UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY JOS-ANGELA sHIBRAR" MARYa OFFICE AND PRACTICE OF A NOTARY OF CANADA (Excepting Province of Quebec) BERNARD WALLACE RUSSELL B.A., LL.B. Of the Bar of Nova Scotia ; Lecturer on Office Practice in the Faculty of Dalhousie University, Halifax, N.S. TORONTO : THE CARSWELL COMPANY, LIMITED 1916 LONDON : SWEET & MAXWELL, LIMITED COPYKIGIIT : CANADA, 1916, KY THE CARSWELL Co., LIMITED T PREFACE. The volume whose pages follow has been written principally for the use of notaries public in Canada who are not at the same time barristers or attorneys and cannot therefore be assumed to be well inf ormed on any of the branches of law which give rise to the various notarial functions. It has been attempted throughout, when dealing with the duties that are imposed upon notaries, not only to define the specific acts which are to be done by the notary, but also in some measure to present to him a comprehensive idea of the statute or princi- ple of law under which comes the need and authority for his act. And since some of the more difficult tasks which occasionally fall to the office of notary public, such as the preparing of agreements, charter par- ties and powers of attorney, are so intricate and technical in their nature, and conceal 667178 IV PREFACE. so many pitfalls for the inexperienced draftsman, that they may safely be and are usually trusted only to persons who have devoted years of study to the profession of law, it has not been deemed useful to at- tempt to deal with the law governing such documents or to set any forms or precedents to follow in the making of them. Indeed, it is felt that a form or precedent for thait kind of document which must of necessity be varied in its most important particulars in every single instance in which it is brought into use, can be of little service to anyone, and may prove to be a weapon which, in the hands of the uninitiate, becomes turned upon and does violence to its own user. The office of notary public in the Pro- vince of Quebec, because of the retention of the French law in that Province, differs widely in its nature from all of the other parts of the Dominion, and the business of notaries is there a distinct profession. The laws and customs which govern the office in that Province are therefore not included in this work. PREFACE. V In the manner above the writer seeks to justify the material and absence of material in the pages that follow, at the same time expressing the hope that the book will itself prove its usefulness. BERNARD W. KUSSELL. Halifax, -N.S., September, 1915. c.x.Au TABLE OF CONTENTS. CHAPTER I. History of the Office CHAPTER II. Appointment of Notaries CHAPTER III.- Functions and Duties of Cana- dian Notaries in General CHAPTER IV. Documents of Notaries as Evi- dence CHAPTER V. Registration of Instruments Af- fecting Lands Generally CHAPTER VI. Registration in Alberta and Sas- katchewan CHAPTER VII. Registration in British Columbia CHAPTER VIII. Registration in Manitoba CHAPTER IX. Registration in New Brunswick. CHAPTER X. Registration in Nova Scotia CHAPTER XI. Registration in Ontario CHAPTER XII. Registration in Prince Edward Island CHAPTER XIII. Registration in the Territories.. CHAPTER XIV. Conveyancing " CHAPTER- XV. Conveyancing under the Torrens System CHAPTER XVI. Short Forms in British Columbia. CHAPTER XVII. Short Forms in Manitoba CHAPTER XVIII. Statutes Respecting Conveyanc- ing in Ontario CHAPTER XIX. Short Forms in Nova Scotia XX. Negotiable Instruments XXI. Ship Protests CHAPTER CHAPTER CHAPTER XXII. Oaths, Affidavits, etc. Appendix Notarial Fees Index PAGES. 1-7 8-17 18-25 26-31 32-36 37-47 48-64 65-70 71-78 79-87 88-93 94-98 99-105 106-182 183-246 247-288 288-302 303-329 330-337 338-426 427-439 440-448 449-452 453-484 INDEX OF CASES. PAGE Alabaster ats. Brown, L. R. 37 Ch. D. 490 119 Annal r. Mills, 21 I. R. 94 136 Armstrong r. Stockholm, 23 L. J. Ch. 176 27 Atkinson ats. Davis (1909), W. N. 212 27 Ayotte r. Boucher, 9 S. C. R. 331 25 Bank of England ats. Staple of England, L. R. 21 Q. B. D. 160 107 Bank of Van Dieman's Land r. Bank of Victoria, L. R. 3 P. C. 542 344 Bank of Victoria ats. Bank of Van Dieman's Land, L. R. 3 P. C. 542 344 Baring ats. Mitchell, 10 B. & C. 4 377 Bayers v. Lloyd, L. R. 1895, 2 Q. B. 610 134 Bayley v. Great Western Ry. Co., L. R. 26 Ch. D. 434. . 119 Belford ats. Bradford, 2 Sim. 264 124 Bissett ats. Commercial Bank, 7 Man. 586 354 Boucher ats. Ayotte, 9 S. C. R. 331 25 Bradford r. Belford, 2 Sim. 264 124 Brain v. Preece, 11 M. & W. 775 28 Brosseau ats. Pelletier, M. L. R. S. C. 331 25, 373 Brown t>. Alabaster, L. R. 37 Ch. D. 490 119 Burnett v. Lynch, 5 B. & C. 609 134 Burrel ats. Williams (1845), 1 C. B. 429 " 133 Carr ats. Hollis, 3 Swan. 638 126 Casboard ats. Hellier, L. Tid. 266 135 Chesmer r. Noyes, 4 Camp. 129 28 Commercial Bank v. Bissett, 7 Man. 586 354 Craswell ats. McLeod, 4 E. L. R. 535 98 Courtney r. Taylor, 6 M. & G. 867 126 Curry v. Rex, 41 S. C. R. 532.. 440 X INDEX OF CASES. PAGE Davis r. Atkinson (1909), W. N. 212 27 Davis Trusts, Re (1869), L. R. 8 Eq. 98 29 Drew r. Earl of Norbury, 9 Ir. Eq. Rep. 177 119 Earl of Norbury cits. Drew, 9 Ir. Eq. Rep. 177 119 Earls Trusts, Re (1858), 4 K. & J. 300 29 Fisher ats. Telfer Bros., 15 W. L. R. 400 188 Forth ats. Tritton, 2 Bro. C. C. 636 137 Furnell r. Stackpool (1829), Milleward (Ir.) 257 29 Garvey r. Hibbert, 1 Jac. & W. 180 27 Gelk v. Wesser, L. R. 1891, ^.c. 254 37 Glenn v. Scott, 2 Terr. L. R. 339 184 Glover ats. Young, 13 Jur. N. S. 637 342 Great Western Ry. Co. ats. Bayley, L. R. 26 Ch. D. 434. 119 Hart r. Windsor, 12 M. & W. 85 134 Hayward v. Stephens, 36 L. J. Ch. 135 27 Hellier v. Casboard, L. Tid. 266 135 Hibbert ats. Garvey, 1 Jac. & W. 180 27 Holder v. Taylor (1714), Hob. 12 134 Hollis r. Carr, 3 Swan. 638 126 Hutcheson v. Mannington, 6 Ves. Jr. 823 23, 26 Hyde r. Skinner, 2 P. Wms. 196 137 Inhabitants of St. Paul ats. Rex (1845), 7 Q. B. 232. . 107 Kemmerer ats. State, 14 N. Dak. 174 129 King ats. Inhabitants of St. Paul (1845), 7 Q. B. 232. 107 King ats. Curry, 41 S. C. R. 532 440 Kinnaird "r. Saltoun, 1 Mad. 227 27 Lane ats. Milan, 16 T. L. R. 568 124 Lloyd ats. Bayers, L. R. 1895, 2 Q. B. 610 134 Lynch ats. Burnett, 5 B. & C. 609 134 Mannington ats. Hutcheson, 6 Ves. Jr. 823 23, 26 Merchants Bank v. Spinney (N.S.), 1 R. & G. 91 370 Milan v. Lane, 16 T. L. R. 568 124 Mills ats. Annal, 4 I. R. 94 136 INDEX OF CASES. XI PAGE Mitchell r. Baring, 10 B. & C. 4 377 McDonald ats. Nye, L. R. 3 P. C. 342 ; 29 L. J. P. C. 34. 29 McLeod r. Craswell, 3 E. L. R. 535 98 Nealon ats. White, L. R. 11 A. C. 171 95 Noke's Case (1598) , 4 Rep. 80 133 Noyes ats. Chesmer, 4 Camp. 129 28 Nye r. McDonald, L. R. 3 P. C. 342; 29 L,. J. P. C. 34. 29 Patterson r. Tapley, Allen N. B. 292 351 Pelletier r. Brosseau, M. L. R. S. C. 331 25, 373 Porter r. Swetnam, Sty. 406 135 Preece ats. Brain, 11 M. & W. 775 28 Rex ats. Curry, 41 S. C. R. 532 440 Rex ats. Inhabitants of St. Paul (1845), 7 Q. B. 232. .. 107 Rivers, Re, 1 Terr. L. R. 474 40 Saltoun ats. Kinnaird, 1 Mad. 227 27 Sandilands, In re, L. R. 6 C. P. 411 107 Santa Anna, In re, 32 L. J. P. M. & A. 198 428 Scott ats. Glenn, 2 Terr. L. R. 33y 184 Skinner ats. Hyde, 2 P. Wins. 196 137 Spinney ats. Merchants Bank (N.S.), 1 R. & G. 91 370 Stackpool ats. Furnell (1829), Milleward (Ir.) 257.. 29 Stannard r. Ullithorne, 10 Bing. 491 127 Staple of England r. Bank of England, L. R. 21 Q. B. D. 160 107 State r. Kemmerer, 14 N. Dak. 174 129 Stephens ats. Hayward, 36 L. J. Ch. 135 27 Stockholm ats. Armstrong, 23 L. J. Ch. 176 27 Swetnam ats. Porter, Sty. 406 135 Tapley ats. Patterson, Allen N. B. 292. 351 Telfer Bros. r. Fisher, 15 W. L. R. 400 188 Taylor ats. Courtnery, 6 M. & G. 867 126 Taylor ats. Holder (1714), Hob. 12 134 Tritton r. Forth, 2 Bro. C. C. 636.. 137 Xll INDEX OF CASES. PAGE Ullithorne (its. Stannard, 10 Bing. 491 127 Wesser ats. Gelk, L. R. 1891, Ac. 254 37 White i: Nealon, L. T. 10 Ac. 171 9"5 Williams v. Burrel (1845), 1 C. B. 429 133 Windsor ats. Hart, 12 M. & W. 85 134 Young r. Glover, 13 Jur. N. S. 637 ... 342 Canadian Notaries. CHAPTER I. HISTORY OF THE OFFICE. The word notary is derived from the Latin word notce, which meant a system of abbreviated letters, said to have been in- vented by Cicero 's secretary, M. Tullis Tero, for the purpose of taking down his master's speeches, and used in Rome by f reedmen or slaves who were employed in receiving in- structions for agreements, conveyances, wills and other instruments. These clerks, who came to be known therefore as notarii, were in the service of men called tabelli- ones, 1 whose duties were of a more pro- fessional nature and consisted in writing in extenso, and reducing into proper legal 1 The term tabellio is derived from the Latin tabula sen, tabella, which, in this sense, signified those tables or plates covered with wax which were then used instead of paper. 8 Taullier N. 53. C.N. 1 2 CANADIAN NOTARIES. form, the notce taken down by their clerks, and witnessing the execution of their instru- ments when completed, together with exer- cising in some cases a judicial jurisdiction. 2 Instruments witnessed by the tabelliones were called instrumenta publica confeda, possessing a certain authenticity not ac- corded other documents, and when, in the course of time, it became the rule to register them and place them in a public depository 'they attained a full degree of credit and authenticity and could be put in evidence without proof. During the course of evolution of the Roman law the word notarius, as applied to the clerks of tabelliones, was gradually ceasing to be used, and was being more often applied to registrars of the Courts who, among other things, made conveyances and other legal instruments that were after- wards sealed with the seal of the Court in the presence of the magistrate. The word thus became the name of a much more im- 2 Tabelliones differed from notaries in many respects. They had judicial jurisdiction in some cases, and from their judgments there was no appeal. Jacob. Law Diet. HISTORY OF THE OFFICE. > portant officer than the original notarius, and one whose functions more nearly cor- responded with those of the tcibdlion. With the extension of Roman law and customs over Europe the name, notarius, came to be the popular designation of all persons who exercised any of the functions that had formerly belonged to either of the offices. Where notaries began to practice in England their duties were very much of the same nature that they are in England to- day. The earliest mention of the office is in a charter granted by Edward the Con- fessor, which purported to have been pre- pared and proved by a notary called Swar- dius. 3 At this time, however, the office was rarely used in England. There were no English notaries, and documents were auth- enticated by notarial evidence only upon the occasional visit of foreign notaries to England, one of whom Swardius must have been. In fact it is known that there were no notaries living in England even in 1237, for in that year, Otho, a legate of Pope 3 Brooke's Notary, p. 9. 4 CANADIAN NOTARIES. Gregory IX., held a council in London for the purpose of effecting certain reforms in the Church in England, at which it was ordained that all the officials of the Church should have a seal, because, as it was recited, notaries public were not then used in Eng- land and there was frequent occasion for authentic seals. 4 In the twelfth and thirteenth centuries important changes were wrought with re- spect of the office of notary public. The law began to attach a greater authenticity to their documents and it finally became pos- sible to enforce a contract or acknowledg- ment, proved by a notary, in the same man- ner as a judicial decree, without the neces- sity of bringing action, a law that still con- tinues in force in some countries. The office, moreover, gradually broke away from judi- cial authority, and notaries began to use seals of their own in place of those of the Courts, though in France it was not until some hundreds of years later that the f orm- 4 Canons of General Council of London, Otho, legate of Gregory IX., temp. Henry III., 1237. HISTORY OF THE OFFICE. 5 ality of the Court seal was dispensed with through the agency of King Louis XIV., who granted a seal to each notary. At this period the world was being ruled theoretically by the Pope in matters spirit- ual, and by the Roman Emperor represented by the Emperor of Germany in matters tem- poral. There existed in England, as else- where, two systems of Roman law, the canon law and the civil law, each with its separate courts. Notaries were officers connected with these systems of law and were created by papal and imperial authority. They were frequently appointed by legates of the Pope, to whom, by their commissions, many powers were delegated, and it is thus that the auth- ority to appoint in England became vested in the Archbishop of Canterbury, who still retains it, for although in the reign of Henry VIII. the King invested himself with the power to grant faculties, there was estab- lished a Court of Faculties attached to the Archbishop of Canterbury, to which Court it was delegated. CANADIAN NOTARIES. Because of their early connection with the Pope, and the canon law, it is frequently said that notaries have a purely ecclesiasti- cal origin, and, though this is not an accurate statement, yet there is no doubt that their functions as they now exist are a survival of those which they exercised under the canon law, for the realm within which the canon law exercised its activities in England during the Pre-reformation period was not greatly restricted. The office and functions of notary public were specially recognized in ecclesiastical matters, one rule of the canon law being that the testimony of one notary is equal to that of two ordinary wit- nesses: unus notaries equipellet duobus tes- tibus. 5 In 1320 Edward II. issued two writs to the Archbishop of Canterbury and the Sher- iff of London prohibiting imperial notaries from practising in the realm and forbidding- credit to their instruments. Papal notaries, c " Besides I know thou art a public notary, and such stand in law for a dozen witnesses," is an allusion to this dictum in Massenger's " New Way to Pay Old Debts," Act 5. H1STOKY OF THE OFFICE. however, continued to practise in England, and, as well, in Ireland, until Henry VIII. took to himself the power of appointment through the Archbishop of Canterbury and the Court of Faculties. Papal and imperial notaries were free to practise in Scotland until 1469 in the reign of King James III., when an Act" was passed declaring that notaries should be made by the King. It appears, however, 'that papal notaries con- tinued in Scotland until a later date, and in 1563 it was declared that no person should take on him the office, under pain of death, unless created by the Sovereign's special let- ters, and thereafter examined and admitted by the Lords of Session, since when the Court of Session has had the exclusive auth- ority of appointment. CHAPTER II. APPOINTMENT OF NOTARIES. As has been seen, notaries in England are admitted to the right to practise by the Court of Faculties, which is a court not constituted for the purpose of hearing and determining causes but for the purpose of granting faculties or privileges enabling the recipient to do acts, which, without such grant, he could not do. There is no such court in Canada and the appointment is made by gubernatorial authority. While in Canada the appointments are made solely by the provincial authorities there is little doubt that the Governor-Gen- eral has the power to appoint notaries in any Province of the Dominion. Under the British North America Act, 1867 t section 12, all powers and functions at that time vested in the Lieutenant-Governor of the Province under any Act of the United King- dom of the Provincial Legislatures were APPOINTMENT OF NOTARIES. 9 made exercisable by and vested in the Gov- ernor-General with the advice of the Privy Council of Canada. Although there were no provincial acts authorizing the appoint- ment of notaries at the time, there can be no doubt as to what authority the Provincial Governors had in the matter of these ap- pointments. The commissions to the early Governors of the Provinces all authorized them to appoint judges; and in cas^s re- quisite, commissioners of oyer and ter- miner, justices of the peace, and other neces- sary offices and ministers for the better ad- ministration of justice and carrying the laws into effect; and although, unfortun- ately, the commissions to some of the Gover- nors who held office at the time of Confed- eration cannot be found, they certainly must have contained the same authority. 1 The commission issued to Viscount Monk, first Governor-General of Canada in 1867, and the Letters Patent passed under the Great 1 See Commissions to Governor of N.S., N.B., and P.E.I., Houston's Constitutional Documents of Canada and note of loss, p. 25. Notes 29 and 30. Also see Murdock's Epitome, p. 94. 10 CANADIAN NOTARIES. Seal of the United Kingdom in 1878, con- stituting the office of Governor-General of Canada, both contain the same words re- garding appointments as the commissions to the early Provincial Governors. 2 In 1883 Sir Alexander Campbell, Minister of Jus- tice, in a report approved by the Governor- General in Council upon ordinances passed in the North- West Territories, said : * ' An ordinance authorizing the appointment of notaries public repeals No. 8 of 1878, which authorized the appointment of notaries, but made no other provision. The present ordinance, in addition, defines in a general way the powers of a notary, and fixes a fee for his commission. Acts similar to this ordinance are in force in other Provinces, and while the undersigned is of opinion that notaries are officers whom the Governor- General could appoint, he thinks it is more convenient to leave the exercise of this power with the local authorities, under their local Acts." 3 2 See Houston's Constitutional Documents of Canada for Commissions and Letter Patent. 3 Hodgins' Dom. and Prov. Legislator, 1887-1895, p. 1239. APPOINTMENT OF NOTA1UES. 11 All the Provinces of the Dominion ex- cept Prince Edward Island now have their Acts providing for the appointment and duties of notaries public, but some of these Acts are of recent date, and many notaries now holding office in Canada were appointed by the Provincial authorities before the Acts were passed in their respective Pro- vinces providing for such appointments, and yet, after the Confederation of the Pro- vinces. While it is submitted that the power was not taken away from the Provincial Governors by the British North America Act, and that these appointments are valid, the legislators of some of the Provinces, in passing their notaries' acts, appear to have thought otherwise, and therefore added sec- tions by which every such commission was declared to have been lawfully issued and all acts done under them were declared to be of the same force and effect in law as they would have been if the acts respecting notaries had been in force at the times of the issue of the commissions. 