costs of the said A. B., at ^ , and the costs of my award at $ 8. And [ further award and direct that the said A. B. and C. D. do each bear his own costs of the reference, and pay one-half tlie costs of the award, and if either parly shai', in the iirst instance, pay the whole or more than half of the costs of the award, the other party shall repay him so much of the amount as shall exceed the half of the said costs. 9. I award and direct that one moiety of the costs of the reference and award be borne and paid by A. B., and the other moiety by C. D. Affidavit of execution of Arbitration Bond, County of , ) I, Y. Z. of, &c., make oath and to wit . J say, 1. That I was present and did see the annexed Arbitration Bond duly signed, sealed and delivered by the therein named A. B., and that I am the sub- gcribing wilness to the execution of the said bond, Y. Z, ''Mkfiad>,.a~ie money aforesaid, and interest thereon from the period aforesaid, at the limes and in manner within mentioned. Now these presents witness^ (hat in pursuance of such agreement and in consideration of the sum of % , of good and lawful money aforesaid, to him, the said C. D., in hand paid by the said E. F. at or before the execution hereof, the receipt where- of he^the said C. D., doth hereby acknowledge, he. i nr i 74 CABINLT LAWyj'R. ! the said C. D., lialli sold, assigned, Iran-si'tTrcd, and set over, and by these presents doth sell, assign, Iransfer, and set over to tiu; «aid E. F., his heirB and assigns, All and singular the within mentioned and deserilied parcel or tract oi land and prciniscs, and IheK'in described as being lot No. , m ihe concession of , together with all the right, title, and interest of him, the said C. D. of, in, and to the wilhin-written articles of agrecmeat .covenants and the lands and premises lluirein re- ferred to, [and all in)provements thereon,] and all benefit and advantage to arise therefrom, To hold to the said E. F., his heirs, cxecntors, administra- tors and assigns, for his and .their own use and benefit forover. And the said C^ D. doth liereby mako, ordain, authorise, constitute, and :ippolnt the said E. F., bis heirs, executors, administrators, and assigns, his true and lawful atloraey and attorneys, irrevo^ cable for him, the said C. D., and in Jiis name, but for the sole use and benefit of the said E. F., his Jieirs, executors and administrators, to demand, sue for, recover and receive of and from the wilhiU' named A. B , his heirs, executors or adminis- trators, aJl such sum or sums o( money and dam- ages as shall or may at any time or time hereafler accrue or grow due to lujn, the said C. D., his heirs, executors, adminstrato/s or assigns, under or by virtue of the said recited articles of agreement and covenants, or any matter, clause, or thing .therein contained, bv reason or on account of the biracb or default of liim^ the said A B., his beirs^ ASSIGNMEATS. 75 executors, or adniinislralors, in relation thereto; the said C. D. hereby also covenanting with the said E. F , his heiis, executors and administrators, that he hath not done or sullered, nor will he do or sufler any act, matter or thing whereby the said E. P., his heirs, executors or administrators, shall or may be hindered or prevented from commencing and prosecuting any action or actions, suit or suits at law or in equity, for the recovery of any princi- pal money or damages under or by virtue of the said articles of agreeruent and covenants referred to, or enforcing the performance of tlie said articlr.'s of agreement, or obtaining such other satisfaction as can or may be had or obtained for tjje same by virtue tliereof; And the said E. F. rlotli herelpy, for himsc'lf, his heirs, executors and administrators, covenant with the said C. D., his heirs, executors and administrators, that lie, the said E. F., his heirs, executors or administrators, shall and will well and truly pay to the said A. B., his executors or administrators, the aforesaid sum of § , residue of the purchase money aforesaid, and all the interest thereon now or hereafter to become due, by the instalments and at the limes mentioned and provided therefor in and by the said recited articles of agreement, and therefrom shall and will indeujnify and forever save harmless the said C. D., his heirs, executors and administrators, and his and their goods and chattels, lands and tenements, by these presents. In witness whereof the said parties to these prujs- ents have hereunto set their hands and seals, 7G CABiiVET LAWYER. i !• Signed, sealed and delivered in the presence of CD. [l.s.] VV. W. E. F. [l.s.] AsHignmcnt of a Bond hy Endorsement. Know all men by these pre'=?ents, that for and in consideration of the sum of % lawful money of Canada, by E. F., of, &e., to the within-mentioned obligee, C. D., in hand well and truly pt.id at or before the sealing and delivery of these presents, the receipt wh<*reof is hen^by acknowledged, he, the said C. I)., hath bargained, sold, assigned, transferred and set over, and by these presents doth bargain, sell, assign, transfer and set over, unto the said E. F., his executors, administrators and assigns, the wilhin-written bond or obligation, and all principal and interest money thereby secured and now (hie or hereafter to become due thereon, and all benefit and advantage whatever to be had, ma !e, or oi)tained by virtue thereof, and all the right, title, interesl, property, claim and demand what- soever, both at law and in equity, of him, the said C. D., of, in, to, or ont of the said bond and nionc^y?*, togetlier with the sai i bond. To have, hold, receive and enjoy the said bond and moneys unto the said E. F., his executors, administrators and assigns, from iiencef'i-ih, for his and their own use and benefit forever; And the said C. D. doth her^'by make, conslilute, and appoint, and in his place and stead put and place the said E. F., his executors, administrators and assigns, the true and li|' 4 'A«. I % n CABINET LAWtEli. rnant, promise and agree to and with tlic said E.F'., Ills executors, adminislrators and assigns, by these presents, in manner followinir, that is to say: that the within mentioned sum of $ remains justly due and owing upon tlie said bond, and that he, the said C. D., hath not received or discharged ali oranyoftlie said moneys due or to gfow due on the saiil bond, nor sliall or will release, nonsuit, vacate or disavow aliy suit or other legal proceed- itigs to be had, made or |)rosecu1ed by virtue of these presents, for the cubing for, recovering, releasing of discharging of the 3aid moneys or an; o*^ ihem, witiiout the license of the said E. F., his executors, administrators or assigns, first had and obtained in Writing, nor shall and will revoke, invalidate, hii. der, or make void these presents, of any authority or power hereby given, without such licen ' ns aforesaid. In witness whereof the said C. D. hath herennto set his hand and seal the day of , 18 . Signed, &c j , C. D. [l.s.] \V. w. Assujnmcnt (Crown Lands.) know all men by these presents, that f., A. B.,of the of , in the County of and Pro- vince of Ontario, for and in consideration of the sum of J , of lawful money of the said l^rovince, to me in hand paid by C. D., of the of , in the County of and Province afore- f5aid, at or before the date hereof, (the re- ASSW^MtKTS. 79 6eipt whereof I do hereby acknowledge,) have bar^ gained, sold, assigned, Iransferred and set over^ and by these presents do bargain, sell, a.ssigny transfer and set over to the said C. D , his heirs and a-signs, all my estate, right, title, interest, claim and demand wiiatsoever, both at law and in cfjnity, of, in and to that certain parcel or tract of land and premises situate, lying and being in the Township of , in the County of and Pro^ vince aforesaid, containing by admeasurement acres, be the same more or less, being composed of Lot number in the Concession of the Township of aforesaid [insert if neces- sary , " subject to the conditions, as to settlement and odierwise, of the Crown Lands Department, which are to be performed."] To have and to hold the same with all and every (he benefil that may or can be derived from the said acres of land, unto the said C. D., his heirs and assigns forever. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . Signed, sealed and delivered It) presence of A. B. [l.s.] y. z. Afp'-hn^lt of Exc<'ntwn. County of , to wit I, Y. Z , of the Township of , in the County of , make oath and say: That 1 was personally ptesent and did see the within named A. B. duly sign and seal, I (I , i ■i.: iv;lH.. m t'AftlNKT LAWYER^ ! 3 and as his act and deed deliver, the williin Asssign>- tnent on the dny of the dale thereof, and that I, this deponent, ani a subcribirtg witrtcsf? thereto. Y. ^. Swoi-n before mc at ;, ) this day of 18 . j A. B. tt Commissioner foV takilig affidavits itl and for the said County. jAsstTgnmmt of Leage. This J^ndenture made the day o^" >, oVie Oiousand eight hundred and , Between A-. B.^ t)f, &e., of tiie firi^t part, atid C. D., of, &c., of the second paft. Whereas, by att Indenture of Lease, bearing date oh oraboiU the day of , one thou^- sand eight himdn d and , and made between J^ iC.,of, &c., of the one part, anJ the said A. B., of the other partly the said J. K. did demise and lease tmto the said A. B. the lessee therein named, his executors, administrators and assigns, all and sin^ gular thai certain parcel or tract of land and prem- ises, situate, lyittg and being, in the, &c. To hold \he same with the appurtenances, unto the said lessee, his executors, administrators atid assigns^ from the day of , one thousand eight hundred and , for and during the tetm of years from thence next ensuing, and fully to b6 complete attd ended, at the yearly rent of $ ^ land under and subject to the lessee's covenants and agreements in the said Indenture of Lease l"escrved ahd contained^ ASSIGNMENTS. 81 Now this Indenture Witnesseth, that in conside- ration of the sum of $ , of lawful money of Canada, now paid by the said party of the second part to the said party- of the first part (the receipt whereof is hereby acknowledged), he the said party of the first part Doth hereby grant, bargain, sell, assign, transfer and set over unto the said party of the second part, his executors, administrators and assigns, All and singular the said parcel or tract of land, and all other the premises comprised in, and demised by, the said hereinbefore in part recited Indenture of Lease, Together with the said Indenture of Lease, and all bentifit and advantage to be had or derived therefrom: To have and to hold the same, together with all houses and other buildings, easements, privileges and appurtenances thereunto belonging or in any wise appertaining, unto tbe said party of the second part, his execu- tors, administrators and assigns, from henceforth for and during all the residue of the said term granted by the said Indenture of Lease, and for all other the estate, term, right of renewal (if any), and other the interest of the said party of the first n»art therein ; Subject to the payment of the rent, and the observance and performance of the lessee's cov- enants and agreements in the said Indenture of Lease reserved and contained. And the said party of the first part doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree, to and with the said party of the second part, his executors, administra- tors and assigns, in manner following, that is to say : 6 ''■4 8^ CABINET LAWlrtR^ hi That notwithstanding any act of the said party of the first part, the said hereinbefore in part recited Indenture of Lease is, at the lime of the sealing and delivery of these presents, a good, valid and sub- sisting Lease in the law, and not surrendered, lor- feited or become void or voidable ; and that the rent and covenants therein reserved and contained have been duly paid and performed by the said party of the first part up to the day of the date hereof. And that, notwithstanding as aforesaid, the said party of the first part now has in himself good right, full power, and lawful and absolute authority to assign the said lands and premises, in manner aforesaid, and according to the true intent and meaning of these presents. And that, subject to the said rent, and the lessee's covenants and agreements in the said lease con- tained, it shall be lawful for the said party of the second part, bis executors, administrators and as-- signs, to enter into and upon and hold and enjoy the said premises for the residue of the term granted by the said Indenture of Lease, and any renewal thereof (if any), for their own use and benefit, with- out the let, suit, hindrance, interruption or denial of the said party of the first part, his executorSy administrators or assigns, or any otl.er persons claiming under him or them, and that Iree and clear, and freely and clearly acquitted, exonerated, and discharged or otherwise, by and at the expense of the said party of the first part, his heirs, executors and administrators, well and effectually saved, de- ASSIGNMENT. 83 fended and kept harmless, of, from and against all former and olher gifis, grants, bargains,sales, leases and other incumbrances whatsoever, of the said party of the first part, or any person claiming under him, them or any of them. And that the said party of the first part, hi# heirs, executors, administrators and assigns and all other persons claiming any interest in the said premises, under him or them, shall and will, from time *a time, and at all times hereafter, at the request and cost of the said pirty of the second part, his execu- tors, administrators or assigns, make, do, and exe- cute, or cause and procure to be made, done and executed, all such further assignments and assur- ances in the law of the said premises for more eflfectually assigning and assuring the said premises for the residue of the said term, and any renewal thereof (if any), as by the said party of the second part, his executors, administrators, or assigns, or his or their counsel in the law, shall be reasonably advised or required. And the said party of the second part doth here- by, for himself, his heirs, executors, administrators and assigns, covenant, promise and agree, to and with the said party of the first part, his executors and administrators, that he or the;y, the said party or the second part, his executors, administrators or assigns, shall and will, from time to time, during all the residue of the said term granted by the said Indenture of Lease, pay the rent, and perform the lessee's covenants and agreements therein rospect- ively reserved and contained, and indemnify and 84 CABINET LAWYER. save harmless the said party of the first part, his heirs, executors, and administrators, therefrom and from all actions, suits, costs losses, charges, dama- ges, and expenses, in respect thereof. In witness whereof, the said parties to these presents have hereunto set there hands and seals, the day and year first above written. Signed, seal'jd and delivered in the presence of A. B. [l.s.] Y. Z. CD. [l.s.] Received, on the date hereof, the sum of $ being the full consideration above mentioned. Witness, A. B. Y. Z. MH m Assignment of Lease. (Shorter Form.) This Indenture, made the one thousand eight hundred and day of , , Between A. B., of, &c., of the first part, and C. D., of, &c., of the second part, Witnesseth, that in considera- tion of the sum of $ now paid by the said party of the second part, to the said party of the first part, the receipt whereof is hereby acknow- ledged, he the said party of the first part. Doth hereby assign unto the said party of the second part, his exe- cutors, administrators and assigns, All and singular the premises comprised in and demised by a cer- tain Indenture of Lease, bearing date the day of , one thousand eight hundred and , ASSIGNMENTS. 85 and made between &c., which said premises are more particularly known and described as follows, that is to say ; All and singular that certain parcel or tract of land and premises situate, lying, and being &c., together with the appurtenances. To hold the same unto the said party of the second part, his executors, administrators and assigns, henceforth for and during the residue of the term of years from the day of , 18 , thereby granted, and for all other the estate, term, and interest (if any) of the said party of the first part therein. Sub- ject to the payment of the rent and the performance of the lessee's covenants and agreements in the said Indenture of Lease reserved and contained. And the said party of the first part, for himself, his heirs, executors, and administrators, doth hereby covenant with the said party of the second part, his executors, administrators and assigns, that not- withstanding any act of the said party of the first part, he hath now power to assign the said premises in manner aforesaid. And that subject to the pay- ment of the said rent, and the performance of the said lessee's covenants, it shall be lawful for the said party of the second part, his executors, admin- istrators and assigns, peaceably and quietly to hold and enjoy the said premises hereby assigned durinn; the residue of the term granted by the said Indenture of Lease, without any interruption b) the said parly of the first part, or any other persons claiming under him, free from all charges and incumbrances what- soever, of him the said party of the first part. And that he the said party of the first part, and all per- w 86 CABINET LAWYER. sons lawfully claiming under him will, at all times hercaflcr, at llie request and costs of the said parly of the second part, his execulors, administrators and assigns, assign and confirm to him and them the said premises for the residue of the said term as ihtj said party of the second part, his execulors, ad- ministrators, or assigns, shall direct. And the said party of the second part, for himself, his heirs, executors and administrators. Doth hereby covenant with the said parly of the first part, his executors and administrators, that he, the said party of the second part, his executors, administra- tors or assigns, will, from time to time, pay the rent and perform the lessee's covenants in the said Inden- ture of Lease contained, and indemnify and save harmless the said party of the first part, his heirs, executors and administrators, from all losses and expenses in respect thereof. In witness whereof, the said parlies to these pre- sents have hereunto set llicir hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [l.s.] Assignment of Lease hy Administrator. Know all men by these presents, that I, A. B., of &c. ; administrator of all and singular the goods and chattels, rights and credits, of the within-named C. D. deceased, for and in consideration of the sum of $ , lawful money of Canada, to ine in hand '811 ASSIONMKNTS. 87 well and iruiy paid by E. F., of, &c., at or before the sealing and delivery of these presents, ihe recept whereof is hereby acknowledged, have bar- gained, sold, assigned, Iransferred and set over, and by these presents do l)argain, s-'ll, assign, transfer, and set over, untd the said E. F., his executors, administrators and assigns, all and singular the parcel or trad of land and premises comprised in the within-written Indenture of Lease, and all the estate, right, title and interest which I, the said A. B., as administrator of the said C. D. as afore- said, or otherwise, now have, or at any time here- after shall or may have, claim, challenge or demand, of, in, or to, all or any of the said premises, by virtue of the said indenture of lease or otherwise, as administrator of the said C. I). To have and to holfl the said parcel or tract of land, and all and singular other the premises, with their and every of their appurtenances, unto the said E. F., his execu- tors, administrators and assigns, for and during all the re-t, residue, and remainder yet to come and unexpired, of the within-mentioned term of years, subject, nevertheless, to the yearly rent of $ in and by the said indenture of lease reserved and contained, and to become due and payable, and to all and every the covenants, clauses, provisoes and agreements th rein contained. In witness whereof, I, the said A. B., have here- unto set my hand and seal the day of , 18 . iSigned, &c., A. B. [i^s-l «rw AS ^, IMAGE EVALUATION TEST TARGET (MT-3) I // 4> #? ^ A :/i 4' 1.0 !f ;: liiM 50 112.5 13.2 I.I IS Ui 112.0 1.8 1.25 1.4 1.6 <« 6" — ► V] *^ / % % Photographic Sciences Corporation # •^ ^ rtV s :\ V \ ^9) V ci^ %^ <». 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 88 CABINET LAWYER. K I m ■; »;■; Assignment from Trader to Secure Debs. This Indenture, made the day of , one thousand eight hundred and , Between A. B., of, &c.,of the first part, C. D., wife of the said A. B., of the second part, and E. F., of, &c.y of the third part. Whereas, the said party of the first part is justly and truly indebted unto the said party of the third part in the sum of $ or thereabouts, and hath agreed to execute unto the said party of the third part, an assignment of all his estate and interest in *he real and personal estate and efiects hereinafter ■i ^.'tioned, for the purpose of paying thereout or securing the payment of such indebtedness. Now this Indenture witnessethy that in pursu- ance of the said ngieement, and in consideration of the sum of five shillings of lawful money of Canada, to the said party of the first part paid by the said party of the third part, at or before the execution di these presents (the receipt whereof is hereby ac>- knowledged), he, the said party of the first part, Hath granted, bargained, sold, released, conveyed, assigned, transferred, and assured, and by these presents Doth grant, bargain, sell, release, convey, assign, transfer and assure unto the said party of the third part, his heirs, executors, administrators and assigns. All and singular the real estate speci- fied in the Schedule to these presents, marked A, and all ti)e household goods, books, credits, furni- ture, stock in trade, bonds, bills, notes, books of accounts and securities for money, and all other the ASSIGNMENTS. 89 personal estate and effects, now belonging, due, or owing to him the -aid parly of the first part, speci- fied in the C ihedule to these presents, marked J5 ; the greater part of which are now in nnd upon tlie premises upon which the said party of the first part now carries on bis said business, and which said goods are forthwiUi, upon the execution of these presents to be delivered into the f>ossession of the said party of the third part, or his agent or agents in that behalf; and all reversions, remain- ders, rents, issues and profits, and all the right, title, interest, trust, possession, properly, claim, and demand whatsoever, at law or in ecpiity, of him the said party of the first part, of, in, to, out of, or upon the same real and personal estate, goods, chattels, effects and property, respectively. Together with the appurtenances, and together with all books, writings, deeds, bills, notes and receipts, papers and vouchers, touching or concerning the said premises hereby assigned, or any part thereof. To have and to hold, receive, take, and enjoy, the said real and personal estate, goods, chattel-*, stocks, moneys, credits, bonds, bills, notes, securi- ties for money, and all and singular other the pre- mises hereby conveyed and assigned, or intended so to be, unto the said party of the third part, his heirs, executors, administrators and assigns, hence- forth forever, to and for his and their sole and only use, and as and for his and their own proper goods, chattels, moneys and effects absolutely. Subject nevertheless, and to and for the intents and purposes following, that is to say : I 90 CABINET LAWYER. That the said party oftlie third part, or his agent or ag'^nts in that behalf, do and shall with all con- venient speed sell and dispose of the said real and personal eslate, stock, chattels and effects, either together or in parcels, and either by public auction or private contract, for the best price or prices that can be reasonably obtained for the same, and either for ready money or for credit or otherwise, as shall be deemed most beneficial, the receipts of the said party of the third part being sufficient discharges for the same, and do and shall receive, collect and get in all and singular the credits and sums of money hereby assigned or intended so to be, and apply the said moneys to arise by such sale or sales, and to be received or collected as aforesaid, after payment of all costs, charges and expenses of these presents, and incidental thereto, and in carrying out the purposes thereof, or otherwise in relation thereto, in and towards the payment and liquida- tion in full of the said indebtedness of the said pnrty of the first part to the said party of the third part, and after such payment do and shall pay the residue and surplus, if any, to the said party of the first part, his executors, administrators or assigns, or as he or they shall rlirect. And for the better carrying out of these presents, the said party of the first part doth hereby nominate and appoint the said party of the third part, his executors, administrators and assigns, the true and lawful attorney and attorneys of him the said pnrty of the first part, for him and in his name to do, per- form, and execute all such acts, deeds, matters, I ASSIGNMENTS. 91 and things what!«oover in relation to all and singu- lar tli(' real and pers^onal estate and eHV-cts and prenjises hereby assigned as aforesaid, as the said party of the third part may deem necessary for more eifectually carrying into effect the true intent and meaning hereof; and that for the purposes aforesaid it shall be lawful for the said |)arly of the third part, his servants and agents, io continue in and to occupy the said premises now in the occu- pation of the said party of the first part, until the trusts of this assignment are fully executed. Provided also, that any collateral or other secu- rities, by way of judgments or otherwise, which the said party of the third part now holds against the said party of the first part in respect of his said indebtedness or any part thereof, shall not be preju- diced or affected by this assignment, or otherwise than by payment of such indebtedness out of the proceeds to arise hereunder. And provided, further, that the said party of the third part shall not be answerable or chargeable as implied trustee hereunder, except for wilful neglect or default. And the said party of the second part, wife of the said party of tlie first part, in consitleration of five shillings to her paid by the said party of the third part, hereby releases unto the said party of the third part all dower, and right or title to dower, in the said lands hereby conveyed and ever part thereof. In witness whereof, the said parties to these pre- k il r^i «IHil 92 CABINET LAWYER. sents have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [l.s.] E. F. [i..s.] li ^w li i' Assignment of Judgment. This Indenture, n^ade the day of 18 , Between A. B., of, &o., of the first part, and C. D., of, &:c., of the second part. Whereas, the said party of the fir'it part, on or about the day of , one thousand eight hundred and , recovered a judgment in the Court of for Upper f .nada, at Toronto, for the sum of ^ against And whereas, the said party of the first part hath agreed to assign the said judgment, and all benefit to arise therefrom, either at law or in equity, unto the said parly of the second part, in manner here- inafter expressed. Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of the sum of $ , of lawful money of Canada, to the said party of the first part in hand paid by the said party of the second part, at or before the execution hereof, the receipt whereof is hereby acknow- ledged, he the said parly of the first part, Hath bargained, sold and assio'ned, and by these pre- sents Doth bargain, sell and assign, unto the said party of the second part, his executors, adminis- ASSIGNMENTS. 9$ trators and assigns, All that the said hereinbefore mentioned judgment, and all benefit to be derived tht^refrom, either at law or in equity, or otherwise howsoever. To hold, receive and take the same, and all benefit and advantage thereof, to and for his and their own proper use, and as and for his and iheir own proper moneys and effects, absolutely. And the said party of the first part hereby con- stitutes and appoints the said party of the second part, his executors and administrators, to be his true and lawful attorney and attorneys, at the proper costs and charges of the said party of the second part, his executors and administrators, to take and prosecute all and every remedy or pro- ceeding at law or in equity, which the said party jf the second part, his executors or administrators, shall hereafter consider advisable in reference to the said judgment, the said party of the second part, for himself, his heirs, executors, and adminis- trators, hereby agreeing to indemnify and save harmless the said party of the first part, his heirs, executors and administrators, of and from cH dam- ages, costs, charges and expenses in respect thereof. In witness, whereof, the said parlies to these pre- sents have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [h.s.] Y. Z. C. D. [L.S.] ^: m 94 CABINET LAWYER^ I* -V. Assignment of Mortgage, This Indenture, made the day of , ond thousand eight hundred and , Between A. B., of the , in the County of and Province of Ontario, of the first part, and C. D., of the , in the County of and Province afore- said, of the .second part. Whereas, by an Indenture of Mortgage bearing date the day of , one thousand eight hundred and , and made between E. F. of, &c., of the first part, and the said A. B. of the second part, it is witnessed, that in consideration of the sum of $ , of lawful money of Canada, to him the said E. F. paid by the said A. B., He, the said E. F., did grant, bargain, sell, alien, re- lease, enfeoff, convey, and confirm unto the said A. B., his heirs and assigns, all and singular that certain parcel or tract of land and premises situate, lying and being in the, &c. ; To have and to hold the same unto the said A. B., his heirs and assigns, forever. Subject, nevertheless, to a proviso iherein contained for redemption upon payment by the said E. F. to the said A B. of the sum of % of law- ful money aforesaid and interest, on the day and time and in manner therein mentioned. And whereas, the sum of $ is now owing to the said A. B. on the said in part recited security, apd the said A. B. hath agreed to sell and assign the said lands and premises, and all the moneys thereby secured, as well as the said Indenture of Mortgage, and all his interest therein, unto the said ASSlGNMKNtS. 95 C. D. for the consideration h(Teinafter mentioned. Now tliis Indcnlnre witnes8eth, that tlie said party of the first part to this Indcnlnre, in consideration of tlic sum of $ , of lawful money of C anada aforesaid, to hini by the said party of the second part to this Indenture in hand paid, the receipt whereof he, the said party of the first part, doth hereby acknovvledge, and of and from the same, and every part thereof, acquit, release and discharge the said party of the second part, his heirs, execu- tors, administrators and assigns, forever; He, the said parly of the fir^t part, hath bargained, sold assigned, transferred, and set over to the said party of the second part, his heirs, executors, administra- tors and assigns, the said principal sum of ^ , so due and owing to him as aforesaid, and secured by the hereinbefore in part recited Indenture or Mort- gage, and also all future and other sums of money which from henceforth shall or may grow due by way of interest for or on account of the said prin- cipal sum of J . And also the said messuages and tenements, lands and premises, comprised in the said in part recited Indenture of Mortgage, and all the estate, right, title, interest, claim, and demand whatsoever of him, the said party of the first part, of, in, to, or out of the said premises or any part thereof, or the said principal and interest monies. To have and to hold, receive and take, the said principal sum of $ and interest, and all and singular other the premises hereby assigned, and every part thereof, unto the said party of the second 96 CABINET LAWYEH. fi 1 i part, his heirs, executors, adininislrators or assigns, to and for his and iheir own proper moneys, securi- ties, and eiTects absolulely; And, for the more efiectually enabling the said party of ihe second part, his executors, administrators and assigns, to recover and receive the said principal sum of $ and interest, and to have and take the benefit of the security for the same, he, the said party of the first part, hath made, ordained, constituted, and ap- pointed the said party of the second part, his exe- cutors, administrators and assigns, his true and lawful attorney or attorneys, to ask, demand, sue for, recover, and receive from the said E. F., his executors, administrators, or assigns, or any other person or persons liable to pay the same, the said sum of $ and interest, and to commence and prosecute any action, suit or other proceeding, either at law or in equity, for the recovery of the same, and on receipt of the said principal moneys a''d interest, or any part thereof, to give sufficient receipts and discharges. And to make, do and exe- cute all or an^ other act, matter or thing, for recovering and receiving the said principal sum and interest ; And the said party hereto of the first part, for himself, his heirs, executors, administra- tors and assigns, covenants with the party hereto of the second part, his heirs, executors, administra- tors and assigns, that the said principal sum of $ is now owing to him, the said party hereto of the first part, under the said security, and that he has done no act or thing whereby the said prin- ASSIGNMENTS. 97 cipal sum of $ is or has been received, released, discharged, or incumbered. In witness whereof, the parties to these presents have herennio set their hands and seals, the daj and year first above written. Signed, scfiled and deliveied in the presence of y. z. A. B. [l.s.] C. D. [l.s.] Assignment of Mortgage. {By Indorsement.) day of one This Indenture, mnde the thousand eight hundred and , Between C. D., within named, of the first pari, and E. F.. of. &c., of the second part, VVilnesseih, that the party of the first part, in consideration of the sum of $ , to him paid by the party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold and assigned, and by these presents doth grant, bargain, sell and assign, to the party of the second part, his heirs, ^xecutors, administrators and assigns, all tlie right, title, interest, claim and demand whatsoever of him, the party of the first part, of, in and to the lands and tenements men- tioned and described in the within mortgage, And also to all sum and sums of money secured and payable thereby and now remaining unpaid, To have and to hold the same, and to ask, demand, sue for, and recover the same, as fully to all intents and purposes as he, the party of the first part, now holds and is entitled to the same. f .% 98 CABINET LAWY'CR. In Witness whereof, the parties to these presents have hereto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of C. D. [l.s.] Y. Z. U v'- ; li; Aasignment of Delta. This Indenture made the day of , 19 . Between A. B., of, &c., of the one part, and C. D., of, &c., of the other part : Whereas, the said A. B. hath, for some time past, carried on the business of a Tailor, at , aforesaid, and in the course of such business the several persons whose names are mentioned in the schedule hereunder written, have become indebted to him in the several sums of money set opposite to their respective names in such schedule, and he hatii contracted with the said C. D. for the absolute sale of the same debts for the sum of ^ Now this Indenture witnesseth that in considera- tion of $ , to the said A. B., paid by the said C. D., on the execution hereof, (the receipt whereof is hereby acknowledged), He, the said A. B. doth hereby assign and transfer unto the said C. D., his executors, administrators and assigns, All and sin- gular the several debts and sums of money men- tioned in the schedule hereunder written, which are now due and owing to the said A. B. from the several persons whose names are mentioned in the same schedule. And all the right and interest, if«t' i ASSIGNMENTS. 