4 4 See Con. Stat. of N.B., 1903, ch. 70, and R. S. B. C. 1911, ch. 173. 12 CANADIAN NOTARIES. In order to become a notary public in England one must serve a five years' appren- ticeship in actual and continuous service unless lie is a duly sworn and enrolled attor- ney or solicitor in any of the courts at Westminster, or is a proctor practising in any ecclesiastical court. The office in Can- ada is neither so important nor so remun- erative that the appointment can be re- stricted to persons of such qualifications. Some of our notaries' acts provide for ex- amination of the applicants, while with the others the matter of qualification is left to the authorities to deal with arbitrarily. As a general rule barristers and solicitors and attorneys are never refused commissions in any of the Provinces. Alberta. The Alberta Notaries Act is chapter 16 of the Statutes of Alberta, 1906. Under its terms the Lieutenant-Governor-in-Council may appoint, as a notary, any person that he thinks fit providing such person is a Bri- tish subject residing in the Province. A fee APPOINTMENT OF NOTARIES. 1J of $10 is payable by the appointee. Unless the notary be an advocate his term expires at the end of two years, and the date of the expiration of the notary's commission must appear on every certificate, etc., made by him. By an amendment in sec. 6, chap. 2 of the Statutes of 1914, an application for a com- mission must now be accompanied by an affidavit stating that the applicant is a Bri- tish subject by birth or naturalization, as the case may be, and giving the date and place of birth or the date and place of issue of the naturalization certificate. British Colum b ia . Appointments are made during pleasure in British Columbia. A fee of $20 is payable for the commission. No qualifications are mentioned by the Act, and that matter is left to the discretion of the authorities. The Act is 1911 R. S. B. C., chapter 173. Manitoba. In Manitoba, any other than a barrister or solicitor applying for commissions as a 14 CANADIAN NOTARIES. notary is subject to examination by the County Court Judge of the judicial district in which the applicant resides. A fee of $5 is payable by the applicant for this examin- ation. When the applicant has procured a certificate of qualification and it appears that a notary is needed in the place where the applicant intends to practise, he will receive the appointment. The Manitoba Act is 1913 E. S. Man., chapter 144. New Brunsivick. In New Brunswick, all applicants other than barristers and attorneys, are subject to an examination in regard to their quali- fications by the Attorney-General, and no applicant shall be appointed unless he holds a certificate from the Attorney-General cer- tifying that he has been examined and has qualified and that the Attorney-General is of opinion that a notary public is needed for the public convenience in the place where the applicant resides and intends to practise. APPOINTMENT OF NOTARIES. 15 The notary acts only during pleasure and residence in New Brunswick. The Act respecting notaries is 1903 Con. Statutes of N. B., chapter 70. Nova Scotia. The Act respecting notaries public in Nova Scotia (1900 R. S. N. S., chapter 34), only restricts the appointment to such per- sons as the Governor-in-Council thinks fit. It appears, however, to be the policy of the Government, when convenient, to appoint only barristers of the Supreme Court, and to grant commissions to all barristers who apply for them irrespective of the number already practising as notaries in any par- ticular place. By the Interpretation Act, public officers appointed hold office during pleasure only. A fee of $10 is payable for the commission. Ontario. Ontario, like New Brunswick and Mani- toba, requires examinations for appoint- ment by all others than barristers or solici- tors. The examination is held by the County 16 CANADIAN NOTARIES. Court Judge of the county in which the applicant resides or by other persons ap- pointed for the purpose by the Lieutenant- Governor, and nobody shall be appointed without a certificate from such examiners as to qualifications and the need of a notary in the place where the applicant resides and intends to carry on business. The examiner is entitled to receive a fee of $5 from the applicant for each examination. The Interpretation Act provides that all appointments are during pleasure only. The Ontario Notaries Act is 1914 E. S. Out, chapter 160. Prince Edward Island. In this Province there is no statute re- specting the appointment of notaries public. The Lieutenant-Governor-in- Council ap- points proper persons to act residing in places where notaries are needed for 'the public convenience. Saskatchewan. The Act is 1909 R. S. Sask., 65. The Lieutenant-Governor-in-Council appoints APPOINTMENT OF NOTARIES. 17 sucli persons being British as are deemed fit. A fee of $10 is 4 payable by the applicant. Unless the person appointed is a solicitor of Saskatchewan, the commission expires at the end of two years, and, as in Alberta, the date of expiration of the commission must appear on every notarial certificate, etc. Territories. In the Territories notaries are ap- pointed by the Lieutenant-Governor-in- Council on pa}^ment of a fee of $10 or such other sum as is fixed. The notary must be a British subject resident in the Territories. Commissions expire in two years from the 31st day of December in the year of the appointment, and the date of expiration must appear on all affidavits, declarations and other certificates. CHAPTER III. FUNCTIONS AND DUTIES OF CANADIAN NOTARIES IN GENERAL. Ayliffe defines a notary in the following manner : ' l We call him a notary who con- firms and attests the truth of any deeds or other writings, to render the same more cre- dible and authentic in any country what- ever. He is principally made use of in courts and in business relating ito mer- chants. For a notary is a witness, and ought to give evidence touching such things as fall under his corporeal senses, and not of such matters as fall under the judgment or understanding. ' n While it is true that a notary public is really only a ministerial officer whose main function is the authentication of documents, the duties of notaries in England have widely extended since the time of Ayliffe 's writing. As is said in Brooke's Notary: 2 1 Ayliffe, 382. 2 Ed. 7th, p. 23. DUTIES OF CANADIAN NOTARIES. 19 "An English notary with a foreign practice must not only be proficient in one or two foreign languages, but he must be familiar with the principles and practice of foreign law. He has to prepare important docu- ments, such as contracts, leases, powers of attorney, articles of partnership, wills and other instruments, that are intended to be used in the colonies and abroad. ' ' In most of the continental countries of Europe and in the Province of Quebec, by reason of its retention of French law and customs, notaries are even more -important officers than they are in England and else- where in the United Kingdom. Their prac- tice more nearly corresponds with that of an English solicitor carrying on a non-liti- gious business than with the practice of the English notary. They make practically all conveyances and keep in their custody all instruments which it is necessary to make authentic. In France protests of negotiable instruments are not made by notaries but by officers called Ituissiers. This, however, is not true of the Province of Quebec, where 20 CANADIAN NOTARIES. the whole subject of negotiable instruments is governed by Dominion legislation. The office of notary public in Canada is neither so important nor so profitable as the same office in England, except in the Pro- vince of Quebec, where an entirely different system of law prevails from that of the other Provinces of the Dominion. Eleswhere than Quebec, in Canada, there are very few duties of a notary that cannot be performed by commissioners, justices of the peace or other functionaries. In England notaries are trained men. As has been seen, they are called upon fre- quently to draw difficult conveyances and other instruments. Whether in Canada the requirements for admission are not so great because the bulk of the work of drafting- documents is done by solicitors, or, whether the case is reversed, is difficult to say. The fact, however, is that here, notwithstanding that a notary by his commission is author- ized and empowered to draft documents, he seldom has the opportunity of exercising this power, and the work he is called upon to DUTIES OF CANADIAN NOTARIES. 21 do is largely that of authentication under various Dominion and Provincial statutes. Of the statutes which require acts of notaries, the most important is the Bills of Exchange Act, which is legislation of the Dominion Parliament and applicable to all parts of Canada. As in England, and al- most all other countries, the noting and pro- testing of bills of exchange and other nego- tiable instruments is done almost entirely by notaries. Only the one exceptional case, when the services of a notary cannot be obtained at the place where the instrument is dishonored, may any other functionary act. In such a case the protest may be made by a justice of the peace. Next to the noting and protesting of negotiable instruments, the work which a notary is most frequently called upon to do in Canada is the proving by his certificate and seal the execution of conveyances and powers of attorney. This is a matter re- gulated by statutes of the Provinces or States in which the lands affected by the conveyances are situated. In Canada each 22 CANADIAN NOTARIES. Province lias its own legislation concerning the execution of conveyances. A notary residing in one of the eastern Provinces is frequently called upon to authenticate the signatures of parties to a deed of land in one of the western Provinces, according to the requirements of the legislation of that Pro- vince and vice versa. It is therefore conven- ient that notaries should be familiar with the mode of execution of instruments in all the Provinces of the Dominion, though this knowledge is seldom necessary as in most cases when a conveyance is forwarded from one Province to another for signature, it is accompanied by instructions in detail as to the requirements upon execution. Cana- dian notaries are also frequently called upon to authenticate conveyances and other documents for use in the United States and occasionally those for use in England or in fact in any civilized country of the world. A notary can scarcely be presumed to know the requirements in the case of foreign docu- ments and when they are not accompanied by instructions he should procure them DUTIES OF CANADIAN NOTARIES. 23 before attempting to act, as an improperly executed document is more often the cause of loss to the client than the delay in waiting until the proper mode is ascertained. Conveyances for execution in Provinces in which the land affected lies are not so frequently proved before notaries. The conveyancing acts of all the Provinces of the Dominion provide for the execution of conveyances by any one of several function- aries. Among the officers who may act in Canada in addition to notaries are justices of the peace, barristers, attorneys and commissioners of 'the courts. It is only when the document is for use abroad that the services of a notary become really neces- sary, and that of course is because the other officers named are not recognized beyond the limits of the Province in which they have jurisdiction to act, whereas the office of notary public has, practically speaking, an international character and by the law of nations has credit in foreign countries. 3 3 Hutchison v. Man ing ton, 6 Ves. Jr. 823. Z4 CANADIAN NOTARIES. In the same way that conveyances are proved before notaries, so are affidavits for use in the courts at home and abroad, and similarly, the taking of affidavits for use abroad by notaries is a much more frequent occurrence than that of affidavits for use at home. In this connection the notary must be guided by the rules of the court in which the affidavit is to be used. Notaries who live in or near seaports are often required to prepare ship protests, charterparties, bottomry .bonds and average agreements. Seldom, however, in Canada are these matters dealt with by notaries who are not also solicitors or attorneys. Besides the functions already mentioned there are innumerable statutes, Dominion and Provincial, some of the more important of which it is proposed to deal with in suc- ceeding chapters, by which oaths and de- clarations are required to be taken and acts evidenced before notaries. In all things a notary must act in the best interests of his client consistently with the governing laws. If he prepares a docu- DUTIES OF CANADIAN NOTARIES. 25 ment he should be sure that the client fully understands the rights and liabilities created by it. It is even said that it is the duty of a notary proving a conveyance not prepared by him to explain to an illiterate grantor the legal and equitable obligations imposed by the conveyance and consequent on its execu- tion. 4 And a notary public may be made liable in damages for negligence in the exer- cise of powers conferred on him by his com- mission. A notary public who is one of the en- dorsers on a promissory note is not entitled to act as notary to make the protest. 5 Broadly stated it may be taken as a rule that a notary who is a party to, or whose personal affairs are directly affected or concerned by any transaction, is precluded from acting in that particular matter. 6 Relationship is not of itself a disqualification. 4 Ayotte v. Boucher, 9 S. C. R. 460, per Ritchie, C. J. B Pelletier v. Brosseau, M. L. R. S. C. 331. "Ayliffe, 382. CHAPTER IV. DOCUMENTS OF NOTARIES AS EVIDENCE. While, as we are accustomed to say, and as it has been put in the early authorities, a notary's attestation by (the law of nations is given credit in every civilized country, this cannot, without qualification, be ac- cepted as a correct statement. A notary public is not an international officer though he is to some extent recognized as being possessed of an international character by most nations. It formerly was thought in England that a certificate under the hand and seal of a foreign notary would be ac- cepted as sufficient evidence of the facts cer- tified without further proof. Thus in Hutcheson v. Mannington? upon a motion that a sum of money in the hands of the Accountant-General of the Court in trust be paid out under a power of attorney exe- cuted abroad, where the execution was veri- fied by an affidavit certified to have been 1 3 Ves. 823. DOCUMENTS AS EVIDENCE. 2t sworn before a notary public, Lord Ellen- borough granted the order and observed that a notary public by the law of nations has credit everywhere. Similarly in Hay ward v. Stephens? it was decided that the notarial seal or signature mentioned in sec. 22 of the Chancery Practice Act, 3 need not be verified, although an affidavit of verification had been used in a previous case covered by the same statute. 4 In a case of Garvey v. Hilber.t, 5 a petition for payment of a sum of money un- der authority of a power of attorney execu- ted in the United States and attested by a notary public, was granted. In this case, however, the fact that the notary was such was verified by the Secretary of State at Washington, and in Kinnaird v. Saltaun where 6 a power of attorney was executed in Paris in the presence of two witnesses and authenticated by the certificate of one Sen- sier, the Vice-Chancellor made an order that 2 36 L. J. Ch. 135. See also Dames v. Atkinson (1909), W. N. 212. 3 15 & 16 Viet. ch. 86. 4 Armstrong v. Stockholm, 23 L. J. Ch. 176. 5 1 Jac. & W. 180. "1 Mad. 227. 28 , CANADIAN NOTARIES. the power of attorney be acted upon by the Accountant-General only after production of an affidavit verifying that Sensier was a notary public of Paris. A notarial certificate of the protest abroad of a foreign bill of ex- change has been held sufficient proof of the protest, 7 and in Brain v. Preece s it was said that the same rule applied to protests made in England, but in Ch esmer v. Noyes? Lord Ellenborough decided that if a bill of ex- change be drawn in a foreign country pay- able in England, and be protested in Eng- land, the latter will not be admissible in evidence in an action in England, but must be proved in the same manner as if it were an inland bill. Mr. Justice Story in his book on Bills, 10 however, says that no auth- ority was produced for the doctrine, and that the true question is not where the bill is protested, but whether the bill was a for- eign or inland bill. In an Irish case of 7 Bayley on Bills, 6 Ed., 490. 8 11 M. & W. 775. 4 Camp. 129. 10 Par. 277. DOCUMENTS AS EVIDENCE. 29 Furnell v. Staekpaol, 1 it was held that be- fore copies of documents executed abroad attested by a notary can be admitted in evidence, the notary must be shewn to be such, and his seal proven. The leading Eng- lish authority is that of Nye v. McDonald, 2 before the Judicial Committee of the Privy Council, a case, fortunately, which arose in Canada and must be considered here as the last word on the subject. In an action in Lower Canada, the plaintiff produced a deed of sale executed before a notary public in Upper Canada and a certificate of such no- tary of the due execution of the deed. No further evidence of execution was produced. It was held that the certificate of a notary public of the due execution of a deed in a colony regulated by English law does not dispense with proper evidence of execution, though the certificate is put in evidence in a colony regulated by French law where such is sufficient evidence. It had been argued that the certificate must operate according to 1 1829, Millward (Ir.) 247. = 1870, L. R. 3 P. C. 342; 39 L. J. P. C. 34. See also Ttc Earls Trusts, 1858, 4 K. & J. 300; and Re Davis Trusts, 1869, L. R. 8 Eq. 98. 