99 claim and demand whatsoever of the said A. B., to and in the same debts and premises. To have, receive and take the said debts, sums of monev ;md premises hereby assigned unto and by the said C. D., his executors, administrators and assigns, for his and their own absolute use and benefit. And the said A. B. dolh hereby absolutely and irrevo- cably constitute and appoint the said C. 1)., his executors, administrators and assigns, the true and lawful attorney and attorneys, of him the said A. B., his executors or administrators in his or their name or names, or otherwise to receive ; and if the said C. D., his executors, administrators or assigns, shall deem it e> , ediciit so lo do, to sue for and recover the said debts^ sumsof money and premises hereby assigned, or any of them ; and when the same respectively, or nny part thereof, si "dl bn re- ceived, to give discharges for ilie same. AnrI gen- erally to perform all acts whatsoever which shall be requisite in order to give complete effect to the assignment hereby made, and to appoint a substi- tute or substitutes for all, or any of the purposes aforesaid, and such substitution at pleasure to revoke ; the said A. B. hereby ratifying and con- firming and agreeing to ratify and confirm whatso- ever his said attorney or attorneys, or his or their substitute or substitutes, shall lawfully do in the premises. And the said A. B. doth hereby for him- self, his heirs, executors and admmistraiors, cove- nant with the said C. D., his executors, administra- tors and assigns, that the said several debts hereby assigned, or intended so to be, are now due and \ ' ''■$ U f 100 CABINET LAWYER. trl owing to liim, and that he, his executors or admin- istrators v\ ill not at any lime hereafter revoke the power or -authority hereinbefore contained, or receive, compound for or discharge the said several debts, or any, or either of them, or any part thereof respectively, or release or interfere in any action or suit which shall or may be commenced in his, their, or either of their names, in pursuance of these presents, for the recovery of the same, without the consent in writing o, the said G. D., his execuiory, administrators or assigns, but will at all times avow, justify and confirm all such matters and things, process and proceedings, as the said C. D., his executors, administrators or assigns, or any other person or persons, by or through his or their direction or procurement, shall in pursuance of the power hereinbefore contained, do commence, bring or prosecute upon, or by reason or means of the said debts and premises ; and further that he, the said A. B., his executors and administrators, will at all times hereafter on the request, and at the costs of the said C. D., his executors, administrators or assiius, make, do and execute all such further assignments, letters of attorney, acts, deeds, natters and things, for the more effectually assigning and and assuring unto the said C. D., his executors, administrators and assigns, the said several debts and premises, and enabling him or them to recover and receive the same respectively, for his and their own absolute use and benefit in manner aforesaid, according to the true intent and meaning of these presents, as by the said C. D., his executors, i ASSlONMENTd, lot administrators or assigns, shall be reasonably required. And the said C. D., doth hereby for himself, his heirs, executors, administrators and assigns, covenant with the said A. H., his execu- tors and administrators, that he, the said C. D., his executors, administrators or assigns, will at all times hereafter save harmless, and keep indemnified the said A. B., his executors or administrators, from and against all losses, costs, charges, damages and expenses, by reason of his or their name or names being used in any action, suit or other proceeding, which shall or may be brought or instituted by the said C. D., his executors, administrators or assigns, or his or their substitute or substitutes under or by virtue of the power or authority in that behalf, here- inbefore contamed, or otherwise by reason or in consequence of the same power or authority, or in relation thereunto. In witness, &c.. Signed, &c., A. li. [l.s.] Y. Z. C. D, [l.s.] The Schedule to which the above-written Inden- ture refers. Name of Debtor. Amount of debt. Name of Debtor, Amount of debt. John Smith William Jones. John Jacobs. $100 (0 $150 00 $200 00 Henry Bastion. &c, $118 25 li 102 CABfNET LAWYER* Received on the day of the date of the above written Indendure of the above named C. D., the sum of $ , being the consideration money above mentioned to be paid by him to me. Witness, A. B. Y. Z. NoTK. — In all cases^ where the consideration for a deed is money paid by the one parly to the other ^ a receipt^ in the above form, should be written upon the Instrument, and signed and witnessed Another Foim. Know all men by these presents, that I, A. B., of &c., in consideration of the sum of $ paid to me by C. D., of, &c., (the receipt of which is hereby acknowledged) do hereby sell, assign and transfer, unio the said C. D., his executors, admin- istrators and assigns, all my claims and demands against E. F., of, &c., for debt, due to me and all actions against the said E. F., now pending in my favor and all causes of action whatsoever against him. And I do hereby nominate and appoint the said C. D., his executors, administrators and assigns, my attorney or attorneys irrevocable, and do give him and them full power and authority to mstitute any suit or suits against the said E. F., and to prosecute the same, and any suit or suits which are now pending, for any cause or causes of action in favor of me, against the said E F., to final judg- ment and execution : and such execution to cause to be saiisficd by levying the game ou any reaj or per^ ASSIGNMENTS. 103 sonal estate of the said E. F. in due course of law, and tlie proceeds thereof to take and apply to his or their own use ; but it is hereby expressly stipu- lated that all such acts and proceedings are to be at the proper costs and charges of the said C. D., his executors, administrators or assigns, without expense to me. And I do further empower the said C. D., his executors, administrators and assigns, to appoint such substitute or substitutes as he or they shall see fit, to carry into effect the objects and purposes of this authority, or any of them, and the same to revoke from time to time, at his or their pleasure, I, the said A. B., hereby ratifying and confirming all the lawful acts of the said C. D., his executors, administrators and assigns, in pursuance of the foregoing authority. Witness my hand and seal this day of 18 . Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Assignment of a Poliey of Fire Insurance hy Indorsement. Know all men by these presents, that I, the within named A. B., in consideration of (he sum of $ to rae paid by CD., of, &c., (ihe receipt whereof is hereby acknowledged) have assigned and tran>ferred, and by these presents do absolutely as>ign and transfer unto the said C. D., his execu- tors, administrators and assigns, All my right, title 104 CABINET LAWYER. and interest to and in the within policy of insur- ance, with full power to use my name so far as may be necessary to enabh; him fully to avail himself of the interest herein assigned, or hereby intended to be assigned,, but at his own costs and charges. As witness my hand and seal, this day of 18 . Signed, sealed and delivered jn the presence of A. B. [l.s.] Y. Z. Assignment or Bill of Sale of Goods, This Indenture made the day of 18 , Between A. B., of, &c., [vendor)^ of the one part, and C D., of, &c., 'puichaser)y of the other part. Whereas, the said A. B. hath contracted with the said C. D. for the absolute sale to him of the goods, chattels, furniture and efl'ects comprised in the scheduTe hereunder written or hereto annexed, and now on the premises Niluate at, &c., (describe the plac(^), at or for the price or sum of $ . Now this Indenture witnesselh, that in pursuance of the aforesaid agreement, and in consideration of the sum of 'S , now paid to the said A. B. by the said C. D., the receipt whereof is hereby acknow- ledged. He, the said A. B., by these prese*nts doth assign and set over unto the said C. D., his execu- torsj administrators and assigns, All and singular the household furniture, goods, chattels and effects comprised and set forth in the schedule hereunder written or hereunto annexed, and all the advantages Assig:xME.nT9. 105 thereof, and all llic right, title, interest, possibility, properly, claim and demand of him, the said A. B., into, out of or upon tlie said furniture, goods, clial- tels and eflecls, and every part thereof. To have, hold, receive and take the said furniture, gooils chattels and ellects hereby assigned or expressed, or intended so to be, unto the said C. 1)., ids exe- cutors, administrators and assigns absolutely. And the said A. B. doth hereby for himself, his heirs, executors and administrators covenant with the said C. D., his executors, administrators and assigns, that he, the said A. B., now hath in himself abso- lute authority to assign the several premises hereby assigned or expressed, and intended so to be, unto the said C. D., his executors, administrators and assigns, in manner aforesaid: And that the said A. B., his executors and administrators, and all persons claiming under him and them, shall at any lime or times hereafter, on the request, and at ihe costs and charges of the said C. D., his executors, administrators and assigns, do and execute all such acts and assurances for more efi'ectually assur- ing the said premises hereby assigned orexpressed, and intended so to be, unto the said C. D., his exe- cutors, adtninistrators and assigns, and placing him and them in possession of the same in m .nner aforesaid and acconling to the true intent and meaning of these presents, as by him or them, or his or their counsel in the law shall be devised, advised and required. In witness whereof the parlies to these presents 106 CABINET LAWYER. have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. The Schedule referred to in the above written Indenture. {Here set out a full and particular description of the goods — they must be described with such detail as to render them easy of identification.) Another Form. This Indenture, made day of 18 , Between A. B., of, &c., of the first p rt, and C. D., of, &c., of the second part. Whereas, the said party of the first part is pos- sessed of the chattels hereinafter set forth and enumerated and hath contracted v/iththe said party of the second part, for the sale to him of the same, at the sum of $ Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of the sum of % of lawful money of Canada, now paid by the said party of the second pnrt la ihi; said party of the first part, (the receipt whero ^ iiereby acknowledged). He, the said party ' r.he first part, hath bargained, sold, assigned, iransferred and set over, and by these presents, doth bargain, sell, assign, transfer and set over unto the said parly of the second part, his executors, administra- ASSIGNMENTS. 107 tors and assigns. All those the said chattels and effects following, that is to say, {here enumerate the semra! articles intended to be assigned with such cerlaivty as that they may he easily indenti- fied). And all the right, title, interest, property, claim and demand whatsoever, both at law and in equity or otherwise howsoever, of him the said parly of the first part, of, in, to and out of the same, and every part thereof. To have and to hold the said hereinbefore as- signed premises, and every part thereof, with the appurtenances, and all the right, title, and interest of the said party of the first part therein as afore- said, unto and to the use of the said party of the second part, his executors, administrators and as- signs t > and for his and their sole and only use forever. And the said party of the first part doth hen^by, for himself, his heirs, executors and administrators, covenant, promise and agree with the said party of the second part, his executors and administrators, in manner following, that is to say : 'J'hat he, the said parly of the first part, is now rightfully and absolutely possessed of and entitled to the said hereby assigned premises and every part thereof, and that the said party of the first part now has in himself good right to assign the same unto the said party of the second part, his execu- tors, administrators and assigns, in manner afore- said and according to the true intent and meaning of these presents ; And that the said party hereto gl the j?eeond partj his executors, administrators r. .f- 108 CABINET LAWYER. and assigns, shall and may from time to time and at all limes hereafter peaceably and quietly have, hold, possess and enjoy the said hereby assigned premises and every part thereof to and for his and Iheir own use rnd benefit, without any manner of hindrance, interruption, molestation, claim or de- mand whatsoever, of, from or by him, the said party of the first part, or any person or persons whomso- ever : And that free and clear and freely and abso- lutely released and discharged or otherwise at the costs of the said party of ihe first part, eflbctually indemnified from and against all former and other bargains, sales, gifts, grants, titles, charges, and incumbrances whatsoever ; And, moreover, that he, the said party of the first part, and all persons right- fully claiming or to claim any estate, right, title or interest of, in or to the said hereby assigned prem- ises or any part thereof, shall and will from time to time and at all tiu.es hereafter, upon every reason- able request of the said party of the second part, his executors, administrators, or assigns, but at the costs and charges of the said parly of the second part, make, do and execute or cause to be made, done and executed all such further acts, deeds, and assurances for the more effect ually assigning and assuring the said hereby assigned premises unto the said parly of the second part, his executors, ad- ministrators and assigns, in manner aforesaid and according; to the true intent and meaning of these presents, as by the said party of the second part, his executors, administrators or assigns, or his counsel, shall be reasonably advised and required. AUCTIONS AND AUCTIONEERS. 109 In Witness whereof, the said parlies to these pre- sents have hereunto set their hands nnd seals, the day and year first above written. >igned, sealed and delivered in the presence of A. B. [l.s] Y. Z. [Note. — ^Vhere goods me.*!ioned in a Bill of Sale^ are at once handed over to the purchaser, and an actual and continued change of possess' on takes place, the Bill of Sale does not require to 6^ fi'edy nor is it necessary to make any affidavit as to the bona-Jides oj the transaction. But whtre the goods are allowed to remain in (he hands of the seller, affi'avits must he made, and the Bi'l of Sale filed, jus! as in the case of a Chattel Mortgage : — Which see Post.] CHAPTER V. AUCTIONS AND AUCTIONEERS. An auciioneer is a person who is authorized t» sell goods or merchandise at public auction or sale for a recompense, or (as it is commonly called) a commission. He cannot buy: he can only sell.' Priuiarily, he is deemed the agent of the seller of the goods only ; but for certain purposes he is w: no CABINET Lawyer. also deemed to be the agent of both buyer and sel- ler. Thus, by knocking down the good.s sold to the person who is the highest bidder, and inserting his name in his book or mcMTiorandura, he is con- sidered as the agent of both parties ; and the memo- randum so made by him will bind both parlies, as being a memorandum sufficiently signed by an agent of both parties within the statute of Frauds before referred to. Before the knocking down of the goods, he is, indeed, exclusively ihe agent of the seller ; but after the knocking down, he be- comes also the agent of the purchaser, and the latter is presumed to give him au hority to write down his name as purchaser. An auctioneer has also a special property in the goods sold by him, and a lien on the same and the proceeds thereof, for his commissions ; and he may sue the purchaser at the sale in his own name, as well as in the name of his principal. An auctioneer can sell only for ready money, unless there be some usage of trade to sell on credit, or unless the terms of sale are on credit. Auction sales should be conducted with rigid fairness, and due notice of the sale ought to be given. Every bona fide bid should be accepted. Before proceeding to sell, the conditions of sale ought to be read or announced. Usually these con- ditions are written or printed ; but the verbal decla- rations of the auctioneer at the sale, where they do not contradict the written conditions, are binding. Although the entry by the auction-^er in his book is a sufficient memorandum to bind both seller and buyer, yet in every sale of land it is usual to have AUCTIONS AND AUCTIONEERS. Ill agreements of sale and purchase signed by auclion- eer and purchaser. Forms of such agreements, and ordinary condi- tion of sale, are subjoined. Moiiorandum to be signed hy (in Auctionrcr, after a sale of laud. I hereby acknowledge that A. B. has been tins day dec)a»ed by me the highest bidder, and pur- chaser of [describe the land] at the sum of $ , [or at the sum of $ per acre or foot,] and that he has paid into my hands the sum of $ , as a deposit, and in part payment of the purchase money, and I hereby agree that the vendor, C. D., shall in all respects fulfil the conditions of sale herto annexed. Witness my hand, the day of , 18 « J. S., Auctioneer, Memorandum to he signed hy Purchaser. I hereby acknowledge that I have this day pur- chased at public auction all that [describe the land] for the sum of $ , [or for the price of $ per acre or per foot,] and have paid into the hands of J. S., the auctioneer, the sum of $ as a deposit, and in part payment of the said purchase money ; and I hereby agree to pay the remaining sum of IJ , unto C. D , the vendor, at , on or before the day of , and in all other respects on my part to fulfil the annexed conditions of sale. Witness my hand, this day of , 18 . A. B. m if 112 CABINET I.aWYER. Conditions of Sale of Good* 1. The hij^hcst bi(r(lpr to be the purchaser ; and, if any dispute shall arise as to ihe last or hii^hest bidder, the pro; eriy shall be immediately |)ut up again at the former bidding. 2. No person to advance less than % at a bidding. 3. The purchasers to give in th(Mr names, and places of residence \ij required), and pay down a dej)osit of per cent, in part payment of purchase money ; in default o( which, the lot or lots so pur- chased will be immediately put up again and re-suld. 4. The lots to be taken away at the buyer's expense, within three days after, and the remainder of the purchase money to be paid on or before delivery. 5. Upon failure of complying with these condi- tions, the deposit money shall be forfeited ; and all lots uncleared within the time aforesaid shall be resold by public auction or private sale, and the deficiency, if any, on such re-sale shall be made good by the defaulter. Conditions of t^ale of Land. 1. The highest bidder shall be declared the pur- chaser ; and, if any dispute shall arise as to the last or best bidder, the property shall be immediately put up again at the former bidding, 2. No person shall advance at any one bidding less than $ , or retract his or her bidding ; AUCTIONS AND AUCTIONEERS. 113 f and tlio vcn(lo^^<, by themselves or their agent, shall be at liberty to bid at nee for the property. 3. The j)urehaHer shall pay, irnrriediately after the gale to the vendor's solicitor, a deposit of per cent, in part of the purchase money, and sign an agreement for the payment of the remainder on or belx)re the day of , 18 . The prem- ises will be sold subject to all defects or imperfec- tions of title subsisting before the commencement of the title of tbe present vendors, and not occas- ioned by any act done by them or any person claim- ing under or in trust for tliem ; and subject also to the several mortgages outstanding appearing on the certificate of the registrar of the county of , which will be produced at the time of sale. 4. The purchaser shall accept a conveyance from the vendors, to be piepared at his own expense, on payment ol the remainder of tbe purchase money ; and possession will be given on completion of the purchase : from which time the purchaser shall be enlilled to the rents and profits. But if, from any cause, the remainder of the purchase money shall not be paid on the day of , 18 , the purchaser shall pay interest for the same at the rate of per cent, from that day to the day of pay- ment ; but, nevertheless, this stipulation is without prejudice to the vendor's right of re-sale under the last of these conditions. 5. If any mistake be made in the description of the property, or there be anj other error in the par- ticulars of sale, the same shall not annul the sale, font a compensation or equivalent shall be given, oar Jo ■■■ ^14 CABINET LaWYKR. ^ken as the case may require, according to the average of the whole purchase money (on such ^rror or mis-statement being proved): such compen- sation or equivalent to be settled by two rg over ^00 ; and no person shall retract his bidding;^ K <■ :» AUCTIONS AND AUCTIONEERS. 115 2. Tho highest bidder shall be the purchaser ; and, if any dispute arise as to the last or highest bidder, the property shall be put up at a former bidding. 3. The parlies to the suit, with the exception of the vendor, and (naming any parties^ trustees^ agpnts, or othe Sy in a fiduciary situation) are to be at liberty to bid. 4. The purchaser shall, at the time of sale, pay down a deposit in the proportion of ^10 for every $100 of his purchase money to the vendor or his solicitors, and shall pay the remainder of the pur- chase money on the day of next, and upon such payment the purchaser shall be entitled to the conveyance, and be let into possession. The purchaser at the time of such sale to sign an agree- ment for the completion of the purchase. 6. The purchaser shall have the conveyance pre- 'pared at his own expense, and tender the same for execution. 6. If the purchaser shall fail to comply with the conditions aforesaid, or any of them, the deposit and a'l other payments made thereon shall be for- feited, and the premises may be re-sold, and the deficiency, if any, by such re-sale, together with all charges attending the same or occasioned by the defaulter, shall be made good by the defaulter. r 11. '-i ,' ' 1 •rn'm^mmmmmmmmnm^HIII w ^,1 f CHAPTER VI. BILLS AND NOTES. A Bill of Exchange (foreign or inland) is defined to be an open letter of request from one man to another, desiring him to pay a sum named therein to a third person, on his account. Foreign Bills are such bills as are drawn in any foreign country upon a person residing here or abroad, or drawn in this country upon a person residing in a foreign country, and payable abroad. , Inland Bills are those bills which are drawn in Canada upon any person residing in any place within the province. Foreign bills bear so strong a resemblance in Iheir form to inland bills that there is no occasion to notice them separately. The law affecting them is, in general, identical with that regulating inland bills. The leading distinctions are, that a formal protest is necessary (as regards the drawer and indorse r) if they be dishonored on presentment for acceptance or payment. It is also observable that the laws and customs of the foreign country in which a foreign bill is payable, or in which the f :: IH! I 51 SILLS AND NOTES. 117 I party to be charged resides, may, even in our Courts, regulate the time of payment, protest, &c. It may also be mentioned, as a slight distinction between a foreign and an inland bill, that the for- mer is, in general, drawn in sel>; ; that is, there are several parts thereof. Therefore, the form of a foreign bill is, in general "at after sight," or "date," &c., "pay this my first of exchange [sec- ond and third of same tenor and date not }mid'\ to, &c." This condition should be inserted in each part, and should in each mention every other part of the set. Each part ought to be delivered to the payee. The custom of merchants requires that bills of exchange, whether foreign or inland, should be in writing. It seems extremely doubtful at what period, or by whom, foreign hills of exchange were first in- vented ; although it appears tolerably certain that they were in use in the fourteenth century ; and an inference drawn from the statute 5 Rich. II., st. 1, c. 2, warrants the conclusion that foreign bills were introduced into England previous to the year 1381. Inland bills of exchange (which were so called because they were drawn as well as payable in England) did not originate at a much earlier period than the reign of Charles II. — probably about the year 1645, when banking began to be extensively carried on by the goldsmiths. Form of an Inland Bill of Exchange^ ^lOO/oo^ Toronto,! 1 January, 1870.^ !i » ■ li 118 CABINET LAWYER. sMt Two monlhs after date,* pay to me,^ or order,* (or *'to my order," or "lo E. F., or order";, at, &C.J the sum of one hundred dollars,^ value re- ceived.^ A. B., (the drawer). ^^ To C. D., Esq., (the Drawee) , Montreal.' ^ Accepted C. D , ^^ payable at Bank of Mon- treal.^ 3 [Indorsed]^ "^ A. B., or "E. F." {first indorser.) G. H., {seconl indorser.) Remarks on this Forrti. 1. The place at which the bill is dated, or is supposed to be drawn. 2. The date of the bill. 3. The sum superscribed in figures. 4. The statement of the time when payable. 5. The description of the payee 6. "Or order." 7. "At," &c. 8. Statement of the sum payal le. 9. "Value received." 10. The drawer's signature. 11. The direction to the drawee, 12. The form of the acceptance. 13. "Payable at," &c. 14. Form of indorsement. 1. The place at which the Bill is dated, or is siqyposed to he drawn It is usual to date the bill at the city or plnee where it is drawn ; but this is not necessary. No BILLS AND NOTES. 119 .r place need be slated. If a place be stated, it wilt be presumed that the drawer resides therein , and if only a general description be given, as " Lon- ic/, which may never be realized or be adequate to the purpose ; as, "out of renls ;" or "out of money when received ;" or "out of my growing subsistence ;" or "out of the produce of goods when sold ;'' or "out of drafts on a banker ;" or when they shall be paid." But, however uncertain it may be when the event on which the time for payment is made dependent will occur, if it be certain that it must transpire at some period, the bill or note will be good ; as if the payment is to be made wilfiin onemonlli "after the death^^ of a party ; or "when J. S. shall come of age^'' (naming ihe day) ; so that his death would not discharge the liability. 5. The Description of the Payee The bill may be made payable to the drawer, or to a third person. It is not essential that either should be named, provided the bill be made pay- able to the order of the drawer (when in efiect it is payable to him), or to bearer. % I ■•■■p 122 CABINET LAWYER. But alternative words on the face of the instru- ment, as to the parly to whom payment is to be made, will invalidate the bill ; as, if it be payable to A. or B. If, on framing a bill, a blank or space be left for the name of the payee, the acceptor and drawer tacitly authorize a bona fife holder, afterwards taking the bill from the drawer or his transferee, to supply his own name, so as to give effect to the instrument as a bill payable to himself; anrl the objection of uncertainty, w^hich would otherwise prevail, is thus obviated. If the name of aJicHliims person be introduced as paye , the bill is inoperative in the hands of a party who takes it with knowledge of that fact; but the parties to the bill who were aware of the circum- stance shall not be permitted to avail themselves of the irregularity ; and against them the biT,, in the ^ands of an innocent holder for value, may be treated as a bill payable to bcare . If the bill be drawn in the name of a ficiilious person, payable to the order of the drawer, with the acceptor's knowledge, the latter may be charged by a bona fide holder as undertaking to pay to the order of the person who signed as the drawer. 6. "Or Order," &c. Bills are generally payable to the order of the drawer or payee, or they may be payable to him or bearer, or to bearer generally. Great attention is due to this part of the instru- BILLS AND NOTES. 123 ment, as ihe distinguishing qnalily of a bill — its ne'gotiabilily — altogether depends upon the intro- duciion of express words rendering it transferable. If the words "or order," or "bearer," be omitted, the bill cannot be negotiated so as to become avail- able against the acceptor. It is available only against the assignor who indorses it to the holdcT. It will therefore be remarked that the express assent of the original pirties is necessary to attach to a bill its more im oriant and peculiar attribute. 7. ''At;' dx. Although ill ' bill be accepted payable at a par- ticular place in pursuance of the drawer's request, yet if the acceptor do not use the restrictive words " and not otherwise or elsewhire," according to the statute Con. Stat. U. C, c. 42, s. 6, the accept- ance is, as to him, deemed to be getural; and the accpptor is, it serms, responsible, although no pre- sentment be made at ih^ specified place. But the dr liver and indorsers are not liable in such case, unless the hill be duly presented at the [)lace de>ignnted by the ac( eptor, in pursuance of th» (1 action in the body of the bill, confirmed and HMidcred specific by the acceptance. ]\ the drawer, in the body of the instrument, m^ke it payable, not at any specific place, but generally in some town, the dire- tion become^s in- operative, if the bill be not accepted or the accept- ance be general, without mentioning any particular St eet or phtce in such town. W U;«i 124 CABINET LAWYKH. Sometimes the drawer makes the bill payable at his oivn house. This seems to be injudicious ; it having been held that the circumstances raises a presumption that the bill was accepted for his ac- commodation, that he is the party to pay, and con- sequently that he is not entitled to notice of dis- honor, unless he proves that he really had eft'ects with the drawee. 8. Statement of the Sum payable. This is generally expressed in words at length ; but figures would suffire We have seen that the superscription of the sum in the margin may aid an omission in the body of the bill of the word " dollars " A bill, &c., is not valid unless it be solely for the payment of a specific sum of money. Therefore a bill "to pay A B. lOOZ," is void if there be added the words, "and to deliver up a horse," &c.; or the words "and all other sums that may be due to him ;" or, "first deducting thereout any sum J. J. may owe me." And uncertainty as to any part of the amount to be paid will invalidate the instrument as a note. 9. " Value received.^^ These words (though usual) are not necessary to give validity or force to the instrument as a bill of exchange. Consideration being presumed by law for the drawing and indorsing a bill, no argument or in- BILLS AND NOT£S. 125 [) fcrence that it does not exist can be founded on the absence of the words "value received :" tlie pre- sumption that a consideration existed still arises. The precise meaning of these words, in reference to the parties by whom and from whom the value was received, depends upon the form of a bill. If it be payable to the drawer or his order, the words "value received" import that the drawee has re- ceived consideration from the drawer ; if it be pay- able to a third person, they signify that the drawer has received value from him to the amount drawn for. The nature of the value or consideration may be stated, without prejudice to the validity of the in- strument. 10. The Drawer's Signature. The bill would, evidently, be imperfect if the drawer's name did not appear on the face ol the instrument. A formal signature at the foot of the bill is not essential. If the drawer himself write the bill in this shape, "/, A. 5., request you to pay," &c., the instrument will be good, although not undersigned. The signature may be in pencil ; or by a mark or cross, by way of signature ; or it may bo printed. When an agent draws a bill for his principal, the signature should be in the name of the latter ; or in the uame of the agent, thus : "A. B. ' {the agent)., "for C. D." [the principal) \ or thus: "C. D." {the principal), "per procuration, A. B" {the agent). If an agent merely sign his own name \y- 126 CABINET LAWYEH. " .ii only, as drawer, he will become porsonally liable on ilie bill, and the principal will not incur any responsibility thereon. It thirre be several drawers, and they hoptrtners^ cither the naiiK; of the firm may be subseribed by one of the members or an agent of the firm or the signature may b«; by the partner or agent *'for" the firm by its usual title. If the drawers be not partners^ each should sepa- rately sign by himself r by an agent appointed by him for the purpose. In this case one drawer has no implied authority to sign lor the others. 11. The Direction to the Drawee. This /br/?/a/ direction is not necessary ; for, in a case in which instead of the usual address to the drawee the words "payable at No. 1 Wilinot Street" only were inserted, il was held that a per- son who resided at that place and who accepted the bill was liable thereon as acceptor. But this case does not show that the instrument can be per- fect as a bilf, all hough it do not appear on the face of the instrument who is the drawee. And it is clear that the abi'enue of such information, to be obtained from th? instrument itself, would render the instrument inoperative as a bill. Care should be taken to address the bill to each person (if more than one) who has undertaken to accept the bill. There cannot be successive accep- tors or a second acceptor of the same bill after a perfect acceptance, unless the second be an acceptor for honor. BILLS AND NOTES. 127 If, ihorplore, a bill be directed to A. only, and be accepted by him, and B. afterwards accept it, he is not liable thereon as acceptor. 12. The Form of the Acceptance The acceptance m;iy be upon any part of the bill and it may be effected by the drawer merely writ- ing hi5«i name or the word ''accepted ;" or, it seems, by his merely writing thereon "presented," or the day of the month, or a direction to a third person to pay the amount. An acceptance may be in pencil, or by making a mark in lieu of a signature with intent to accept. The statute Con. Stat. U. C, c. 42, s. 7, requires that bills shall be accepted in wrilins; upon the bill itself. But this statute does not require the signa* lure of the drawee. The holder may insist, as against the drawer and endorser, upon having the absolute acceptance of the drawee to the full extent and in the very terms of the bill as drawn, and, if refused, may treat the bill as dishonored. But he may, if he plt-ase, waive such acceptance, and take a conditional or partial or lim' ted acceptance, and it will be valid against the acceptor ; and if the other partli^s have notice of the acceptance offered, and consent thereto, they also will be bound. Heie we may observe the distinction that, al- though a bill cannot be drawn, it may be accepted^ payable upon a condition or contingency. The acceptance of a bill conditional as to the 1^8 CABINET Lawyer. place of payment will be considered under the noxl division. A bill may be accepted i'or part onlfj of the sum mentioned therein ; or the mode of payment may be varied by making part of the amount payable in bills; or the time of payment may be altered by the acceptance. A bill may be accepted after it has been dishon- ored, and is then payable on demand. The acceptance may be revoked or cancelled by the dritwee at any time before it has been called for by the holder and before the drawee has parted with it or delivered it over to the holder. We have seen that, if a bill is complete as to acceptance, that is, has been accepted by the party on whom it is drawn, the custom of merchants does not authori,se any second or further acceptance by another person. But, if the drawee before accept- ance become insolvent, &c., or if he refuse to accept, another person may accept for the honor of any party to the bill ; which is called an acceptance Jor honor ^ in the case of an inland bill, and is termed an acceptance supra protest^ in the case of a foreign bill, from the circumstance of a protest in such instance preceding the acceptance. If a party whose acceptance to a bill has been forged, on the bill being presented to him by a third person, with a request to know if the bill has been accepted by him, answer "though bona fide that) such is the case, he is liable as acceptor. BILLS AND NOTES. 129 13. "Fayahlcat;' dc. The introduction of these words into an accept- ance led to great difference of opinion in the Courts as to their legal cperation, before the passing of the English Act I & 2 Geo. IV., c. 78 (Canadian Act, Con. Stat. U. C, c. 42, founded on 7 Wm. IV., c. 5), It is clear that the acceptor need not state where the bill is to be presented for payment. He may- accept generally. The question which divided the Courts was, whether the acceptor, by using the words "payable at,'' &c. , incurred only a restricted and conditional or qualified liability, that is, was not responsible unless the bill were presented for payment at the place specified ; or whether the words were a mere notification to the holder that he might, if he pleased, there call for payment at hi& election, without being compelled to do so. The 1 & 2 Geo. IV. provides that an acceptance of a bill payable at a banker's or other specified place shall be deemed merely a general acceptance, unless the acceptor state that it is payable there ^^ only and not othfrwise or elsewhere ;^^ and the Canadian act is in the same words. ken bird ^een lat) 14. Fonn, &c, of the Indorsements. The indorsements may be upon the face or at thfl back of the bill. They may be written in pencil* The indorsement may be by the mere sign&tm'f^ of the party transferring, without any othpr WiQrtJs* This is called an indorsement in blank, ,\i\j[.\ ,ii Or before his signature the party m«J^ state, '*Fft)C I'u; ' 1.'' r/T 130 CABINET LAWYER. A. 13.," or, ''Pay A. B., or order." This is termed a special iiidorscmeni, or indorsement in full. Bills and notes may be; indorsed before they are complete. And a bill may be indorsed before due, so as to charge the drawer, &c., although he had been discharged as to the indorset\ by the latter having preriously pre^intid the bill for acceptance and omitted, on the non-acceplance, to give the drawer notice thereof; provided the indorsee had no notice of snch fact by noting on the bill or other- wise, and took it for value. So, if a bill not due be paid, bat be left in the holder's hands, a person taking it before it is due, bona fide and without notice, may sue thereon. And a bill may legally be indorsed affer it is due and has been dishonored ; but not afler it has been duly p'iid by the acceptor. But there is this distinction between bills in- dorsed before., and after., they are due. If a note indorsed be not due at the time, it carries no sus- picion whatever on the face ot it, and the party receives it on its own intrinsic credit. But, if it is over-due, it is out of the common course of dealing, and does give rise to suspicion. And therefore fie who takes a bill after it has arrived at maturity lakes it subject to all the legal defences that could have been made by any previous holder, arising out of and connected with the bill or note transac- tion itself, and not relating, as in the case of a set- off", merely to collateral matter. If, therefore, the party transferring could not have sued the acceptor upon the bill, because it BILLS AND NOTES. 