30 CANADIAN NOTARIES. the law of the country where it is produced in evidence, and that in Lower Canada where the French law prevails, a notarial certifi- cate is conclusive evidence of the due execu- tion of the instrument. In giving the judg- ment Lord Cairns said: " A notary public in the Province of Upper Canada, a Pro- vince regulated by English law, has no power by English law, to certify to the exe- cution of a deed in such a way as to make his certificate evidence, without more, that the deed was executed, and that it was at- tested in the manner in which the deed pro- fesses to be attested. It is familiar that according to the law of England, the mere production of the certificate of a notary public stating (that a deed had been executed before him, would not in any way dispense with the proper evidence of the execution of the deed. ' ' Upon the authority of this case it- is safe to say that only by statute will the courts now judicially recognize the seal and signature of a notary and receive a notarial certificate as evidence of facts certified in it. In England and in Canada, therefore, the matter is now in nearly every case settled by DOCUMENTS AS EVIDENCE. 31 some statute. For instance, in England the Commissioners for Oaths Act, 1889, pro- vides by section 3 as follows: (1) Any oath or affidavit required by the purposes of the registration of any instrument in any part of the United Kingdom may be taken or made in any place out of England before any person having authority to administer an oath in that place; (2) In the case of a person having such authority otherwise than by the law of a foreign country, judicial and official notice shall be taken of his seal or signature affixed, impressed, or subscribed to or on any such oath or affidavit. While no such comprehensive legislation dealing with the subject has been enacted by any of the provinical legislatures of Canada, never- theless, the oath or affidavit required for the purpose of the registration of instruments is dealt with in this respect by the Land Regis- try Acts of all the Provinces, as well be seen from following chapters, and the admissi- bility of documents authenticated by notar- ies, as evidence in the courts, is regulated by all the Provinces in their statutes re- specting evidence. CHAPTER V. REGISTRATION OF INSTRUMENTS AFFECTING LANDS GENERALLY. As lias been seen, one of the functions of notaries public most frequently exercised in Canada is the authentication of deeds and other instruments affecting the title to lands for registration purposes. In every Pro- vince there is some statute or statutes which provide for registry districts, each with its separate registry office wherein in- struments concerning the lands within such district must be recorded, in order to pre- serve to the persons holding under the in- struments their rights. The object of this legislation is to provide a means by which intending purchasers and others can ascer- tain whether the intending vendor is, in fact, the legal owner, the extent and descrip- tion of the land he owns and what, if any, encumbrances, are charged against it. For example, if the owner of a certain piece of land wishes to borrow money on a mortgage REGISTRATION OF INSTRUMENTS. 33 of it as security for the repayment of the loan, the intending mortgagee, before mak- ing the loan, will need to ascertain whether the land legally belongs to the applicant for the loan. He does so by a search of the title in the registry office for the district in which the land is situated. After he has loaned the money he registers in the office his mortgage, which, from the date of its registration, be- comes a charge on the property. Any sub- sequent purchaser of the lands takes the same subject to that mortgage, for its regis- tration is notice to the world of its existence. Similarly, judgments of courts of record when registered are charges against the lands of the judgment debtor. There exist in Canada several different systems of registration which fall, however, into two main groups. In 'the eastern Pro- vinces of the Dominion there is in force what may be for convenience called the "old system" of registration of documents. The western Provinces have adopted in various forms the "'new* system," or the Torrens System of registration of titles. C.N. 3 34 CANADIAN NOTARIES. Under the old system an intending pur- chaser, by the use of index books which are kept in the registry office, must follow the history of the lands back to an early period, noting all conveyances and other instru- ments, including judgments and decrees of the courts affecting the lands, in order to find out whether or not the intending vendor can give a good title. The new system which had its origin in Australia was formu- lated for the purpose of simplifying the pro- cess by which the facts in connection with the title are discovered. When land is bought under the operation of the adts gov- erning the new system, its title is searched and a certificate is granted to the owner stating the nature of the title held by him. Subsequent encumbrances are registered in the office, and as each transfer is made a. new certificate is made, containing, of course, mention of the intervening registered en- cumbrances. In all the acts in both systems one essential is the registration of the in- struments in order to make them effective, for unregistered instruments are ineffective REGISTRATION OF INSTRUMENTS. 35 against persons claiming under instruments which are registered, notwithstanding that the unregistered instrument be first in point of time as to the making and execution. It is in connection with the registration of the instrument that the duties of the notary arise under these acts. Before the registrar can accept a document for regis- tration purposes, it must be properly exe- cuted, and the execution by the parties' to it must be authenticated, and among the offi- cers before whom the execution may be authenticated are notaries. When the docu- ment is executed, as it frequently is, outside of the Province where the land is situated, it is in nearly all cases authenticated by a notary, for, as has been seen, the office of notary public has somewhat of an interna- tional nature and the notary has an official seal of which, under the acts, the registrars take cognizance. Besides the registration acts hereafter dealt with in this work, there is a land titles act in Ontario 1 in force in certain sections '1914, R. S. Ont., ch. 126. 36 CANADIAN NOTARIES. of that Province, and an act somewhat similar in its nature in Nova Scotia, 2 under which nothing has been done, and which is practically a dead letter. As neither of those acts define or provide for any duties of notaries, it is not deemed useful to con- sider them in 'this work. 2 N. S. Acts, 1904, ch. 47. CHAPTER VI. REGISTRATION ix ALBERTA AXD SASKATCHE- WAN. The Provinces of Alberta and Saskat- chewan have both adopted the Torrens sys- tem of land transfer, and their respective Statutes bringing the system into force are so nearly identical that they can be treated here as one. Ontario, Manitoba and British Columbia all have their own systems of land transfer which, in some respects, correspond with that in force in these provinces, but which are more conveniently dealt with separately. The Torrens system of land transfer was founded by Sir Robert Tor- rens, a collector of customs in South Aus- tralia, where the original Act was made law. The object of the system, as said in Gelk v. Wesser* "is to save persons dealing with registered proprietors from the trouble and expense of going behind the register in order 1 1891, A. C., at 254. 38 CANADIAN NOTARIES. to investigate the history of their author's title and to satisfy themselves of its vali- dity." Under the old system of land trans- fer, such as in use in Nova Scotia and New Brunswick, the entire burden is upon the intending purchaser of ascertaining whether or not his vendor can give him a good title to the land. In order to ascertain ifchis he must employ a solicitor to search the re- cords of all conveyances affecting the land in question which have been placed on record for the period of the preceding sixty or more years, a proceeding which in some cases in- volves a great deal of time and expense, and about which when completed, because of the defects of the system, there is generally a lingering doubt lest some document in the long lists that have to be scanned has been overlooked or the meaning of the legal effect of the document misunderstood by the searcher. Under the Torrens system any intelligent person can find out exactly the interests of any other person in a piece of real estate without the intervention of the solicitor. ALBERTA AND SASKATCHEWAN. 31) The Provinces of Alberta and Saskat- chewan are divided up into registration dis- tricts, each with its Registrar of Titles, who must be an experienced barrister. To the owners of all lands brought under the pro- visions of the Act are granted certificates of title. These certificates merely certify that the owners of action lands are such owners subject to the incumbrances, liens and inter- ests notified on the certificate or which may be made on the register after the issue of the same. Then follows notification of the registered encumbrances, if any. Upon be- ing shown this certificate of title the intend- ing purchaser need only examine the regis- ter for liens and encumbrances from the date of the certificate down, to become ap- prised of the estate which the intended ven- dor holds in the lands, subject, however, to the following inherent rights: (a) Subsisting reservations or excep- tions contained in the original grant of the land from the Crown. Liens for unpaid taxes. 40 CANADIAN NOTARIES. (c) Any -public highway, public right- of-way or other public easement over or in respect to the land. (d) Any subsisting lease for a period not exceeding three years where there is actual occupation of the land under the same. ( , - /> T , mortgage, day or , in the year or our Lord one thousand nine hundred between A. B., of X., in the County of Y., manufac- turer, of the one part, and C. D.. of X., afore- said, merchant, of the other part. CONVEYANCING. 157 Whereas by indenture of mortgage duly made and executed by and between the said C.D., and E.D., his wife, of the one part, and the said A. B., of the other part, bearing date on or about the day of , and registered in the Registry of Deeds Office, at in liber , folio , the said C. D., and E. D., in consideration of the sum of to the said C. D., paid by the said A. B., the receipt whereof was thereby ac- knowledged, did grant unto the said A. B., his heirs and assigns, certain lands and pre- mises, including the lands and premises hereinafter particularly described, to hold the same to the said A. B., his heirs and as- signs forever, subject nevertheless to the proviso for the redemption thereof therein contained whereby it was provided that the same should cease and become void on pay- ment by the said C. D., his heirs, executors, administrators or assigns, of the said sum of dollars with lawful interest thereon and premiums of insurance as by reference to said indenture will more fully appear. 158 CANADIAN NOTARIES. And whereas the said C. D, has applied to the said A. B. for a release from the said mortgage of that part of the said mortgaged lands hereinafter mentioned and described. Now this indenture witnesseth that the said A. B., for and in consideration of the said sum of dollars of lawful money as aforesaid to him in hand paid. by the said C. D., at or before the ensealing and delivery of these presents, the receipt where- of is hereby acknowledged, has granted, re- mised, released and forever quitted claim, and by these presents does grant, remise, re- lease and forever quit claim unto the said C. D., his heirs and assigns forever, all that certain parcel of land situate, lying and be- ing, etc., with all and singular the appurten- ances thereof, and all the estate, right, title, interest, claim, property and demand what- soever both at law and in equity of him, the said A. B., as such mortgagee as aforesaid to have and to hold the said lot of land and premises last above described, with all and every the appurtenances thereof unto the said C. D., his heirs and assigns, to his and CONVEYANCING. 159 their own proper use and behoof forever, absolutely acquitted, released and dis- charged of and from the said above in part recited mortgage and the sum thereby secured. In witness whereof, etc. Signed, sealed and delivered ] in the presence of : j This Indenture made the Lease day of in the year of our Lord cert hat one thousand nine hundred and , between A. B., of X., in the County of Y., real estate agent, hereinafter called the Lessor, of the first part, and C. D., of X,, aforesaid, theatre manager, hereinafter called the Lessee, of the second part. Witnesseth that in consideration of the rent, covenants and agreements herein re served and contained on the part of the said Lessee, his executors, administrators and assigns, to be paid, observed and performed, the said Lessor hath demised and leased and by these doth demise and lease unto the said Lessee, his executors, administrators and 160 CANADIAN NOTARIES. assigns, all that messuage or tenement and premises, situate, lying and being in the city of , consisting of a concert hall and stage on the ground floor of a building- known as Union Hall, being Nos. 126 and 128 " Street, together with the office adjoining the same and the dressing rooms at the rear of the said stage ; To have and to hold the said messuage or tenement and premises unto the said Lessee, his executors, administrators and assigns for and during the term of five years to be com- puted from the day of one thousand nine hundred and , 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 Les- sor, his heirs, executors, administrators or assigns, the sum of dollars of lawful money of Canada to be payable the sum of on the day of A.D. ID , the first of such payments to become due and be made on the day of CONVEYANCING. 161 now next, and last payment to become due and to be paid in advance on the day of one thousand nine hundred and 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 anv of the davs on which the *> / same shall become due and payable, or if a breach or default shall be made in any of the covenants hereinafter contained by the said Lessee, his executors, administrators or assigns, then and in every such case it shall be lawful for the said Lessor, his heirs, exe- cutors, administrators or assigns, into and upon the said premises or any part thereof in the name of the whole to re-enter and the same to have again, repossess and enjoy, as if these presents had never been executed ; and also, that if the term hereby granted shall be at any time seized or taken in exe- cution or in attachment by any creditor of C.X. 11 162 CANADIAN NOTARIES. the said Lessee (or if the said Lessee shall make an assignment for the benefit of credi- tors, or, becoming bankrupt or insolvent, shall take the benefit of any act that may be in force for bankrupt or insolvent debtors) , the then current rent shall immediately become due and payable, and the said term shall immediately become forfeited and void, but the next succeeding current rent shall also nevertheless be at once due and payable ; and the said Lessee for himself, his heirs, executors, administrators and assigns, do hereby covenant, promise and agree, to and with the said Lessor, his heirs, execu- tors, administrators and assigns, that he, the said Lessee, his executors, administrators and assigns, shall and will well and truly pay, or cause to be paid, to the said Lessor, his heirs, executors, administrators or as- signs, the said yearly rent hereby reserved, at the times and in the manner hereinbefore appointed for the payment hereof. 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 here- CONVEYANCING. 163 by demised, reasonable wear and tear and accidents by fire and tempest excepted, and the same so kept in repair, shall and will at the end, expiration or other sooner determin- ation of the said term, peaceably and quietly yield and deliver up to the said Lessor, his heirs, executors, administrators or assigns. And also, that it shall be lawful for the said Lessor, his heirs, executors, administra- tors and assigns, and their agents respec- tively, either alone or with workmen or others, from time to time at all reasonable times in the daytime during the said term to enter upon the said demised premises and every part thereof, to view and examine the state and condition thereof, and in case any want of reparation or amendment be found on any such examination he, the said Lessee, his executors, administrators or assigns, shall and will from time to time, cause the same to be well and sufficiently repaired, amended and made good within one month next after notice in writing shall have been given to him or left at or upon the said here- by demised premises for that purpose ; and 164 CANADIAN NOTARIES. if the said Lessee, his executors, administra- tors or assigns, shall fail in making the necessary repairs in manner hereinbefore described that it shall be lawful for the said Lessor, his heirs, executors, administrators or assigns, and his agent to enter into and upon the said hereby demised premises and have the same repaired in a proper manner, and to render the account for such repairs to the said Lessee, his executors, administra- tors or assigns, and demand payment for the same ; and if default be made, to sue for the same in any court of law having jurisdiction over the same. And the said Lessee covenants with the said Lessor that he, the said Lessee, his ex- ecutors, administrators or assigns, shall not nor will at any time or times during the con- tinuance of this demise, sell, assign, let or otherwise part with this present lease, or the said premises hereby demised or any part thereof, to any person or persons whomso- ever, for the whole or #ny part of the said term, nor alter, change or remove any part of the said premises, without the license or CONVEYANCING. 165 consent in writing of the said Lessor, Ms heirs, executors, administrators or assigns, from time to time first had and obtained, and the said Lessor, for himself, his heirs, executors, administrators or assigns, cove- nant with the said Lessee, his executors, ad- ministrators and assigns, that he, the said Lessee, his executors, administrators and as- signs, well and truly paying the rent herein- before reserved, and observing, performing and keeping the covenants hereinbefore con- tained, shall and may from time to time, and at all times during the said term, peaceably and quietly enjoy the said premises hereby demised, without molestation or hindrance. And also, that if the said premises be destroyed, or so much injured as to become unfit for occupation, by fire or other casualty not caused by the wilful default or neglect of the said Lessee, his executors, administra- tors or assigns, the said term hereby demised shall cease, and the current rent shall be duly apportioned, and the due propor- tionate part thereof shall be at once due and payable. 166 CANADIAN NOTARIES. In witness whereof, all 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 : Lease of This Indenture made the lso - day of A.D. 19 Between Witnesseth, that in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the said part of the second part, executors, administrators and assigns, to be paid, observed and performed the said part of the first part ha demised and leased, and by these presents do demise and lease unto the said part of the second part, executors, admin- istrators and assigns, all that messuage or tenement situate, lying and being , together with all houses, outhouses, yards and other appurtenances thereto belonging or usually known as part or parcel thereof, or as belonging thereto : CONVEYANCING. 167 To have and to hold the said premises unto the said part of the second part, executors, administrators and assigns, for and during the term of to be computed from the day of . 19 , 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, heirs, executors, administrators or assigns, the sum of to be payable on the following days and times, that is to say: The first of such payments to become due and be made on the day of next, and the last of such payments to be made in advance on the day of preceding the expiration of the said term. 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 unpaid for the space of twenty-one days after any of 168 CANADIAN NOTARIES. the days on which the same shall become due and payable, or if a breach or default shall be made in any of the covenants hereinafter contained by the said part of the second part, executors, administrators or assigns, then and in every such case it shall be lawful for the said part of the first part, 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, re- possess and enjoy as if these presents had never been executed ; And the said part of the second part, for heirs, execu- tors, administrators or assigns, do hereby covenant, promise and agree to and with the said part of the first part, heirs, executors, administrators and assigns ; that the said part of the second part, executors, administrators and assigns, shall and will well and truly pay OL* cause to be paid to the said part of the first part, heirs, executors, adminis- trators or assigns, the said yearly rent here- bv reserved, at the times and in the manner CONVEYANCING. 169 hereinbefore appointed for the 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 accidents by fire and tempest excepted: And the same, so kept in repair, shall and will at the end, expiration or other sooner termination of the said term, peace- ably and quietly yield and deliver up to the said part of the first part, heirs, executors, administrators or assigns; And also shall and will well and truly pay or cause to be paid all taxes, rates, levies, duties, charges, assessments and impositions whatsoever, whether parliamentary, local or otherwise, which now are or which during the continuance of this demise shall at any time be rated, taxed or imposed on or in respect of the said demised premises, or any part thereof ; And also, that it shall be law- ful for the said part of the first part, heirs, executors, administrators and assigns, and their agents respectively, either alone or with workmen or others, from time to 170 CANADIAN NOTARIES- time, at all reasonable times in the daytime during the said term, to enter upon the said demised premises, and every part thereof, to view and examine the state and conditions thereof, and in case any want of reparation or amendment be found on any such exam- ination, the said part of the second part, executors, administrators or as- signs, shall and will from time to time cause the same to be well and sufficiently repaired, amended and made good within one month next after notice in writing shall have been given to or left at or upon the said hereby demised premises for that purpose ; And if the said part of the second part, executors, administrators or assigns, shall fail in making the necessary repairs in manner hereinbefore described, that it shall be lawful for the said part of the second part, heirs, executors, administrators and assigns, and agents, to enter into and upon the said hereby de- mised premises, and have the same repaired in a proper manner, and to render the ac- count for such repairs to the said part of CONVEYANCING. 171 the second part, executors, administra- tors and assigns, and demand payment for the same, and if default is made, to sue for the same in any court of law having juris- diction over the same : And the said part of the second part, executors, administrators or as- signs, shall not, nor will at any time or times during the continuance of this demise, sell, assign, let or otherwise part with this pre- sent lease, or the said premises hereby de- mised, or any part thereof, to any person or persons whomsoever, for the whole or any part of said term, nor alter, change or re- move any part of the said premises, yards or offices, externally or internally, without the license or consent in writing of the said part of the first part, heirs, execu- tors, administrators or assigns, from time to time first had and obtained : And the said part of the first part, for heirs, executors, administrators and assigns : covenant with the said part of the second part, executors, admin- istrators and assigns, that the said 172 CANADIAN NOTARIES. part of the second part, execu- tors, administrators and assigns, well and truly paying the rent hereinbefore reserved, and observing, performing and keeping all the covenants hereinbefore contained, shall and may from time to time, and at all times during the said term, peaceably and quietly enjoy the said premises hereby demised without molestation or hindrance. And if the term hereby demised shall at any time be seized or taken in execution, or in attachment by any creditor of the party of the second part, or if the said party of the second part shall make any assignment for the benefit of creditors, or being bankrupt or insolvent shall take the benefit of any act in force for bankrupt or insolvent debtors, the then current rent shall immedi- ately become due and payable, and said term shall immediately become forfeited and void, but the next current rent shall nevertheless be at once due and payable. In witness whereof, etc. Signed, sealed, etc. CONVEYANCING. 173 Together with the exclusive use and en- use of joyment of the passageway of the width of wa? i feet, leading from the rear part of the le said demised premises to Street aforesaid. Excepting and reserving unto the Lessor the use at all times and for all purposes, in common with the Lessee, of the passageway Tease!" leading from the rear part of the said de- mised premises to Street afore- said. And also that the Lessee will use the said covenant P -tpi-i restrict- premises for a , and for no other i ng use of premises purpose. in lease. And the Lessor doth hereby for himself, covenant and his assigns, covenant with the Lessee, that if the Lessee, his executors, administra- tors or assigns, shall be desirous of taking a renewal lease of the said premises for the further term of years from the expira- tion of the said term hereby granted, and of such desire shall, prior to the expiration of the said last mentioned term, give to the Lessor, his heirs and assigns, or leave at the 174 CANADIAN NOTARIES. last known place of business or abode in Canada six calendar months' previous notice in writing and shall pay the said rent hereby reserved, and observe and perform the sev- eral covenants and agreements herein con- tained; and on the part of the Lessee, his executors, administrators or assigns, to be observed and performed up to the expiration of the said term hereby granted, he, the Lessor, his heirs and assigns, will, upon the request and at the expense of the Lessee, his executors, administrators and assigns (and upon payment by him or them of the sum of $ as a premium on such renewal), and upon his or their executing and deliver- ing to the Lessor, his heirs or assigns, a duplicate thereof, forthwith execute and deliver to the said Lessee, his executors, ad- ministrators or assigns, a renewed lease of the said premises for the further term of years at the same yearly rent, and under and subject to the same covenants, provisoes and agreements as are herein con- tained [other than this present covenant.] CONVEYANCING. 175 This Indenture, made the Assign- day of , A.D. 19 , between hereinafter called the Assignor of the first part, and hereinafter called the Assignee of the second part. Witnesseth that in consideration of now paid by the said Assignor to the said Assignee (the receipt whereof is hereby ac- knowledged), the said Assignor do grant and assign unto the said Assignee executors, administrators, and assigns, all and singular, the premises comprised in and demised by a certain Indenture of Lease, bearing date the day of , A.D. 19 , and made between together with the appurtenances, to hold the same unto the said Assignee, executors, ad- ministrators, and assigns, henceforth for and during the residue of the term thereby granted, and for all other the estate, term and interest (if any) of the said Assignor herein. Subject to the payment of the rent and the performance of the Lessee's cove- nants and agreements in the said Indenture of Lease reserved and contained. 176 CANADIAN NOTARIES. And the said Assignor for heirs, executors and administrators, do hereby covenant with the said Assignee executors, administrators, and assigns, that notwithstanding any act of the said As- signor he now ha good right to assign the said lease and premises in manner afore- said. And that subject to the payment of the rent and the performance of the Lessee's covenants, it shall be lawful for the As- signee executors, administrators and as- signs, peaceably and quietly to hold, occupy and enjoy the said premises hereby assigned during the residue of the term granted by the said Indenture of Lease, and receive the rents and profits thereof without any inter- ruption by the said Assignor, or any person claiming under free from all charges and incumbrances whatsoever. And also that the said Assignor and all per- sons lawful claiming under will, at all times hereafter, at the request and costs of the said Assignee executors, adminis- trators, or assigns, assign and conform to CONVEYANCING. 177 and them, the said premises for the resi- due of the said term as the said Assignee , executors, administrators or assigns shall reasonably require: And the said Assignee for heirs, executors and administrators, do hereby covenant with the said Assignor, executors and administrators, that the said Assignee, executors, administrators and assigns, will, from time to time, pay the rent and observe and perform the Lessee's covenants and conditions in the said Inden- ture of Lease, reserved and contained, and indemnify and save harmless the said As- signor, heirs, executors and adminis- trators, from all losses and expenses in re- spect of the non-observance or performance of the said covenants and conditions or any of them. In witness, etc. I, , the Lessor named in the within assignment of lease, hereby consent to the said assignment to of as within written. Witness. c.x. 12 178 CANADIAN NOTARIES. In witness whereof the said Company, Limited, has hereunto affixed its corporate seal, the day and year first above company WT ,-xx executes Wlltten. Signed, sealed, delivered ' and countersigned by President (or other proper officer or officers) of the said Company, Limited, in the pre- sence of: private Name of Com- pany. The corporate seal. Signature of pro- per officer or officers. In witness whereof the said parties have hereunto set their corporate seal and hand and seal respectively, on the day and year first above written. Signed, sealed, delivered \ Name and countersigned by President of the said Company, Limited, in the presence of : of Com- pany. The corporate seal. Signature of President. CONVEYANCING. 179 Signed, sealed and de- \ . i . , , I Signature oppo- hvered by .. , . ,, site seal. in the presence of : ) Signed, sealed and delivered by the said Attesta- , I having first truly and audibly where in- read over to him the contents of the above Ls^S* Indenture (or, if read over Toy another per- bym son, the contents of the above Indenture having first been truly and audibly read over to him) , when he appeared perfectly to understand the same, and made his mark thereto in my presence. his (Signature of witness) John X Smith mark. Signed, sealed and delivered (the inter- Attesta- lineations in the and lines [or alterations in] of the page, identified with the initials of the parties [or of the subscribing witness] having first been J^f c been made) in the presence of : Know all men by these presents, that I, p ow er , of , in the County n f cy atto of , do hereby make, nominate, 180 CANADIAN NOTARIES. constitute and appoint , of , in the County of , my true and law- ful attorney for me in my name, place and stead, and for my sole use and benefit (add clause or clauses required). To execute an instrument To sign, seal and deliver in my name, and as my act and deed, a certain instru- ment bearing date on or about the day of , 19 , intending to con- vey to , of , in the County of , all that certain piece or parcel of land, situate, etc., for the sum of dollars, and to receive the said sum of purchase money thereof for me and on my behalf (or, intending to mortgage, etc., or intending to lease, etc.) To sell land To sell all that certain piece or parcel of land situate, etc., to such person or persons and upon such terms and conditions as the said shall think fit, and to execute to the purchaser or purchasers of said land CONVEYANCING. 181 such deed or deeds of grant and convey- ance for the purpose aforesaid as may be required, and to receive and give receipts for on my behalf for the purchase moneys of the said lands. To mortgage land To sign, seal and deliver a mortgage in my name and as my act and deed of all that piece or parcel of land, etc., with the usual provisoes and covenants to such person or persons or corporation as shall advance to me by way of loan the sum of dollars upon the security of the said mortgage. To execute leases To sign, seal and deliver in my name and as my act and deed all such leases and agree- ments as shall be requisite or as the said shall deem necessary, in the care and management of my houses and estate situate at ; and to receive and collect all the rents, that may be payable to me, and in my name to sign receipts for the same. 182 CANADIAN NOTARIES. Ratification I, the said , hereby agreeing and covenanting for myself , my heirs, exe- cutors and administrators, to allow, ratify and confirm whatsoever the , shall lawfully do or cause to be done in the pre- mises by virtue of these presents. In witness whereof I have hereunto set my hand and affixed my seal the day of , 19 Signed, sealed and delivered ) in the presence of : j CHAPTER XV; CONVEYANCING UNDER THE TORRENS SYSTEM. The Torrens System of holding and con- veying lands, an outline of which will be found elsewhere in the work, is in force in. the Provinces of Alberta, Manitoba and Sas- katchewan and in the Territories, there ex- isting in Manitoba, however, also the old system of land transfer. All instruments affecting lands which are under the Torrens System are made in statutory forms pro- vided by the Acts bringing the system into force in these parts of Canada. The transfer is a short instrument made by the transferor in the first person, recit- ing the nature of the estate held by the trans- feror, and having as its operative word " transfer," followed by the estate or inter- est to be transferred. In Alberta, Mani- toba and the Territories the transfer must contain a memorandum of all leases, mort- gages or incumbrances to which the land is 184 CANADIAN NOTARIES. subject. It is said, however, that the omis- sion of such a memorandum does not affect the validity of the transfer. 1 No words of limitation are necessary, but every transfer operates as an absolute trans- fer of all such right and title as the trans- feror has, unless a contrary intention is expressed in the transfer. The transfer itself does not imply any covenants, but one of the effects of registra- tion of a transfer in Alberta, Saskatchewan and the Territories is that an implied cove- nant arises on the part of the transferor that he will do such acts and execute such instru- ments as are necessary in accordance with the provisions of the Act to give effect to all covenants, conditions, and purposes ex- pressly set forth in the transfer. In every transfer of land subject to a mortgage, there is, upon registration, im- plied a covenant by the transferee that he will pay the principal and interest or the charges secured by the mortgage and will 1 Thorn's Canadian Torrens System, 239; Glenn v. Scott, 2 Terr. L. R. 339. CONVEYANCING TORRENS SYSTEM. 185 protect the transferor from liability in re- spect thereto, and in respect of any of the covenants contained or implied in the mort- gage. A mortgage under the Torrens System has the same effect as the mortgage em- ployed under the old system, which purports to be a conveyance of the land, but in equity is regarded as creating only a right to en- force repayment out of the land. The Tor- rens System strips the old form of mort- gage of its fictions and makes it a charge only, providing a form which does not pur- port to do more. The mortgage under the Acts is an instru- ment for use when the land is to be charged for the purpose of securing a debt or loan. The Acts also provide for somewhat similar instrument known as an incumbrance which is used for other purposes, namely, for charging land with the payment of annui- ties, rent charges, etc. The body of the mortgage recites the estate held by the mortgagor in the lands describing them, states the consideration, 186 CANADIAN NOTARIES. contains covenants for repayment and closes with the mortgaging words. Elsewhere than in Manitoba, in addition to the covenants expressed in the form, there is implied upon registration a covenant that the mortgagor will do such acts and execute such instruments as, in accordance with the provisions of the Act, are necessary to give effect to all covenants, conditions and pur- poses expressly set forth in the mortgage, and there is also implied, against a mort- gagor, remaining in possession, a covenant that he will repair and keep in repair all buildings and other improvements upon the land, and that the mortgagee may enter upon the land with others to inspect the state of repair. All other covenants may or may not enter into the mortgage according to the require- ments of the parties. For these special covenants short forms are provided by the Act, which, when used in the mortgage, give it the same effect as if the long forms or words in the column opposite, set out also in the forms, were inserted in the mortgage. CONVEYANCING TORRENS SYSTEM. 