131 he •ity luld ling tac- inot it was giv(>n upon a Nmuggling. or other illegal, con- sideration ; or because it had been paid or settled in account wilh ihe acceptor; or because he had tjblaincd the bill by fraud, &c. ; llie transfer, after the bill or note has become due, will give the transferree no better title than the assignor pos- ser^sed ; and, in an action by the latter, either of these defences will avail the acceptor. But \{ \\\it immediale party transferring an over- due bill might have sued thereon, tiie holder is invested wilh his rights ; and it is no defence that the bill was accepted by the defendant, &e., upon a smuggling contract, &c., between him and the drawer. A bill may be indorsed conditionally, thus: — " Pay the wnthin sum to A. B., or order, upon my name appearing in the Gazette as ensign in any regitiient of the line between the 1st and 64ih, if within two months from this date. Upon such an indorsement neither A. B. nor his indorsees can acquire any right Lo the money, unless the event specified has occurred. An indorsement cannot be made as \o part only of the sum due, so as lo subject the acceptor to two actions without his consent; but if the partial in- dorsement be hffore the acceptance, and the drawee accept generally, he is supposed to assent lo the double liability (that is, to one party as to one por- tion, and to another as to the residue of the bill), and the indorsement will be good. If part has been sat'sfied^ the bill may be indorsed for the remainder. An indorsement may be resfrictive, and stop the > w'« 132 CABINET LAWYER. negotiability of the bill ; as "Pay to my servant for my use,^' or, '' Pay W. S.^ or order , for my use^^^ &c. ; or it may be qualified (as " sans recours " without recourse), so as to exempt the indorser from personal liability in case of dishonor. The mode in which an as;ent or partner should indorse a bill is similar, in general, to that which should be adopted on his drawing a bill. A partner may transfer in his own name only, and thereby charge the firm, if such a mode of in- dorsement has been usual. If there be several holders, not partners, each should endorse. A promissory note may be defined to be a prom- ise or engagement in writing to pay a specified sum of money at the time therein limited, or on demand, or at sight, to a person therein named or his order, or to the bearer. Fomi of a Note. P^^i%' Toronto, 1st January, 1870. Two months after date I promise to pay to C. D., (the payee) or order at the City Bank, Toronto, the sum of one hundred dollars, value. received. A. B., {the maker.) [Indorsed] CD., {first indorser.) E. F., (second indorser.) The several observations already made on the various parts of a Bill of xchange apply equally to a Prommissory Note, ex ept those numbered 11 and 12, which apply exclusively to the former. No particular, or precise, form of words is neces- BILLS AND NOTES. 133 sary to constitute a valid promissory nole. Neither the word promise nor the word pay is indispensible ; but ihere must be equivalent expressions. There must be words importing a promise io pay. A mere " I. 0. U." such a sum is not therefore valid as a promissory note. Where a note is signed by several persons as makers, it is usually joint and several, so as to give the holder a right of action against all of them jointly, or each separately, at his election ; although of course the note is satisfied by being once paid by all or either of the parties. The proper words to be used in such a case are " We jointly and severally promise to pay" &c. But where a note began "I promise" &c., and was signed by several makers, it was held the note was several as well as joint. If a note purport to be made and be signed by A. only, B. cannot be sued thereon, although he was jointly with A. liable for the debt for which the note was given. But if a note begin '* I promise to pay " &c., and A. and B. be partners in trade, and A. sign the note as for himself and B. on the face of the instrument, the note is several against A. and joinf against the firm. \^ hen it is desired that the maker of a note should not be responsible unless the note is presented at a particular bank or oiher place, he must insert in the body of the note the words " and not otherwise or elsewhere," as in the acceptance of a Bill of Exchange. It only remains to observe that by the Dominion l^il m 11 [ 134 CABINET LAWYER. Statute, 31 Vic, cap. 9, all bills and notes amount- ing to $25 and upwards, reqi^'re to be stamped^ ;>s follows: Where the sum payable amounts to, but does not exceed $25, a one cent slamp ; where it exceeds $25, but does not exceed $50, a two cent stamp; where it exceeds $50, but does not exceed $100, a three cent stnmp ; and for every no!e ex- ceeding $100, an additional ihree cent stamp for every subsequent $100, or fractional part ol it. Stamps must be affixed wlien the bill or note is drawn or made ; and must be at once cancelled by - ling over them the part of the signature or the ixiiiials of the maker, or the date when so affixed. A penality of $lUO is imposed for nori-compliance WMi.i tiyjc, eni^ctment. If, however, a bill or note should come hona fide into the hands of a party without having stamps affixed, such party may affix dauble. stamps ; the bill or note will then be good as to him and all persons becoming parties to it after him. CHAPTER VIL BONDS. A bond is an obligation under seal, whereby the maker (called the obligor) obliges himself, his heirs, executors and administrators, to pay a pen- alty or sum of money to another (called the obligee^ A condition is generally added that if the obligor fiOVDd. 135 pays a certain sum of money or performs some par- ticular act, by a time specified, then tlie ol)ligation shall be void, otherwise it shall remam in full force and virtue. A bond without a condition is called a singJe bond. The penalty in a bond for payment of money is usually double the amount of the real debt, for the purpose of securing the full debt with interest and costs if necessary. Whenever a specified sum is agreed upon by the parties for stipulated or liquidatid damages, in the event of a failure to comply with the conditions of a bond, such specific sum is the amount which the party in fault is to pay. All that can be recovered of a penalty in a bond for payment of money, in addition to the amount of the debt, is interest and costs ; and as the general inclination of Courts is to regard the sum men- tioned as a penally^ care must be exercised to state distinctly and unmislakably, the fact, that the sum agreed upon is in the nature of stipulated or liqui- dated damages, if the whole sum mentioned is in- tended as a forfeiture in case of failure. Single Bond. ( Wltho ut Con dition . ) Know all men by these presents, That I, K. B., of, &c., am held and firmly bound unto C. D., of, &c., in the penal sum of $1000 of lawful uioney of Canada, to be paid to the said C. D. or to his cer^ tain attorney, executors, administrators or assigns; 136 CABINET LAWYER. For which payment to be well and faithfully made, I bind myself, my heirs, executors and administra- tors, and every of liiem firmly by these presents. Sealed with my seal, dated the 6lh day of Janu- ary, 1870. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Bond. (With Condition.) Know all men by these presents, That I, A. B., of, &c., am held and firmly bound unto C. D., of, &c., in the penal sum of iglOOO of lawful money of Canada, to be paid to the said C. D. or to his cer- tain attorney, executors, administrators or assigns : For which payment well and truly to be made, I bind myself, my heirs, executors and administra- tors firmly by these presents. Sealed wiUi my seal, dalcd this 6lh day of Janu- ary, 1870. The condition of the above written bond or obli- gation is such that if the above bounden A. B., his heirs, executors or administrators, do and shall well and truly pay or cause to be paid unto the said C. D., his executors, administrators or assigns, the just and full sum of $500 of lawful money of Canada, with interest thereon at the rate often per cent, per annum, on the days and limes, and in the manner following, that is to say : The said princi- pal sum of $500 on the 6th day of July, 1873, BONDS. 137 and the said interest half yearly, on the 6th days of January and July in eaeh year, (the first of such payments of interest on the 6th day of July next) without any deduction, defalcation or abatement whatsoever : Then the above written bond or obli- gation shall be void and of no effect : otherwise shall be and remain in full force and virtue. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Bond to convey Land. Know all men by these presents, That I, A B., of, &c., am held and firmly bound unto C. D., of, &c., in the penal sum of ^lOOO of lawful money of Canada, to be paid to the said C. D., or to his certain attorney, executors, administrators or as- signs: For which payment well and truly to be made, I bind myself my heirs, executors and ad- ministrators, and every of them forever, firmly by these presents. Sealed with my seal. Dated this 1st day of May, 1869. Whereas, the said C. D., hath contracted with the above bounden A. B., for the absolute purchase in fee simple, free from incumbrances, of the fol- lowing lands and premises, that is to say : {here de- scribe the lands to he convey (d). And whereas, the said C. D hath agreed to pay therefor, the sum of j;500 of law^ful money of Canada, at the times, and in manner following, that is to say : here state the mode of payment. m i'l l! i- I 138 CAniNET LAWYER. Now the condilion of the above obligation is such b' that if the said C. I)., his "heirs, executor-*, adminis- trators or assigns, shall well and truly pay, or cause to be paid, to the above bounden A. B., his execu- tors, adtninislrators or assigns, the sum of ^500 at the time and in manner aforesaid ; then if ihe above boundrn A. B., his heirs and assigns, shall, by good and suffudent deed or deeds of conveyance in fee simple, convey and assure, or cause to be con- veyed and assured, unto ihe said C. D., his heirs and assigns for ever, the said premises hereinbefore described, free from all incumbrances; Then the above obligation shall be void: otherwise shall be and remain in full force and virtue. Signed, sealed and delivered in the presence of A. B. [l.s.] Bond for j^f^ynifnt of Purchase Money. Know all men by these presents. That I, C. D., of, &c , am held and firmly bound unto A. B., of, &c., in the penal sum of $1000 of lawful money of Canada, to be paid to the said A. B., or to his cer- tain atlorney, executors, adruinistrators or assigns : For which payment well and truly to be made, I bind myself, my heirs, execulors and administra- tors and every of them lirmly by these presents. Sealed with my seal, dated this day of 18 . Whereas, the above bounden C. D., hath con- tracted with the said A. B., for the absolute pur- chase in fee simple, free from all incunibrances, of fiONDS. 139 tlie following lands and prcmis^tv^ ; lliut is to say : (Jiere describe the hinds). And wheivas, the above boundcn C. D lialli agreed to pay thiTcfor the &urn of S.jOO o(" lawful money of Canada, at the time and in manner fol- lowing ; ihdl is to say : {heVc slate the Diode of pet,' mcnt. And whereas, upon the treaty for the said pur- chase it was acrrced that the above bounden C. I). shouUl enter into the above l)ond or ol)ligalion for payment of the said purchase money, or the unpaid part thereol, and interest jii manner ai it ! ',1 i I 3 si 140 CABINET LAWYER. Bond of Indemnity. Know all men by these presents, That I, E. F., of, &c., am held and firmly bound unto G. II., of, &c., in the penal sum of $5000 of lawful money of Canada, to be paid to the said E. F., or s cer- tain attorney, executors, administrators or assigns : For which payment well and truly to be made, I bind myself, my heirs, executors and administra- tors, and every of them, firndy by these presents. Sealed with my seal, dated this day of 18 . The condition of the above written bond or obli- gation is such that if the above bounden obligor, his heirs, executors and administrators, do and shall from time to time, and at all times ' ^'after, hold and keep harmless and fully indemii...c;d the said obligee, his heirs, executors and administra- tors, and his and their lands and tenements, goods, chattels and eflfeets, of, from and against all loss, costs, charges, damages and expenses which the said obligee, his heirs, executors or administrators, may at any time hereafter bear, sustain, be at, or be put to, for, or by reason, or on account of, (h(re state the particular matters to which the indemnity is to apply) or any thing in any manner relating thereto ; 'J'hen the above written bond or obliga' tion shall be void : otherwise shall be and remain in full force and virtue. Signed, sealed and delivered in the presence of E. F. [l.s.] Y. Z, BONDS. in Bond from a Lasce and his Snrcti/ to pay rent accord- ing to Lease. Know all men by these prei?entR, That wc, C. D., of, &c., and E. F., of &c., are held and firmly bound unto A. B., of, &(•., in the penal sum of $1000 of lawful money of Canada, to be paid to the said A. B., or to his certain attorney, executors, administ'-^;ors or assigns: For which ppyment well and tru'y to be made we bind ourselves and each of us by himself, our and each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals. Dated this day of 18 . Whereas, the abc vc named A. B. by Indenture of Lease bearing even date with, but executed before, the above written obligation, for the consideration in th<3 said lease mentioned, hath demised to the above bounden C. D., a certain saw mill situate at &c., {here describe the premises)^ To hold unto the said C. D., his executors, administrators and assigns, for the term of years from thence next ensuing (determinable nevertheless at the end of the first years of the said term, if the said C. D., his executors, administrators or assigns, shall give months notice thereof, in manner therein mentioned) at and under the yearly rent of ^500 payable quarterly in manner as therein expressed : as by the said lease will more Cnlly appear. Now the condition of the above writtefi obliga- tion is such, that if the above bounden C. D. and E. P., or either of them, their, or either of their heirs, executors or administrators, shall and do AW ''''''■'■-^■-~*MfithWihrl ^^H^^m BP w 112 CABINET LAWYER. during the conlinnance of the said rociled lease, well and truly pay or cause to be paid, the said yearly rent cr sum of ^500, unto him the said A. B., his heirs or assigns, by four equal quarterly pay- ments of !^125 each, on the several days following, that is to say, the day of , the day of , the day of , and the day of , in each and every year during the said demise, or within fourteen days next after any of the said days or times of payment, according to the true intent and meaning of the said recited lease, (the first quarterly payment to be made on the day of next); Then the above written obli- gation shall be void and of no effect: otherwise shall remain in full force and virtue. Signed, sealed and delivered in the presence of ( . U. [l.s.] Y. Z. E. F. [L.S.] CHAPTER VIII. r iH CHATTEL MORTGAGES. Chattel mortgages are deeds or conveyances, by way of s«?curity, of personal property of a moveable kind, such as household furniture, slock in trade, &c. In former days it sometimes happened that chattel CHATTEL MORTGAGES. 143 by )le le. tel mortgages were ma>le use of in order to d(^privo a creditor who had obtained a judgment of the just fruits of his execnlion. When a debtor became in- volved, and desirous of prt^vcnting the seizure of his goods and ciialtels by the t^heriff or bailiff, it was quite common for a debtor to make a fictitious conveyance to some friend by way of >ecurity, for a pretended loan. When a seizure was made, the friend stepj)ed in and claimed payment of I he mort- gage ; which, being always for an amount equal to the full value of the goods, had the efTit ct of pre- venting the creditor from reali/.ing any thing at all. To remedy this evil, the Legislaiure in 1857, passed an Act of Parliament (since consolidated and being now cap. 45 of the Consolidated Statutes for Upper Canada,) the sections of which, so far as it is necessary lo notice them here, are as fol- lows . — 1. Every mortgage of goods and chattels made in Upper Canada, (now Ontario,) which is not ac- companied by an immediate delivery and an actual and continued change of possession of the things mortgaged, or a true copy thereof, must within hve days from the execution thereof, be registered as hereinafter mentioned, together with the affidavit of a witness thereto, of the due execution of such mortgage or conveyance, or of the due execution of the mortgage or conveyance of which the copy filed purports lo be a copy, and also with the affidavit of the mortgagee or his agent, if such agent be aware of all ttie circumstances connected therewith and properly authorized in writing to lake such rnort- ,H Ji i 144 CABINET LAWYER. gage : in which case a copy of such authority must be registered therewith. 2. Such last-mentioned affidavit, whether of the mortgagee or his agent, must state that the mort- gagor therein named is justly and truly indebted lo the mortgagee in the sum mentioned in the mort- gage : that it was executed in good faith, and for the express purpose of securing the payment of money justly due or accruing due, and not for the purpose of protecting the goods and chattels men- tioned therein, against the creditors of the mort- gagor ; or of preventing the creditors of such mort- gagor from obtaining payment of any claim against him. 3. In case such mortgage or conveyance and affidavits be not registered, the mortgage or convey- ance will be absolutely null and void as against creditor? of the mortgagor, and against subsequent purchasers or mortgagees in good faith, for valuable consideration. 5. In case of an agreement in writing for future advances for the purpose of enabling the borrower to enter into and carry on business with such ad- vances, the time of re-payment thereof not being longer than one year from the making of the agree- ment ; and in case of a mortgage of goods and chat- iels for securing the mortgagee re-payment of such advances ; or in case of a mortgage of goods and chatrels for securing the mortgagee against the in- dorsement of any bills or promissory notes, or any other liability by him incurred for the mortgagor, not extending for a longer period than one year dflATTEL MORTGAGES. 145 ire id- ing > from the date of such mortgage ; and in case the mortgage is executed in gcx)d faith, and sets forth fully, by recital or otherwise,^ the terms, nature and efTect of the agreement, and the amount of the lia- bility intended to be created ; and in case such mortgnge is accompanied by the affidavit of a wit- ness thereto of the due execution thereof, and by the affidavit of the mortgagee, or in case the agree- ment has been entered into, and ll^e mortgage taken by an agent duly authorized in writing to make «uch agreement and to take such mortgage, and if the agent is aware of the circumstances connected therewith, then, if accompanied by the affidavit of {&uch agent : suoh affidavit, whether of the mortgagee or his agent, stating that the mortgage truly sets forth the agreement entered into between the parties thereto, and truly states the extent of the liability intended to be created by such agreement and covered by such mortgage, and that such mortgage ?s executed in good faith, and for the express pur- pose of securing [the mortgagee repayment of his -advances, or against the payment of the amount of his liability for the mortgagor, as the case mry be, and not for the purpose of securing the gooc^^ and chattels mentioned therein against the creditors of the mortgagor, nor to prevent such creditors from recovering any claims which they may have against ?t,uch mortgagor; and in case such mortgage is re- gistered as hereinafter provided ; the same will be Bs valid and binding as mortgages mentioned in the preceeding section of this act. ^, All the instruments meationed in the act, must H^^ ' ■t' m^ n 1 ; 1 It n } || 1 1 1 : ' ' i is ^eI 'I t I i 146 CAfflNET LAWfEH. contain such sufficient and full description of ihe goods and chattels, that the same may be thereby readily and easily known and distinguished. 7. The instruments mentioned in the preceeding sections must be registered in the office of the clerk of the County Court of the county or union of coun^ ties where the mortgagor or bargainor, if a resident in Ontario, resides at the time of the execution thereof, and if he be not a resident, then in the office of the clerk of the County Court of the county or union of counties where the property so mort-^ gaged or sold is at the time of the execution of such instrument* [Note. — By Ontario Stat. 32 Vic. c. 49, s. &, chattel mortgages executed in Muskoka Territory are to be registered with the clerk of the first Divi^ sien Court at Bracebridge.] 9. In the erent of the permanent remoTal of good» and chattels mortgaged as aforesaid from the county or union of counties in which they were at the time of the execution of the morigage, to another county or union of counties before the payment and dis- charge of the morigage, a certified copy of such mortgage, under the hand of the clerk of the County Court in whose office it was first registered, and under the seal of the said Court, and of the affida- vits and documents and instruments relating thereto filed in such office, must be filed with the clerk of the County Court of the county or union of counties to which such goods and chattels are removed, within two months from such removal, otherwise M CHATTEL MORTGAGES. 147 ity le ay lis- ich Lty ind la- or lies lisa? the goods and chattels will be liable to seizure and sale under execution, and in such case the mort- gage will be null and void as against subsequent purchasers and mortgagees for valuable considera- tion. 10. Every mortgage or copy thereof, filed in pur- suance of the act, will cease to be valid as against the creditors of the persons making the same, and against subsequent purchasers or mortgagees in good faith for valuable consideration, after the ex- piration of one year from the filing thereof; unless within thirty days next preceding the expiration of the said term of one year, a true copy of such mort- gage, together with a statement exhibiting the interest of the mortgagee in the property claimed by virtue thereof, and a full statement of the amount still due for principal and interest thereon, and of all payments made on account thereof, be again filed in the office of the clerk of the said County Court of the county or union of counties wherein such goods and chattels may be then situate, with an affidavit of the mortgagee, or of his agent duly authorized in writing for that purpose (which authority shall be filed therewith), stating that such statements are true, and that the said mortgage has not been kept on foot for any fraudulent purpose. 12. All affidavits and affirmations required by the act may be taken and administered by any Judge or Commissioner of the Courts of Queen's Bench or Common Pleas, or Justice of the Peace, in Ontario. The effect of these enactments may be shortly 14B CABINET LAWYER. tl ■! summed up thus : every chattel mortgage must be filed with the clerk of the County Court within five days after execution ; the instrument must be ac- companied by an affidavit of its due execution, and another affidavit of the good faith of the transaction. The last-mentioned affidavit may be made by an agent, if he be specially appointed in writing for the purpose. These affidavits may be sworn to before a commissioner of the Queen's Bench, &c., or before a Justice of the Peace. If ihe mortgage is intended to secure future ad- vances, or as collateral security against the indorse- ment of accommodation bills or notes, the require- ments of section 5 must be carefully observed. Finally, every chattel mortgage requires to be renewed each year. Section 10 points out the mode. A statement showing the interest of the mortgagee, and the amount remaining due, together with a copy of the mortgage, must be filed within thirty days of the expiration of the year. The following forms will be found applicable to most occasions : — Chattel Mortgage. This Indenture, made the day of , 18 , Between A. B., of, &c., of the one part, and C. D., of, &c., of the other part. Wit- nesscth that the said party of the first part, for and in consideration of the sum of J 100 of lawful money of Canada, to him in hand well and truly paid by the said party of the second part, at or before the sealing and delivery of these presents, the receipt 'l! CHATTEL MORTGAGES. 149 whereof is hereby acknowledged, doth bargain, sell and assign unto the said party of the second part, his executors, administrators and assigns all and every the goods, chattels, furniture and eftects in and about the dwelling house {or store) of the said A. B., situate at &c., and hereinafter particu- larly mentioned, that is to say (Here specify the chattels : or you may refer to a schedule saying after the word^ <^c'., " which are particularly speci- fied in the schedule hereunder written." To have, receive and take the said goods and chattels hereby assigned or intended so to be, unto the said party of the second part, his executors, administrators and assigns, as his and their own proper goods and effects. Provided always that if the said party of the first part, his executors or administrators, shall pay unto the said party of the second part, his executors, administrators or assigns, the full sum of $100 with interest thereon, at the rate of 10 per cent, on the day of next, then Jiiese presents shall be void. And the said party of the first part doth hereby, for himself, his executors and administrators, cove- nant, promise, and agree to and with the said party of the second part, his executors, administra- tors, and assigns, that he, the said party of the first part, his executors or administrators, or some or one of them, shall and will well and truly pay, or cause to be paid, unto the said party of the second part, his executors, administrators and assigns, the said sum of money in the above proviso m iitionsd, f 150 CABINET LAWYER. with interest for the same as aforesaid, on the days and limes and in the manner above limited for the payment thereof. And also, that in case default shall be made in the |)ayment of the said sum of money in the said proviso mentioned, or the interest thereon, or any part thereof, or in case the said party of the first part shall attempt to sell or dispose of, or in any way part with the possession of, the said goods and chattels, or any of them, or to remove the same or any part thereof out of the county of , with- out the consent of the said party of the second part, his executors, administrators or assigns, to such sale, removal or disposal thereof, first had and obtained in writing ; then and in such case it shall and may be lawful for the said party of the second part, his executors, administrators and assigns, peaceably and quietly to receive and lake unto his or their absolute possession, and thenceforth to hold and enjoy all and every or any of the goods, chat- tels and premises hereby assigned or intended so to be, and with his or their servant or servants, and with such other assistant or assistants as he may require, at any lime during the day to enter into and upon any lands, tenements, houses and premi- ses belonging to and in the occupation of the party of the first part, where the said goods and chattels or any part thereof may be, and to break and force open any door, lock, bolt, fastening, hinge, gate, fence, house, building, enclosure and place, for the purpose of taking possession of aid removing the said goods and chattels ; and to sell the said goods CHATTEL MOIITOAOE8. 151 and chattels, or any of them, or any part thereof at public auction or private sale, as to them or any of them may seem meet ; and from and out of the proceeds of such sale in the first place to pay and reimburse himself or themselves all such sums of money as may then be due, by virtue of these pre- sents and all such expenses as may have benn in- curred by the said party of the second part, his -executors, administrators or assigns, in consequence of the default, neglect or failure of the said party of the first part, his executors, administrators or as- signs, in payment of the said sum of money with interest thereon as above mentioned, or in conse- quence of such sale or removal as above mentioned ; and in the next place to pay unto the said party of Ihe first part, his executors, administrators and assigns, all such surplus as may remain after such sale, and after payment of all such sum and sum* of money and interest thereon as may be due by virtue of these presents at the lime of such seizure, and after payment of the costs, charges, and ex- penses incurred by such seizure and sale as afore- said. And the said party of the first part doth hereby further covenant, promise and agree to and with the said party of the second part, his executors, administrators and assigns, that in case the sum of money realized under such sale as above men- lioned shall not be sufficient to pay the whole amount due at the time of such sale, then he, the said parly of the first part, his executors or admin- istrators, will forthwith pay any deficiency to the W t.| 41 I I 152 CABINET LAWYER. said party of the second part, his executors, admin- istrators and assigns. In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Affidavit of Mortgagee. Ontario, County of , to wit: I, C. D., of the of , in the County of , the mortgagee in the within Bill of Sale, by way of mortgage named, make oath and say, that A. B., the mortgagor in the within Bill of Sale, by way of mortgage named, is justly and truly indebted to me, this de- ponent C. I>., the mortgagee therein named, in the sum of $100, mentioned therem. That the said Bill of Sale, by way of mortgage, was executed in good faith, and for the express purpose of securing the payment of the money so justly due as afore- said, and not for the purpose of protecting the goods and chattels mentioned in the said Bill of Sale, by way of mortgage, against the creditors of the said A. B., the mortgagor therein named, or preventing the creditors of such mortgagor from abtaining pay- ment of any claim against him. C. I>. Sworn before me, at' the of , in the County of , this day of 18 . CHATTEL MORTGAGES. 153 J. p., or a (/ommissioner for taking Affidavits in the Queen's Bench, in and for the County of AJJidavit of Witness. Ontario, County of , to wMt : I, Y. Z., of the of , in the County of make oath and say, that I was personally pre'sent, and did see the annexed Bill of Sale, by way of mortgage, duly signed, sealed and delivered by A. B., party thereto, and that the name Y. Z., set and subscribed as a witness to the execution thereof, is of the proper handwriting of me, this deponent, and that the same was executed at of , in the said County Y. Z. Sworn before me, at ' the of , in the County of , this d ly of ,18 . E. F. J J. P., or a Commissioner for taking AlHdavits in the Queen's Bench, in and for the County of Chattel Mortgage. (Bt/ way of security against Indorsement.') This Indenture, made the day of 18 , Between A. B., of, &c., of the first part, and C. D., of &c., of the second part : Whereas the said party of the second part has indorsed the Promissory I t !' u 'A fa 154 CABINET LAWYER. ii! Note of the said party of the first part for the sum of ^500, of lawful money of Canada, for the accom- modation of the said party of the first part, which Promissory Note is in the w^ords and figures follow- ing, that is to say : {here copy the note.) And whereas the said party of the first part has agreed to enter into these presents for the purpose of in- demnifying and saving harmless the said party of the second part of and from the payment of the said promissory note, or any part thereof, or any note or notes hereafter to be indorsed by the said party of the second part, for the accommodation of the said party of the first part, by way of renewal of the said recited note, or otherwise howsoever, within the period of one year from the date hereof. Now this Indenture witnesseth, that the said party of the first part, in consideration of the premi- ses, hath bargained, sold and assigned, and by these presents doth bargain, sell and assign, unto the said party of the second part, his executors, administrators and assigns. All and singular the goods, chattels, furniture and household stuff here- inafter particularly mentioned and expressed, that is to say : (describe as in preceedtng form). To have, hold, receive and take the said goods, chattels, furniture and household stuff herebv assigned, or mentioned, or intended so t' br unto the said party of the second part, his e,^ jrs, ad- ministrators and assigns, forever : Provi. 1 always, and these presents are upon this condition, t lat if the said party of the first part, his executors or ad- ministrators, do and shall well and truly pay, or ^^ ii, CHATTEL MORTGAGES. 156 I'T cause lo be paid, the said prommissory note so as aforesaid indorsed by the said parly of llie second part, and all and every other note or notes, which may hereafter be indorsed by the said party of ihe second part for the accommodation of Ihe said party of the first part, by way of renewal of the said note and indemnify and save harmless the said party of the second part, his heirs, executors and adminis- trators, from all loss, costs, charges, damages or expenses in respect of the said note or any renewals thereof, then these presents, and every matter and thing herein contained, shall cease, determine and be utterly void to all intents and purposes, any thing herein contained to the contrary thereof in any wise notwithstanding. And the said party of the first part doth hereby, for himseif, his heirs, execu- tors and administrators, covenant, promisie and agree to and with the said party of the second part, his executors and administrators, that he, the said party of the first part, his executors or admin- istrators, or some or one of them, shall and will well and truly pay, or cause to be paid, the said promissory note in the above recital and proviso mentioned, and all fature or other promissory notes which the said party of the second part shall here- after indorse for the accommodation of the said party of the first part by way of renewal as afore- said, and indemnify and save harmless the said party of the second part from all loss, costs, charges, damages or expenses in respect thereof. And also, that in case default shall be made in the payment of the said promissory note, or any w 'I 156 CABINET LAWYER. renewal note or notes as in the said proviso men- tioned, or in case the said party of I he first part shall attempt to sell or dispose o(j or in any way part with the possession of, the said goods and chattels, or any of them, or remove the same or any par! thereof out of the county of , without the consent of the said party of the second part, his exe- cutors or administrators, to such sale, removal or disposal thereof, first had and obtained in writing, then and in such case it shall and may be lawful for the said party of the second part, his executors or administrators, with his or their servant or ser- vants, and with such other assistant or assistants as he or they may require, at any time during the day to enter into and upon any lands, tenements, houses, and premises, wheresoever and whatsover belong- ing to, and in the occupation of the said party of the first part, his executors or administrators, where the said goods and chattels, or any part thereof, may be, and for such persons to break and force open any doois, locks, bolts, fastenings, hinges, gales, fences, houses, buildings, enclosures and places, for the purpose of taking possession of and removing the said goods and chattels, and upon and from, and after the taki.ig possession of such goods and chattels as aforesaid, it shall and may be law- ful, and the said party of the second part, his exe- cutors or administrators, and each or any of them, is and are hereby authorized and empowered to sell the said goods and chattels, or any of them, or any part thereof, at publir auction or private sale, as to him or them, or any of them, nip.y seem meet, i) CHATTEL Mortgages. 157 and from and out of the proceeds of such sale in ihe first place to pay and reimburse himself or them- selves all such sums and sum of money as may then be due by virtue of these presents on ihe said promissory note, or any renewal note or notes, as aforesaid, and all such expenses as niny have been incurred by the said party of the second part, his executors or administrators, in consc([uence of the default, neglect or failure of the sa-d parly of the first part, his executors or adminititrators, in pay* ment o( the said note or notes as above mentioned, or inconsequence of such sale ( •• removal as above mentioned ; and in the next |)lG.;e io pay unto the said party of the first part, his execu'iors, adminis- trators or assigns, all of such surplus as may re- main after such sale, and adei- [)ayment of all such sum and sums of money, and interest tlirreon, as he, the said pariy of ose of securing to me the rc-p lyment of the advances agreed lo be made as within mentioned, and not for the purpose of securing the goods and chitlels mentioned tlierin, and set forth in the schedule atlacdied thereto, marked A, against the creditors of tiie said A. B., or to prevt-nt such creditors from recovering any claims wliich they may have against the said A. B. CD. Swi)rn before me at th( day of 18 1 ) F. W., A Commissioner, &c. AJJidavlt of Witness. {Sjme as in 2^receding Foi'ms.') M^ A CHAPTER IX. DEEDS. The legal and technical definition of a deed is a writing sealed and dtlivered. Bond?