187 The Acts do not give any validity to these forms of covenants and are, in some in- stances, defective, as for instance, in the use of the words " heirs " and " conveying ' which are inappropriate in instruments made in pursuance of the Acts. 2 Incumbrances do not contain covenants for payment, otherwise they differ but slightly in form from mortgages. A transfer of a mortgage or incumbrance is made in a form provided by the Acts. Mortgages and incumbrances are dis- charged in Manitoba by producing to the Ke- gistrar any memorandum of discharge duly executed, discharging the mortgage or in- cumbrance in whole or in part or the land in whole or in part from the moneys secured. In Alberta, Saskatchewan and the Territor- ies, a receipt in statutory form is endorsed on the original mortgage or incumbrance, executed and attested as the ordinary instru- ment. In practice in Alberta and Saskat- chewan the discharge form is made in the same manner as in Manitoba. 3 2 Thorn's Canadian Torrens System, pp. 287 and 288. Thorn's Canadian Torrens System, p. 350. 188 CANADIAN NOTARIES. The Torrens System Acts do not apply to leases for a term of three years or under and these leases need not be in the forms pro- vided. If, however, a lease for a term less than three years purports to be made under the Act, the implied covenants in leases under the Act may be read into it, even though it be not registered. 4 In every lease, unless a contrary inten- tion appears therein, there is implied a cove- nant on the part of the lessee for payment of rent and payment of all rates and taxes, and a covenant that he will keep and deliver up the premises in good repair, accidents and damage from fire, storm and tempest or other casualty and reasonable wear and tear excepted. In many cases, therefore, it is necessary to state a contrary intention of the parties, particularly with respect to payment of the taxes. Unless a different intention appears in the lease, there are implied in the lessor the following powers : 4 Thorn's Canadian Torrens System, p. 252; Telfer Bros. v. Fisher, 15 W. L. R. 400. CONVEYANCING TORRENS SYSTEM. 189 (a) That he may, by himself or his agents, enter upon the demised lands and view the state of repair, and may require the lessee by notice in writing to repair in so far as the latter is bound to do so, any defect within a reasonable time. (&) That in case any rent is in arrear for two months, or in case default is made in the fulfilment of any covenant, express or im- plied, and is continued for two months,, or in case repairs required to be made by notice are not completed within the time limited, the lessor may enter upon and take posses- sion of the demised land. In all the Acts, except that in force in Manitoba, there are provided short forms for special covenants in leases, the use of the few words in the first column of the form giving the lease the same effect as if the many words in the second column were inserted in it. Special covenants, however, may be made in leases under the Manitoba Act. Leases are transferred by a transfer in the same form as mortgage and incum- brancos. 190 CANADIAN NOTARIES. When a lease is surrendered otherwise than by operation of law, a surrender is made in statutory form and shown to the registrar. The Acts provide for the making of powers of attorney. Except in Manitoba, their use is restricted to registered owners, and a mortgagee for instance cannot deal with his mortgage by power of attorney. No special form for powers of attorney is pre- scribed by the Manitoba Act, and elsewhere, though short forms are given, the Acts allow the use of almost any form in which this in- strument is made. FORMS IN ALBERTA. Transfer. I, A. ~B., being registered owner of an estate (state the nature of estate) subject, however, to such incumbrances, liens and in- terests as are notified by memorandum un- derwritten (or indorsed hereon) in all that certain tract of land containing acres more or less, and being (part of) section township , range , in the (or as the case may ~be), (here state rights of CONVEYANCING TORRENS SYSTEM. 191 way, privileges, easements, if any, intended to be conveyed along with the land and if the land dealt with contains all included in the original grant refer thereto for descriptions of parcels and diagrams; otherwise set forth the boundaries and accompany the descrip- tion by a diagram) do hereby, in considera- tion of the sum of dollars paid to me by E. F., the receipt of which sum I hereby acknowledge, transfer to the said E. F. all my estate and interest in the said piece of land. (When a lesser estate describe such lesser estate.) In witness whereof I have hereunto sub- scribed my name this day of , 19 . Signed by said A. B. in 1 , . N (Signature.) the presence of I, A. B., being registered owner, subject, Lease. however, to such mortgages and incum- brances as are notified by memorandum un- derwritten (or indorsed hereon), of that piece of land (describe it), part of section , township , range , 192 CANADIAN NOTARIES. (or as the case may be), containing acres, more or less (here state rights of way, privi- leges, easements, if any, intended to be con- veyed along with the land, and if the land dealt with contains all included in the origi- nal grant or certificate of title or lease, refer thereto for description and diagram, other- wise set forth the boundaries by metes and bounds), do hereby lease to E. F. of (here in- sert description), all the said land, to be held by him, the said E. F. as tenant, for the space of years, from (here state the date and term), at the yearly rental of dollars, payable (here insert terms of pay- ment of rent), subject to the covenants and powers implied (also set forth any special covenants or modifications of implied cove- nants). I, E. F. of (here insert description), do hereby accept this lease of the above de- scribed land, to be held by me as tenant, and subject to the conditions, restrictions and covenants above set forth. CONVEYANCING TORRENS SYSTEM. 193 Dated this day of . Signed by the above \ named A. B. as /0 . _ ,, _, {(Signature of lessor.) lessor, and E. F. V) * ' 7 ; (Signature of lessee.) as lessee, in pre- sence of {Here insert memorandum of mortgages and incumbrances.} COLUMN ONE. COLUMN TWO. 1. Will not, with- 1. The covenantor, his executors, short out leave in writ- administrators, or transferees, will covenants ing, assign or sub- not, during the said term, transfer, ln e- let. assign or sublet the land and pre- mises hereby leased, or any part thereof, or otherwise by any act or deed procure the said land and pre- mises, or any part thereof, to be transferred or sublet, without the consent in writing of the lessor or his transferees first had and ob- tained. 2. Will fence. 2. The covenantor, his executors, administrators, or transferees, will during the continuance of the said term erect and put upon the bound- aries of the said land, or on those boundaries on which no substantial fence now exists, a good and sub- stantial fence. C.N. 13 194 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 3. Will cultivate. 3. The covenantor, his executors, administrators, or transferees, will, at all times during the said term, cultivate, use and manage in a pro- per husbandlike manner, all such parts of the land as are now or shall hereafter, with the consent in writ- ing of the said lessor or his trans- ferees, be broken up or converted into tillage, and will not impoverish or waste the same. 4. Will not cut 4. The covenantor, his executors,, timber. administrators, or transferees will not cut clown, fell, injure or destroy any living timber or timberlike tree standing and being upon the said land, without the consent in writing of the said lessor or his transferees. 5. Will not carry 5. The covenantor, his executors, on offensive trade, administrators, or transferees will not, at any time during the said term, use, exercise, or carry on, or permit of suffer to be used, exer- cised or carried on, in or upon the said premises, or any part thereof, and noxious, noisome or offensive art, trade, business, occupation or calling ; and no act, matter or thing whatsoever shall at any time during the said term be done in or upon the said premises, or any part f^ which shall or may be or CONVEYANCING TORRENS SYSTEM. 195 COLUMN ONE. COLUMN TWO. grow to the annoyance, nuisance, grievance, damage or any disturb- ance of the occupiers or owners of the adjoining lands and properties; In consideration of dollars to me s ur paid by (lessor or his assigns, as the case may be) I do hereby surrender and yield up from the day of the date hereof unto the lease (describe the lease fully) and the term therein created. Dated the day of A.D. 19 . Signed by the above named ) , . . ,, J [ (Signature.) in the presence or I, A. ~B., being registered as owner of an estate (here state nature of interest), sub- gage ject, however, to such incumbrances, liens and interests as are notified by memoran- dum underwritten (or indorsed hereon) of that piece of land (description), part of section township , range , (or as the case may be) containing acres, be the same more or less (here state rights of ivay, privileges, easements, if any, intended to be conveyed along with the land, 196 CANADIAN NOTARIES. and if the land dealt with contains all in- cluded in the original grants refer thereto for description of parcels and diagrams; otherwise set forth the boundaries and ac- company the description ~by a diagram), in consideration of the sum of dollars lent to me by E. F. (here insert de- scription), the receipt of which sum I do hereby acknowledge, covenant with the 'said E. F.: Firstly. That I will pay to him, the said E. F., the above sum of dollars, on the day of Secondly. That I will pay interest on the said sum at the rate of on the dollar, in the year, by equal payments on the day of and on the day of in every year. Thirdly. (Here set forth special cove- nants, if any.) And for the better securing of the said E. F. the repayment in manner aforesaid of the principal sum and interest, I hereby mortgage to the said E. F. my estate and interest in the land above described. CONVEYANCING TORRENS SYSTEM. 197 In witness whereof, I have hereunto signed my name this day of , 19 . Signed by the above (Signature of named A. B. as mortgagor, in the mortgagor.} presence of (Insert memorandum of mortgages and incumb ranees.) I, A. B., being registered as owner of an estate (state nature of estate), subject, how- ri ever, to such mortgages and incumbrances as are notified by memorandum underwritten (or indorsed hereon), of that piece of land of (description} part of section , township , range , (or as the case may be) containing acres, more or less (here state rights of way, privileges, easements, if any, intended to be conveyed along with the land, and if the land dealt u'ith contains all included in the original grant or certificate of title, refer thereto for description of parcels and diagrams, other- u'ise set forth the boundaries and accompany 198 CANADIAN NOTARIES. the description 'by a diagram), and desiring to render the said land available for the purpose of securing to and for the benefit of C. D., of (description) the (sum of money, annuity or rent charge) hereinafter men- tioned, do hereby incumber the said land for the benefit of the said C. D., with the (sum, annuity or rent charge} of , to be paid at the times and in the manner follow- ing, that is to say : (Here state the times ap- pointed for the payment of the sum, annuity or rent charge intended to be secured, the interest, if any, and the events in which such sum, annuity or rent charge shall become and cease to be payable, also any special covenants or powers, and any modification of the powers or remedies given to an in- cumbrance by this Act) : And subject as aforesaid, the said C. D. shall be entitled to all powers and remedies giyen to an incum- brance by The Land Titles Act. Signed by the above named in the presence of (Signature of incumbrancer.) Insert memorandum of mortgages and incumbrances.) CONVEYANCING TORRENS SYSTEM. 199 I, C. D., the mortgagee (incumbrancee Transfer or lessee, as the case may be), in considera- tion of dollars, this day paid to me by X. Y., of , the receipt of which lcaso - sum I do hereby acknowledge, hereby trans- fer to him the mortgage (incumbrance or lease, as the case may be, describe the in- strument fully), together with all my rights, powers, title, and interest therein. In witness whereof I have hereunto sub- scribed by name this day of , 19 Signed by the said | C. D. (Transferor.) in presence of J X. Y. (Transferee.) I, (7. D., the mortgagee (incumbrancee Transfer or lessee, as the case may he), in considera- tion of dollars, this day paid to f me by X..Y., of , the receipt of which branco - sum I do hereby acknowledge, hereby trans- fer to him dollars of the mortgage (or incumbrance, as the case may he, de- scribe the instrument fully), together with all my rights, powers, title, and interest therein, and the sum so transferred shall be 200 CANADIAN NOTARIES. preferred (or deferred or rank equally, as the case may be) to the remaining sum se- cured by the mortgage (or incumbrance). In witness whereof I have hereunto sub- scribed my name this day of , 19 . . .-,) C.D. (Transferor.) Signed by the said J \ Accepted, in presence of i ' X. Y. (Transferee.) COLUMN ONE. COLUMN TWO. Short ^' ^ as a % 00 ^ 1- And a ^ so ' that the said mort- covenants title to the said gagor at the time of the sealing and in mort- land. delivery hereof, is, and stands solely, rightfully and lawfully seized of a good, sure, perfect, absolute and in- defeasible estate of inheritance, in fee simple, of and in the lands, tene- ments, hereditaments and all and singular other the premises here- inbefore described, with their and every part of their appurtenances, and of and in every part and par- cel thereof, without any manner of trusts, reservations, limitations, pro- visos or conditions, except those contained in the original grant thereof from the Crown, or any other matter or thing to alter, charge, change, incumber or defeat the same. CONVEYANCING TORRENS SYSTEM. 201 COLUMN ONE. COLUMN TWO. 2. Has the right 2. And also, that the said mort- to mortgage the gagor now hath in himself good land. right, full power and lawful and absolute authority to mortgage the said lands, tenements, heredita- ments, and all and singular other the premises hereby mortgaged or hereinbefore mentioned or intended so to be with their and every of their appurtenances unto the said mort- gagee, his heirs, executors, admin- istrators and assigns in manner aforesaid, and according to the true intent and meaning of these pre- sents. 3. And that on 3. And also, that from and after default the (mort- default shall happen to be made gagee) shall have of or in the payment of the said quiet possession of sum of money, in the said above the land. covenant mentioned, or the interest thereof, or any part thereof, or of or in the doing, observing, perform- ing, fulfilling or keeping of some one or more of the covenants in this mortgage particularly set forth, con- trary to the true intent and mean- ing of these presents, then and in every such case, it shall and may be lawful to and for the said mort- gagee, his heirs, executors, adminis- trators, and assigns, peaceably and quietly to enter into, have, hold., use, occupy, possess, and enjoy the 202 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. aforesaid lands, tenements, heredita- ments and premises, hereby mort- gaged or mentioned or intended so to be, with their appurtenances, without the let, suit, hindrance, in- terruption or denial of him the said mortgagor, his heirs, or assigns, or any other person or persons whom- soever. 4. Free from all 4. And that free and clear and incumbrances. freely and clearly acquitted, exon- erated and discharged of and from all arrears of taxes and assessments whatsoever due or payable upon or in respect of the said lands,, tene- ments, hereditaments and premises, or any part thereof, and of and from all former conveyances, mortgages, rights, annuities, debts, judgments, executions and recognizances, and of and from all manner of other charges or incumbrances whatso- ever. 5. Will execute 5. And also, that from and after such further as- default shall happen to be made of surances of the or in the payment of the said sum land as may be re- of money in the said covenant men- quisite. tioned, or the interest thereof, or any part of such money or interest or of or in the doing, observing, per- forming, iulfillinig or keeping of some one or more of the covenants CONVEYANCING TORRENS SYSTEM. 203 COLUMN" ONE. COLUMN TWO. in this mortgage particularly set forth, contrary to the true intent and meaning of these presents and of the said covenants then and in every such case the said mortgagor, his heirs and assigns, and all and every other person or persons who- soever having, or lawfully claiming, or who shall or may have or law- fully claim any estate, risrht, title interest or trust of, in, to or out of the lands, tenements, heredita- ments and premises hereby mort- gaged, or mentioned, or intended so to be, with the appurtenances or any part thereof, by, from, under or in trust for him the said mort- gagor, shall and will, from time to time, and at all times thereafter, at the proper costs and charges of .the said mortgagee, his heirs, exe- cutors, administrators and assigns make, do, suffer and execute, or cause or procure to be made, done, suffered and executed, all and every such further and other reasonable act or acts, deed or deeds, devices, conveyances and assurances in the law for the further, better and more perfectly and absolutely conveying the said lands, tenements, heredita- ments and premises, with the appur- tenances unto the said mortgagee, 204 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. his heirs, executors, administrators and assigns, as by the said mort- gagee,, his heirs, executors or his or their counsel learned in the law, shall or may be lawfully and rea- sonably devised, advised or required, so as no person who shall be re- quired to .make pr execute such assurances shall be compelled, for the making or executing thereof, to go or travel from his usual place of abode. 