*, therefore, and assignnnents and chattel nnortgages, of which we have treated in previous chapters, are all deeds : that is to say, they are writings ^ca/ed and delivered. The general and po| niar idea of a deed, however, js commonly associated with the transfer of land, and it is in this popular but restricted sense in which we shall speak of a deed in this chapter ; remarking merely that the manner in which a deed must be written or executed is precisely the same whether goods or lands are intended to be conveyed. A deed of land, then, if« a writing sealed and delivered by the parties, by which lands, tenements or hereditaments are conveyed by one person to another. It may be either written or j)rinted, and on paper or parchment. Figures, as a general rule, should be avoided, and all words written in full without abbreviation or contraction. The name, residence and occupation or addition of every party to the deed should be carefully inserted, and also BOffie dale ; properly tlie date of the day of execu- 168 CABINET LAWYKR. ll :<' tion, but not necessarily ; for a deed may legally be dated on one day, and not executed until some other and subsequent day. Care should be used in describing the lands conveyed ; an error here may entail considerable expense before it can be rectified. If a whole township lot be conveyed, it will be sufficient to describe it as lot number so and so, in such a concession, township and county, comprising so many acres. If a portion only be to be conveyed, describe accurately the part intended ; as the north or south half, or north-east or i^outh- west quarter, as the case may be. Where the boundaries are well known, and especially where only a portion of a lot is conveyed, it will be desirable to describe the premises by metes and bounds ; giving the course or magnetic bearings, and the measuration of each side. A well pre- pared deed should contain no alterations or inter- lineations of any kind ; they will not, however, invalidate the instrument ; but if necessary to be made, the fact that they were so made before sig- nature of the deed should be staled in the attesta- tion clause at the foot, and the witness should put his initials in the margin, opposite all such altera- tions or interlineations, so that he may be the better able, if ever called on, to prove that they were so made before execution. When once signed and executed, a deed must not be altered — to do so might be to commit a forgery ; and any such alte- ration might wholly vitiate the deed. The person conveying the land is called the grantor ; the person to whom it is to be conveyed DEEDS. 1G9 is called tho grantee. If the grantor is a married man, his wife should join in the d(H'd and bar her dower; otherwise, when her fiusband dies slu^ will be entitled to one-third of the land eonveyed for her life lime. Land may be conveyed in such a man- ner as to preclude the wife of the party to whom it is conveyed from any right to dower on her hus- band's death ; but the species of deed by whieli this may be done is very special and can only safely be prepared by a professional man. When a married woman is tiie owner of land in her own right, she may convey the same by an ordinary deed, to which \\vr husband must he a party, but the deed iimst be acknowledged by her before a Judge of one of the Superior Courts of law or equity, or before a County Court Judge, or before two Magistrates. A cerlificate of acknowledgment must be endorsed upon the deed, and signed by the Judge or Magistrates before whom it is made. Every deed should be signed by the grantor. It is not necessary that the grantee should sign unless the deed contains some covenant on his part. The ordinary way of executing a deed is for the party conveying to sign his name in his usual manner, opposite the seal at the foot, and placing his finger on the seal to say "I deliver this as my acl and deed." lithe person should be unable to write, he may execute by mark. In this case some person should write opposite the seal the words " A. B. his mark," leaving space in the middle for the hJH f mark to be made— usually a cross: thus A. -}- B. 170 CABINET LAWYER. The roark must, of course, be made by the parly himself, though his hand may be guided, or he may do it by simply touching the pen while the mark is being made by some other person for him. Before a di'cd is executed by an ^literate person, it ouglit to be read over ond explained, so that he may fully understand what he is dt)ing. Before purchasing property it is essential that the ^,itle to it shtiuld be properly investigated. Registry olfiees are established in every county where ail deeds and other instruments ad'ecting land ought to Ije regititered. It would serve but little purpose to enter into the question of title in a work of this kind ; whenever a purchaser desires to be safe, he had better avail himself of the services of a properly qualified legal practitioner. Formi rly deeds used to be registered by means of memorials; but, in 1835, this mode of registra- tion was abolished, and the infinitely belter plan of lodging the deed itself, or a duplicate of it in the registry olfice was adooted. A dued of land, iljere- fore, sfionld now be executed in duplicate — one whereof will be left in the registry olfice, and the other retained by the party. Upon the deed in- tended to be left in the registry there must be an affidavit of execution made by the attesting wit- ness. It is sufficient if this affi lavil be only placed on such one ; but it is usual and convenient to have an affidavit on both. The present registry act (31 Vic. c. 20, ' ntario), contains the fob )\vi.^g pn)visjons as to alfidavjis of execuiioj). DEEDS. 171 Sec. 38 provides that the liubscribing witness shall in an affidavit setting forth his name, place of residence and addition, occupation or calling in full, swear to the following facts : 1. To the execution uf the original and duplicate if any there be. 2. To the place of execution. 3. That he knew the parties to such instrument, if such be the fact; or that he knew such one or more of iheni, according to the fact. 4. That he is a subscribini? witness thereto. Sec. 39 requires the affidavit to be made on the instrument or securely attached thereto. Sec. 41 contains the following provision as to the persons before wlijm the aifidavit may be made : 1. if made in Ontario it must be made before the Registrar or Deputy Registrar of the County in which the ';tnds lie, Or befo a Judge of any of the Superior Courts of Law or iujuiiy. Or before any Judge of a County Court, within his County, Or before a Commissioner authorized by any of the Su|)erior Courts to take affidavits. 2 If made in Quebec it mu;»t be made before a Judge or Proihonoiary of the Su])erior Court or Clerk of the Circuit Court, Or b(.'fore a Commissioner authorized by any of the Superior Cour s of Common Law for Ontario to take affidavits in Quebec, pi I <^nmmm m J i |i \n CABINET LAWYER. Or before any Notary Public in Quebec, certiEed under his ofHcial seal. 3. If made in Great Britain or Ireland it must be made befote a Judge of any of the Superior Courts of Law or Equity therein, Or before a Judge of any of the County Courts within his County, Or before the iVIayor or Chief Magistrate of any city, borough or town corporate therein, and certi- fied under the common seal of such city, borough or town corporate. Or before a Commissioner for taking affidavits in and for any of the Courts of Record for the Province of Ontario, Or before any Notary Public certified under his official seal. 4. If made in any British Colony or possession it must be made before a Judge of a Court of Record, Or before the Mayor of any city, borough or town corporate, and certified imder the common seal of such cily, borough or tow^n. Or before any Notary Public certified under his official seal. Or if made in the British Possessions in India before any Magistrate or Collector, certified to have been such under the hand of the Governor of such possession. 5. If made in any foreign country it must be made before the Mayor of any city, borough or DEEDS. 173 4 town corporate of such county, and certified under the common seal of such city, borough or town corpor te. Or before any Consul or Vice Consul of Iler Majesty, resident therein, Or before a Judge of a Court of Record, or a Notary Public, certified under his official seal. The fees for registering a deed are $1.40 where the document does not exceed 700 words in length ; if it exceeds that number, then fifteen cents for every additional 100 words up to 1400, and ten cents for each 100 words over 1400. If the instru- ment embraces different lots or parcels of lands situate in different localities in the same county, then the Registrar is entitled to 40 cents for the necessary entries and certificates, and fifteen cents for every 100 words up to 1400, and ten cents for every 100 words over that number. A corporation executes a deed by affixing to it its common seal, and signing by its chief officer as Mayor, President, &c. No affidavit is necessary to prove thj execution of a deed by a corporation ; the seal alone is sufficient evidence. The only forms of deeds given \vire are the com- mon forms of bargain and sale useci in the ordinary conveyance of real property : special forms in un- skilful hands might result in loss and embarrass- ment. The foriiis given are with absolute covenants and with qualified or limited covenants. The for- mer are very extensive, and ought not be given without some sufficient reason, as they bind the grantor with reference to the acts of all parties 1 rl • I p. i: n 174 CABINET LAWYfirt. through whom the property may have passed. Limited covenants, on the contrary, are confined to the acts of the grantor himself and those claiming under him. Deed of Bargain and Sale. (^Absolute Covenants.) This fiidentare made (In duplicate) the day of , 18 , Between A. B., of, &c., of the first part, C. D., wife of the said party of the first part, of the second part, and G. H., of, &c., of the third part; Wiines^eth, that the said party of the first part, in consideration of the sum of $500, of lawful money of Canada, to him, by the said party of the third part, in hand well and truly paid, at or before the sealing and delivery of these presents (the re- ceipt whereof is hereby acknowledged), doth grant unto the said pariy of the third part, his heirs and assigns, All and singular that certain parcel or tract of land and premises situate, lying and being in the {here describe the lands)^ Together witl^ the appurtenances : To have and to hold the same lands, tenements, hereditaments, and all and singular other the premises hereby conveyed or intended so to be, with their and every of their appurtenances, unto the said party of the third part, his heirs and assigns, to the sole and only use of the said party of the third part, his heirs and assigns, forever. Subject, nevertheless, to the reservations, limita- tions, provisoes and conditions expressed in the original grant thereof from the Crown. h^Ebs. \15 And this IndenUire further witncssotli, ihal the said parly of the second part, wilh the privily and lull approbution and consent of her said husband, testihi'd by his being a pariy to these presents, in consideration of the premises, and also in conside- ration of tiie further siina of five shillings of lawful money of Canada aforesaid, to her by the said party of the third part in hand vvtdl and truly paid at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledg'd), hath granted' and released, an I by these presents doth grant and release, unto the said party of the third part, hi.^ heirs and assigns, all dower, and all right and title thereto, which she, the said [)arty of the second p irt now hath or in the event of surviving her said husband might or would have in, to or out of the lands and premises hereby conveyed or in- tended so to be. And the said party of the first part doth hereby, for himself, hi'^ heirs, executors and administrators, covenant, promise and agree with and to the s? id party of the third part, his heirs and assigns, in manner following, that is to say : That he, the said party of the first part, now hath, in himself, good ri^ht, full power and absolute authority to convey the said lands and other the premises hereby con- veyed or intended so to be, with their and every of their appurtenances, unto the said party of the third part, in manner aforesaid and according to the true intent and meaning of these presents; And that it shall be lawful for the said party of the third part, his heirs and assigns, from time to time and at all :h: ^ ■^ ! 176 CABINET LAWYER, i i i i : limes hereafter peaceably and quietly to enter upon, have, hold, occupy, possess and enjoy the said lands and premises hereby conveyed or intended so to be, v/ith their and every of their appurtenances, and to liave, receive and take the rents, issues and profits thereof, and of every part thereof to and for his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim or demand whatsoever of, from or by him, the said party of the first part, or his heirs, or any other per- son or persons whomsoever ; And that free and clear, and freely and absolutely acquitted, exone- rated and forever discharged or otherwise by the said party of the first part or his heirs well and sufficiently saved, kept liarmless, and inderrmified of, from and against any and every former and other gift, grant, bargain, sale, jointure, dower, use, trust, entail, will, statute, recognizance, judgment, execution, extent, rent, annuity, forfeiture, re-entry and any and every other estate, title, charge, trouble and incumbrance whatsoever ; And lastly, that he, the said party of the first part, his heirs, executors or administrators, and all and every other person whomsoever having or claiming, or who shall cr may hereafter have or claim, any estate, right, title or interest whatsoever, either at law or in equity, in, to or out of the said lands and premises hereby conveyed or intended so to be, or any of them, or any party thereof, by, from, under or in trust for him, them or any of them, shall and will from time to time and at all limes hereafter, upon every reasona- ble request, and at the costs and charges of the said DEEDS. 177 patly of the third part, his heirs or assigns, make, do or execute, or cause to be made, done or execu- ted, all such further and other lawful acts, deeds, things, devises, conveyances and assurances in Ihe law whatsoever, for the better, more perfectly and absolutely conveying and assuring the said lands aiid premises hereby conveyed or intended so to be, and every part thereof, with their appurte- nances, unto the said party of the third part, his heirs and assigns, in manner aforesaid, as by the said party of the third part, his heirs and assigns, his or their counsel in the law, shall be reasonably devised, advised or required : so as no person who shall be required to make or execute such assu- rances shall be compellable, for the making or exe- Between A. B. of, &c., of the first part, C. D., wife of the said party of the first part, of the second part, and G. II., of, &c., of the lliird part : Witnesseth, that the ^aid party of the first part, in consideration of the sum of $500, of lawful money of Canada, to him by the said party of the third part in hand well and truly paid at or before the sealing and delivery of tliese presents (the re- ceipt whereof is hereby acknowledged), doth grant unto the said party of the third part, hrs heirs and assigns. All and singular that certain parcel or tract of land and premises situate, lying and being in the {here describe the lamls):^ Together with the appurtenances : To have and to hold the same lands, tenements and hereditaments, and all and singular other the premises hereby conveyed or in- tended so to be, with their and every of their appur- tenances, unto the said party of the third part, his heirs, and assigns, to the sole and only use of the said party of the third part, his heirs and assigns, forever. Subject, nevertheless, to the reservations, limitations, provisoes, and conditions expressed in the original grant thereof from the Crown. And this Indenture further witnesseth, that the said party of the second part, with the privity and full approbation and consent of her said husband, testified by his being a party to these presents, in consideration of the premises, and also in conside- ration of the further sum of five shillings of lawful Ui day 5 first part, lliird ; first iwful of the before he re- , grant rs and eel or being ilh the same ill and I or in- appur- rt, his of the ssigns, ations, sed in lat the jty and isband, ;nts, in mside- lawful % DEEDS^ 179 K money of Canada aforesaid, to her by the said parly of the third part in hand well and truly paid at or before the sealing and delivery of theso presents (the reeeipt whereof is hereby acknowledged), hath granted and released, and by these presents doth grant and release, unto the said parly of tlie tiiird part, his heirs and assigns, all dower, and all right and title thereto, which she, the said party of the second part, now hath, or in the event of surviving her said husband might or would have in, to or out of the lands and premises hereby conveyed or in- tended so to be. And the said party of the first part doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree with and to the said party of the third part, his heirs and assigns, in manner following, that is to say : That for and not- withstanding any act, deed, matter or thing by the said party of the first part done, executed,committed or knowingly or wilfully permitted or suffered to the contrary, he, the said party of the first part, now hath in himself good right, full power and absolule authority to convey the said lands and other the premises hereby conveyed or intended so to be, with their and every of their appurtenances, unto the said party of the third part, in manner aforesaid, and according to the true intent of these presents : And that it shall be lawful for the said party of the third part, his heirs and assigns, from time to time, and at all times hereafter, peaceably and quietly to enter upon, have, hold, occupy, possess and enjoy the said lands and premises hereby conveyed, or m i': I' 180 CABINET LAWYER, inlendud so to be, with their and every of their appurtenances, and to have, receive and talve the rents, issues and profits thereof, and of every part thereof, to and for iiis and tlieir use and Ijenefit, without any let, suit, trouble, denial, eviction, in- terruption, claim or demand whatsoever of, from or by him, the said party of the first part or his heirs, or any j)erson claiming or to claim by, from, under or in trust for him, them or any of them : And that free and clear, and freely and absolutely acquitted, exonerated and forever discharged or otherwise by the said party of the lirst part, or his heirs, well and sufiicienlly saved, kept harmless, and indemnified of, from and against any and every former and other gift, grant, bargain, sale, jointure, dower, use, trust, entail, will, statute, recognizance, judgment, execution, extent, rent, annuity, forfeiture, re-entry and any and every other estate, title, charge, trouble and incumbrance whatsoever, made, executed, oc- casioned or suflcrcd by the said party of the first part, or his heirs, or by any person claiming or to claim by, from, under or in trust for him, them or any of them : And lastly, that he, the said party of the first part, his heirs, executors or administrators, and all and every other person whomsoever having or claiming, or who shall or may hereafter have or claim, any estate, right, title or interest whatsoever, either at law or in equity, in, to or out of the said lands and premises hereby conveyed or intended so to be, or any of them, or any part thereof, by, from, under or in trust for him, them or any of them, shall and will from time to time, and at all times hereafter, DEEDS. 181 i upon every reason;ible r.^qnest, and at the costs and charg-^s of the said |)arty of the third part, his lieirs or assiii^ns, make, do or execute, or cause to be made, done or executed, all such further and other lawful acts, deeds, things, devices, conveyances and assurances in the law whatsoaver, for tlie better, more perfectly and absolutely conveying and assur- ing the said lands and j)remises hereby conveyed or intended so to be, and every part thereof, witii their appurtenances, unto the said party of the third part, his heirs and assigns, in manner aforesaid, as by the said party of the third part, his heirs and assigns, his or their counsel in the law", shall be reasonably devised, advised or required, so as no such further assurances contain or im))ly any further or other covenant or warranty than against the acts and deeds of the person who shall be re(iuired to make or execute the same, and his heirs, exL»cutors or administrators only, and so as no person wdio shall be required to make or execute such assurances shall be compellable, for the making or executing thereof, to go or travel from his usual place of abode. In witness whereof, the said parties to these pre- sents have hereunto set their hands and affixed their seals, the day and year first above written. Signed, sealed and delivered in the presence of A. R. [l.s.] E. F. C. D. [l.s.] Received, on the day of the date of .nc within Indenture, the sum of $500, of law'fr.l money of 1 •' i IMAGE EVALUATION TEST TARGET (MT-3) fe V f^s C^, S" MP. .l e. %' c? / /a Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 ,716) 872-4503 I CABINET LAWYER* Canada, being the full consideration therein men* tioned. Signed in presence of E. F. A. B. )Shori forms under Statute. This Indenture, made (in duplicate) the day of 18 , in pursuance of an Act respecting short forms of conveyances : Between A. B., of, &c., of the first part, C. D., wift o"*\\e said parry of the first part, of the second part, i:.i -\ E. P., of, &c., of the third part: Wit- nesses?? liiat in consideration of $500 of lawful monc) of Canada now paid by the said party of the third part, to the said parly of the first part (the receipt whereof is hereby by him acknowledged), He, the said party of the first part, doth grant unto the said party of the third part, his heirs and assigns forever. All and singular that certain par^ eel or tract of land and premises situate, lying and being {liere describe the premises.) To have and to hold unto the said party of the third part, his heirs and assi^^ns, lo and for his and their sole and only use for (wer. Subject nevertheless, to the reservations, limitations, provisoes and conditions expressed in the original grant thereof from the Crown. The said party of the first part covenants with the said party of the third part, That he has the right to convey the said lands to the said party of the third part, notwithstanding any act cf the said parly of the first part ; And that the said party of the third lOEEDS. :83 part shall have quiet . cisession of the said lands free from all irfmmbrances ; And that the said party of the first part will execute such further assurances of the said lands as may be requisite ; and that he will produce the title deeds enumerated hereunder, and allow copies to be made of them at the expense of the said party of the third part ; And that ilie said party of the first part has done no act to encumber the said lands. And the said party of the first part releases to the said party of the third part all his claims upon the said lands, aad the said party of the second part, wife of the «aid party of the first part, hej'eby bars her dower in the said lands. In witness whereof, the said parties hereto have hereunto set their hands and seals. Signtid, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [l.s.] Received on the day of the date of this Indenture from the said party of the third part, the sum of $500 being the full consideration therein men- tioned. A. B. Witness, Y. Z. Deed of land belonging to married woman. This Indenture made (in duplicate) the day of , 18 , in pursuance of an act respecting sJiort forms of conveyances . • v.^ CABINET LAWYER. a. ! iu ■in €1 H lllli ^ -H Between A. B., of, &c., wife of E. F., of ihe same place, of the first part, the said E. F., of the second part, and G. H., of, &c., of the third part. Witncsselh, that in consideration of ^ of lawful money of Canada now paid by the said parly of the third part to the said parties of the first and second parts, (the receipt whereof is hereby by them acknowledgod). They, the said parties of the first and second parts, do grant unto the said party of the third part, his heirs and assigns for ever, All and singular that certain parcel or tract of land and premises situate lying and being, &c., {here describe the premises). To have and to hold unto the said parly of the third part, his heirs and assigns, to and for his and their sole and only uso for ever : subject, nevertheless,, to the reservations, limita- tions, provisoes and conditions expressed in the original grant thereof from the Crown. The said party of the second part covenants i.vith the said parly of the third part, that she, the said party of the first part, jointly, with the party of the second part, hath the right to convey the said lands to the said party of the third part, notwithstanding any act of the said parlies of the first and second parts. And that the said party of the third part shall have quiet possession of the said lands, free from all incumbrances, and that the said parties of the first and second parts will execute such further assurances of the said lands as may be requisite. And that the said parties of the first and second parl3 have done no act to encumber the said lands* V^ i I DEEDS. 185 And the said parties of the first and second parts release to the said parly or the lliird part all tiieir claims upon the said lands. In witness whereof, the said parties hereto have hereunto set their hands and seals. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. E. F. [L.S.] Received on the day of the date of this Indenture from the said party of the third part tlie sum of 'f^ , beinff the full consideration therein mentioned. Witness, A. B. Y. Z. E. F. # Deed of Gift of Lands. This Indenture, made (in duplicate) the day of 18 , Between A. B., of, &c., of the one part, and C. D. (the eldest son of the said A. B.,) of ll.e other part. Witnesseth, that the said A. B., in consideration of the natural love and affection which he hath and beareth unto the said C. D., Doth give and grant unto the said C. D., his heirs and assigns. All that parcel or tract of land, &c., [df'scnbing the premises], together widi all and singular the appurtenances, to the said parcel or tract of land and premi.ses belonging or in an3'' wise appertaining. To have and to hold the said parcel and tract of land, and all and sinirular other ^' 3 premises hereby granted, unfo and to the only j)roper use and behoof of the said C. U., his heirs and assigns, forever. I i \ J;'1 Hi '» ' 186 CABINET LAWYER. . I In witness whereof, the said parlies to these presents have hereunto set their hands and seals, the day and year above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. Certificate of Achnowledgement hy Man'ied Woman, I [or we, inserting the name or names of the Judge or Magistrates ^ 4^^.,] do hereby certify that on this day of , at , the within deed was duly executed in nny [or our] presence by A. B., of , wife ol , one of the gran- tors therein named, and that the said wife of the said , at the said time and place being ex- amined by me (or us) apart from her husband, did appear to give her consent to convey her estate in the lands mentioned in the said deed freelv and voluntarilv, and without coercion or fear of coer- cion on the part of her husband or of any other person or persons whatsoever. A. B., Judge ^ or E. r ., «/. Pt Affidavit of Execution of Deed. County of , to wit : I, Y. Z., of, ^'C., [state here the name^ in fully of the witness : his place of residence and occupation] make oaiij and say : — 1. That I was personally present and did see the within instrument and duplicate duly signed. j DtVlSION COURTS. 187 sealed and executed by A. B. and C. D., two of the parties thereto. 2. That the said instrument and duplicate were executed at the {Oily of Toronto.) 3. That I know the said parties (?/ that he the „> fact,) 4. That I am a subscribing witness to the said instrument and duplicate. Y. Z. Sworn before me at ] in the County I of , this day [ of , 18 . J W. W. A Commissioner, &c., in B. R. CHAPTER X. DIVISION COURTS. These Courts have been established in every county in Ontario for the recovery of small debts. For the recovery of larger claims, the Superior Courts of Law and County Courts exist. The number of Division Courts varies in different counties ; but there must never be less than three or more than twelve ; and there must be one Court in every city or county town. They are presided ' h ! I I 188 CABINET LAWYER. !i u ov(n' by tlio Connly Jndgr, or, in some largo Coun- ties where junior Judi,^es iiavc been apr'oinled, by such junior Jiidgo. The authority of these Courts is derived from the " Act respecting the Division Courts," Con. Slat. U. C, cap. 19, as amended by tlie several acts, 27 & 28 Vic, c. 27, and 29 Vic, 0. 31, of tlie acts of the late Province of Canada; and the 32 Vic., c. 23, of the Statutes of Ontario. Courts are holden once in every two months (or oftener, in the discretion of the Judge), at such times and places within each division as the Judge may appoint. Division Courts may entertain, and take cogni- zance of, and determine in a summary way, 1. All personal action, where the debt or dama- ges claimed do not exceed $40; and 2. All claims and demands of debt, account or breach of contract or covenant, or money demand, wlieth(!r payable in money or otherwise, where the amount or balance claimed does not exceed $100. These Courts have no jurisdiction in the follow- ing case's : — 1. Actions for any gambling debt ; or 2. For spirituous or mall liquors drunk in a tavern or ale-house ; or 3. On notes of hand given wholly or partly in consideration thereof ; or 4. Actions of ejectment, or actions in which the incorporeal heredi- franchjse comes in right or title to any corporeal or laments, or any toll, custom or question ; or -^•t ? i 5. In which the validity of any devise, bequest DIVISION COURTS. 189 or limilalion under any will or settlement inay be disputed ; or 6. For malicious prosecution, libel, sbmder, criminal conversation, seduction or breach of prom- ise of marriage ; or 7. Against a Justice of the Peace for any thing done bv him in the execution of his olliee, if he objects thereto. Upon a contract forpayment in labor or goods, or commodities, or anything other than money, the Judge, after the day has passed on which the goods or commodities ought to have been delivered, or the labor or other thing performed, may give judgment for the amount in money, as if the contract had been so originally expressed. Minors (or persons under twenty-one years of age) may sue in a Uivison Court for wages not exceeding ^100. A claim will not be allowed to be divided into two or more parts, so as to bring it within the jur- isdiction of a Division Court ; nor can any sum greater than $100 be recovered in an action on an unsettled account. Where the unsettled account in the whole exceeds $200, no action can be brought in these Courts. Formerly judgments of the Division Court were thought to be good for six years only ; but under the last of the acts above referred to, they arc de- clared to have the same force and effect as judg- ments of Coarts of Record. They are good, there- fore, for twenty years. Ordinarily a suit must be entered and tried tm •i 190 CABINET LAWYER. in the Court of the division wliero the cause off action arose, (that is ; where the debt was con- tracted,) or in that where the defendant resides ; but under the act of 1864, a suit may be entered in the Court nearest to the defendant's residence, irre- spective of the place when the cause of action arose. By leave of the Judge before whom the action is to be tried, a suit may be entered at the Court of the division adjacent to that in which the defendant resides, if the Judge be satisfied on oath or by affidavit, that it will be more convenient for the parties. The first process in the Division Court is a sum- mons. Summonses are of two kinds : ordinary and special. The former may be used in every case : the latter can only be used where the action is for a debt or money demand ; and where the particulars of the plaintiff's claim are given with reasonable certainty and detail. There is also a summons in replevin, used in actions of that nature. When a suit is to be entered at any Division Court, the first thing for the plaintiff to do is to hand to the clerk a written claim and particulars which should sh^w the names in in full, and the present or last known place of abode of the parties. When the de%ndant's christian name is unknown, he may be described by his initials, or by such name as he is generally known by. The claim must in every case admitting thereof, show the par- ticulars in detail ; and in other cases must contain a statement of the particulars, or the facts consti- tuting the claim, in ordinary and concise language, I ' DIVISION COURTS. 191 and the sum claimed in respect thereof. Where the plaintilF desires to avail himself of the act of 1864, and sues the defendant in the Conrt nearest to his residence, he must add the following words to his claim, "and the plaintifl enters tliis suit and claims to have it tried and determined in this Court, because the place of sittmg thereof is the nearest to the defendant's residence." If the plain- tiff's claim is beyond the jurisdiction of the Court, he may abandon the excess ; but lie must do so in the first instance and on the claim. When the defendants reside in the county, a special summons is returnable on the eleventh day after service. Where they reside in an adjoining county, it is returnable on the sixteenth day ; and where they reside at other places, on the twenty- first day. If a defendant served with a special summons disputes the plaintifPs claim, he must leave with the clerk of the Court a notice to that effect, within eight days after service, when the summons is re- turnable on the eleventh day ; and within twelve days in other cases, if he does not do so, judg- ment will be entered by default on the return of the summons, and execution may be at once issued. The Judge, however, has a discretion to let a de- fendant dispute the claim at any time before judg- ment entered, although notice may not have been given ; and he may set aside a judgment on suffi- cient grounds being shown. Judgment by default must be entered within one month after the return of a summons, it cannot be entered after. Where il'i: li)2 CABIN KT LAWVeU. ■i-il m a f pof'ial siimtnons lias been issued against several delcndaMts, but all have not been served, the plain- li/r may lake judgment against tliosc served: in wiiicli case his chiim against the others will be lost. \i hi! does not wish lo abandon ihose not served, lie uuist proceed in the ordinary way. An ordinary summo'ns, wilh a copy of the ac* count, or of the particulars of the claim or demand, attached, recjuires to be served ten days at least before the Court day. In case none of the deAindants reside in the county iu which the action is brought, but one of them resides in an adjoining county, the sunmions must be served fi.fleen days ; and in case none of the defendants reside in the county within which the action is brought, or in an adjoining county, then twenty days at least, before the Court day. When the claim exceeds eight dollars, the service must be personal ci the defendant: but where the amount does not exceed eight dollars, the service may be on the defendant, his wife or servant, or some grown person being an inmate of the defend- ant's dwelling-house or store. The bailiffs of the Court serve and execute all summonses, orders, warrants, precepts and writs, and so soon as served return the same to the clerk of the Court of which they are bailiff's. The clerk prepares the affidavit of service of sum* mons, stating how served, the day of service, and the distance the Bailiff necessarily travelled to effect service, which is annexed to or indorsed on ihe summons ; but the Judge may require the DIVISION COURTS. 193 all its, erk bailiff to be sworn in his presence, and to answer such questions a.^ may be put to him touching any service or mileage. In case of a debt or demand against two or more persons, partners in trade, or otherwise jointly liable, but residing in different divisions, or one or more of wiiom cannot bt> found, one or more of such persons may be served with process, and judgment may be obtained and execution issued against the person or persons served, notwithstand- ing odiers jointly liable ^»ave not been served or sued, reserving always tu the person or persons against whom execution issues, his or their right to demand contribution frorr any otiier person jointly liable with him. Whenever judgment has been obtained against any such partner, and the Judge cortifi'^s that the demand proved was strictly a partnership transac- tion, the Bailiff, in order to satisfy the judgment vnd costs and charges thereon, may seize and sell the property of the firm, as well as that of the defend- ants who have been served. On the day named in the summons, the defend- ant must, in person, or by some person on his be- half, appear in the Court to answer, and, on answer being made, the Judge in a summary way tries the cause and gives judgment ; and in case satisfactory proof is not given to the Judge entitling either party to judgment, he may non-suit the plaintiff; and the plaintiff may, before verdict in jury cases, and before judgment pronounced in other cases, insist IS f » «'i, 194 CABINET LAWy«!R. *- I If" I> Un li 201 CABINET LAWYER. and may issue oxccntion thereon in confornnily Willi any rales which apply to such Division Court in that b; half. In case an execution be returned nulla bona, and the sum remaining unsatisfied on the judgment amounts to the sum of forty dollars, the plaintiff or d(-'ffmdant may obtain a transcript of the judgment from the clerk, under his hand and sealed with the seal of the Court. Upon filing such transcript in the ofHce of the clerk of the Couuly Court in the county where such judgment has been obtained, or in the county wherein the defendant's or plainnff's lands are situ- ate, the same will become a judgment of such County ('ourt ; and the clerk of such County Court will file the same and make the proper entries in his book on payment of fifty cents. Upon such filing and entry, the plaintiff or de- fendant may, until the judgment has been fully paid and satisfied, pursue the same remedy for the recovery thereof or of the balance due thereon as if the judgment had been originally obtained in the County Court. In case any Bailiff employed to levy an execution against goods and chattels, by neglect, connivance, or omission, loses the opportunity of so doing, then upon complaint of the party aggrieved, and upon proof by the oath of a credible witness of the fact alleged to the satisfaction of the Court, the Judge may order the bailiff to pay such damages as it appears the plaintiff has sustained, not exceeding the sum for which the execution issued ; and the DIVISION COURTS. 