6. Has done no 6. And also, that the said mort- act to incumber gagor hath not at any time hereto- the land. fore made, done, committed, exe- cuted or wilfully or knowingly suf- fered any act, deed, matter or thing whatsoever whereby or by means whereof, the said lands, tenements, hereditaments and premises hereby mortgaged or mentioned or in- tended so to be,, or any part or parcel thereof, are, is or shall or may be in any wise impeached, charged, affected or incumbered in title, estate, or otherwise howsoever. Power I, A. B., being registered owner of an torney. estate (here state nature of the estate or interest), subject, however, to such incum- brances, liens and interests as are notified CONVEYANCING TORRENS SYSTEM. 205 by memorandum underwritten (or indorsed hereon), (here refer to schedule for de- scription and contents of the several parcels of land intended to be affected, which sche- dule must contain reference to the existing certificate of title or lease of each parcel) do hereby appoint C. D. attorney on my behalf to (here state the nature and extent of the powers intended to be conferred, as to sell, lease, mortgage, etc.) the land in the said schedule described, and to execute all such instruments, and do all such acts, mat- ters and things as may be necessary for carrying out the powers hereby given and for the recovery of all rents and sums of money that may become or are now due or owing me in respect to the said lands, and for the enforcement of all contracts, cove- nants or conditions binding upon any lessee or occupier of the said lands, or upon any other person in respect of the same, and for the taking and maintaining possession of the said lands, and for protecting the same from waste, damage, or trespass. 206 CANADIAN NOTARIES. In witness whereof I have hereunto sub- scribed my name this day of :- 19 -. Signed by the above named ) , a . . w -/., i * ,'} (Signature.) A. B. in the presence of J iievoca- I, A. B., of , hereby revoke the tion of j, . -, power of power of attorney given by me to , ney ' dated the day of , 19 , and recorded in the land titles office at , for the land registration district, on the day of , 19 , as No. In witness whereof I have hereunto sub- scribed my name this day of , 19 i// Signed by the above named } , . N -o . (Signature.) A. B. in the presence of J Receipt I, C. J)., the mortgagee (incumbrancee or acknow- assignee as the case may be), do acknow- of d pS- nt ledge to have received all the moneys due or mortgage to Become due under the within written inJun> r mor tgage ( or incumbrance, as the case may brance. })e) ^ and that the same is wholly discharged. CONVEYANCING - TORRENS SYSTEM. 207 In witness whereof I have hereunto sub- scribed my name this day of , 19 . Signed by the above named | f Q . \ ( &.1 v /y TTv . i-i n C.D. in the presence of FORMS IN MANITOBA. I, A. B., of , being registered owner of an estate (state the nature o/ ftrans- estate), subject, however, to such incum- fer ' brances, liens and interests as are notified hy memorandum underwritten (or indorsed hereon), in all that land described as fol- lows: do hereby, in consideration of the sum of $ , paid to me by E. F., of , the receipt of which sum I hereby acknowledge, transfer to the said E. F. all my estate and interest in the said piece of land. (When a less estate, then describe such less estate). In witness whereof I have hereunto signed my name this day of \ s Signed in presence of I, A. B., of , being registered as owner, subject, however, to such incum- brances, liens and interests as are notified 208 CANADIAN NOTARIES. by memorandum underwritten (or indorsed hereon), of that land described as follows: do hereby lease to E. F., of , all the said land, to be held by him, the said E. F., as tenant for the space of years from (here state the date and term) at the yearly rental of dollars, payable (here insert terms of payment of rent), subject to the covenants and powers implied (also set forth any special covenants or modifications of implied covenants). In witness whereof I have hereunto signed my name this day of Signed in presence of I, A. B., of , being registered as owner of (here state nature of estate or gage - describe mortgage as case may require), subject, however, to such incumbrances, liens and interests as are notified by memo- randum underwritten (or indorsed hereon), in that piece of land described as follows: in consideration of the sum of dollars lent to me by E. F., of , the receipt CONVEYANCING TORRENS SYSTEM. 209 of which sum I do hereby acknowledge, cove- nant with the said E. F. : First. That I will pay to him, the said E. F., the above sum of dollars on the day of Second. That I will pay interest on the said sum at the rate of on the dollar in the year by equal payments on the day of , and on the day of , in every year. Third. (Here set forth special cove- nants, if any.) And for the better securing to the said E. F. the repayment in manner aforesaid of the principal sum and interest, I hereby mortgage to the said E. F. my estate and in- terest in the land above described (or the said mortgage). In witness whereof I have hereunto signed my name this day of Signed by the above-named A. B. in presence of I, A. B., of , being registered as owner of an estate (state nature of estate), o - brance 210 CANADIAN NOTARIES. subject, however, to such incumbrances, liens and interests as are notified by memo- randum underwritten (or indorsed hereon), in that land described as follows : and desiring to render the said land avail- able for the purpose of securing to and for the benefit of C. D., of the (sum of money, annuity or rent charge) hereinafter mentioned, do hereby incumber the said land for the benefit of the said C. D. with the (sum, annuity or rent charge) of dollars, to be raised and paid at the times and in the manner following, that is to say : In witness whereof I have hereunto signed my name this day of Signed in presence of Transfer 1" A. B., of , being registered owner mortgage f a numbered , affecting the J m ~ following land , subject to such in- cumbrances, liens and interests as are here- in referred to, in consideration of the sum of paid to me by C. D., of , do hereby transfer to the said C. D., the said CONVEYANCING TORRENS SYSTEM. 211 (lease, mortgage or incumbrance), together with all my rights, powers, title and interest therein. In witness whereof I have hereunto signed my name this day of Signed in the presence of Canada : j Dis- Province of / To the registrar of Land Regis- tration District: i, the mortgagee do acknowledge to have re- ceived all the moneys due or to become due under a certain mortgage made by of in the to which mortgage bears date the day of A.D. 19 , and was registered in the Land Titles Office for the said Land Registration District at o'clock m., on the day of , A.D. 19 , No. , book , folio That such mortgage has been as- signed 212 CANADIAN NOTARIES. And that the person entitled by law to receive the money, and that such mort- gage is therefore discharged. In witness whereof I have hereunto sub- scribed my name this day of , A.D. 19 . Signed by the above named in presence of [Affidavit of Execution.'] FORMS IN SASKATCHEWAN. Mort- I, A. B., (insert name as in certificate of title and addition), being registered as owner of an estate (here state nature of interest}, in that piece of land described as follows: (here insert description) contain- ing acres, be the same more or less (here state rights of way, privileges, ease- ments, if any, intended to be conveyed along with the land, and, if the land dealt with contains all included in the original grants, refer thereto for description of parcels and diagram. Otherwise set forth the boundar- ies and accompany the description by a dia- gram), in consideration of the sum of CONVEYANCING TORRENS SYSTEM. 213 dollars lent to me by E. F. (here insert de- scription), tire receipt of which sum I do hereby acknowledge, covenant with the said E.F.: Firstly. That I will pay to him, the said E. F., the above sum of dollars on the day of Secondly. That I will pay interest on the said sum at the rate of on the dollar, in the year, by equal payments on the day of , and on the day of in every year. Thirdly. (Here set forth special cove- nants, if any.) And for the better securing of the said E. F. the repayment in manner aforesaid, of the principal sum and interest, I hereby mortgage to the said E. F. my estate and interest in the land above described. In witness whereof, I have hereunto signed my name this day of 19 ;. Signed by the above named ] A. B. as mortgagor in the 1 Signature of presence of J Mortgagor. 214 CANADIAN NOTARIES. incum- I, A. B. (insert name as in certificate of title and addition), being registered as owner of an estate (state nature of estate), subject, however, to such mortgages and in- cumbrances as are notified by 'memorandum underwritten (or indorsed hereon), in that piece of land described as follows: (here in- sert description) containing acres more or less (here state rights of ways, pri- vileges, easements, if any, intended to he conveyed along with the land, and if the land dealt with contains all included in the origi- nal grant or certificate of title, refer thereto for description of parcels and diagrams, otherwise set forth the boundaries and ac- company the description by a diagram), and desiring to render the said land available for the purpose of securing to and for the bene- fit of C. D. of (description) the (sum of money, annuity or rent charge) hereinafter mentioned; do hereby incumber the said land for the benefit of the said C.D. with the (sum, annuity or rent charge) of , to be paid at the times and in the manner fol- lowing, that is to say : (Here state the times CONVEYANCING TORRENS SYSTEM. 215 appointed for the payment of the sum, an- nuity or rent charge intended to be secured, the interest, if any, and the events in which, such sum, annuity or rent charge shall 'be- come and cease to be payable, also any special covenants or powers and any modification of the powers or remedies given to an incum- brancee by this Act.) And subject as afore- said the said C. D. shall be entitled to all powers and remedies given to an incum- brancee by The Land Titles Act. Signed by the above named \ in the presence of j- Signature of j Tncumbrancer. {Insert memorandum of mortgages and in cumb ranees.) Province of Saskatchewan. Affidavit to be To wit: filed with a I. (name of mortgagor or incumbrancer) mortgage J ' or incun:- of the of in the make trance, oath and say: 1. That I am the mortgagor (or incum- brancer) named in the hereunto annexed in- strument bearing date the and made 216 CANADIAN NOTARIES. in favor of against (describe the lands mortgaged or incumbered). 2. That I have paid the full purchase price for the said land and hold therefor the receipt of the executed by their duly authorized agent at and am entitled to a transfer in fee simple from the said 3. That the grant from the Crown has not yet been issued (or the transfer from the company has not yet been received, as the case may be), but I am the person rightfully in possession of the said land and entitled to create the said mortgage (or incumbrance) under section 88 of The Land Titles Act. 4. That said land hereby mortgaged (or incumbered) is neither a homestead, pur- chased homestead nor a pre-emption under The Dominion Lands Act. Sworn before me at the } of on the day I' ' 'U.'"", .- Q Signature. CONVEYANCING TORRENS SYSTEM. 217 COLUMN ONE. COLUMN TWO. 1. Have a good 1. And also that al the time of Short title to the said the execution and delivery hereof covenants land. I am and stand solely, rightfully and lawfully seized of a good, sure, perfect, absolute, and indefeasible estate of inheritance in fee simple of and in the lands, tenements, hereditaments and all and singular other the premises hereinbefore described with their and every part of their appurtenances and of and in every part and parcel thereof without any manner of trusts, re- servations, limitations, provisos or conditions, except those contained in the original grant thereof from the Crown or any other matter or thing to alter, charge, change, in- cumber or defeat the same. 2. Have the right 2. And also that I now have in to mortgage the myself good right, full power and land. lawful and absolute authority to convey the said lands, tenements, hereditaments and all and singular other the premises hereby conveyed or hereinbefore mentioned or in- tended so to be, with their and every of their appurtenances unto the said mortgagee, his heirs, execu- tors, administrators and assigns in manner aforesaid and according to the true intent and meaning of these presents. 218 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 3. And that on 3. And also that from and after default the mort- default shall happen to be made of gagee shall have or in the payment of the said sum quiet possession of of money in the said above proviso the land. mentioned or the interest thereof or any part thereof or of or in the doing, observing, performing, ful- filling or keeping of some one or more of the provisions, agreement or stipulations in the said above proviso particularly set forth con- trary to the true intent and mean- ing of these presents and of the said proviso then and in every such case it shall and may be lawful to and for the said mortgagee, his heirs, executors, administrators and as- signs peaceably and quietly to enter into, have, hold, use, occupy,' pos- sess and enjoy the aforesaid lands, tenements, hereditaments and pre- mises hereby conveyed or mentioned pr intended so to be with their appurtenances without the let, suit, hindrance, interruption or denial of me, the said mortgagor, my heirs or assigns or any other person or per- sons whomsoever. 4. Free from all 4. And that free and clear and incumbrances. freely and clearly acquitted, exoner- ated and discharged of and from all arrears of taxes and assessments whatsoever due or payable upon or CONVEYANCING TORRENS SYSTEM. 219 COLUMN ONE. COLUMN TWO. in respect of the said lands, tene- ments, hereditaments and premises or any part thereof, and of and from all former conveyances, mort- gages, rights, annuities, debts, judg- ments, executions and recognizances, and of and from all manner of other charges or incumbrances Avhatso- ever. 5. Will execute 5. And also that from and after such further as- default shall happen to be made of surance of the O r in the payment of the said sum land as may be O f money in the said proviso men- requisite, tioned or the interest thereof or any part of such money or interest or of or in jthe doing, observing, performing, fulfilling or keeping of some one or more of the provisions, agreements or stipulations in the said above proviso particularly set forth, contrary to the true intent and meaning of these presents and of the said proviso, then and in every such case I, the said, mort- gagor, my heirs and assigns and all and every other person or persons whosoever having or lawfully claim- ing or who shall or may have or lawfully claim any estate, right, title, interest or trust of, in, to or out of the lands, tenements, here- ditaments and premises hereby con- veyed or mentioned or intended so 220 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. to be with the appurtenances on any part thereof by, from, under or in trust for me the said mortgagor shall and will from time to time and at all times thereafter at the proper costs and charges of the said mortgagee, his heirs, executors, ad- ministrators and assigns make, do, suffer and execute or cause or pro- cure to be made, done, suffered and executed all and every such further and other reasonable act or acts, deed or deeds, devices, conveyances and assurances in the law for the further^ better and more perfectly and absolutely conveying the said lands, tenements, hereditaments and premises with the appurtenances unto the said mortgagee, his heirs, executors, administrators and as- signs, as by the said mortgagee, his heirs, executors or his or their soli- citor, shall or may be lawfully and reasonably devised, advised or re- quired, so that no person who shall be required to make or execute such assurances shall be compelled for the making or executing thereof to go or travel from his usual place of abode. CONVEYANCING TORRENS SYSTEM. 221 COLUMN ONE. COLUMN TWO. 6. Have done no 6. And also that I, the said mort- act to incumber gagor, have not at any time here- the land. tofore made, done, committed, exe- cuted or wilfully or knowingly suf- fered any act, deed, matter or thing whatsoever whereby or by means whereof the said lands, tenements, hereditaments and premises hereby conveyed or mentioned or intended so to be or any part or parcel there- of, are, is or shall or may be in any wise impeached, charged, .affected or incumbered in title, estate or otherwise howsoever. I, C. D., the mortgagee (incumbrancee or Receipt assignee as the case may ~be) do acknowledge to have received all the moneys due or to of become due under the within written mort- gage (or incumbrance, as the case may ~be) and that the same is wholly discharged. In witness whereof I have hereunto sub- scribed my name this day of , 19 . Signed by the above named \ C.D. in the presence of Signature. 222 CANADIAN NOTARIES. Lease. I, A. B. (insert name as in certificate of. title and addition), being registered as owner, subject, however, to such mortgages and incumbrances as are notified by memo- randum underwritten (or indorsed hereon), of that piece of land described as follows: (here insert description) containing acres more or less (here state rights of way, privileges, easements, if any, intended to be conveyed along with the land, and if the land dealt with contains all included in the origi- nal grant or certificate of title or lease refer thereto for description and diagram, other- wise set forth the boundaries by metes and bounds) do hereby lease to E. F. of (here insert description), all the said land to be held by him, the said E. F., as tenant, for the space of years, from (here state the date and term), at the yearly rental of dollars, payable (here insert terms of payment of rent) subject to the covenants and powers implied (also set forth any spe- cial covenants or modifications of implied covenants). CONVEYANCING TORRENS SYSTEM. 223 I, E. F., of (here insert description), do hereby accept this lease of the above de- scribed land, to be held by me as tenant, and subject to the conditions, restrictions and covenants above set forth. Dated this day of , 19 " . Signed by the above ) . 7 -, ; T> Signature of lessor. ' named A.B. as lessor, and E.F. as lessee, in the presence of Signature of lessee. (Here insert memorandum of mortgages and incumb ranees.) SHORT COVENANTS ix LEASE. ONE. COLUM^ TWO. 1 . Will not with- 1. That I, the said lessee, my ex- out leave assign editors, administrators or transfer- or sublet. ees will not during the said term transfer, assign or sublet the land and premises hereby leased or any part thereof or otherwise by any act or deed procure the said land and premises or any part thereof to be transferred or sublet, without the consent in writing of the lessor or his transferees first had and ob- tained. 224 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 2. Will fence. 2. That I, the said lessee, my ex- ecutors, administrators or transfer- ees will during the continuance of the said term erect and put upon the boundaries of the said land, or on those boundaries on which no substantial fence now exists, a good and substantial fence. 3. Will cultivate. 3. That I, the said lessee, my exe- cutors, administrators or transferees will at all times during the said term cultivate, use and manage in a proper husbandlike manner all such parts " of the land as are now or shall hereafter, with the consent in writing of the said lessor or his - transferees, be broken up or con- verted into tillage and will not im- poverish or waste the same. 4. Will not cut 4. That I, the said lessee, my exe- timber. cutors, administrators or transferees will not cut down, fell, injure or de- stroy any living timber or timber- like tree standing and being upon the said land without the consent in writing of the said lessor or his transferees. 5. Will not carry 5. That I, the said lessee, my ex- 011 offensive trade, editors, administrators or transfer- ees will not at any time during the said term use, exercise or carry on or permit or suffer to be used, exer- CONVEYANCING TORRENS SYSTEM. 225 COLUMN ONE. COLUMN TWO. cised or carried on in or upon the said premises or any part thereof any noxious, noisome or offensive art, trade, business, occupation or calling, and no act, matter or thing whatsoever shall at any time during the said term be done in or upon the said premises or any part there- of which shall or may be or grow to annoyance, nuisance, grievance, damage or any disturbance of the occupiers or owners of the adjoining lands and properties. In consideration of dollars to me Sur paid by lessor (or his assigns, as the case may be) I do hereby surrender and yield up from the day of the date hereof unto the lease (describe the lease fully) and the term therein created. Dated the day of ,19 . Signed by the above named in the presence of Signature. I, A. B., being registered owner of an power estate (here state nature of the estate or interest), subject, however, to such incum- c.x. 15 226 CANADIAN NOTARIES. brances, liens and interest as are notified by memorandum underwritten (or indorsed hereon), (here refer to schedule for descrip- tion and contents of the several parcels of land intended to be affected, which schedule must contain reference to the existing certi- ficate of title or lease of each parcel) do hereby appoint C. D. attorney on my behalf to (here state the nature and extent of the powers intended to he conferred, as to sell, lease, mortgage, etc.), the land in the said schedule described and to execute all such instruments, and do all such acts, matters and things as may be necessary for carrying out the powers hereby given and for the re- covery of all rents and sums of money that may become or are now due or owing to me in respect to the said lands, and for the enforcement of all contracts, covenants or conditions binding upon any lessee or occu- pier of the said lands, or upon any other person in respect of the same, and for the taking and maintaining possession of the said lands, and for protecting the same from waste, damage or trespass. CONVEYANCING TORRENS SYSTEM. 227 In witness whereof I have hereunto sub- scribed my name this day of , 19 . Signed by the above named } A.B. in the presence of ' ' .' ' Signature. I, A. B., of , hereby revoke the R ev0 ca- power of attorney given by me to , dated the day of , 19 , and recorded in the land titles office at for the land registration district, on the day of , 19 , as Number In witness whereof I have hereunto sub- scribed my name this day of , 19 . Signed by the above named \ A.B. in the presence of I' ' ' '''. ' ' ' ' signature. I, A. B., being registered owner of an Transfer, estate {state the nature of the estate) in all that certain tract of land containing acres more or less and being (part of) sec- tion township range in the (or as the case may be~), (here 228 CANADIAN NOTARIES. state rights of ivay, privileges, easements, if any, intended to be conveyed along with the land and if the land dealt with contains all included in the original grant refer thereto for description of parcels and diagrams; otherwise set forth the boundaries and ac- company the description ~by a diagram}, do hereby in consideration of the sum of dollars paid to me by E. F., the receipt of which sum I hereby acknowledge, transfer to the said E. F. all my estate and interest in the said piece of land. (When a lesser estate describe such lesser estate.) In witness whereof I have hereunto sub- scribed my name this day of , 19 . Signed by said A. B. in | the presence of ' a '. ' Signature. Transfer I, C..D., the mortgagee (incumbrancee or ga&e? r< lessee, as the case may be), in consideration branoj of dollars this day paid to me by or lease. x y. O f , the receipt of which sum I do hereby acknowledge, hereby transfer to CONVEYANCING TORRENS SYSTEM. 229 him the mortgage (iucumbrance or lease, as the case may be), (describe the instrument fully) together with all my rights, powers, title and interests therein. In witness whereof I have hereunto sub- scribed my name this day of , 19 C.V., Transferor. in the presence 01 \ Accepted, X. Y. } Transferee. I, C.D., the mortgagee (or incumbrancee, Transfer or as the case may be), in consideration of f Sort- dollars this day paid to me by X. Y. fS^ of , the receipt of which sum I do brancc - hereby acknowledge, hereby transfer to him dollars of the mortgage (or incum- brance, as the case may be), (describe the instrument fully) together with all my rights, powers, title and interest therein and the sum so transferred shall be preferred (or deferred or rank equally, as the case may be) to the remaining sum secured by the mortgage (or incumbrance). 230 CANADIAN NOTARIES. In witness whereof I have hereunto sub- scribed my name this day of , 19 . Signed by the said in the C. D., Transferor. presence of Accepted, X. Y., Transferee. FORMS IN TERRITORIES. Transfer. I, A. B., being registered owner of an estate (state the nature of estate), subject, however, to such incumbrances, liens and interests as are notified by memorandum underwritten (or endorsed thereon), in all that certain tract of land containing acres, more or less, and being (part of) sec- tion , township , range , in the (or as the case may he), (here state rights of way, privileges, easements, if any, intended to be conveyed along ivith the land and if the land dealt ivith contains all included in the original grant refer thereto for descriptions of parcels and diagrams; CONVEYANCING TORRENS SYSTEM. 231 otherwise set forth the boundaries and ac- company the description by a diagram), do hereby, in consideration of the sum of dollars paid to me by E. F., the receipt of which sum I hereby acknowledge, transfer to the said E. F., all my estate and interest in the said piece of land. (When a lesser estate describe such lesser estate.) In witness whereof, I have hereunto sub- scribed my name this day of , 19 . Signed by said A. B., in ) , ~ . J (Signature.) the presence of j I, A. B., being registered as owner, sub- Lease, ject, however, to such mortgages and incum- brances as are notified by memorandum un- derwritten (or indorsed hereon), of that piece of land described as follows: (here in- sert description) containing acres, more or less (here state rights of way, privileges, easements, if any, intended to be conveyed along ivith the land, and if the land dealt U'itli contains all included in the original grant or certificate of title or lease, refer 232 CANADIAN NOTARIES. thereto for description and diagram, other - ivise set forth the boundaries by mete's and, bounds) do hereby lease to E. F \, of (here insert description), all the said land, to be held by him, the said E. F., as tenant, for the space of years, from (here state the date and term), at the yearly rental of dollars, payable (here insert terms of payment of rent), subject to the cove- nants and powers implied (also set forth any special covenants or modifications of implied covenants). I, E. F., of (here insert description), do hereby accept this lease of the above de- scribed land, to be held b^ me as tenant, and subject to the conditions, restrictions and covenants above set forth. Dated this day of , 19 Signed by the above named A. B., as . . , 7 >. 1 _ ' (Signature of lessor.) lessor, and E.F., },&* n \ (Sic/nature of lessee.) as lessee, in the presence of (Here insert memorandum of mortgages and incumbrances.) CONVEYANCING TORRENS SYSTEM. 233 COLUMN ONE. COLUMN TWO. 1. Will not, with- 1. The covenantor, his executors, short out leave assign administrators, or transferees, will covenants or sublet. not, during the said term, transfer, in lease - assign or sublet the land and prem- ises hereby leased, or any part thereof, or otherwise by any act or deed procure the said land and pre- mises, or any part thereof, to be transferred or sublet, without the consent in writing of the lessor or his transferees first had and ob- tained. 2. Will fence. 2. The covenantor, his executors, administrators, or transferees, will during the continuance of the said term, erect and put upon the bound- aries of the said land, or on those boundaries on which no substantial fence now exists, a good and sub- stantial fence. 3. Will cultivate. 3. The covenantor, his executors, administrators, or transferees, will, at all times during the said term, cultivate, use and manage in a pro- per husband-like manner, all such parts of the land as are now or shall hereafter, with the consent in writ- ing of the said lessor or his trans- ferees, be broken up or converted into tillage, and will not impoverish or waste the same. 234 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 4. Will not cut 4. The covenantor,, his executors, timber. administrators, or transferees, will not cut down, fell, injure or de- stroy any living timber or timber- like tree standing and being upon the said land, without the consent in writing of the said lessor or his transferees. 5. Will not carry 5. The covenantor, his executors, on offensive trade, administrators, or transferees, will not, at any time during the said term, use, exercise, or carry on, or permit or suffer to be used, exer- cised or carried on, in or upon the said premises, or any part thereof any noxious, noisome or offensive art, trade business, occupation or calling; and no act, matter or thing whatsoever shall, at any time during the said term, be done in or upon the said premises, or any part thereof, which shall or may be or grow to the annoyance, nuisance, grievance, damage or any disturb- ance of the occupiers or owners of the adjoining lands and properties. sur- In consideration of dollars to me ofkase. paid by (lessee or his assigns, as the case may be) I do hereby surrender and yield up from the day of the date hereof unto CONVEYANCING TORRENS SYSTEM. 235 the lease (describe the lease fully) and the term therein created. Dated the day of , A.D. 19 . Signed by the above named in the presence of (Signature.) I, A. B., being registered as owner of an estate (here state nature of interest), sub- gi ject, however, to such incumbrances, liens and interests, as are notified by memoran- dum underwritten (or indorsed hereon) in that piece of land described as follows: (here insert description) containing acres, be the same more or less (here state rights of way, privileges, easements, if any, intended to ~be conveyed along with the land, and if the land dealt ivith contains all in- cluded in the original grant, refer thereto for description of parcels and diagrams otherwise set forth the boundaries and ac- company the description by a diagram), in consideration of the sum of dollars lent to me by E. F. (here insert description), 236 CANADIAN NOTARIES. the receipt of which sum I do hereby ac- knowledge, covenant with the said E. F.: Firstly. That I will pay to him, the said E. F., the above sum of dollars, on the day of Secondly. That I will pay interest on the said sum at the rate of on the dollar, in the year, by equal payments on the day of , and on the day of in every year. Thirdly. (Here set forth special cove- nants, if any.) And for the better securing of the said E. F., the repayment, in manner aforesaid, of the principal sum and interest, I hereby mortgage to the said E. F., my estate and interest in the land above described. In witness whereof, I have hereunto signed my name this day of 19 . Signed by the above-named } , . , ' . ,, (Signature of A.B. as mortgagor, in the , mortgagor,) presence of (Insert memorandum of mortgages and incumbrances.) CONVEYANCING TORRENS SYSTEM. 237 I, A. B., being registered as owner of an estate {state nature of estate), subject, how- brance- ever, to such mortgages and incumbrances as are notified by memorandum underwrit- ten (or indorsed her eon), in that piece of land described as follows: (here insert de- scription) containing acres, more or less (here state rights of way, privileges, easements, if any, intended to ~be conveyed along with the land, and if the land dealt with contains all included in the original grant or certificate of title, refer thereto for description of parcels and diagrams, other- ivise set forth the boundaries and accompany the description Toy a diagram), and desiring to render the said land available for the pur- pose or securing to and for the benefit of G. D., of (description) the (sum of money, annuity or rent charge) hereinafter men- tioned; do hereby incumber the said land for the benefit of the said C. D., with the (sum, annuity or rent charge) of , to be paid at the times and in the manner fol- lowing, that is to say: (here state the times appointed for the payment of the sum, an- nuity or rent charge intended to l)e secured. 238 CANADIAN NOTARIES. the interest, if any, and the events in which such sum, annuity or rent charge shall be- come and cease to~be payable, also any spe- cial covenants or powers, and any modifica- tion of the powers or remedies given to an incmnbrance ~by this Act) : And subject as aforesaid, the said C. D. shall be entitled to all powers and remedies given to an incum- brancee by the Land Titles Act. Signed by the above , (Signature of named , , v 7 N incumorancer.) in the presence of I (Insert memorandum of mortgages and incumbrances.} Receipt I, C. D., the mortgagee (incumbrancee or know- assignee, as the case may be), do acknow- o C f d p^? nt ledge to have received all the moneys due or mortgage to become due under the within written^ fnram-* mortgage (or incumbrance, as the case may brance. ~be), and that the same is wholly discharged. In witness whereof I have hereunto sub- scribed my name this day of , 19 . Signed by the above named } ,~* > T> . XT, ,. (Signature.} C. D., in the presence of CONVEYANCING TORRENS SYSTEM. 239 I, C. D., the mortgagee (incumbrancee Transfer or lessee, as the case may be), in considera- tion of dollars this day paid to me by X. Y., of , the receipt of which or lease ' sum I do hereby acknowledge, hereby trans- fer to him the mortgage (incumbrance or lease, as the case may ~be, describe the in- strument fully), together with all my rights, powers, title, and interest therein. In witness whereof, I have hereunto sub- scribed my name this day of , 19 . . \ C. D., Transferor. Signed by the said . , , . . -i a r x\.cceT)Leci in the presence of ^ ' ,. X. Y., Transferee. I, C.D., the mortgagee (or incumbrancee, Transfer or as the case may be), in consideration of dollars this day paid to me by X. Y. f f of , the receipt of which sum I do brance - hereby acknowledge, hereby transfer to him dollars of the mortgage (or incum- brance, as the case may ~be, describe the in- strument fully), together with all my rights, powers, title, and interest therein, and the 240 CANADIAN NOTARIES. sum so transferred shall be preferred (or deferred or rank equally, as the case may be), to the remaining sum secured by the mortgage (or incumbrance). In witness whereof, I have hereunto sub- scribed my name this day of , 19 .. f C. D., Transferor. Signed by the said i A in presence j x. Y., Transferee. COLUMN ONE. COLUMN TWO. Short 1. Has a good 1. And also, that the said mort- cove- title to the said gagor, at the time of the sealing mortgage. land - and delivery hereof, is, and stands solely, rightfully and lawfully seized of a good, sure, perfect, absolute and indefeasible estate of inheri- tance, in fee-simple, of and in the lands, tenements, hereditaments and all and singular other the premises hereinbefore described, with their and every part of their appurten- ances and of and in every part and parcel thereof, without any manner of trusts, reservations, limitations, provisos or conditions, except those contained in the original grant thereof from the Crown, or jany other matter or thing to alter, charge, change, encumber or defeat the same. SYSTEM. 241 COLUMN ONE. COLUMN TWO. 2. Has the right 2. And also that the said mort- to mortgage the gagor now hath in himself good land. right, full power and lawful and ab- solute authority to convey the said lands, tenements, hereditaments, and all and singular other the pre- mises, hereby conveyed or hereinbe- fore mentioned or intended so to be, with their and every of their ap- purtenances unto the said mort- gagee, his heirs, executors, admin- istrators and assigns in manner aforesaid, and according to the true intent and meaning of these pre- sents. 3. And that on 3. And also, that from and after default the mort- default shall happen to be made of gagee shall have or in the payment of the said sum quiet possession of of money, in the said above proviso the land. mentioned, or the interest thereof, or any part thereof, or of or in the doing, observing, performing, ful- filling or keeping of some one or more of the provisions, agreements or stipulations in the said above proviso particularly set forth, con- trary to the true intent and mean- ing of these presents, and of the said .proviso, then, and in every such case, it shall and may be lawful to and for the said mortgagee, his heirs, executors, administrators, and assigns, peaceably and quietly to C.N. 16. 