205 BailifT slicill be liable thereto ; and upon demand made thereof, and on his refusal to satisfy ihe same, payment may be enforced by such means as are provided for enforcing judgments recovered in the Court. Goods taken in execution are not to be s;jld until the expiration of eight days at least next after the seizure thereof, unless upon the request in writing under the hand of the party whose goods have been seized. In case the Judge is satisfied upon application on oalh made to him by the parly in whose favor a judgment has been given, or by other testimony, that such party will be in danger of losing the amount of the judgment, if compelled to wait till the day appointed for the payment thereof before any execution can issue, such Judge may order an execution to issue at such time as he thinks fit. Any party having an unsatisfied judgment may procure from the Court wherein the judgment has been obtained, or from any Division Court within the limits of which the defendant dwells or carries on his business, a judgment summons ; and if the defendant appears in pursuance thereof, he may ba examined upon oath touching his estate and eft'ects and the manner and circumstances under which he contracted the debt or incurred the damages or liability which formed the subject of the action, and as to the means and expectations he then had, and as to the property and means he still has of dis- charging the said debt, damages, or liability, and as to the disposal he has made of any property. 1306 cABii^ET Lawyer* i/i \ti . !n If ihc party so summoned (1) does not attend as J-equircd by the summons or allege a sufThMcnt rea- son for not attending, or (2) if he attends and re- fuses to be sworn or to decl.ire any of the things aforesaid ; or (3) if he does not make answer touch- ing the same to the satisfaetion of the Judge; or (4) if it appears to the Judge, either by the exam- ination of tlie party or by other evidence, tliat the party obtained credit from the plaintiff or incurred Ihe debt or liability under false pretenses, or by means of fraud or breach of trust, or that he wil- fully contracted the debt or liability without having had at the time a reasonable expectation of being able to pay or discharge the same, or has made or caused to be made any gift, delivery, or transfer of any property, or has removed or concealed the same with intent to defraud his creditors or any of them ; or (5) if it appears to the satisfaction of the Judge that the party had, when summoned, or since the judgment was obtained against him has had, suffi- cient means and ability to pay the debt or damages or costs recovered against him, either altogether or by the instalments which the Court in which the judgment was obtained has ordered, and if he has refused or neglected to pay the same at the time ordered, whether before or after the return of the summons, the Judge may, if he thinks fit, order such party to be committed to the common goal of the county in which the party so summoned is resi- dent, for any period not exceeding forty days. The Judge, before whom such summons is heard, may rescind or alter any order for payment pre- Division Counts. 207 vloiisly rnfido against any defendant so summoned before him; and may make pny further or othci order, either for the payment of the whole of tlie debt or damages recovered and costs forihwiih, or by any instalments, or in any other manner that he thinks reasonable and just. In case the defendant has been personally served with the summons to appear, or personally appears at the trial, and judgment be given against him, the Judge at the trial may examine the defendant and the plainiiff, and any other person, touching the several things before mentioned, and may com- mit the defendant to prison, and make an order in like manner as in case the plaintiff had obtained a fudgment summons. No imprisonment under the act will extinguish the debt, or protect the defendant from being sum- moned anew and imprisoned for any new fraud or other default, or deprive the plaintiff of any right to take out execution. We have stated in the foregoing pages the sub- stance of the enactments of the Division Court Acts, so far as the^ app^y to proceedings for the collec- tion of an ordinary debt. We now proceed to notice the mode of action where the debtor has absconded or attempts to abscond. If any person indebted in a sum not exceeding one hundred dollars, nor less than four dollars, for any debt or damages, or upon any judgment, (1) absconds from the province, leaving personal property liable to seizure under execution for debt in any county in Ontario, or (2) attempts to remove I* t r r,i 208 CABINET LAWYER. such personal property either out of Ontario or from one county to another therein, or (3) keeps con- cealed in any county of Ontario to avoid service of process ; any creditor on making an affidavit or affirmation in the form given at the end of this chapter, and filing same with the clerk, can obtain a warrant, directed to the Bailiff or to any constable of the county, commandini; such Bailiff or constable to attach, seize, take and safely keep all the per- sonal estate and effects of the absconding, removing or concealed person within such county liable to seizure under execution for debt, or a sufficient portion thereof, to secure the sum mentioned in the warrant with the cost of the action. The Judge or a Justice of the Peace for the coun;y, may take the affidavit and issue the war- rant. If the person against whom an attachment has ivssued, at any time prior to the recovery of judg- ment in the cause, executes and tenders to the credi- tor who sued out the attachment, and files in Court, a bond with good surilies, to be approved of by the Judge or clerk, in double the amount claimed, that the debtor will, in the event of the claim being proved and judgment recovered, pay the same, or the value of the property taken, to the claimant, or produce such property whenever required, the clerk may supersede the attachment, and the property attached will be restored. If within one month from the seizure, the party against whom the attachmert issued does not appear to give such bond, execution may issre as DIVISION COURTS. 209 from con- ice of vit or f this obtain istable istable tie per- noviug ible to .fficient I in the for the Ihe war- ent has )f judg- lecredi- n Court, f by the ed, that m being Isattie, or Imant, or the clerk property [he party )t appear issre as soon as judgment has been obtained, and the prop- erty seized upon the attachment, or enough thereof lo sati^^fy the jud 5 U5 CO 1-H 5 U5 ^ fe ^ o .2 s w fes:22c-ge •2 o M ji -pa g U Df fi-g o rH I-H 5 .C O =» i* .X » S t- «•= c-gS 5?; S CO J3 •si o ■"as §t§oa 3 2^-2 o ad c .2 'in 2 73 C .5 ° ■ill S So o « o o g ^>. •2§ .2o Q -1^ 9) iH OS's .2 •£a§ Q --'■So •-> -= a " ' iilil! I ll >i *i(«i 1 CABINET LAWYER, Affidavit for Attachment. (1/ made after suit commenced, insert style of Court and cause.') I, A. B., of the in the County of , (or I> E. F., of, &c., agent for the said A. B., of, &c.,) make oath and say: — 1st. That C. D., of {or late of) in the County of is justly and truly indebted to me, {or to the said A. B.) in the sum of dollars and cent , on a promissory note for the payment of dollars and cents, made by the said C. D., pay- able to me (or the said A. B.) at a day now past ; Or for goods sold and delivered Or for goods bargained and sold Or for crops bargained and sold Or for money lent Or for money paid for the said C. D. Or for an. I in respect of my (or the said A. B.) having relinquished and given up to and in favor of the said C. D., at his request, the benefit and ad- vantage of work done and materials found and pro- vided and moneys expended by me (or the said A. B.) in and about the farming, sowing, cultivat- ing and improving of certain land and premises; Or for the use by the said C. D., by my permis- sion (or by the permission of the said A. B.) of messuages and lands of me (or the said A. B.) ; by me {or the said A.B'.) to the said C. D. ; DIVISION COURTS. 215 Or for the use by the said C. D. of pasture land of me (or the said A. B.) and the eatage of the grass and herbage thereon, by the permission of me (or the said A. B.) ; Or for the wharfage and warehouse room of goods deposited, stowed and kept by me (or the said A. B. in and upon a wharf, warehouse and premises of me (or the said A. B.) for the said C. D., at his request ; Or for horse-meat, stabling, care and attendance provided and bestowed by me (or the said A. B.) in feeding and keeping horses for the said C. U., at his request ; or for work done and materials provi- ded by me (or the said A. B.) for the said C. D., at his request ; Or for expenses necessarily incurred by me (or the said A. B ) in attending as a witness for the said C. I)., at his request, to give evidence upon the trial of an action at law then depending in the Court, wherein the said C. D. was plaintiff, and one E. F. defendant; Or for money received by the said C. D. for my use (or for the use of the said A. B ) ; Or for money found to be due from the said C. D. to me, (or to the said A. B.) on an account stated be- tween lliem, (or other cause of action^ staling the same in ordinary and concise language.) 2nd. I further say that I have good reason to be- lieve and do verily believe that the said C. D. hath absconded from that part of the Dominion of Canada, which heretofore constituted the Province of Canada, leaving personal property liable to 2\6 CaBTINET LAWYEir, seizure under execution for debt in the County of in this Province.* (Or instead of matter between the asterisks, the said C. D. hath attempted to remove his personal property, liable to seizure under execution for debt, out of this Province ; or the said C. D. hath attempted to remove his personal property liable to seizure under execution for debt from the County of to the County of , in this Province ;. or the said C. D. keeps concealed in the County of in this Province to avoid service of process) with intent and design to defraud me (or the said A. B.) of my (or his) said debt. 3rd. That this affidavit is not made by me nor the process thereon to be issued from any vexatiou?t or malicious motive whatever. Sworn, &c. A. B. Replevin. Affidavit to obtain Judges order for writ oj" replevin. In the Division Court in the County of County of , to wit : I, A. B., of , make oath and say : 1st. That I am the owner of (describe properly Jully) at present in the possession of C. D. ; or that I am entitled to the immediate possession of (de- &cribe proper /y)^ as lessee, (bailee, or agent,) of E. F., the owner thereof or as trustee for E. F.) (or as the case may be)y at present in the possession of C. D. 2nd. That the said goods, chattels, and personal DIVISION COURTS. 217 'i r ' oath )eriy that {de- lofE. I) (0** Ion of ?onal property aro of the vahie of dollars and not exceeding )?40. 3rd. That on or about the day of , the said goods, chattels, and personal property, were lent to the said C. D., for a period which has ex- pired, and that although the i-aid goods, cliattels and personal properly have been demanded from the said C. D., he wrongfully withholds and de- tains the same from me, the sj'id A. B. ; or, that on or about the day of , the said C. D., fraudulently obtained possession of the said goods, chattels and personal property, by falsely represent- ing thai {here state the false representation)^ and now wrongfully withholds and detains the same from me ; or^ that the said goods, chattels and per- sonal property were on the day of , last, distrained or taken by the said C. U., under color of a distress for rent, alleged to be due by me, to one E. F., when in fact no rent was due by me to the said E. F., [or as the case may be, setting out the facts of the wrongful taking or detenlion com- plained of with certainty and precision .) 4lh. That the said C. 1). resides [or carries on business, at , within the limits of the Division Court in the County of , {or that the said goods, chattels and personal property were distrained), (or taken and detained), {or detained), at , within the limits of the Division Court of the County of Sworn, &c. A. B. i 218 CABINET LAWYER. Affidavit to obtain writ without order in first instance. \_The first four sections may he as above and the follow- ing must be stated in addition .] 5lh. That the said personal properly was wrong- fully taken, {or fraudulently ^ot) out of my posses- sion within two calendar months before the making of this allidavit, that is to say, on the day of last. 6th. I am advised and believe that f am entitled to an order for the writ of replevin now applied for, and I have good reason to apprehend, and do gfpprehend, that unless the said writ is issued with- out waiting for an order, the delay will materially prejudice my just rights in respect to the said properly. \^0r if the property was distrained for rent or damage feasant^ then the statement given in the last sp(cific alternative under th^ Srd clause of the above form will be sufficient to obtain writ withoui order.] Claim in Replevin. In the Division Court in the County of A. B., of , states that C. D., of , did on or about the day of , A. D. 18 , take and unjustly detain (or detain, as the case may 6e), and still dolh detain his goods, chattels and per- sonal properly, that is to say (Jiere set out the rfc- scription of property) which the said A. B. alleges to be of the value of dollars, whereby he hath sustained damages ; and the said A. B. claims the i n ! i OIVISIUN COURTS. 219 said properly with damages in this behalf as his just remedy. Particulars in cases of contract. A. B., of , chiims of C. D., of , tho sum of $ , the amount of the foHovving account, viz., {or "the amount of the note, a copy of which is under written,") together witli tlie interest thereon, [or^ for that the said C. D. promised ijiere state shortly the promise) which undertaking the said C. D. hath not performed, or^ for that the said C. D. by deed under his seal dated the day of , A D. 18 , covenanted to, &c., and that the said C. D. hath broken said covenant whereby the said A. B. hath sustained damages to the amount aforesaid ; or for money agreed by the said C. D. to be paid by the said A. B., together with a horse of the said C. D., in exchange for a horse of the said A. B., delivered by the said A. B. to the said CD; or for that the said C. D., by warranting a horse to be then sound and quiet to ride, sold the said horse to the said A. B., yet the said horse was not then sound and ([uiet to ride ; or for that the said C. D., in consideration that the said A. B. would supply E. F. with goods on credit promised the said A. B., that he, the said C. D. would be answerable to the said A. B. for the same, that the said C. D. did accordingly supply the said E. F. with goods to the price of $ and upw^ards, on credit, that such credit has ex- pired, yet neither the said E. F. nor the said C. D. has as yet paid for the said goods \ or for that the •~ \4,C. HIE CHAPTER XI. INSOLVENCY. But little can be said on the subject of insolvency in a work of this kind. To treat of it efficiently would swell the limits of the present volume far beyond due bounds. Uur remarks, therefore, under this head will necessarily be brief and very general. And first, we observe that the present " Act re- specting Insolvency," (Dom. Slat. 32 & 33 Vic, cap. 1 6,) is restricted in its operation and provisions to *' Traders " only. The common definition of a " Trader " is " one engaged in the business of buy- INSOLVENCY. 2:9 jn2 and selling:." Unlil aulliorative cU'ci^ions have been prononnecd by our Courts on ihc qncslion, who are and who arc not traders? it would be gornewliat prcsurnpluous ina))opular treatis'?, sucli as this is, to attempt, with any pretentions to ac- curacy, to specify the features which distinguish the trader from th'3 non-trader. According to the Imperial Statutes rehiting to bankruptcy, the foHowing are some of the j)arties who are traders : — Auctioneers, bankers, brokers, brickmakers, builders, carpent^'rs, cattle dealers, coach proprietors, cow keepers, dyers, keepers of inns, taverns or hotels, lime burners, livery stabh» keepers, market gardners, millers, printers, ship owners, warehousemen and warfingers. It is pre- sumed that anv person who en^ija^es in buyini]; and selling generally^ so as to supply any one who will come to buy, will be held a trader. Under the act, then, any trader debtor who is un- able to meet his engagements, and is desirous of making an assignment of his estate and efli'cts for the benefit of his creditors, may make such assign- ment to any official assignee resident within the county or place where the insolvent has his domi- cile or place of abode ; or if there be no official assignee there, then to some such assignee in the county or place nearest thereto. The official assignee to whom such assignmrnt is made, is called the " interim assi2:nee." Official assiirnees are nominated and appointed by the various boards of trade throughout the Province; and in places where no such boards exist ; or where, although V ' ■ t I Hl\ 230 CABINET LAWYER. existing, they fail to appoint, the County Judge may nominate them. As soon as the assignment to the interim assignee has been made, a meeting of creditors must be called, to be holdcn at the insolvents place of busi- ness. This is done by advertisement for two weeks in the " Oflicial Ga/ctte " of the province ; and in every issue, during two weeks, of some one news- paper publislicd at or nearest to the insolvent's chief place of business. Notices of such meeting must also be mailed to each creditor, postage paid, at least ten days before, accompanied by a list of the creditors so far as known. Previous to the meeting the assignee must pre- pare for exhibition thereat, statements showing the position of the insolvent's affairs, and containing the particulars required by the act : together with a statement of the assets. The insolvent must assist in the preparation of these statements, and must attend the meeting in order that he may answer any questions that may be put to him touching his affairs. At the meeting he must also file a declaration under oath stating whether or no the assignee's statements are correct, and if incorrect, in what particulars. At the meeting the creditors who have proved their claims may appoint an assignee, who will there upon take the place of the interim assignee, and to whom the estate and effects of the insolvent will thenceforth stand assigned. If no assignee is ap- pointed, or being appointed, refuses to act, the inte- rim assignee will continue. If an interim assignee INSOLVENCY. 231 fails or neglects to execute an assignment within twenty-four hours after nomination of any assignee, he may be imprisoned for a period not exceeding one month. An assignment vests in the interim assignee, in the first instance, and afterwards in the creditor's assignee, if one be appointed, the books, vouchers, accounts, letters and papers, relating to the Insol- vent's business, and all moneys and negotiable papers, stocks, bonds and other securities, as well as the real estate of the insolvent, and all his inter- est therein, and all his personal estate, debts, assets and effects, which he has or may become entitled to at any time before his discharge : excepting only such as are exempt from seizure under execution. Pledgees of, an(i parties having liens on, any of the insolvent's chattels, are entitled to a preferential claim thereon. Where an insolvent possesses real estate, the assignment \d the assignee should be registered in the usual way. The foregoing observations apply to voluntary assignments. In the following cases a trader is declared to be insolvent and compuUory liquidation may be enforced : 1. If a trador debtor absconds, or is inimediately about to abscond, with intent to defraud, defeat or delay any creditor, or to avoid being arrested, or served with legal process, or being absent, remains so with such intent, or conceals himself with such intent. 2. If hfi secretes or is immediately about to :■!! hi CABINET LAWYER. sccrcic his estate • and effects with siieh intent. 3. If he assigns, removes or di>'poses of any of his property ; or is about to do so : witli sncl) intent. 4. Ifwiih such int(?nt he procures his effecls to be taken in execution for a sum exceeding $200. 5. If he has been imprisoned or on the gaol lim- its for more than 30 days in a civil action for more than J200 ; or if he has escaped. 6. If he wilfully refuses or neglects to appear on any rule or order to be examined as to his debts. 7. If he wilfully refuses or neglects to obey or comply with any rule or order for payment of debt. 8. If he wilfully neglects or refuses to obey or comply with an order of the Court of Chancery for payment of money. 9. If he has made any general assignment for benefit of creditors otherwise than under the act ; or being unable to meet his liabilities in full, makes any sale or conveyance of his assets williout the consent of his creditors, or without satisfying their claims. 10. Or if he permits any execution to remain un- satisfied till within four days of time fixed for sale, or fifteen days after seizure. In case any creditor, by aflfidavit of himself or other person, shows, to the satisfaction of the Judge, that he is a creditor for not less than $200, and also shows, by affidavits of two credible persons, such facts and circumstances as satisfy such Judge that the debtor is insolvent as above mentioned, the Judge may make an order for an attachment to issue, under which the debtor's effects will be INSOLVENCY. 233 or seized and handed over to an oflTieial assignee, wlio is called llic "guardian." Applit^ation may be made by the debtor to set aside the attachment, if he can show that the creditor lias not a siillicient claim, or that ho (the debtor) is not insolvent within tiie meaning of the act. If the attachment is not set aside, the Jud^e will oidcr a meelinu: of creditors to be called, and they will appoint an assignee, who will thereupon take i)ossession of the insolvent's eflects as in the case of voluntary assign- ments. If a debtor ceases to meet his liabilities gene- rally, as they become due, one or more creditors for sums exceeding in the aggregate J)5O0, may re- quir(! him to make an assignment ; and if he fails to do so. they may proceed to coinpulsory lupiida- tion. Immediately upon his appointment the assignee gives notice thereof by advertisement and notice mailed to the creditors calling upon them to file their claims with him within one month. The as- signee will then proceed to realise the insolvent's estate, and divide the proceeds amongst the credi- tors. CJcnks and servants of the insolvent are enti- tled to be paid their wages in full, not exceeding four months arrears ; but such amount may be increased by the creditors if they please. An insolvent may procure his d; idiarge at any time by consent of a majority of his creditors for sums of $100 and upwards, and who represent at least three-fourths in value of the liabilities. This is effected by deed of composition and discharge, I ' 'L 234 CABINET LAWYER. k l: III which, upon being confirmed by an order of the Judge, will operate as a final discharge. If the in- solvent cannot or does not procure such consent, he may at the expiration of one year from the date of the assignment or attachment, apply to the Judge for his discharge. The foregoing is a very general outline of the Insolvent act of 1SG9, which occupies fifty-fivt pages of the Statutes, and contains one hundred and fiffy-fivc sections. It is obvious, therefore, that any attempt at greater particularity and detail would be incompatible with the design of this work. The principal object of this chapter was simply to furnish creditors with the means of prov- ing their own claims without the intervention of a solicitor. As for the insolvent, he must necessarily put himself in communication with an official assig- nee, who will instruct him as to the mode of pre cedure ; although he will find it, in most cases better at once to secure the services of a profes- sional man. We subjoin the form in which a creditor's claim should be presented to the assignee for proof. Insolvent Act of 1869. In the matter of A B an Insolvent, AND -D- C/aimant. I, C. D., of, &c., {staling name in full and place of residence and occupation), being duly sworn in ?pose and say INSOLTENCY. 235 1. I am Ihe claimant, (or tlie duly authorizcyl agent of the olaimant in this behalf, and iiave a personal knowledge of the matter hereinafter do- posed to, 07- a member of the firm of , elaimanta in the matter, and the said firm is composed of myself and E. F., of .) 2. The insolvent is indebted to me (or to the claimant^ in the sum of $ for (//ere state the nature and partvulars of the claim for which pur- pose reference may also he male to accounts or documents annexed, 3. I (or \\\ii claimant) hold no security for the claim, [or I, ( or the claimant) hold the following* and no other , security for the claim, namely : (js'atf. here the parti ulars of the security)^ To the best of my knowledge and belief, the security is of the value of dollars.] 18 Sworn before me at , this day of , And I Imve signed C. D, J i !. f i! 1 'I * CHAPTER XII. LANDLORD AND TENANT. The relation of landlord and tenant is that which subsists between the owner of houses or lands, and the person to whom he grants the use of them. It may be created by contract in writing, as lease, or agreement for a lease ; or by verbal agreement as is usually the case in a letting from year to year. The owner, who is called the landlord or lessor, grants the possession and use of the propety to the tenant or lessee for a specified time at a stipulated sum denominated rent. A lease may be made lor the life either of the landlord or the tenant, or it may be made for any number of years, or it may be at will, — that is, de- lermiuiible at any moment al the will either of the lessor or lessee. An agreement for a lease must be in writing, as required by the Statute of Frauds (29 Car. II , c. 3, s. 4), before referred to; and all leases exceeding three years in duration must now be by deed ; and if for more than seven years they must also be registered. A lease in writing, not und(r seal, for a term not exceeding three years in duration will amount only to an agreement for a lease for the term specified. LANDLORD ANiJ TENANT. 237 the any de- the be nds all How hoy not A letting and hiring of land for a year or any less period may arise, by irnplieation of law, from the relative situations of the parties and the sih^nt language of their aetions and eonduet, as well as by expiess words and stipulations. Whenever the house or land of one man has been occnpied and used by another, the pretumption is that the use and occupation are to be paid for, and the landlord is entitled to maintain an action to recover a reason- able hire and reward for the use of the land, unless the tenant can show that he entered into possession of the property under circumstances fairly leading to an opposite conclusion. A landlord, on the other hand, who has permitted a tenant to occupy proj)erly, and has received rent iVoru the latter for such use and occupation, will be bound by his own acts, and cannot afterwards treat such tenant as a trespasser, and turn him out of possession, without a proper notice to quit. Leases may be made to commence from a day that is passed, or from a day to come, as well as from the day of the making of the lease. If a tenant holds over after the expiration of his lease ; and the landlord receives from liim rent which has accrued due subsequently to the expira- tion of the lease, he becomes a tenant from year to year upon the terms of the original demise. A tenancy from year to year is ordinarily implied from the payment and acceptance of rent ; but this prima facie presumption may, of course, be re- butted by showing that the money was paid or re- ceived by mistake. • >'. 238 Cabinet LAVVYEtt. If an annual rent is reserved, the holdinj: is from year lo year, although the lease or agreement pro- vides that the tenant shall qnit at a quarter'^ notice. Such a contract differs only from the usual letting from year to year in the agreement by the parties to reduce tiie ordin^iry six months' notice to quit to three months. But if it is expressly agreed that the tenant is always to be subject to qut at six months' notice, given him at any time, this consti- tutes a half-yearly tenancy, and the lessee will be presumed to hold from six months to six months from the time that he entered as tenant. If he is to hold till one of the parties shall give to the other three month^s notice to quit at the expiration of such notice, the tenancy will be a quarterly ten- ancy. The landlord's remedy for the non-payment of rent is either by action or distress. Where the rent reserved is a fixed ascertained rent, the landlord may distrain. But if no certain ascertained rent has been reserved or covenanted or agreed lo be paid, there is no right to distrain : the landlord can only recover a fair compensation for the use and occupation of the premises in an action at law. It is essential to the lawful exercise of the power of distress that the distrainor be the immediate landlord or owner of the estate. If after the mak- ing of the lease the landlord has sold and trans- ferred his estate or interest to some third party, he has no right or power to distrain. A landlord can- not distrain twice for the same rent, unless the distress has been withdrawn at the instance or LANDLORD AND TENANT. 239 fcqnest of the tenant, or unless there has been some mistake as to the value of the things taken. When an annual rent is reserved, it may bo made payable monthly or quarterly, or at any period of time that the parties may think fit to appoint, whatever may be the duration of the term of hiring. It may also be made payable in advance, so as to entitle the landlord to distrain for it at the commencement, instead of at the end, of each quarter. There may be a yearly tenancy with an annual rent, payable quarterly ; or there may be a quarterly tenancy with a quarterly rent, payable weekly or monthly ; or at any successive periods of lime. A distress by the landlord after tender of the rent to him or to his bailiff, authorized to distrain, with- out a fresh demand on the tenant, is illegal ; and if the landlord distrains before the rent has become due, the tenant may resist the entry and seizure by force, and, after a seizure has been made, he may rescue his goods at any time before they have been impounded ; but when once the goods have been impounded they are in the custody ol the law, and the tenant cannot then break pound and retake them. As soon as the distrainor has made out and delivered to the tenant, or has left upon the prem- ises, an inventory of the goods he has taken, they are said to be impounded. t'ormerly the landlord could not have distrained afier the expiration of the term for rent that accrued due before the determination thereof; but now, by the statute 8 Ann, c. 14, ss. 6, 7, landlords are I I I »' 240 CABINET LAWYER. aiilliorized ti) distrain, provided the distress be riKide within six months after the determination of the lease, and during the eontinunnc(; of the land- lord's title or interest, and daring (he possession of the tenant from whom the arrears became due. The t^mant has the whole day on which the rent becomes due to pay such rent ; and a distress, there- fore, cannot be made until the day after the day ap- pointed for the payment of the rent. Unless the rent is made payable at some particular specified place, the tenant is bound* to seek out the landlord and pay or tender him the mioney. A huidlord or his bailiff, cannot lawfully break open gates or break down inclosure^, or force open the outer door of any dwelling-house or building, in order to make a distress ; but he may draw a staple or undo fasten- ings which are ordinarily opened from the outside of the house. A distress cannot be made in the night, or after suns, t, or before sunrise, nor upon land which does not form part or parcel of the demised premises, and from which the rent reserved does not issue, unless the goods of the tenant have been removed thereto from the rlemised premises within sii;ht of the distrainor coming to distrain, or unless thev have been fraudulently removed thereto by the tenant to avoid distress. If the tenant fraudulently or clandestinely removes goods and chattels from the demised premises, to prevent the landlord from distraining them for rent in arrear, the landlord may, within thirty days after such re- moval, take and seize them wherever they may be found, unless they have in the meantime been sold LANDLORD AND TENANT. 241 bona fide to some person ignorant of the fraud. But if it be necessary to break open any door in order to jjeize such goods, the landlord must call a con- stable to his assistance, and must force the door in his presence and in the daytime. If it appears that rent was due at the time of such removal, and that the goods were taken away on or after the day the rent became due, for the purpose of putting them out of the reach of a distress, the removal is fraudu- lent. It is not necessary that the rent should be in arrear and a right to distrain exist, at the time of the removal. Therefore, if the goods are removed on quarter-day, they may be followed, though the rent is not in arrear, and there is no right to distrain, until the day after. If there are sufficient goods on the demised premises, independently of the goods removed, to satisfy the rent, the removal is not fraudulent, and the landlord cannot follow them. Goods in the custody of a Sheriff's officer or Bailiff, having' been seized under an execution or attachment, cannot be distrained ; but before such goods can be removed the Sheriff or Bailiff mutt pay to the landlord one year's rent, or the rent for any less period that may happen to be due at such seizure. And by the Division Courts Act it is enacted that when goods are taken in execution under the process of any Division Court, the land- lord shall be entitled by writing under his hand, or under the hand of his agent, staling the terms of holding, and the rent payable for the same, and delivered to the Bailiff making the levy, to claim any rent in arrear then due to him not exceeding u 4J I" »V,M u^ CA«INET LAWYEft. |i ■> the rent of four weeks, where the tenement has been let by the week, and not exceeding the rent accru- ing due in two terms of payment where the tene- ment has been let for any other term less than a year, and not exceeding in any case the rent accruing due in one year. Property of third parties on the demised prem- ises in the possession and use of the owners, and not in the possession or under the charge of the tenant, cannot be distrained for rent ; nor can the goods and chattels of third parties placed upon the demised premises in the possession and under the care of the tenant in the ordinary course of trade ; nor the goods and chattels of travellers in hotels* Fixtures, implements of trade and husbandry, and beasts of the plough are privileged from distress so long as they are in actual use, but not afterwards, or unless there are other goods on the demised premises sufficient to saticfy the rent without them. It is not necessary, in order to make a distress for rent, that the landlord or his agent should take corporal possession of the things intended to be distrained. It is sufficient if the landlord in per- son, or by deputy, enters upon the demised premises and announces the distress to the tenant or his ser- vants, or to the persons in actual occupation of the property. When the landlord distrains by an agent or bailiff, he should give hia agent authority in writing for the purpose. This authority is called a Di8tres9 Warrant, As soon as the distress is made, whether by the landlord or his bailiff, an inventory of the goods reas ike be )er- lises Iser- the jent in id a the )0d9 LANDLORD AND TENANT. 24S distrained should be made and served upon the tenant, together with the notice of the distress. The notice of the distress should set forth the amount of rent distrained for, and the particular things taken. If the tenant, after he has received notice, neglects for five days^ — to be computed inclusive of the last day and. exclusive of the day of seizure — to pay the rent or replevy the goods, the landlord may sell them for the best price that can be got for them, and apply the purchase-money in discharge of the rent and the costs of the distress and sale, paying the overplus, if any, to the tenant. The costs of distresses under eighty dollars are regulated by Con. Stat. U. C, c. 123, and are as follows : Levying Distress $1 00 Man keeping possession, per diem 75 Appraisement, whether by one appraiser or more, two cents in the dollar on the value of the goods If any printed advertisement, not to exceed in all 1 GO Catalogues, sale, and commission, and delivery of goodp, five cents in the dollar on the net produce of the sale. Every broker or other person who makes any distress is bound to give a copy of his charges, aad of all the costs and charges of the distress, signed by him, to the person on whose goods and chattels any distress shall have been levied, although the rent demanded may exceed the sum of eighty dollars. When the rent distrained for exceeds eighty dollars, the costs are not limited to any par- ticular amount or fixed scale of charge ; but they must be fair and reasonable. 244 CABINET LAWYER. i When, in consequence of the rent not being ^o^ed and ascertained, the landlord has no right to dis- train, his only remedy is by action at law, in which he can recover from the tenant a proper compensa- tion for the use and occupation of the premises. With regard to repairs, it may be remarked gene- rally, that in the absence of an express covenant or agreement to repair, there results from the demise and acceptance of the lease by the tenant an implied covenant or promise to use the property demised in a tcnanllike and proper manner ; to take reasonable care of it, and restore it, at the expiration of the term for which it is hired, in the same state and condition as it was in when demised, subject only to the deterioration produced by ordinary wear and tear, and the reasonable use of it for the purpose for which it was known to be required. When a lease is determinable on a certain event or at a particular period, no notice to quit is neces- sary, because both parties are equally apprized of the determination of the term, if, therefore, a lease be granted for a term of years, or for one year only, no notice to quit is necessary at the end of the term. In the case of a tenancy at will, no notice to quit is necessary, but there must be a formal demand of possession, or notice of the determination of the will, on the part of the landlord, before any action of ejectment can be brought. The tenant at will, too, in order to discharge himself from his liability for rent, or for a reasonable compensation for use and occupation, must give notice to ihe landlord of the fact of his abandonment of the possession, and LANDLORD AND TENANT. 245 of his election to rescind the contract and put an end to the tenancy. If the holding is a general holding for a year, and onwards from year to year so long as both parlies please, a half-year's notice must be given on either side in order to determine the yearly hiring and tenancy ; and this notice may be given in the first as well as any subsecjuent year of the tenancy. The notice may be in writing or by word of mouth. In the case of a yearly ten- ancy it must be a six month's notice, to expire at that period of the year corresponding with the period at which the tenancy commenced. It is better that a notice to quit should be served upon the landlord or tenant (as the case may be) personally ; but it is sufficient if served upon the wife or servant at the dwelling-house of the party lo be served. A landlord may recover possession of his property by ejectment or procedings under the "Act respec- ing Overholding Tenants :" in either case it will be necessary for him to employ an attorney. The following forms may be found useful : — Lease of House. This Indenture made the day of ,18 Between A. B., of, &c., of the first part, and C. D., of, &c,, of the second part, Witnesseth, that in con- sideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the said party of the second part, his executors, administrators and assigns, to be paid, observed and Hi 246 CABINET LAWYER. performed, He, the said party of the first part, hath demised and leased, and by these presents doth demise and lease, unto the said party of the second part, his executors, administrators and assigns, all that messuage or tenement situate, lying and being, &c., (here describe the premises) j Together with all houses, out-houses, yards and other appurtenances thereto belonging, or usually known as part or par- cel thereof, or as belonging thereto : To have and to hold the same for and during the term of years, to be computed from the day of , 18 , and from thenceforth next ensuing, and fully to be complete and ended. Yielding and paying therefor yearly and every year during the said term hereby granted unto the said party of the first part, his heirs, executors, administrators or assigns, the sum of J , to be payable quarterly on the following days and times, that is to say, (here slate the days af payment), the first of such payments to become due and be made on the day of next. Provided always, and these presents are upon this express condition, that if the said yearly rent, hereby reserved, or any part thereof, shall at any time remain behind or unpaid for the space of twenty-one days next over or after any of the days on which the! same shall become due and payable, then, and in every such case, it shall be lawful for the said party of the first part, his heirs, executors, administrators, or assigns, into and upon the said premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, LANDLORD AND TENANT. 247 repossess and enjoy, as if these presents had never been executed. And the said party of the second part, for himself, his heirs, executors, administrators and assigns, doth hereby covenant, promise and agree to and with the said party of the first part, his heirs, exe- cutors, administrators and assigns, in manner fol- lowing, that is to say : That he, the said party of the second pari, his executors, administrators and assigns, shall and will well and truly pay, or cause to be paid, to the said party of the first part, his heirs, executors, ad- ministrators or assigns, the said yearly rent hereby reserved at the times and in manner hereinbefore appointed for payment thereof. And also shall and will, from time to time, and at all times during the said term, keep in good and sufficient repair the said premises hereby demised, (reasonable wear and tear and accident by fire*ex- cepted), and the same so kept in repair shall and will, at the end, expiration or other sooner determi- nation of the said term, peaceably and quietly yield and deliver up to the said party of the first part, his heirs, executors, administrators or assigns. And also shall and will well and truly pay, or cause to be paid, all taxes, rates, levies, duties charges, assessments and impositions whatsoever, whether parliamentary, local, or otherwise, which now are, or which during the continuance of this demise shall at any time be rated, taxed or im- posed on, or in respect of tTie said demised premises, or any part thereof. r If: r!! 24S CABINET LAWYim. And also that it shall be lawful for the said party of ihe first part, his heirs, executors, administrators, and assigns, and their agents respectively, either alone or with workmen or others, from time to time at all reasonable times in the daytime, dur- ing the said term, to enter upon the said demised premises, and every part thereof, to view and ex- amine the state and condition thereof; and in case any want of reparation or amendment be found on any such examination, the said party of the second part, his executors, administrators or as&igns, shall and will from time to time cause the same to be well and eufficieritly repaired, amended, and made good, within one month next after notice in writing shall have been given to them or left at or upon the said demised premises for that purpose. And if the said party of the second part, his executors, ad- ministrators or assigns, fail in making the neces- sary repairs in maimer hereinbefore described, that it shall be lawful for the said party ol the first part, his heirs, executors, administrators and assigns, and their agents, to enter into and upon the said hereby demised premises, and have the same re- paired in a proper manner, and to render the account for such repairs to the said party of the second part, his executors, administrators and as- signs, and demand payment for the same i' if default is made, to sue for the same in an' irt of Law having jurisdiction over the same. And the said i>arty of the second part, his exe u- tors, administrators or assigns, shall not, nor will at any time or limes during the continuance of this LANDLORD AND TENANT. 210 of demiso, sell, assign, let or otherwise part vvilli this present lease, or the said premises hereby demised, or any ])art thereof, to any person or persons whom- soever, for the whole or any pari of the said term, nor alter, change or remove any part of the said premises, yards or offices, externally or internally, without the license and consent in writing of the said party of the first part, h>s heirs, executors, administrators or assigns, from time to time, first had and obtained. And the said party of the first part, for himself, his heirs, executors and administrators or assigns, covenants with the said party of the second part, his executors, administrators and assigns, that he, the said party of the second part, his «3xecutors, administrators and assigns, well aud truly paying the rent hereinbefore reserved, and observinir, per- forming, and keeping the covenants hereinbefore contained, shall and may, from lime to time, and at all times during the said term, peaceably and quietly enjoy the said premises hereby demised, without molestation or hindrance. In witness whereof, the said parties to these pre- sents have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [L.S.] Lease of Land. This Indenture, made the day of 18 etween A. B., of, &c. of the first partj and C. D., i I. .1 : 1 $ • . I mBBHDHI 250 CABINET LAWYICR. 1 1^1 of, &c., of the second part, Witnesseth, that in con- sideration of the rent, covenants, and agreements hereinafter reserved and contained, and to be paid, observed and performed by the said party of the second part, his executors, administrators and assigns, He, the said party of the first pan. Hath demised and leased, and by these presents Doth demise and lease, unto the said party of the second part, hii executors, administrators and assigns. All that certain parcel or tract of land and premises ^situate, lying and being (here describe the lands). To have and to hold the said parcel or tract of land, with the appurtenances, unto the said party of the second part, his executors administrators and assigns, from the day of ,18 , for the term of , from thence next ensuing, and fully to be complete and ended , Yielding and paying therefor, unto the said party of the first part, his executors, administrators and assigns, the yearly rent or sum of J(? , of lawful money of Canada, by equal yearly payments, on the day of , in each and every year during the said term, the first payment to be made on the day of , next ensuing the date herov.f. {The times of pay- raent may be quarterly or half-yearly^ if desired.) And the said party of the second part doth hereby for himself, his heirs, executois, administrators and assigns, covenant, promise and agree with and to the said parly of the first part, his executors, admin- istrators and assigns, that he. the said party of the second part, his executors, administrators and asigns, shall and will well and truly pay, or cause LANDLORD AND TENANT. 251 to be paid, to the said party of the first part, his executors, administrators or assigns, the said yearly rent hereby reserved, at the times and in manner hereinbefore mentioned for payment thereof, with- out any deduction or abatement whatsoever there- out for or in respect of any rates, taxes, assessment, or otherwise : And also shall and will, on or before the day of , now next, at his own costs and charges, fence in the premises hereby demised in a good and subsstantial manner, (add here such covenanU as to the mode of cultivation^ (^c, as may he agreed on.) And it is hereby agreed, on tiie part of the said parly of the first part, his heirs, executors, adminis- trators and assigns, that if at any time within the said term of the said party of the second part, his heirs, executors, administrators or assigns, shall desire tc purchase the fee simple of the land hereby demised, he shall be allowed to do so by paying the sum of $ , of lav/ful money aforesaid, pro- vided the said rent shall have been regularly paid up to the time when he m.ay so desire to purchase ; and provided he gives to the party of the first part, three months previous notice of his intention to pur- chase. And it is hereby agreed, on the part of the said party of the second part, his executors, administra- tors and assigns, that if at any time or times during the said term, the said rent, or any part thereof, shall be in arrear and unpaid for the space of tliirty days after any of the days or times whereon the same ought to be paid, as aforesaid, then it shall 252 CABINET LAWYER. be lawful for the said party of the first part, his heirs, executors, administrators or assigns, to enter into and take possession of the premises hereby demised, whether the same be lawfully demanded or not, and the same to sell and dispose of, either by public auction or private sale, as to him or them may seem best, without the let, hindrance or denial of him the said party of the second part, his heirs, execu'iors, administrators and assigns : And fur- ther, that the non-fulfilment of the covenants here- inbefore mentioned, or any of them, on the part of the lessee or lessees, shall operate as a forfeiture of these presents, and the same shall be considered null and void to all intents and purposes whatso- ever ; And also, that the said party of the second part, his executors, administrators, and assigns, shall not, nor will, during the said term, grant or demise, or assign, transfer, or set over, or other- wise, by any act or deed, procure or cause the said premises hereby demised, or intended so to be, or any part thereof, or any estate, term, or interest therein, to be granted, assigned, transferred, or set over, unto any person or persons whosoever, with- out the consent in writing of the said party of the first part, his heirs or assigns, first had and obtained. In witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered in the presence of A. B. [l.s ] Y. Z. , C. D. [l.s.] LANDLORD AitD TENANT. 253 Ise Lease of a ITonse and Farm. This Indenture made the , day of , 18 , Between A. B., of, &c., of the one part, and C. D., of, &c., of the other part, Witnesseth, that for and in consideration of the rent, covenants, conditions and agreements hereinafter reserved and contained, and which, on the part and behalf of the said C. D., I is executors, administrators and assigns, are or ought to be paid, done and performed, the said A. B. hath demised, leased, set and to farm let, and by these presents doth demise, lease, set and to farm let, unto the said C. D., his executors and administrators. All that parcel or tract of land, &c., [describing the lot] together with the frame dwel- ling house, barns, stables, and other out-houses thereupon erected, standing and being, together with all ways, paths, passages, waters, water- courses, privileges, advantages, and appurtenances whatsoever, to the same premises belonging, or in any wise appertaining. To have and to hold the said parcel or tract of land, dwelling-house, build- in.L^s and premises hereby demised unto the said C. D., his executors, administrators and assigns, from the day of the date of these presents, for, and during, and until .hs full end and term of years from thence next enduing, and fully to be complete and ended: Yielding and paying therefor yearly, and every year during the said term hereby granted, unto the said A. 13., his heirs and assigns, the yearly rent or sum of $ , of lawful current money of Canada by two equal half-yearly payments, to be made on the day of , and the day of «54 Casinet lawyer. ' ''1 '.i ,i '> in each and every year daring the said term, with- out any deduction or abatement thereout for or upon any account or pretence whatsoever. Provided always,nevertheles9, that if it shall happen that 1 he said yearly rent hereby reserved,or any part thereof, shall be behind and unpaid for the space of twenty- one days next over or after either of the said days hereinbefore mentioned and appointed for payment of the same (being lawfully demanded) or if the said C. D., his executors or administrators, shall assign over, underlet or otherwise depart with this indenture, or the premises hereby leased, or any part thereof, to any person or persons w homsoever, without the consent of the said A. B., his heirs or assigns, first had and obtained in writing, under bis or their hands, for that purpose ; then, and in either of the said cases, it shall and may be lawful to and for the said A. B., his heirs or assigns, into the said premises hereby demised, or anj^ part thereof, in the name of the whole, to re-enter and the same to have again, retain, repossess and enjoy, as in his and their first and former estate or estates, any thing herein contained to the contrary thereof in any wise, notwithstanding. And the said C. D. doth hereby, for himself, his heirs,executors, admin- istrators, and assigns, covenant, promise and agree to and with the said A. B., his heir and assigns, in manner following, that is to say : That he, the said C. D., his executors administrators and assigns, shall and will well and truly pay, or cause to be paid, unto the said A. B., his heirs and assigns the said yearly rent of jf , by equal half-yearly pay- Landlord and *enant. 265 ree in Lid tns, be rn8, pay- ments, on or at the days or times and in the manner hereinbefore mentioned and appointed for payment thereof. Also that he, the said C. D., his exe- cutors, administrators and assigns, shall and will, at his and their own costs and charges, well and sufficiently repair and keep repaired the dwelling- house, buildings, fences and gates now erected, or which shall at any time or limes hereafter during the said term be erected, upon the said demised premises, he, the said A B., his heirs and assigns, upon request and notice to them made, finding and allowing on the said premises, or within miles* distance thereof, all rough timber, brick, lime, tiles, and all other materials whatsoever, (except straw), for doing thereof, to be carried to the said Tiereby demised premises at the charge of the said C. D., his executors, administrators or assigns, or other- wise permitting and allowing him or them, at their like costs and charges, lo cut and fell such and so many timber-trees upon some part ot the premises hereby demised as shall be requisite and necessary for the purpose (damage happening by accidental fire, tempest, or other inevitable accident being always excepted) : And further, that he, the said C. D., his executors, administrators and assigns, shall and will at all times during the said term cul- tivate and farm such part or parts of the said lands and premises as now are or shall hereafter be brought into cultivation during the said term in a proper husbandlike manner. And shall and will at the expiration or other sooner determination of this lease peaceably and quietly leave, surrender i 256 CABINET LAWYER* and yield up unto the said A. B., his heirs and assigns, the whole of the said premises hereby de- mised in such good and sufficient repair as afore- said, (reasonable use and wear thereof, and damage by accidental fire, tempest or other inevitable acci- dent, as aforesaid, always excepted): And alyo, that it shall and may be lawful to and for the said A. B., his heirs and assigns, after six days' previous notice in writing, twice or oftener in every year during the said term, at seasonable and convenient times in the day, to enter and com^ into and upon the said demised premises, or any part thereof, to view the condition of the same, and of all defects and wants of reparation and amendment which shall then and tliere be found, to leave notice in writing at the said demised premises to or for the said C. D., his executors, administrators or assigns, to repair and amend the same within the space of three calendar months. And the said C. D., doth hereby, for himself, his executors, administrators and assigns^ covenant, promise and agree, to and with the said A. B., his heirs and assigns, that he, the said C. D., his execu- tors, administrators or assigns, shall and will wilhin three calendar months next after every and any such notice shall have been so given or left as aforesaid, well and sufficiently repair and amend the same accordingly (except as before excepted, and upori being provided or allowed materials for the same, as aforesaid), and also that he, the said C. D., his executors, administrators or assigns, shall not, nor will at any time during the said term, pull LANDLORD AND TENANT. 257 nd [le- )re- age Iso, Notice to quit bi/ Landlord. To C. D. (Tenant). I hereby give yon notice to quit and deliver up the premises which you now hold of me, situate at {here describe the premises) on the day of , 18 . Dated the day of , 18 . Yours, &c. A. B., {Landlord.} Notice to quit by I'enant. To A. B., (Landlord). T hereoy give you notice that on the day of next, I shall quit and deliver up to you, the peaceable and quiet possession of the premises now held by me, with the appurtenances, situate at , in the township of , in the county of , in this province. Dated thir- day of 7^8, Yours, &c., C. D.J {Tenant.) CHAPTER XIII. LINE-FEXCES AND WATEIl-COURSES. day , the now n this The statutes which regulate these matters are cap. 57 of the Con. Stat. U. C, and the Ontario Stat. 32 Vic, c. 46. By the first of these statutes, each of tlie parties occupying adjoining tracts of land must make, ke p up, and repair, a just pro|/Oftion of tii(^ division or line-fence on the line dividing such tracts, and equally on either side thereof. Any fence coming within the meaning of a law- ful fence in any by-law of the municij)al council in that behalf, is to be considered a lawful fence ; and when no oh by-law exists, any fence-viewers, when called upon, are to exercise their own judg- ment, and decide what they consider to be a lawful fence. The owner of the whole or part of a division or line fence, which forms part of the fence inclosing the occupied or improved land of another person, may not take down or remove any part of such fence : 1. Widiout giving at least twelve months' pre- vious notice of his intention to the owner or occu- pier of such adjacent inclosure ; » 266 CABINET LAWYER. k 2. Nor unless such last-mentioned owner or occupier, after demand made upon him in writing by the owner of such fence, refuses to pay therefor a sum to be determined, as provided in the next sub-section ; 3. Nor if such owner or occupier will pay to the owner of such fence, or of any part thereof, such sum as three fence-viewers, or a majority of them, in writing, determine to be the reasonable value thereof. When any land which hat laid uninclosed or in common, is afterwards inclosed or improved, the occupier must pay to the owner of the division or line-fence standing upon the divisional line between such land and the inclosure of any other occupant or proprietor, a just proportion of the value thereof. When a water fence, or a fence running into the water, is necessary, the same is also to be made in equal parts, unless the parties otherwise ajzree. When lands belonging to or occupied by different persons, are divided from each other by any river, brook, pond or creek, which of itself is not a suffi- cient barrier, and it is impracticable to fence upon the true boundary-line, the fence must be set up on one side of the river, brook, pond or creek, or parily on one side and partly on the other, as may be just. When it is the joint interest of parties resident to open a ditch or water-course for the purposfi of letting off surplus water from swamps or low miry lands, in order to enable the owners or occupiers thereof to cultivate or improve the same, such LINE-FENCES AND WATER-COURSES. 267 the e in ?rent iver. m m- ipon ;t up L, or may ident )Sf: ^of I miry piers such several parties must open a just and fair proportion of such ditch or water-course, according to their several interests. Three fence-viewers of the municipality, or a majority of them, may decide all disputes between the ownersoroccu|)Mnls of adjoining lands, or lands so divided or alleged to be divided as aforesaid, in regard to their respective rights and lifibilities under this act, and also all disputes respecting the opening, making or paying for ditches and water- courses, under this act. Every determination or award of fence-viewera must be in writing, signed by such of them as con- cur therein ; and they must transmit the same (or a certified copy thereof) to the clerk of the munici- pality, and deliver a copy to every party requiring the same ; and such determination or award will be binding on the parties thereto. When the dispute is as to the commencement or extent of the part of tiie fence to be made or repaired by either party ; or as to the opc^ning of a ditch or water-course • or as to the part, width, depth or extent that any person should open or make ; either party may, by writing, notify the fence-viewers of the dispute, and name in the notice fjr the investi- gation thereof the time and place of meeting, and notify the other party to Pippear at the same time and place. On receiving such notice, the fence-viewers will attend a( the time and place na»ued, and, after being satisfied that the other parJy has been also duly notified, they will examine the premises and I « 268 CABINET LAWYER. ■ !' 1 ■ . ' 1 :^ ■i i I hear the parties and their witnesses, if demanded, and, according to the subject-matter of the refer- ence, will decide the commencement or extent of the part of the fence which either party claims to have made or repaired, or refuses to make or repair, or divide or apportion the ditch or water-course among the several parties, having due regard to the interests of each in the opening thereof, and fully determine the matters in dispute. On any reference regarding the opening or mak- ing of a ditch or water-course, tbe fence-viewers will decide what length of time each of the parties should have to open the share of the ditch or water- course which the fence-viewers decide each such party should open ; and if it appears to the fence- viewers that the owner or occupier of any tract of land is not sufficiently interested in the opening of t.-.e ditch or water-course to make him liable to per- fcm any part thereof, and at the same time that it is necessary for the other party that such ditch should be continued accross such tract, they may award the same to be done at the expense of such other party ; and after such award the last-men- tioned party may open the ditch or water-course across the tract, at his own expense, without being a trespasser. "When, by reason of any material change of cir- cumstances in respect to the improvement and occu- pation of adjacent lots or parcels of land, an award previously made ceases, in the opinion of either of the parties, to be equitable between them, such party may obtain another award of fence-viewers LINE-FENCES AND WATER-COURSES. 2G9 o per- hat it ditch may If such men- bourse ilhout )f cir- occu- laward Ithor of such lievvers by a like mode of proceeding ; and if the fonce- vlewers called upon to make a subsequent award find no reason for making an alteration, the whole cost of the reference must be borne by the party at whose instance it has been made. (S. 13.) If any party neglects or refuses, upon demand made in writing as aforesaid, to open, or make and keep open, his share or proportion of tlie ditch or water-course allotted or awarded to him by the fence-viewers, within the time allowed by them ; any of the other parties may, after first coiiipleting his own share or proportion, open the share or pro- portion allotted to the party in default, and will be entitled to recover not exceeding forty cents per rod for the same from the party so in default. If after an award of fence-viewers, or after being required by a demand in writing by the parly occu- pying the adjoining tract, or a tract separated there- from by a river, pond, or creek, a party in the occu- pation of any tract of land negleets or refuses for a period of thirty days to make or repair (as the case may be) his proportion of the division or line-fence between his tract and such adjoining or separated tract; or if the party making the demand neglects or refuses for the like period, to make or repair his own proportion of the fence, either party, after first completing his own proportion, may make or repair in a substantial manner and ol good sound mate- rials, the whole or any part of the fence which ought to have been made or repaired by the other party, and may recover from him the value thereof. To ascertain the amount payable by any person I 2i' 270 CABINET LAWYER. who, under the authority of the act, makes or repairs a fence, or makes, opens or keeps open any ditch or water-course, which another person should have done, and to enforce the payment of such amount, the following proceedings may be taken : — 1. Any of the persons interested may apply to a Justice of the Peace residing within the munici- pality or township in which any such fence is pitu- ated, and if there be no such Justice residing therein then to any Justice of the Peace residing in any adjacent municipality or township, and thereupon such Justice will issue a summons under his hand and seal, directed by name to three fence-viewers of the municipality in which the fence is situated, requiring them to attend at the place and on the day and hour therein mentioned, to view such fence and to appraise the same. 2. The Justice will, at the same time, issue a summons to the party so having neglected or refused to make or repair his proportion thereof (who will thenceforth be considered the defendant inthe case) requiring him to appear at the same time and place to show cause why the party claiming payment (who will thenceforth be considered the plaintiff in the case) should not recover the same. 3. The fence-viewers must be personally served with the summons at least four days before the day named for their attendance. 4. If either party desires to procure the attend- ance of any person to give evidence before the fence-viewers, the Justice will, upon the application of such party, issue a summons to such witness or Ij LlNfi-fENCES AND WATER-COURSES. 271 lused will ;ase) )lace »ent iff in ;rved day ;nd- the lation fss or witnesses to attend before the fence-viewers at the time and place mentioned in the summons to the fence-viewers. 5. The fence-viewers, when met at the time and place appointed, must, whenever desired by either party, or whenever they themselves think it proj>er, administer an oath to any witness, which oath may be in the following form : — "You do solemnly swear that you will true answer make to such questions as may be asked of you by either of the fence-viewers now present, touching the matters which they are now to exam- ine and determine. So help you God." 6. The fence-vit wers, or any two of them, being present, must, after having duly examined the fence and received evidence, determine whether the plaintiff is entitled to recover any and what sum from the defendant. 7. In case the commencement or extent of the part of the division or line-fence which each should make or repair, has not been previously determined by the award of fence-viewers, the fence-viewers named in the summons, or any two of them, must determine the same ; and if they determine that the plaintiff is entitled to recover from the defend- ant, they must also state what distance of fence the defendant should have made or repaired. 8. The fence-viewers, if requjred by either party, before they report, must give to such party a copy of their determination. 9. The fence-viewers must report their determi- tion in writing, under their hands, to the Justice I t 4 Si, 'i.i '4 272 CABINET LAWYER. who issued the summons ; and such determination will be final. 10. The Justice to whom the determination of fen(;e-viewers i*? returned, must tranf^mit the same to the clerk of the Division Court having jurisdic- tion over that part of the municipality ; and also certify and transmit a copy thereof to the clerk of the municipality, to be entered in the book in which the municipality proceedings are recorded. 11. After the expiration of forty days from the time of the determination, the clerk of the Division Court may issue an execution against the goods and chattels of the defendant, in the same manner as if the party in whose favor the determination has been made, had recovered judgment in the Division Court for the sum which the fence-viewers have determined him to be entitled to receive, with costs. (S. 16.) Fees. {Sec Con. Stat., cap. 57, s. 17.) To the Justice of the Peace. For summons to fence-viewers, twenty-five cents. For subpoena, which may contain three names, twenty-five cents. For transmitting copy of fence-viewers' deter- mination to Division Court and to clerk of the municipality, twenty-five cents. To the Fence-viewers, One dollar per day each ; if less than half a day employed, fifty cents. mination nation of the same jurisdic- and also clerk of : in which I. J from the 3 Division the goods ne manner mation has le Division 3wers have eive, with .five cents. Iree names, rers' deter- llerk of the half a day LINE-FEXCES AND WATER COURSES. To the Bailiff or Consfahlc cmpluycd. 273 For serving summons or subpcena, twenty cents. Milcigc; — per mile, six and Iwo-lhirds cents. To witness — per day, each, fifty cents. If tlie i)arty, in whose favor the determination of the fence-viewers has been made, makes an affi- davit tliat such fees have been duly paid and dis- bursed to the persons entitled tliereto, tiie Clerk of the Division Court will include the amount thereof in the execution; and when collected, will pay over the same to the party. By the second of the Statutes above mentioned, (Ontario Stat. 32 Vic, cap. 46,) the Consolidated Statute lias been amended, and its provisions ex- tended, so as to make them applicable to unoccu- pied or non-resident lands, and the owners thereof: so far as the same relate to water-courses. The several enactments of the amended act are the following : 1. The provisions of the Con. Stat., so far as the same relate to water-courses, are to be construed to apply to unoccupied, and non-resident lands, and to the owners thereof: to the same extent ars to occupied lands, and the occupants thereof; and the fence-viewers are in like manner as in other cases, to determine the share of the expense of any water-course made under the Con. Stat, as amended, (which expenses is to he borne by the owner of such unoccupied or non-resident lands) and report the same to the justice who is to transmit such report to the clerk of the municipality. The share of the 18 I > I 'it ,-!! I ^ii CABfPfET LAWYEfl. expense of any watcr-confse, chargoable agaififlf such unoccupied and non-resident lands, must not exceed the sum of twenty-five cents per rod. 2. The clerk is to bring sucli report before ihe council of the municipality, at its first meeting after the receipt thereof; and the council are to cause the amount so reported to be paid to the party entitled thereto, together with a proportionate share of the costs attending the investigation and report. 3. Forthwith after such payment the clerk is to transmit to the County Treasurer an account of the amount and date of such payment, and the land against which the same is chargeable, and the County Treasurer, upon receipt thereof, is to charge the same against such land in the same manner as the wild land tax ; and the same will thereupon become to all intents and purposes a charge upon the said land, and be subject to the provisions of the Statutes respecting such tax, and may be col- lected by distress, or by the sale of such land, in the same manner as such tax may be collected. 4. In collecting the amount of such charge, there shall be added to the same eight per centum thereof^ and all fees and incidental expenses in the same way, and to the same amount, as in the case of such tax. 5. Where the owner of such unoccupied or non- resident lands cannot be found, after reasonable dilligence, or is absent from the province, the Justice may cause such owner to be notified by letter, mailed to his last known place of residence, and LINE-FENCES AND WATER-COURSES. 275 r non- »nable uslice letter^ :, and may proceed and eaiise all subsccinenf proceedings to be taken in his absence, and all smli proceed- ings are to be as valid as if the notification reciiiired by the said act to be given to an ocriipant had been given to such owner. 6. When any ditch or water-course is extended to tlie limit or boundary of a township, and in order to be eiiective should be contiuucMl into or through another or adjoining municipality, such adjoining municipality must extend and tronlinue such ditch or water-course throui^h the whole or such part of its territorial limits, as may be neces- sary for making such ditch or water-course eiiec- tive. If the lands in both municipalities are bene- fited in an equal degree, in proportion to the extent of such work in each ; then the duty of deciding in what proportion the expense shall be borne, by and amongst the owners of occupied and unoccupied lands in each municipality, devolves upon, and appertams to, the fence-viewers in each such nmni- cipality : and the proceedings provided by the first act, as amended by the second act, are to be taken and apply; but if such ditch or water-course does not benefit the land in both municipalities in an equal degree in proportion to the expense of the work in each, then the duty of deciding in what proportion the expense shall be borne by and amongst the owners of occupied and unoccupied lands, in both the municipalities, devolves upon and appertains to, six fence-viewers (three from each of such municipalities) to be no mated, and t IMAGE EVALUATION TEST TARGET (MT-3) V ^ t'.o {./ .V ^— :/. fA ^ !.0 I.I 1.25 '-la ■ 5 "»'= 1.4 M 1.6 Photographic Sciences Corporation iV 4v ;\ \ \ ^ ;v 6^ 23 WEST MAIN STREET WEBSTER, N.Y. 14SB0 (716) 872-4503 % '^ V 3 ii ^ii 1 • » I 276 CABINET LAWYER. notified of such nomination, by some Justice of the Peace having jurisdiction in such municipalities or one of them ; and the decision of such fence-view- ers or the majority of them will be binding, and must be in duplicate, and one of such duplicates is to be transmitted by the Justice to the clerk of each such municipalities. 7. Any party aflfected by any decision of the fence-viewers may appeal to the Judge of the County Court within which the said land is situate, against such decision, within thirty days after the same shall be filed with the clerk of the rnunici- palit 'n this act mentioned. CHAPTER XIV. MASTER AND SERVANT. The relation of Master and Servant is so exten- sive, entering into all the walks of life, that this work would be incomplete without a chapter de- voted to the subject. In order to constitute a contract of hiring and ser- vice, the contract creating the relation of master and servant, there must be either an express or an implied mutual engagement, binding one party to employ and remunerate, and the other to serve, for •> MASTER AND SERVANT. 277 some determinate terrr or period. If the employer merely agrees to pay so long as the servant con- tinues to serve, 'eaving it optional aitlier with the servant to serve, or with the employer to employ, there is no contract of hiring and service ; bat if the servant binds himself to serve for some deter- minate term, and the em[)Ioyer, expressly or im- pliedly, agrees or promises to retain the servant in his service for the term, there is a contract of hiring and service. A contract of hiring and service need not be authenticated by writing unless the hiring exceeds a year in duration. The Master and Servant Act (Con. Stat. U. C, c. 75, s. 3) provides that a "verbal agreement shall not exceed the term of one year." In the absence of an express contract between the parties, a hiring may be presumed from the mere fact of the service, unless the service has been with near relations. If a man, for example, serves a stranger in the capacity of a clerk, or of a domestic servant, or farm-servant, for a continued period, the law presumes that the service has been rendered in fulfilment of a contract of hiring and service; and if the party has served without anything being said as to wages, the law presumes that the parties agreed for custormary and reasonable wages. But if the service has been with a parent or uncle, or other near relation, of the parly serving, a hiring cannot be implied or presumed from it, but an ex- press hiring must be proved in order to support a claim for wages ; for the law regards services rendered by near relations to one another as gratui* \v T] i 278 CABINET LAWYER, iirentice :onding the full ncelled ctod of eniten- in one •ties to inden- ^arties. or published in the Gazette, or in a local county or ciiy newspaper. Masters or apprentices may appeal to the General Sessions against any Magistrate's decision. Apprenticesh ip Indenture. This Indenture, made the day of j 18 ? Between W. J., of, &c., of the first part, II J , his son, now the age of fifteen year=!, of the second part, and T. M., of, &c., printer of the third part, Witnesseth, Tiiat the said VV. J., witli the consent of his said son H. J., (a minor now of the age of fifteen years or thereabouts), testified by his being a party to and executing these presents, doth hereby put, place, bind and indent him, the said H. J., to the said T. M., to learn the art and trade of a printer, and with him, the said T. M., his exe- cutors, administrators and assigns, after the man- ner of an apprentice to dwell and serve from the day of the date hereof until the day of , 18 , being a period of years, when the said minor will arrive at the age of twenty-one years. And the said W. J. doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said T. M., his executors, administrators and assigns, that during the said term of years, the said li. J. shall well and faithfnlly serve the said T. M., his secrets keep, and lawful commands at all times obey, and shall give and devote to him his whole time and labor ; that he shall not marry during the said term, nor use ardent spirits, nor practice gaming or any ■« li I I 28d CABINET LAWYEft. I' ■ '5 : ^ I i ii 28B CABINET LAWYER. to be tauglii to her the said apprentice, together with reading, writing and the other usual branches of a common school education ; and shall and will during th i said term find, provide and allow her sufficient meat, drink, clothing, lodging, washing, and all other necessaries ; and at the expiration of the term aforesaid shall and will give unto the said apprentice two suits of apparel. Jn Witness, &c. {Conclude as in last form). Signed, &c., M. F. [l.s.] T. J. S. F. [l.s.] R. H. [l.s.] Assignment of an Indenture of Apprenticeship. Know all men by these presents, that [, the within named T. M-, by and with the consent of H. J., my within named apprentice, and W. J., his father {or as the case may be), parties to the within Inden- ture, testified by their signing and sealing these presents, for divers good causes and consideration, have assigned and set over, and do hereby assign and set over, the within Indenture, and the said H. J., the apprentice within named, unto J. T., of, &c.. Printer, his executors, administrators or as- signs, for the residue of the within mentioned term, he and they performing. all and singular the coven- ants therein contained on my part to be kept and performed. And I, the said H. J., do hereby covenant on my part, with the consent of my father, the said W. J., faithfully to serve the said J. T. as an apprentice for the residue of the term within mentioned, and MORTGAGES. 289 to perform toward him all and singular the coven- ants within mentioned on my part to be kept and performed. And I5 the said J. T., for myself, my executor?, administrators and assigns, do hereby covenant to perform all and singuhir the covenants witliin men- tioned on the part of the said T. M. to be kept and performed toward the said apprentice. Witness our hands and seals this day of , 18 . Signed, sealed, &c. T. M. [l.s.] J. S, H. J. [l.s.] W.J. [l.s.] J. T. [l.s.] CHAPTER XV. MORTGAGES. Intice ind According to the text writers, a mortgage may be defined to be a debt by specially, secured by a pled^e of ]ands,of which the legal ownership is vested in the creditor, but of which, in equity, the debtor, and those claiming under him, remain the actual owners, until debarred by judicial sentence, by legislative enactment, or their own laches. In popular language, and speaking with reference to real estate, or landed property only, it may be called 19 S90 CABlltfET LAWYER. !1 ii ■.1 ill I' a pledge of land: whereby the dthtor or pledgor^ or, as he is commonly called, the mortgagor^ con- veys his land to the creditor or pledgee, or, as he is commonly called, the mortgagee^ subject to a condition or proviso that, if the debt is discharged by a day named, the pledge shall be void, and the mortgagor shall be entitled to receive back and hold the lands, free from all claims created by the mortgage. By virtue of a mortgage, the right of property to the land mortgaged, passes to the credi- tor, subject to be divested by the payment of the debt at the appointed time. Assuming the mort- gage to have been drawn in the usual form, with a proviso that on payment of the debt and interesty the mortgage should be void ; upon payment, the property will re-vest in the mortgagor without any deed or instrument of re-eonveyance. In practice, however, it is usual to take a discharge of mortgage^ which operates as a re-conveyance. If the debt be not paid on the day named, the land, at laWy be- comes the absolute property of the mortgagee, and he may proceed to take possession of it : quietly y. if he can ; if not, by means of ejectment. The Court of Chancery will, however, give the mortgagor liberty to redeem, at any time within twenty years^ on payment of what is due for principal and inter- est. When the debt is paid after the appointed day, a re-conveyance or discharge of mortgage is requisite in order tore-vest the property in the mort- gagor. A mortgagee may take a release of the equity of redemption from the mortgagor, or may purchase MORTGAOIBS. 291 the same under a power of sale in his mortg;ige, without thereby merging his debt : that is to say, without thereby losing the right to hold the lands against any person having a claim on them subse- quent to the mortgagee's, until his debt and interest be paid ; and if such subsequent creditor should afterwards take proceedings in Chancery to fore- close his mortgage, he will only be allowed to do so, subject to the rights of the mortgagee who has so acquired the equity of redemption. Mortgages should be executed in duplicate, and one part left in the Registry office, as in the case of a deed of land. A mortgagee has several remedies if his mortgage be not paid at maturity. He may bring an action at law upon the covenant to recover the amount of principal and interest due ; or he may bring an action of ejectment, and take possession of the premises : in which case he will be entitled to hold the lands until the full amount of principal and interest has been discharged out of the rents and profits , or he may file a bill in equity to have the mortgage foreclosed : in which case he will acquire a title to the lands discharged of all equity of redemption ; or sold : in which case the premises will be sold under the direction of the Court, and the debt due paid out of the proceeds, if sufficient ; and if insufficient, the mortgagor will be ordered to pay the deficiency. If the mortgage contains a power of sale, the lands may be sold without going to the Court. When a mortgage is paid off, a discharge should be signed and registered : it will then be marked I t M' 292 CABINET LAWYER. i„ ii as discharged in the books of the Registry. A dis- charge must be signed by the mortgagee, or his assignee, if the mortgage has been assigned ; or by his executor or administrator, if he be dead. When a mortgage has been made in favor of a married woman, both husband and wife must sign the dis- charge. It is sufficient to sign in the presence of one witness ; and the usual affidavit of execution must be made by him. The act "respecting Short Forms of Mortgages," is the 27 & 28 Vic, c. 31 : passed in 1864. Statutory Mortgage, This indenture, made the day of , 18 , in pursuance of the act respecting short forms of mortgages, Between A. B., of, &c., (hereinafter called the mortgagor) of the first part ; C. D., wi^e of the said party of the first part, of the second part ; and E. F., of, &c., (hereinafter called the mortga- gee,) of the third part, Witnesseth that in considera- tion of $ , of lawful money of Canada, now paid by the said (mortgagee or mortgagees , to the said mortgagor or mortgagors^) (the receipt whereof is hereby acknowledged,) the said {mort- gagor or mortgagors^) doth {or do) Grant and Mortgage unto the said {mortgagee or mortgagees)^ his (her or their) heirs and assigns, for ever all &c., (he^e d* scribe the premises.) And the said C. D. wife of the said mortgagor, hereby bars her dower in the said lands. Provided this mortgage to be void on payment of % {here state amount ofprihcipal MORTGAGES. 293 mon^y) of lawful money of Canada, with interest at {here specify the rate of interest) per cent, as fol- lows : (here set out the terms of re-paijment) and taxes and performance of statute labor. The said mortgagor covenants with the said mortgagee, That the mortgagor will pay the mortgage money and interest, and observe the above proviso ; That the mortgagor has a good title in fee simple to the said lands ; And that he has the right to convej^ the said lands to the said mortgai,ee ; And that on de- fault, ^he mortgagee shall have qniet possession of the said lands, free from all incumbrances ; And that the said mortgagor will execute such further assurances of the said lands as may be requisite ; And also that the said mortgagor will produce the title deeds enumerated hereunder, and allow copies to be made, at the expense of the mortgag«'e ; And that the said mortgagor has done no act to encum- ber the said lands ; And that the said mortgagor will insure the buildings on the said lands, to the amount of not less than $ currency ; And the said mortgagor doth release to the said mortgagee, all his claims upon the said lands : subject to the said proviso. Provided that the said mortgagee, on default of payment for (three) niontiis, may on {one) month's notice, enter on, and lease, or sell, the said lands. Provided that the mortgagee may dis- train for arrears of interest. Provided that in de-r fault of the payment of the interest hereby secured, the principal hereby secured shall become payable. Provided that until default of payment, the mort-. gagor shall have quiet possession of the said lands. 1 1 i I ' ■ I , 294 CABINET LAWYER. n i] *H II In witness wliercof, llic said parties hereto, have hereunto set their hnnds a d seals. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [l.s.] E. F. [l.s.] Affidavit of Execution. County of , to wit : I, Y. Z., of, &c., make oath and say : — 1st. That I was personally present and did see the annexed (or witkin) mortgage, (and dupiicate, if any^ according to the fact;) duly signed, sealed and executed by A. B., C. D. and E. F., the par- ties thereto. 2nd. That the said mortgage, (and duf licale, if any., according to the/act) ; were executeu at, state here the place of execution.) 3rd. That I know the said parties,) or one, or more of them, according to fact.) 4ih. That I am a subscribing witness to the said mortgage, (and duplicate, according to the fact.) Sworn before me at | Y. Z. , in the county of j , this day of j. , A.D. 18 . 1 L. M. j A CorLmissioner, &c. Discharge of Mortgage. To the Registrar of the county of , I, E. F., of, &c., do certify that A. B. of, &c., hath satisfied ! , MORTGAGES. 295 all moneys due on, or to grow due on, {or hath satisfied the sum of $ , mentioned in,) a certain mortgage made by A. B., of, &c., to me, {or if the mortgagehas been assigned to G. H. of, &c.,) which mortgage bears date the day of a. d. 18 ; and was registered in the Registry office for the county of , on day of a. d. 18 , at minutes past o'clock noon, in liber for , as No. . [If the mortgage has been assigned^ go on to say, "and which mortgage was assigned to me by indenture, dated the day of , 18 , made between, &c., {stating the nam s of fhe parties to the assignment) registered in the said Registry office, on the day of , A. D. 18 , at minutes past o'clock noon, in liber for , as No. ''; and so ow, in the same m mer, with reference to alt assign- ments, where there are several. If the mortgage has not been assigned, state the fact thus : " and that the said mortgage has not been assigned."] And that I am the person entitled by law to receive the money, and that such mortgage, {or such sum of money as aforesaid ; or such part of the lands as is herein particularly described, that is to say : {here set out the lands intended to be discharged, if' a part only of the lands is to be released,) is there- fore discharged. Witness my hand this day of , a.d. 18 . Signed in the presence of A. B. Y. Z. {One witness is sufficient,) of, &c., {here state residence and occupdHon,) vi r TSTHSPmm 296 CABINET LAWYER/ (An affidavit of execution of the discharge, must he made by the witness ; it will be in a form similar to that of the execution of the mortgage..} Assignment of Mortgage, This indenture made the day of , 18 ^ Between E. F., of, &c., (hereinafter 'ealled the assignor,) of the first part; and G. H.,of, &c., (here- inafter called the assignee), of the second part, Whereas, by indenture of mortgage, bearing date the day of , 18 , make between one A. B., of, &c., of the first part; C. D., (wife of the said A. B., and for the purpose of barring her dower), of the second part; and the said E. F., of the third part ; the said A. B. did convey and afcjure the lands and premises hereinafter described, unto the said E. F., his heirs, executors, adminis- trators and assigns, subject to a proviso fur redemp- tion on payment of «S , and interest thereon, at the rate of per cent, per annum, on the days and times, and in the manner, in the said indenture of mortgage mentioned. And whereas, th.^re is now due upon the said mortgage, for principal money, the sum of $ ; and for interest, the sum of $ . Now this indenture witnesseth, thai in consideration of the sum of $ , of lawful money of Canada, now paid by the said assignee to the said assignor, the receipt whereof is- hereby acknowledged. He, the said assignor, doth hereby grant, assign, and transfer unto the said assignee, his heirs, executors, administrators and assigns, the said indenture of mortgage, and the principal MORTGAGES. 297 and intrrcsl moneys thereby secured, and the lands and premises thereby conveyed : to wit, Ail and singular {here describe the premises). To have, hold, receive and take, the said indenture of mort gage, and the principal and interest moneys tiierely secured, and the lands and premise's thereby con- veyed unto the said assignee, his heirs, executors, administrators and assigns, to and fof '.is and their sole and only use: subject neverlhelest^ to tlie pro- viso for redemption in the said mortgage contained. And lor the better enabling the said as^ignee, his executors, administrators and assigns, to recover and receive the said principal moneys nnd interest, from the said A. B., his executors or adniiiiistra- lors, he the said assignor doth hereby nominate and appoint the said assignee, his executors, adminis- trators and assigns, to be the true and lawful attor- ney and attorneys of him the said assignor, his executors or administrators, for him, the said assig- nor, his executors or administrators, and in hi>, or their, names or name, but at the cost and charges of the assignee, his executors, administrators or assigns, to sue for and recover the said [)rincipal moneys and interest, in any Court of Law or Equity ; and on receipt or recovery, to give good and suffi- cient discharires ; and generally to do, and execute, all such acts, deeds, matters and things, as may be requisite and necessary, for the recovery of the said mortgage money and interest. And the said assig- nor doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree, to and with the said assignee, his executors, ad- I * '('■ IH CABINET LAWYER. ministralors and assigns, tliat the said indenture of mortg.ig(*, is a good, valid and subsisting security, free from all incumbrances ; and not discharged or released ; and that the principal moneys and in- terest hereinbefore mentioned, are now justly due and owing upon the security of the said mortgage; !ind that the said assignor has good rights to assign and transfer the said mortgage ; and will not at any time hereafler release or discharge the same, with- out the consent of the said sssignee, his executors, administrators or assigns; and that the said assig- nor, his heirs, executors or administrators, will at all times, on the request, but at the costs and char- ges of the assignee, his executors, administrators and assigns, execute such further assignments or assurances of the said indenture, and the moneys thereby secured, and the lands therein comprised, as may be necessary ; and the said assignee doth hereby, for himself, his executors, administrators and assigns, covenant, promise and agree, to and with the assignor, his heirs, executors and admin- istrators, that he the said assignee, his executors or administrators, in case he or they shall act upon the power of attorney hereinbefore contained, will save harmless, and indemnify, the said assignor, his heirs, executors and administrators, of and from all costs, charges and expenses, to which he or they may become liable, or be put unto, in conse- quence thereof. In witness whereof, the parlies to these presents, have hereunto set their hands and seals, the day and year first above written. MORTGAGES. 299 nro of purity, Qci] or nd in- ly due tgage ; assign at any , with- cutors, 1 assig- will at d char- strators ents or noneys prised, lee doth strators to and admin- jlors or ct upon d, will signor, d from 1 he or conse- resents, the day Signed, sealed and delivered in the presence of E. F. [l.s.] Y. Z. G. II. [l.s.] ' Mortgage of Lease. This Indenture, made the day of , 18 , Between A. B., of, &c., of the first part, and C. D., of, &c., of the second part. Whereas, by an inden- ture of Lease, beat'-ng date on or about the day of , lb , and made between, &c.. The said lessor therein named did demise and lease unto the said lessee therein named, his executors, adminis- trators and assigns, All and singular that certain parcel or tract of land and premises situate, lying and being, &c., (set out the lands,) To hold the same, with their appurtenances, unto the said lessee, his executors, administrators and asifigns from the day of , 18 , for and during the term of years from thence next ensuing, and fully to be complete and ended, at the yearly rent of $ , and under and subject to the lessee's cove- nants and agreements in the said indenture of Lease reserved and contained. Now this Indenture witnesseth,that in considera- tion of the sum of ^ , of lawful money of Canada, now paid by the said party of the second part to the said party of the first part, (the receipt whereof is hereby acknowledged,) He, the said party of the first part. Doth hereby grant, bargain, sell, assign, transfer and set over unto the said party of the second part, his executors, administra- tors and assigns, All and singular the said parcel m Nf 300 CADINET LAWYER. ;;( i I !l or trrict of lanrl, and all other llic prcmisos com- prised in and demised by ihe s;iid hereinix'lore in part reeitt?d Indenturt.-of Lease : Together with the said Indenture of Lease, and all benefit and advan- tage to 1)(! had or (h^rived therefrom : To have and to hohl the sainc, with tlie appurtenances thereunto belonging, unto the said party of the second part, his cxcHMilors, administrators and assigns, from henceforih for and during all the residue of the said term granted by tho said Indenture of Lease, and for all olher the estate, term, right of renewal (if any), and other the interest of the said party of the first part therein. Subject to the paymimt of the rent, and the observance and performance of the lessee's covenants and agreements, in the said In- dcMilure of Lease reserved and contained ; and to the proviso for redemption hereinafter contained. Provided always, that if the said party of the first part, his executors or administrators, do and shall well and truly pay, or cause to be paid, unto the said party of the second part, his executors, admin- istrators or assigns, the full sum of $ , with interest for the same, at per cent, per annum, on the days and times and in manner following, that is to say, {here specify terms of payment) with- out making any deduction, defalcation or abate- ment thereout, on any account whatsoever, then these presents, and every clause, covenant, matter and thing herein contained, shall cease, determine and be absolutely v'oid to all intents and purposes whatsoever, as if the same had never been executed. And the said party of the first part doth hereby. i coin- in* in ill tlie dvan- e and rcunlo I part, from of the Lease, inewal ;irly of i(>nt of ! of the faid In- and to ned. lie first d shall ito the dniin- wilh iinum, )wing, ) witli- abate- , then matter ermine irj)Oses cQted. lereby, MOUTGAGES, 30 1 for liimself, his heirs, rxecutors and administrators covenant, promise and a*j[rce to and with tli(; said party ol the second part, his execntors, aihiiinistra- lors and assigns, in manner following, that is to say: That he, the said party of the first part, his exe- cutors and administrators, or some or one of them, shall and will well and tinly pny, or cause to be paid, unto the said party of the seeond part, his executors, administrators or assigns, the s;iid prin- cipal sum and interest in the above proviso men- tioned, at the times and in manner hereinbefore appointed for payment thereof, without any deduc- tion or abatement whatsoever, and aeeording to the true intent and meaning of these presents. And that the said hereinbefore in part recited In- denture of Lease is, at the time of the sealin;^ and delivery of these presents, a good, valid, and sub- sisting lease in the law, and not surrendered, for- feited or become void or voidable; and that the rent and covenants therein reserved and contained have been duly paid and performed by the said party of the first part, up to the day of the date thereof. And that the said party of the first part now hath in himself good right, full power, and lawful and absolute authority to assign the said lands and premises in manner aforesaid, and according to the true intent and meaning of these presents. And that in case of default in payment of the said principal money or interest, or any part thereof, contrary to the proviso and covenant aforesaid, it > I I'i;! il !'V-r ill CABINET LaWVER. shall be lawful for the said party of the second part, his executors, adminislrators and assigns, to enter into and upon and hold and enjoy the said premises f(»r the residue of the term granted by the said Indenture of Lease, and any renewal thereof (if any), for their own use and benefit, without the let, suit, hindrance, interruption, or denial of the said party of the first part, his executors, adminis- trators and assigns, or any other persons whomso- ever ; and that free and clear, and freely and clearly acquitted, exonerated and discharged, or otherwise, by and at the expense of the said party of the first part, his executors and administrators, well and effectually saved, defended and kept harmless of, from and against all former and other gifts, grants, bargains, sales, leases, and other incumbrances whatsoever. And that the said party of the first part, his execu- tors, administrators and assigns, and all other per- sons claiming any interest in the said premises, shall and will, from time to time, and at all times hereafter, so long as the said principal sum or any part thereof shall remain due and owing on this security, at the request and costs of the said party of the second part, his executors, administrators or assigns, make, do and execute, or cause and pro- cure to be made, done and executed, all such fur- ther assignments and assurances in the law of the said premises for more effectually assigning and as- suring the said premises for the residue of the said term, and any renewal thereof (if any), subject to the proviso aforesaid, as by the said party of the M6tLi!GAGES. m pecOtid gn?, to be said by the 1 hereof out the of the drninis- homso- clearly lerwise, the first rell and nless of, , grants, ibrances s exc^u- her per- remises, 11 times or any on this id party Irators or and pro- uch fur- w of the and as- the said bject to ty of the second part,his executors,aclrainistratorsor assigns, or his or their counsel in the law, sliall be reason- ably advised or required. And that the said party of the first part, his executors, administrators or assigns, shall and will, from time to time, until default in payment of ihf; said principal sum or the interest thereof, and until the said party of the second part shall enter into possession of the said premises as aforesaid, well and truly pay, or cause to be daid, the said yearly rent by the said Indenture of Lease reserved, and all taxes payable on the said premises, and perform and keep all the lessee's covenants and agreements in the said lease contained, and indemnify and save harmless the said party of the second part therefrom, and from all loss, costs, charges, dam- ages, and expenses in respect thereof. And also shall and will, from time to time, and at all times hereafter, so long as the said principal money and interest, or any part thereof, shall remam due on thissecurity,insure and keep insured the buildings erected or to be erected on the land hereby assigned, or any part thereof, against loss or dama^v. by fire, in some Insurance Ofiice, to be approved of by the party of the second part, in the full amount hereby secured, at the least, and, at the expense of the said party of the first part, im- mediately assign the Policy, and all benefit thereof to the said party of the second part, his executors, administrators and assigns, as additional security for the payment of the principal money and interest hereby secured ; and that in default of such ! I' '?; ; CABINET LAWYER. insurance it shall be lawfii' for the; said party of the second part, his executors, administrators or assigns, to effect the same, and the [)remium or premiums paid therefor shall be a charge or lien on the said premises hereby assigned, which shall not be redeemed or redeemable until payment thereof, in addition to the said principal money and interest as aforesaid. Provided, lastly that until default in payment of the said principal money and interest hereby se- cured, it shall be lawful for the said party of the first part, his executors, administrators or assigns, to hold, occupy, possess and enjoy the said lands and premises hereby assigned, with the appurte- nances, without any molestation, interruption or disturbance of, irom or by the said parly of the second part,his executors, administrators or assigns, or any person or persons claiming or to claim by, from, through, under or in trust for him, ihem, or any of them. In witness whereol the said parties to these presents have hereunto set -lieir hands and seals, the day and year first abo«^e written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [l.s,] Received on the date hereof, the sum of $ , being the full consideration above mentioned. Witness, A. B. Y. Z. of the signs, niums e said not be •eof, in rest as nenl oi I by se- of the issigns, d lands ippurte- >lion or r of the assigns, jinn by, em, or lo these d seals, is] IS.] 1$ led. B. CHAPTER XVI. NATURALIZATION. The residents in every county, are divided into three classes : they are either aliens, denizens or natives. An alien is a foreigner, (that is, one born in a foreign country), who has not been naturalized. A denizen is a foreigner, who is resident in some country oJher than that in which he was born, and has acquired certain civil rights in the country, of his adoption. A native, is one born in the country in which he is resident. Naturalization then, is the process by which an alien, or foreigner, is transtonned into a denizen, and thereby becomes entitled to certain of the pri- vileges of a native born subject. In Canada, a denizen, or person duly naturalized, is entitled to all the privileges, rights and capacities, of a natural born subject of the British Crown. The law at present affecting aliens, who desire to be naturalized, is to be found in the act passed in the Domion Parliament, in 1868: usually cited as Dom. Stat. : 31 Vic. a. •66. It applies to the whole Dominion: comprising the four Provinces of Nova Scotia, New Brunswick, Quebec and Ontaria The laws formerly in force, with reference to aliens, so 306 CABINET LAWYER, m, :>-,?/t being various in the different Provinces, it wasf thought fit to assimilate thenn ; and the first pro- vision of the exisling acl is therefore that any alien, who, before the passing of the present act, has been naturalized in any of such Province, under the Jaws heretofore in force in such Province, is now to be considered as a denizen, or naturalized sub- ject, of the whole Dominion. The next provision is that any alien woman, who is married to a natural born British subject, or to a person naturalized under the present act, or the several acts formerly in force in the several Pro- vinces, is to be deemed herself naturalized. The following provisions, are then made for the naturalization of all aliens, except an alien woman so married to a native born, or naturalized subject ; such alien woman becoming naturalized by the mere act of marriage. Every alien, resident in any part of the Domin- ion, with intent to settle therein^ and who, after a continued residence therein for a period of three years or upwards, has taken the oaths or affirma- tions of residence and allegiance^ and procured the same to be filed of record, as hereinafter mentioned, so as to entitle him or her to a certificate of natural- ization, will thenceforth enjoy, and may transmit, all the rights and capacities of a natural born sub- ject. The first thing for an alien to do, if he desires to be naturalized, is \o take and subscribe the oaths oi residence 2Cf\6. allegiance. If the alien is a per- son entitled, by the laws of the Province where her NATURALIZATION. 307 pro- lien, been the now sab- who or to DF the Pro- or the oman ^ject ; the omin- ifler a three firma- d the ioned, taral- smit, sub- tres to oalhs a per- lere he resides, lo make an affirmation in lien of an oath he may do so. In Ontario, these oaths or affirmations must be taken and sjd)scribed before a Juda^e of a Court of ReA|J(>.,»Af» PARTNERSHIP. Sll 13 profits, so that, if the business is a losing business, he is to get nothing, he stands in the position of a partner in the undertaking, and not in that of a laborer or servant for hire. Bat a person who merely receives out of the profits the wages of labor, or a commission, as a liired servant or agent, such as a factor, foreman, clerk or manager, and who has no interest or property in the capital stock of the business, is not a partner in the concern, although his wages may be calculated according to a fincluating standard, and may rise and fall with the accruing profits. A partner in a private commercial partnership (not being a public joint-stock company with trans- ferable shares) cannot introduce a stranger into the firm, as a partner, without the consent of all the members of the co-partnership. Every person who stipulates with another for a share of the profits of a business, is a partner in the business as regards the public and third parties and liable as such, whatever may be the private stipulations and agreements between him and the parties who appear to the world as the managers and conductors of the business ; because the profits form a portion of the fund on which the creditors have a right to rely for payment. A general partnership is one formed for trade or business generally, without limitations. A special partnership is one in which the joint interest extends only to a particular concern, as, for example, in the erection of a hotel. A limited partnership is one in which one or more of the partners put in a certain tSk f! $12 CAAlNET LAWITED!^ i I amount of capital, which is liable for the conlraclg of the firm ; but beyond that amount the party advancing is not liable. A person who lends his name as a partner, or who suffers his name to continue in the firm after he has actually ceased to be a partner, i» still responsible to third persons as a partner, A partner may buy and sell partnership effects; make contracts in reference to the business of the firm : pay and receive money ; draw and endorse and accept bills and notes ; and all acts of such a nature, even though they be upon his own private account, will bind the other partners, if connected with matters apparently having reference to the business of the firm, and transacted with other parlies, ignorant of the fact that such dealings are for the particular partner's private account. So also the representation, or misrepresentation, of any fact, made in any partnership transaction by one part- ner, or the commission of any fraud in such trans- action, will bind the entire firm, even though the other partners may have no connection with, or knowledge of, the same. Dormant and secret partners, whose names do not appear to the world, may be made responsible for the engagements of a trading firm of which they are members. Persons may become clothed with the legal lia- bilities and responsibilities of partners as regards the public and third parties, by holding themselves out to the world as partners, as well as by contract- ing the legal relationship of partners among thera^ I I*ARTNEIISHII>. 313 Irans- ihe ill, or al lia- 'gards selves. If a man, therefore, allows himself to be published to the world as a member of a particular firm ; if he permits his name to appear in the part- nership name or to be used in the business; if he suflfers it to be exhibited to the public over a shop- window ; or to be wriiten or printed in invoices or bills of parcels or prosp< ctuses ; or to be pnhlislied in advertisements, as the name of a member of the firm, he is an ostensible partner and is charj^cable as a partner, althougfi he is not in point of fiict a partner in the concern, and has no share or interest in the profits of the business. But if a man's name is used without his knowledge and consent, and he is represented by others to be a partner without his authority or permission, he cannot, of course, be made responsible as a partner, upon the strength of such false and fraudulent representation. An incomin;;; partner, cpnnot be marie responsi- ble for the non-performance of contracts entered into by the firm before he became an actuul or re- puted member of it. Dormant and secret partners may release them- selves from all further liability by a simple relin- quishment of their share in the profit and loss of the business; but, if they are not strictly secret as well as dormant partners, notice of the termination of their connection with the co-partnership must be given. A general notice is sufficient as to all but actual cu>1omers : these must have some kind of actual notice. If no time has been limited for the dissolution of a general trading partnership, it is a partnership at 314 CABINET LAWYER. will, and inay be dissolved at any time at the plea- sure of any one or more of the partners. If the partnership was estal)lisl)ed by deed, the renuneia- lion and diselainner of it by the party who with- draws from the firm ought to be made by deed. But if the partnership was contracted without deed, or, as it is technically called, by parol, it may be re- nounced in the same manner, If the partners have agreed that the parlnership shall continue fbr a de- finite period, it cannot be dissolved before the expi- ration of the term limited, 3xcept on the mutual consent of all the parties, or by the outlawry, felony or death of an\ one or more of them, or by the de- cree « f a Court of Equity. If a partnership for a definite term has been created by deed, the mutual agretMuent of the parties to dissolve it, must be by deed also. The partnership is dissolved by the death or insolvency of one of the partners ; or by an assignment by any partner of his share and interest in the business. A dissolution by one purlner is a dissolution as to all. An executor, administrator or personal represent- ative, continuing in the business after the death of a partner, is personally responsible as partner for all debts contracted. Immediately after i; dissolution, a nc/lice of the same should be published in the public papers, for general inforuiation, and a special notice sent to every person who has had dealings with the firm. If these precautions be not taken, each partner will still continue liable for the acts of the others to all persons who have hud no notice of the dissolution. PARTNERSHIP. 315 Under the "Act respecting Llriilted Pnrtiirrshlps," Con. Stat, ('an., c. GO, limited partnersliips for the transaction of any mercantile, mechanical, or manu- facturing business within the Provinc^e of Canada may be foruied by two or more persons, upon cer- tain terms and conditions ; but the provisions of the act are not to be construed to authorize any p irt- ship for the purpose of banking or insurance. Such partnerships are to consist of one or more persons, called "general partners," and of one or more persons who contribute, in actual cash pay- ments, a specific sum as capital to iht.* eouuiion stock, and who are styled *' special partners." General partners are jointly and severally respon- sible for all debts and engagements of the partner- ship, in the same manner as ordinary partners in any trade or business ; but special partners are not liable for any debts beyond the amounts contributed by them to the capital. All business is to ho trans- acted by the general partners alone ; and they only are authorised to sign for and bind tht.- partnership. Persons desirous of forming a limited partnership must make and sign a certificate which is to con- tain : firstly, the name or firm under whicli th(3 part- nership is to be conducted ; secondly, the general nature of the business intended to be transacted ; thirdly, the names of all the general and spe(!ial partners interested therein; dis inguishing which are general and which are special pariners, and their usual places of residence ; fourthly, the amount of capital stock which each special partner has contributed ; fifthly, the period at which the 8 f%^ 316 CABINET LAWYER. % a !l i ■ l^m r partnership is to commence, and the period at which it will terminate. The certificate is to be in the form given in the act, and which will be found hereafter, and must be signed by the several persons forming such partnership before a notary public, who will duly certify the same. The certificate so signed and certified mast, in Ontario, be filed in the office of the clerk of the County Court of the county in which the principal place of business of partnership is situate, and in Quebec, in the office of the Pro- ihonotory of the district and of the Registrar of the county, and is to be recorded by him at large in a book kept for the purpose and open to public in- spection. No partnership will be deemed to have been formed until such certificate has been made, cer- tified, filed and recorded ; and if any false state- ment be made in such certificate, all the persons interested in the partnership will be liable for all the engagements thereof as general partners. If it is desired to renew or continue the partner- ship beyond the time originally fixed for its dura- tion, a new certificate must be made, certified, filed and recorded in the manner required for its original formation; and every partnership otherwise renewed or continued will be deemed a general partnership. If any alteration be made in the names of the partners, in the nature of the business, or in the capital or shares thereof, or in any other matter specified in the original certificate, it will be deemed a dissolution of the partnership ; and every ^^-rfl^WPi^^WI^Www^^lMfeWRPHB^Sj ^'-r at which ;n in the ind must ing such A'ill duly rnvd and 3 office of county in irtncrship r the Pro- rar of the arge in a public in- ave been nade, cer- ise state- R persons e for all rs. e partner- its dura- fied, filed ts oriijinal 13 renewed, rtnership. les of ihe or in the er matter will be and every PARTNERSHIP. 317 partnership in any manner carried on after any such alteration has been made, will be deemed a general partnership, unless renewed as a special ])arnership in the way above mentioned. The business of the partnership is to be conducted under a name or firm in which the names of the general partners, or some or one of them, only shall be used : and if the name of any special partner is used in such firm with his privity, he will be deemed a general partner. No part of the sum which any special partner has contributed to the capital stock can be withdrawn by him, or paid or transf -rred to him in the shape of flividends, profits or otherwise, at any time dur- ing the continuance of the partnership ; but any partner may annually r("ceive lawful interest on the sum contributed by him, if the payment of such interest does not reduce the original amount of capital ; and if, after the payment of such interest, any profits remain to be divided, he may also receive his portion of such profits. If, however, it should afterwards appear that by the payment of any inter- est or profits to any special partner the original capital has been reduced, the partner receiving such interest or profits shall be bound to restore the amount necessary to make good his share of the deficient capital with interest. Special partners are at liberty, at all times, to examine into the state and progress of the partner- ship concerns, and may advise as to their manage- ni Mt ; but they must not transact any business on account of the partnership, nor be employed for > I: •if 318 CABINET LAWYER. il ' '! I'^il t I that purpose as agents, attorneys or otherwise ; and if any special partner interferes in that manner, he will be deemed a general partner, and become liable as such* General partners are liable to account to each other, and to llie special parlners, for their manage- ment of the concern, in the same manner as part- ners in any other trade or business. A limited partnership may be dissolved before the ex|)iration of the term specified in the original certificate, by filing a notice of dissolution in the ofl^ce in which the original certificate was recorded, and publishing such notice once a week for three weeks in a newspaper published in the county or district where the partnership has its principal place of business, and for the same time in the Ontario Gazette. The fee for filing or recording every certificate is fifty cents. By an act of the Ontario Legislature, passed in 1869, (33 Vic.,c. 20), it is enacted that all persons, who, at the time of the passing of the act, or there- after, should be associated in partnership for trad- ing, manufacturing or mining purposes, should cause to be delivered to the Registrar of the county, city or riding, in which they carry on business, a declaration in writing, signed by the members of the co-partnershtp : which declaration is to contain the names, surnames, additions and residences of each partner, and the style of the firm, and the period of the partnership ; and also a statement that there are no other members. i i ^' ^.iiMh ' i if EW ^^'^^mm^^.. mmmmmm PAR'rsERSUlP. SS9 Such fleclaralion must be filed within six months after the passing of the act, as to all partner>hips in existence at that time ; and within six months of formation, as to all others; and a similar declara- tion must be filed whenever any change is made in the names of the members, or the style of the firm, or place of residence. The penalty for non-compliance wilh this act is $200, to be sued for in a civil action ; half of which goes to the mformer, and half to the Crown. For registering such declaration, the llciiistrar is entitled to 50 cents, if it does not contain more than 200 words, and 10 cents per folio of 100 words over 200. I'ntil a new declaration has been signed and filed, the members of the original partnership will remain liable. Partnership^ Deed. Articles of agreement, made the day of > 18 , Between A. B., of, &c., C. D., of, &c., E. F., of, &c., and G. H., of, &c. Whereas, the said parties hereto respectively are desirous of entering into a co-partnership in the busine>s of , at , for the term and sub- ject to the stipulations hereinaiter expressed. Now, therefore, these presents witness that each of them, the said parties hereto respectively, for himself, his heirs, executors and administrators, hereby coven- nants with the others and other of them, their and his executors and administrators, in manner follow- ing ; that is to say : i. \' m/mtmrnta^miatumMUl 320 CABINET LAWYER. I?: i ?':i I. 1st. That the said parties hereto respectively will henceforth be and continue partners together in the said business of , for the lull term of years, to be computed from the day of of, 18 , if the said partners shall so long live, subject to the provisions hereinafter contained for determining the said partnership. 2nil. That the said business shall be carried on under the style or firm of A. B. & Co. 3rd. That the siid partners shall be entitled to the profits of the said business in the proportions following ; that is to say, (here state the shares;) and that all Josses in the said business shall be borne by them in the same proportions, unless the same shall be occasioned by the wilful neglect or default of either of the said partners, in which case the same shall be made good by the partner through whose neglect the same shall arise. 4th. That the said partners shall each be at liberty, from time to time during the said partner- ship, to draw out of the said business, weekly, any sum or sums, not exceeding for each the sum of $ per annum ; such sums to be duly charged to each of them respectively, and no greater amount to be drawn by either of the said partners, except by mutual consent. 5th. That all rents, taxes, salaries, wages and other outgoings and expenses incurred in respect of the said business shall be pL'id and borne out of the profits of the said business 6th. 'I hat the said partners hall keep, or cp ;ise to be kept, proper and correct books of account of PARTNERSHIP. 321 ly will in the years, to the mining ried on Itled to portions es;) and 2 borne e same default ase the through be at partner- kly, any sum of irgcd to I amount L except res and respect le out of )r ce;ise Icount of all llie partnership moneys received and paid, and all business transacted on parlnership account, and of fill oiher matters of which accounts ought to be kept according to the usual and regular course of the said business: which said books shall be open to the inspection of both partners, or their legal representatives; and a general balance or statement of the said accounts, stock in trade, and business, and of accounts between the said partners, shall be made md t.iken on the day of , in each year of the said term, and oflen<'r, if required. 7th. That the said partners will be true and just to each other in all matters of the said co-partner- ship, and will at all times during the continuance thereof dilligently and faithfully employ themselves respectively in the conduct and concerns ol the said business, and devote their whole time exclu- sively thereto, and will not transact or engage in any othc^r business or trade whatsoever; and will not eitiicr in the name of the said parlnership, or individually in their own names, draw, accept or endorse any accommodation bill or bills, promissory note or notes, or become bad or surety for any person or persons, or knowingly or willully do, conirviit or permit any act, matter or thing, by which, or by means of which, the said partnership moneys :r effects shall be seized, attaclied, or taken in execution for their ovvn private debts or liabdi- ties ; and in case either partner shall fail or make default in the performance of any of the agreements or articles of the said partnership in so lar as the same is or are to be observed by him, then the 21 H 111 ■1 522 CABIWET LAWYER. ill l f i: i iJl Other partner, or any one or more of them may give notice in writing to such partner offending in what respects he is deemed to be so in default ; and in case such failure or d<'fault is not rectified i3y a time to be specified for that purjx)se, in such notice, the said partnership shall thereupon at once, or at i\rty oiher time to be so specified as aforesaid, be dissolved and determined accordingly. 8th. That in case either of the said partners shall die before the exniration of the term of the said co- ■ partnership, the said partnership shall thennipon ce?s'" ^nd the surviving partner or partners shall wi '\ calendar months after such decease, settle aud adjust with the representative or repre- seLtbtives i*** such deceased partner, all accounts, matters and Jhijigs relating to the said co-partner- ship. In witness whereof, the said parties have hereto set their hands and seals, the day and year fir&t above written. Signed, sealed and delivered in the presence of A. B. [l.s.] Y. Z. C. D. [l,s.] E. F. [l.s.] G. H. [l.s.J Dissolution of Partnership, B^ Indorsement. We, the undersigned, do hereby mutually agree that the partnership heretofore subsi-sting between us, as Wholesale Grocers, under the within articles 'iX,m-^im^M PARTNERSHIP. S2S d in by a such n at I'd as ngly. shall id co- tnipon i shall cease, ropre- !Ounts, artner- herelo Hr fir&t .1 agree lelween larlicles of co-partnership, be, and the same is hereby dis- solvt'il, except for the purpose of the final liquida- tion and settlement of the business thereof; and upon such settlement wholly to cease and determine. In witness whereof, we have hereunto, set our hands and seals, this day of Signed, sealed and delivered in tiie presence of Y. Z. , A.D. 18 A. B. [l.s.] C. D. [l.s.] E. F. [l.s.] G. H. [l.s.] Notice thereof. Notice is hereby given that the partnership here- tofore subsisting between us, the under^jigned, at Wholesale Grocers, has been this day dissolved by mutual consent. All debts owing to the said partnership are to be paid to A. B., at , and all claims against the said partnership are to be presented to the said A. B., by whom the same will be settled. Dated at Witness, Y. Z. , this day of , A.D. 18 A. B. CD. E. F. G. H. Notice when business to be continued. Notice is hereby given that the partnership here* tofore subsisting between us, the undersiizned A. B., C. D., E. F. and G. H., as Wholesale Grocers, was this day dissolved by mutual consent, so far aa !i il iil 324 CABINET LAWYER. i regards the said A. B. All debts due to the said partnership are to be paid, and those due from the same discharged, at , where the business will be continued by the said C. D., E. F. and G. H., under the firm g( '' D Sr Co.'' Dated at Witness, Y. Z. , this day of , A.D. 18 A. B. C. D. E. F. G. H. Limited Liahility Certificate. We, the undersigned, do hereby certify that we have entered into to-partnership, under the style or firm of C. D. & Co., as {Groctrs and Commission Mtrchants)^ which firm consists of A. B., residmg usually at , and C. D., residing usually at , as general partners ; and E. F., residmg usually at , and G. H., residing usually at , as special partners; ihe said E. F., having con- tributed $4000, and the said G. H. $8000 to the capital stock of the said partnership. Which said co-partnership commences on the day of , 18 , and terminates on the day of , 18 . Dated this day of , 18 . Signed in the presence of A. B. Y. Z. C. D. E. F. G. H. Declaration for Registration of Partnership. Province of {Ontario^ County of ( York.) ■MiMaaHi t»Al:ENTS Ot INVENIIONS, 325 \\\\ A. B., of {Toronto) Grocer, C. T)., of (Toron'o^) Grocer, and E. F., of i Toronio)^ Grocer, do cerlily and delare that we have carried on, and intend lo carry on business as Grocers in (Tor nto\ in purlnership under the name, style or firm of **A. B. and Company ; and that the said partner- ship has existed since the day of , \^ , {or is to exist until the day of , 18 ;) and tliat \n\ ihe >aid A. B., C. I), and E. F., are the only members of such co-partnership. A B. Witness, C. J). G. li. E. F. Note. — The firm given in the achedule to the act {Out S/a/. 33 Vic.^c. 20) is somewhat confu^fd^ and is ot nftrr' d to in tht b dy of the act. The ab>reform cm aitts all th t is required by sec. 2, and may be easily adapted to suit circumstances.] 18 CHAPTER XVIII. PATENTS OF INVENTIONS. The Patent olfice in Canada is attached to the Department of Agricultur«', and the Minister of Agriculture for the time being, is the Commissioner of j)atenis. Patents of invtntion are grants by the |! m Jl . 326 CABIXET LAWYER. Crown of tlie ex(rIujf some ^ chap- of the Vi ordinary rontine of applying for a patent and regis- tering an assignment. If an inventor is afraid that some person may get the advantage of him by applying for a patent before lie (the inventor) has perlected his Invention or discovery, he may file a description of such in- vention in the patent office, with or without phms ; and such filing vvili operate as a careat^ and will entitle him to notice in case any one else should apply for a patent. Every patentee must stamp or engr ive on each patented article sohJ or offered for saU', the year of the dale of the patent, thus ; " Patented 18(39," {or as the case may be.) The penally for neglect to do this is fine and imprisonment. Petition for Patent. To THE Honorable the Commissioner of Pa- tents FOR INVENTIONS. The pt'iition of A. B., ol, &f., [stale here name, residence and occupation in full.) Sheweii! : — That your petitioner has invented (or discovered) a new and useful (or/, mar/iine, maaufaclure., or composilion of malt'r^ or a new and useful iniprove- ment on such art. &c. : inser'in^ htrt- the title or name of his iut^ention, or discovery, its vbjtct., and a short description of the same , not known or used by others before this invention (or discovery) thereof, (or not being at this time in public use, or on sale in any of the Provinces of the Dominion, with the con- sent or allowance of the inventorordiscoverer thereof. iV . 352 CABINET LAWYER* That your petitioner has elected his domicile at (slate here some known place in Canada)^ and that he has resided for one year and upwards, prior to the time of this application for a patent at (state where^ and if in several placps^ state where^ and the period of residence at each place.) Your petitioner therefore prays that a patent may issue in his favor arranlina: him the exclusive ore- perty in the said invention (or discovei^-.) Dated the day of , 18 . A. B. Oath or Affirmation. Province of , County of , to wit : T, A. B., of &c., {insert name., residence and orcw potion)., make oath and say (or if an a/hrmation^ say : do solemnly and sincerely declare and aflirin) as loliows : 1. That I verily believe that I am [or that E. F., of &c., whose assignee (or representative) I am, is (or was] the true inventor (or discoverer) of the (here insert the nime or titla of tne invention or dscoverif)^ for which I am soliciting a patent. 2. That I have (or the person whose assignee or representative he is, has been) a resident of Canada for one year now last past. Sworn (or affirmed) before me, at in th( 1 > A. B. County of , this | day of , i^.D. IS .J ' Y. Z. J. P. (or as the case may he). - -^:<. T^i.A^'^^^-^- ■ PATENTS OF INVENTIONS. 333 e at that )r to slate 1 the may oro- ) wit : tU'CU- .ation^ ffirin) m, is of the ion or nee or anada Specification. Whereas I, A. B., of, &c., have invented (or dis- covered) a new and useful (art machine, des of applianc. yMure the invention or dis- covery admits of illusiration by drawings, refer to them hert thus:) The plans and drawings accom- panying this specifiealion. show clearly all parts of the invention (or discovery). Figure No. 1. shows &c., ^ slating clearly what each figure illustrates). 18 Witness my hand at Signed in presence of C. D. E. F. this day of A. B. [Note. — The specification and drawings must bf^ in duplicate ; an I tht^ latter must bear the name of the invtntor, ad contain writien refmnces to the specification, and be certified b / the applicant to be the drawings referred to in the specifi- cation. ^u CABINET LAWYER. 11:1 Surrender for Re-issue. To THK Honorable the Commissioner of Pa- tents FOR Inventions. The peliiion of A. B., of, &c., sheweth : That your petitioner did obtain letter-patent under the seal of the p;Uent office for a new {thrash- ing-machine , which letters-patent are dated the day of , A.D. is . That your petitioner now believes that the same letters-patent are inoperative, or invalid, by reason of insr to the residuary legatee, if any, named in the will ; and if there be no residuary legatee, then to the testator's next of kin. When a person dies without making a will, he is said to die intestate, and his property is then dis- tributed according to the provisions of the acts of Parliament passed to regulate such matters. The lands of a person dying intestate descend first to all 312 CABINET LAWiTBR. liis cliildrcn, sons ai^d tlaiigliU'r.s, equally, and if any child should be dead leaving children, these grand-eliildren will stand in their parent's place and be (entitled to Ihe share which would have fal- l(^n to their parent, had siioh parent been alive. Failing children, the lands will goto the intestate's father; and if the father be dead, then to tiie mo- ther ; and if the mother be dead, then to the brothers and sisters and collateral relatives. If, however, the land catne to the intestate in right of his mother, then upon his death without children, such land will revert to the mother if living, and if dead, to the father for life, and then to the brothers and sisters. We have not pretended to give the w hole law of descent of real {)roperty : we have only given an outline of the way in which land of an intestate will go in an ordinary and simple case. It would be useless to do more, and would swell the limits of this work far beyond our design. The law of descent of real property is much too intricate to warrant any attempt to popularize it. The application of an intestate's personal prop- erty, after payment of all his debts, is now regu- lated by statutes of the reign of Charles II. and James II., commonly called the Statutes of Distri- bution, by which statutes the rights of the relations of the deceased appear to have been fii ' ' linitely ascertained and rendered legally ava . Unde these statutes, if the intestate leave wid(nv and any child or children, the widow shall take a third part of the surplus of his effects. If he leave no K^ ■ ,t!miyr lUi WILLS AND INTESTACY. 313 child or (loscondiint of a cliikl, she t!ik(^s ono-liali'. It" lliL' intestate leave children, Iwo-liiirds of his ellects if he leave a widow, or the whole if he leave no widow, shall be eqnally divided among his children, or, if but one, to such child. If the intestate leave no children or representatives of them, his father, if living, takes the whole ; or, if the intestate should have left a widow, then one-half. If (he father be dead, the mother, brothers and sisters of the intestate shall take in equalshares, subject, as before, to the widow's right to a moiety. If there be no brother or sister, the mot her shall take the whole,or, if the widow be living, a moiety only, as b<;fore ; but a step-motlu r can take nothing. The children of brothers or sis- ters who arc d(?ad strmd in their parent's place. If a married w^oman is possessed of property, real or personal, in her own separate right, she may dispose of the same by her will to or among her children, and, failing children, then to her hnsb-.ind, or whom she pleases. Such will must be in writ- ing, and signed by the testatrix in the presence of two witnesses, neither of whom, however, must be the husband. The separate personal property of a married woman dying intestate is to be distributed in the same propoi'ilons between her husband and children as the personal .property of a husband dying intestate is to be distributed between his wife and children. When a person dies intestate, any of the next of kin may obtain letters of administration from the Surrogate Court, which will clothe the party obtain- ing such letters with the same authority that an 344 CABINET LAWYER. executor has. An administrator's duties and lia- bilities are precisely the same as those of an execu- tor, so that it is unnecessary to refer to them again. A codicil is a supplement or addition made lo a will by the testator, to be taken as part of the same, being intended for its explanition or alteration, or to make some addition to, or subtraction from, the former disposition of the testato/. It should be exe- cuted in the same manner and with the same ior- mality as the original will. No precise form of words is essential to the vali lity of a will; but great care should be taken that the wishes of the testator are ^ilearly expressed in proper terms. Wills are revoked bv the marriaare of the testator or testatrix, and by subsequent wills and codicils, so far as such subsequent wills and codicils are inconsistent or incompatible with the o-iginal will. Short Fonn of WHi/. This is tne i.ast will and testament of me, A. B., of, &c., made this day of , in ih.e year of our Lord one thousand eight hundred and , as follows : I give, devise and h\|ueath all my messuages, lands, tenements and hereditaments, and all my household furniture, ready money, stcurilies lor money, money secured by life assurance, goods and chattels, and all other my real and jjersonal estate and effects whatsoever and wheresoever, unto C. D., his heirs, executors, administrators and assigns, to and for his and their own absolute use .■i^n«^fj st-^-» Sr" '^^v^'X- WILLS AND INTESTACY. 345 and benefit, according to the nature and qnnlily thereof respectively ; Subject only to the payment of my just debts, funeral and testamentary ex- penses, and the charges of proving and registering th IS my will. And I appoint E. F., of exe- cutor of this my will ; And hereby, revokiug all other wills, I declare this only to be my last will and testament. In witness whereof, I have hereunto set my hand and seal, the day and year above written. •lea led. A. B. [L.S.] pu I )lished and declared by the said A. B., l.c testator, as and for his last will and testament, in the presence of us, who at his re([uest, and in the presence of each other, have hereunto subscribed our names, as wilnesses to the due execu- tion thereof. R. S. X. Z. General /o)7n of a Will dlsjiosing of Real and Personal Estate, in Lrgacics. I, T. T., of , in the county of , gentle- man, being of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills by me at any lime heretofore made. 1st. I hereby constitute and appoint my wife, E. T., to be sole executrix of this my last will, direct- ing my said executrix to pay all my just debts and ft^ 346 CABINET LAWYER. funeral expenses, and the legacies hereinafter given, out of my estate. 2nd. After the payment of my said debts and funeral expenses, I give to each of my (;liildren the sum of dollars, to be paid to each of them as soon after my decease, but within one year, as conveniently miy be done. 3rd. And for the payment of the legacies afore- said, I give and devise to my said executrix all the personal estate owned by me at my decease (ex- cept rny household furniture and wearing-ajiparel), and so much of my real estate as will be sufficient, in addition to the said pers^onal estate herein given, to pay the said legacies. 4th. I give to my said executrix all my house- hold furniture and wearing-apparel, for her sole use. 5lh. I devise to my said executrix all the rest and residue of my real estate, as long as '- shall remain unmarried, and my widow, with reUiauider thereof, on her decease or marriage, to my said children and their 'eirs respectively, share and share alike. In witness whereof, I have hereunto set my hand and seal, this day of , in the year of our Lord one thousand eight hundred and T. T. [l.s.] Signed, sealed, published and declared by the said T. T., as and for his last will and testa- rnenl, in the presence of us, who in the presence of ea:h other. masuwtsKm&ssM WILLS AND LNTESTACY. 317 and at his request, have sub- scribed our names as witnesses hereto. X. Z. R. S. Codicil to a Will. This is a codicil to the last will and testament of me, A. B., of, &c., bearing date the day of , A.D. 18 , {the dale of (he will.) I do hereby revoke the bequest of all my house- hold furniture to my son John, and do give and be- queath the same to my daughter Jane, to and for her own absolute use and benefit forever. I give and bequeath lo my daughter Mary, in addition to the legacy bequeathed to her by my said will, the further sum of $400. Jn all other respects f do confirm my said will. In witness whereof, I have hereunto set my hand and seal, this day of , a.d. 18 . A. B. [l.s.] Signed, sealed, published and declared by the siid A. B., the testator, as and for a codicil to his last will and testament, in the pre« mce of us, who at his request, and in the presence of each olher. have hereunto sub- scribed our names as witnesses to the due execution hereof. R. S. X. z. ^ i 1 hi 4La- INDEX. A. AFFIDAVITS, 1 ; definition of, 1 ; liow drawn, 1 ; how sworn, 2; general form of, 2; atiirmation in lieu of, 1 ; form of aniiination, 3; oath, 4; aflirniation, 4; how .signed, 4; l>y illiterate person, 4 AGREEMENTS, See Contracts. ARBITRATION, 46 ; general observation.s, 46; .statutory enaet- ments as to, 48, 49 ; submission to. not revocable without leave, 4'.) ; examination of witnesses, 50 ; determination of arbitrator's powers, 51 ; time for making award, 51 ; enlargement of time, 51 ; how conducted, 52 ; award on, 52 ; how set aside, 54 ; umpire on, 55 ; enforcement of award, 55; form of arbitration deed, 56, 59; form of arbitration bond, 61 ; form of appointment of umpire, G'; ; form of appointment or third arbitrator. 64 ; form of enlargement, 63,64; oath to witness, 65 ; appointment to pr»)ci'ed, 65, 66; award, > 6, 67,68; clauses in award, 69; allidavits of execution, 70, 71. ASSIGNMENT, 72; what, 72 ; when to be filed or registered, 72 ; foiin of, of agreement to purchase, 7.3; of bond by endorsement, 76 ; of Crown Lands, 78 ; affidavit of exe- cution of, 79 ; of lease, 80. 84, Sii ; to secure debt, (s8 ; of judgment, 92 ; of mortgage, 94 97; of debts, 98, 1U2 ; of polity, 103; of goods, 104, 106. AUCTIONS AND AUCTIONEERS, 109; auctioneer agent of buyer and seller, 109; how conducted, 110; forms of contract, HI; conditions of sale, 112, 114. B. BILLS AND NOTES, 116; definition of, 110, 132; foreign INDEX. 310 BILLS AND NOTES, {Covtinued.) bills, 116; inlan(3 bills, iKJ; must bo in wiitinc:, 117; form of bill, 117; obscnvations on form, 118, 13'J; form of note, 132; stamps on, 134. BONDS, 131; natnrc of, 131; penalty on, 135; rcrovcry of, 135; form of sinj^le bond, 135; bond with condition, \'M\\ to convey land, 137; for payment of purchase money, 138 ; of indemnity, 140; to pay rent, 141. don, t of of ire, m of ent ard, red, I by (xe- i ; of ;0f nt of ns of reign CHATTEL MOBTGACiES, \V2; statntory enactments as to, 113, 147; must be filed, 143, 14G ; future advances, 144; removal of goods, 140; renewal of, 147, H8; form of, 14S ; atlidavitof mortirngee, 152 ; witness, 153 ; to secure endorsements, 153; affidavit of mortgagee, 158; wit- ness, 15U; to secure future advances, ItlO; aflidavit of mortgagee, 165 CONTRACTS, 5; definition of, 5; are express or implied, 5 ; consideration, 0; when to be in writing, 0; Statute of Frauds, 7; under $40, 8; over it?40, !» ; form of, for sale of lands, 10; for lease with riglit to purchase, 12, 15; to build hou8(!, 23, 29 ; sub-contract, 39 ; bond by builder and sureties, 41 ; for repairs, 43; for sale of merchant's stock, 44 ; for sale of grain, 45. D. DEEDS, 107 ; must be written or printed, 167 ; contents of, 168 ; dower, bar of, 109 ; by married women, 109 : how signed, lt)'.t; how registered, 170, 173; form of bargain and sale, 174, 17S ; statutory deed, 182 ; married woman's deed, 183; deed of gift, 185; certificate of acknowledgment, 186; aflidavit of execution, 186. DISTRESS, See Landlord and Tenant. DIVISION COURTS, 187; jurisdiction of, 188; claim not t« he divided, 189; suit, how entered, 189 ; mode of proce- dure, 19(1; particulars (»f claim, 190 ; notice of defence, I'.U ; service of summons, 192 ; suitagainst partners, 193 ; Ijearing of cause, 193; adjournment, 194; tender, plea of, 194 ; payment into Court, 193 ; set .off, 196 ; subpa^na --..^^ 350 CABINET Lawyer. DIVISION COURTS, (Continued.) lOT, 198; Jifiidavits, liow sworn, lOS; execution, 190, 202; ftibitration, 190; confession, 200 ; jury, 201 ; cross judg- ments, 202; trjinscri[)ts, 203; death of parties, 203; exe- cution aprainst lands, 204 ; neglect of JJallin' to levy, 204 ; inimediute execution, 205 ; judgment summons, I'Oa ; committal to gaol, 200 ; proceedings against absconding debtors, 207, 200 ; attachr^ent of debts, 200 ; interpleader 200: form of undertaking by next friend, 210 ; atlidavit for leave to sue in adjoining division, 211 ; aflidavit fur attacbinent, 214; replevin, 216, 218; claim in replevin, 218; particulars in contract, 210; tort, 22(i; claim for rent, 22<) ; interpleader claim, 221 ; application for judg- ment summons, 222; aflidavit for gari»isliee order, 222; defendant's notices, 223, 225 ; allirniution by quakers, &c., 225 ; aliidavit of disbursements, 22G ; foi revival of jtnlg- mcnt, 2i7. E. KXECUTOIiS AND ADMINISTRATORS, Ske Wills. F. FENCES, Seu Lixk-Fences and Water-Courses. FIXTURES, See Landlord axd Tenant. ^ a. GOODS, SALE OF, See Contracts. I. INSOLVENCY, 228; statute relating to, 228 ; who are traders, 229 ; assignment, how made, 220 ; official assignee, 229 ; First meeting of creditors, 230 ; statement of assets and liabilities, 230 ; appointment of creditor's assignee, 230 ; etlect of assignment, 231 ; compulsory liquidation, 231, £33; discharge of insolvent, 233 ; form of claim, 2:i4. L. LANDLORD AND TENANT, 236; leases, 236: yearly ten- ancy, 237, 238; holding over, 237; distress, 238, 243; action for rei»^, 238 ; distress after expiration of term, iim>s^?r^^^iK:k-.^jfiuA.- .v*i;is*i. INDEX. 351 •adors, ., 229 ; ts aiul 230 ; 11, 231, o4. r ten- , 24J ; term, LANDLORD AND TENANT, (ConlinurJ.) 239; at wlmt time relit pjvyablo, 240; distiaiiiin;:: j^onls in execution, 241; costs of distress, 213; action for rent, 244 ; rci)air8, 244 ; notice to quit, 244 ; form of leasi! o{ house, 245; land, 249; house and iariu, 253; statutory lease, 259; distress warrant, 2(J0 ; inventory, 2til ; notice of distress, 202, 2(13; mjuest for delay, 2t;3 ; notice to quit hy landlord, 2(')4 ; I'y tenant, 2t'4. LINE-FENCES AND WATER-COURSES, 205 ; statutes r .lat- iiig to, 266; removal of, 205; water-fences, 2-50; open- ing ditches, 260 ; disi)utes, as to, 207 ; mode of proceduro by fence-viewers, 267, 208; enforciuf,'- award, 209; ap- jdication to Justices, 2'70, 272 ; fees, 272 : iirovi;-ie,ns of amended act, 273; non-resident luuds, 273; extension into adjoining municipality, 275. M. MASTER AND SERVANT, 276 ; contract of hiring, 27o ; when to be in writing, 277 ; when pri'sumed, 277 ; hiring of domestic servants, 278 ; relative duties of, 279 ; appren- tici!shi[), 279; usual covenants on, 280; statutes relating to, 281 ; summary proceedings under, 281 ; remedy for Avages, 281 ; act ri'specting minors, 282; orphan child- ren, "JSS ; illusage of apprentice, 284; punishment of apprentice, 284 ; form of apprenticeship indenture, 285 ; apprenticeship of girl, 287 ; assignment, 288. MORTGAGES, 289 ; what they are, 289; how discharged, 290 ; should be in duplicate, 291 ; remedies on, 291 ; forms of statutory mortgage, 292; atlidavit of execution, 291; dis- charge, 294 ; assignment of, 296 ; mortgage of lease, 299. N. NATURALIZATION, 305; who are aliens, 305; statutes affect- ing, 305 ; how naturalized, 300 ; certilicate of, 308 ; how recorded, 308 ; forms of oath, 309. NOTICE TO QUIT, Sek Landloud and Te.vam. P. I'ARTNERSHIP, 310 ; what constitutes a part : 310 ; general and special, 311, 317; authority of i'artners, 312; dormant 352 CABINET LAWYER. PARTNERSHIP, {Continued. and secret, 312; dctcrniin.'vtion of, 814; limited, 315; liow formed. 315; extension and alteration of, 310 ; dis- solution of limited, 318 ; registration of names of lirm, 318; from of deed, 319; dissolution, 327; notices of, 322; limited liability certificate, 324; declaration for registration, 3J4. PATENTS OF INVENTION, 325 ; patent office, 325 ; statuto relating to, 32G ; who may o])tain patent, 320; applica- tion, how made, 327 ; contents of petition, ;-i27 ; specifi- cation, 328; drawings, 328; specimens of ingredients, 328; effect of patent, K29 ; errors and niistak'S, :i2y ; assignment of, 320; infiingenunt of, 330; fees, 3.';0; form of petition, S31 ; oath, 3.2 ; specification, 333; sur- render, 334; disclaimer, 331 ; assignment, 335. PROMISSORY NOTES, See Rills and Notes. R. RENTS, See Landlohd and Tenant. 8. SERVANT, See Master and Servant. AV. WILLS, 337 ; who may make, 337 ; will of lands, 337 ; will of personalty, 338; must he in writing, 338; except of soldiers and sailors, 338 ; how executed, 338 ; ai)})oint- ment of executor, 339; who may he executor, 330; exe- cutor must prove will, 340 ; duty of executor, 340 ; pay- ment of debts and legacies, 341 ; of intestacy, 341 ; how intestate's estate distributed, 841, 342 ; rights of widow and children, 841, 342 ; wills of married women, 313 ; letters of administration, :^43 ; codicils, S44 ; how wills revoked, 344; forms of will, 344, 347; codicil, 344, 347. ■m>^ mitcd, 315 ; nf, 310 ; diH- mc'H of tirm, notici'S of, ■lanvtiou for 3'25 ; stiitiito MO] Jipplica- •^2^ ; spcfili- iii^Tcdifuts, istak.'W, «29 ; i; foes, ;?:10; on, 3:5:5 ; sur- 335. 8, 337 ; will of 38 ; i'\w\d of 338 ; nppoint- lUor, 33'J ; c-xe- itor, 340 ; pay- tary, 341 ; lu)W ights of widow I women, 343 •, >44; how willK dicil, 344, 347. " ,^,'1.. . M.^ttrmm**^