242 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. enter into, have, hold, use, occupy, possess, and enjoy the aforesaid lands, tenements, hereditaments and premises, hereby conveyed or men- tioned or intended so to he, with their appurtenances, without the let, suit, hindrance, interruption or denial of him the said mortgagor, his heirs, or assigns, or any other person or persons whomsoever. 4. Free from all 4. And that free and clear and encumbrances. freely and clearly acquitted, exon- erated and discharged of and from all arrears of taxes and assessments whatsoever due or payable upon or in respect of the said lands, tene- ments, hereditaments and premises, or any part thereof, and of and from all former conveyances, mort- gages, rights, annuities, debts, judg- ments, executions and recogniz- ances, and of and from all manner of other charges or encumbrances whatsoever. 5. Will execute 5. And also, that from and after such further as- default shall happen to be made of surances of the or in the payment of the said sum land as may. be of money in the, said proviso men- requisite, tioned, or the interest thereof, or any part of such money or interest or of or in the doing, observing, performing, fulfilling or keeping of CONVEYANCING TORRENS SYSTEM. 243 COLUMN ONE. COLUMN TWO. some one or more of the provisions, agreements or stipulations in the said above proviso particularly set forth, contrary to the true intent and meaning of these presents and of the said proviso, then and in every such case the said mortgagor, his heirs and assigns, and all and every other person or persons who- soever having, or lawfully claiming, or who shall or may have or law- fully claim any estate, right, title, interest or trust of, in, to or out of the lands, tenements, hereditaments, and premises hereby conveyed or mentioned or intended so to be, with the appurtenances or any part thereof, by, from, under or in trust for him the said mortgagor, shall and will, from time to time, and at all times thereafter, at the proper costs and charges of the said mort- gagee, his heirs, executors, admin- istrators and assigns make, do, suffer and execute, or cause or pro- cure to be made, done, suffered and executed, all and every such further and other reasonable act or acts, deed or deeds, devices, conveyances and assurances in the law for the further, better and more perfectly and absolutely conveying the said lands, tenements, hereditaments and 244 CANADIAN NOTAKIES. COLUMN ONE. COLUMN TWO. premises, with the appurtenances, unto the said mortgagee., his heirs, executors, administrators and as- signs, as by the said mortgagee, his heirs, executors, or his or their counsel learned in the law, shall or may be lawfully and reasonably de- vised, advised or required, ^so as no person who shall be required to make or execute such assurances shall be compelled, for the making or executing thereof, to go or travel from his usual place of abode. 6. Has done no 6. And also that the said mort- act to encumber gagor hath not at any time hereto- the land. fore made, done, committed, ex- ecuted or wilfully or knowingly suffered any act, deed, matter or thing whatsoever whereby or by means whereof the said lands, tene- ments, hereditaments and premises hereby conveyed or mentioned or intended so to be, or any part or parcel thereof, are, is or shall or may be in any wise impeached, charged, affected or encumbered in title, estate, or otherwise howsoever. Power I, A. B., being registered owner of an estate (here state nature of the estate or in- terest), subject, however, to such incum- brances, liens and interests as are notified CONVEYANCING TORRENS SYSTEM. 245 by memorandum underwritten (or indorsed hereon), (here refer to schedule for descrip- tion and contents of the several parcels of land intended to be affected, which schedule must contain reference to the existing certi- ficate of title or lease of each parcel) do hereby appoint C. D. attorney on my behalf to (here state the nature and extent of the powers intended to be conferred, as to sell, lease, mortgage, etc.), the land in the said schedule described, and to execute all such instruments, and do all such acts, matters and things as may be necessary for carrying out the powers hereby given and for the re- covery of all rents and sums of money that may become or are now due, or owing to me in respect of the said lands, and for the enforcement of all contracts, covenants or conditions binding upon any lessee or occu- pier of the said lands, or upon any other person in respect of the same, and for the taking and maintaining possession of the said lands, and for protecting the same from waste, damage or trespass. 246 CANADIAN NOTARIES. In witness whereof, I have hereunto sub- scribed my name this , day of , 19 . Signed by the above named , , n . -o r ,, _ I (Signature.) A. B., in the presence of I, A. B., of , hereby revoke the power of attorney given by me to , dated the day of , 19 , and recorded in the Land Titles Office at for the Land Registration District, on the day of , 19 , as Number In witness whereof I have hereunto sub- scribed my name this day of , 19 v Signed by the above named | (Sinature j A. B., in the presence or J CHAPTER XVI. SHORT FORMS IN BRITISH COLUMBIA. There are in force in British Columbia, as in Ontario, three separate Acts, passed for the purpose of simplifying the making of conveyances, mortgages, and leases re- spectively. These Acts are the Real Pro- perty Conveyance Act, the Mortgage Statu- tory Form Act, and the Leaseholds Act. 1 Differing from instruments made in pur- suance of the Ontario short forms acts, in- struments made under the British Columbia Acts must contain the words ' ' his heirs ' ' to limit an estate in fee simple instead of the words " in fee simple," for in Ontario, the short forms acts are taken in conjunction with the Conveyancing and Law of Pro- perty Act in force in that Province, which sanctions the use of the words " in fee simple ' ' for limiting an estate, while British 'Chapters 47, 167 and 135 of 1911 R. S. B. C., respec- tively. 248 CANADIAN NOTARIES. Columbia has no such provision in its legis- lation. Instruments made under the British Col- umbia Acts, unless any exception be spe- cially made in them, include within the grant all easements and appurtenances be- longing to the land, and if the instrument purport to convey a fee simple, also the re- version and reversions, remainder and re- mainders, rents, issues and profits and every interest which would pass by the " all the estate " clause in a deed. Each act provides a form in the first schedule for the body of the instrument dealt with by the act. In the second sche- dule of each are set out two columns of words. The acts provide that when any set of words of the first column of the second schedule are employed in an instrument made in the form set out in the first schedule or in any other instrument of that kind ex- pressed to be made in pursuance of the act on referring to it, the instrument is to have the same effect as if the corresponding set of words in the second column were inserted SHORT FORMS IN BRITISH COLUMBIA. 249 in it. The set of words in the second col- umn, of course, constitute long covenants and provisoes usually emploj^ed in such in- struments, and the corresponding set of words in the first column are in the nature of a synopsis. THE REAL PROPERTY CONVEY- ANCE ACT. SCHEDULES. FIRST SCHEDULE. This Indenture, made the day of , one thousand nine hundred [or oilier year], in pursuance of the 1 i Real Property Conveyance Act, ' ' between [here insert the names of parties and re- citals (if any)], witnesseth, that in consid- eration of dollars of the lawful money of Canada, now paid by the said [grantee or grantees] to the said [grantor or grantors], the receipt whereof is hereby by him [or them] acknowledged, he [or they] the said [grantor or grantors] doth 250 CANADIAN NOTARIES. [or do] grant unto the said [grantee or grantees], his [or their] heirs and assigns, forever, all, etc., [parcels. Here insert cove- nants or any other provisions.] In witness whereof the said parties here- to have hereunto set their hands and seals. SECOND SCHEDULE. Directions as to the Forms in this Schedule. 1. Parties who use any of the forms in the first column of this Schedule may substi- tute for the words t i covenantor " or " cove- nantee," or " releasor ' or " releasee," " grantor " or " grantee," any name or names, and in every such case corresponding substitutions shall be taken to be made in the corresponding forms in the second col- umn. 2. Such parties may substitute the femi- nine gender for the masculine, or the plural number for the singular, in any of the forms in the first column of this Schedule, and corresponding changes shall be taken to be SHORT FORMS IX BRITISH COLUMBIA. 251 made in the corresponding forms in the second column. 3. Such parties may introduce into or annex to any of the forms in the first column any express exceptions from or other ex- press qualifications thereof respectively, and the like exceptions or qualifications shall be taken to be made from or in the corre- sponding forms in the second column. 4. Such parties may add the name or other designation of any person or persons, or class or classes of persons, or any other words, at the end of form 2 of the first col- umn, so as thereby to extend the words thereof to the acts of any additional person or persons, or class or classes of persons, or of all persons whomsoever; and in every such case the covenants 2, 3, and 4, or such of them as shall be employed in such deed, shall be taken to extend to the acts of the person or persons, class or classes of persons so named. 252 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 1. The said [cove- 1. And the said covenantor cloth nantor~\ covenants hereby, for himself, his heirs, ex- with the said [cove- ecutors, and administrators, cove- nantee]. nant, promise, and agree with and to the said covenantee, his heirs, ex- ecutors, administrators, and assigns, in manner following, that is to say : 2. That he has 2. That, for, and notwithstanding the right to con- any act, deed, matter, or thing by vey the said lands the said covenantor done, executed, to the said [cov- committed, or knowingly or wilfully enanteel notwith- permitted or suffered to the con- standing any act trary, he the said covenantor now of the said [cor-. hath in himself good right, full enantor]; power, and absolute authority to convey the said lands and other the premises hereby conveyed, or in- tended so to be, with their and every of their appurtenances, unto the said covenantee, in manner afore- said, and according to the true in- tent of these presents; 3. and that the 3. And that it shall be lawful for said \covenantee] the said covenantee, his heirs, ex- shall have quiet editors, administrators, and as- possession of the signs, from time to time, and at all said lands, times hereafter, peaceably and quietly to enter upon, have, hold, occupy, possess, and enjoy the said lands and premises hereby conveyed, or intended so to be, with their and every of their appurtenances, and SHORT FORMS IN BRITISH COLUMBIA. 253 COLUMN" ONE. COLUMN TWO. to have, receive, and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their use and benefit, without any let, suit, trouble, denial, evic- tion, interruption, claim, or demand whatsoever, of, from, or by him the said covenantor or his heirs, or any person claiming, or to claim, by, from, under, or in trust for him, them, or any of them; 4. Free from all 4. And that free and clear, and incumbrances. freely and absolutely acquitted, ex- onerated, and forever discharged, or otherwise by the said covenantor or his heirs Avell and sufficiently saved, kept harmless, and indemnified, of, from, and against any and every former and other gift, grant, bar- gain, sale, jointure, dower, use, trust, entail, will, statute, recogniz- ance, judgment, execution, extent, rent, annuity,, forfeiture, re-entry, and any and every other estate, title, charge, trouble, and incumbrance whatsoever, made, executed, occa- sioned, or suffered by the said cove- nantor or his heirs, or by any per- son claiming or to claim by, from, under, or in trust for him, them, or anv of them. 254 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 5. And the said 5. And the said covenantor doth [covenantor'] cov- hereby,' for himself, his heirs, ex- enants with the editors, and administrators, cove- said [ 'covenantee], naiit, promise, and agree with and that he will exe- to the said covenantee, his heirs, cute such further executors, administrators, and as- assurances of the signs, that he the said covenantor, said lands as may his heirs, executors, or administra- be requisite. tors, and all and every other person whosoever having or claiming, or who shall or may hereafter have or claim, any estate, right, title, or in- terest whatsoever, either at law or in equit}', in, to, or out of the said lands and premises hereby conveyed or intended so to be, or any of them, or any part thereof, by, from, under, or in trust for him. them, or any of them, shall and will from time to time, and at all times hereafter, upon every reasonable request, and at the costs and charges of the said covenantee, his heirs, executors, ad- ministrators, or assigns, make, do, execute, or cause to be made, done, or executed, all such further and other lawful acts, deeds, things, de- vices, conveyances, and assurances in the law whatsoever, for the better, more perfectly, and ab- solutely conveying and assuring the said lands and premises hereby con- veyed, or intended so to be, and SHORT FORMS IX BRITISH COLUMBIA. 255 COLUMN OXE. COLUMN TWO. every part thereof., with their ap- purtenances., unto the said covenan- tee, his heirs and assigns, in manner aforesaid, as by the said covenantee, his heirs and assigns, his or their counsel in the law, shall be reason- ably devised, advised, or required, so as no such further assurances contain or imply any further or other covenant or warranty than against the acts and deeds of the person who shall be required to make or execute the same, and his heirs, executors, or administrators only, and so as no person who shall be required to make or execute such assurances shall be compellable for the making or executing thereof to go or travel from his usual place of abode. 6. And the said 6. And the said covenantor doth [covenantor] cov- hereby, for himself, his heirs, ex- enants with the ecutors, and administrators, cove- said [covenantee], nant, promise, and agree with and that he will pro- to the said covenantee, his heirs, duce the title executors, and administrators, and deeds enumerated assigns, that the said covenantor hereunder, and and his heirs shall and will, unless allow copies to be prevented by fire or other inevitable made of them at accident, from time to time, and at the expense of the all times hereafter, at the request, said [covenantee]. costs, and charges of the said cove- nantee, his heirs or assigns, or his or their attorney, solicitor, agent, or 256 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. counsel, at any trial or hearing in any action, or suit at law or in equity, or other judicature, or other- wise, as occasion shall require, pro- duce all and every or any deed, in- strument, or writing hereunder written, for the manifestation, de- fence, and support of the estate, title, and possession of the said covenantee, his heirs or assigns, in or to the said lands and premises hereby conveyed, or intended so to be, and, at the like request, costs, and charges, shall and will make and deliver, or cause to be made and delivered, true and attested or other copies or abstracts of the same deeds, instruments, and writings respectively, or any of them, and shall and will permit and suffer such copies and abstracts to be ex- amined and compared with the said original deeds by the said covenan- tee, his heirs and assigns, or such person as he or they shall for that purpose direct and appoint. 7. And the said 7. And the said covenantor, for [covenantor] cov- himself, his heirs, executors, and ad- enants with the ministrators, doth hereby covenant, said \covenantee], promise, and agree with and to the that he has done said covenantee, his heirs, executors, no acts to incum- administrators, and assigns, that he ber the said lands, hath not at any time heretofore made, done, committed,, executed, SHORT FORMS IN BRITISH COLUMBIA. 257 COLUMN ONE. COLUMN TWO. or wilfully or knowingly suffered any act, deed, matter, or thing whatsoever, whereby, or by means whereof, the said lands and pre- mises hereby conveyed, or intended so to be, or any part or -parcel thereof, are, is, or shall or may be in anywise impeached, charged, af- fected, or incumbered in title, estate, or otherwise howsoever: Pro- vided that where works of local im- provement benefiting the said lands and premises have heretofore, or shall hereafter, or are in process of being made, under the provisions of any Act or Acts for the time being in force, the costs whereof, in whole or in part, have been charged upon or against the said lands and pre- mises, or any part thereof, the peti- tioning for or procuring to be made, or the making-up of any such works, or the charging the costs thereof upon or against the said lands and premises or any part thereof, or the fact that they are a charge upon or against such lands and premises, or any part thereof, shall not be deemed or taken to be a breach of this covenant, except to the extent that the annual or other payments in respect of such works are in arrear and unpaid at the time of the execution of these presents. C.N. 17 258 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 8. And the said 8. And the said releasor hath re- \releasor~\ releases mised, released, and forever quitted to the said \re- claim, and by these presents doth leasee] all his remise, release, and forever quit- claims upon the claim, unto the said releasee, his said lands. heirs, executors, administrators, and assigns, all and all manner of right, title, interest, claim, and demand whatsoever, both at law or in equity, in, to, and out of the said lands and premises hereby granted, or in- tended so to be, and every part and parcel thereof, so as that neither he, nor his heirs, executors, adminis- trators, or assigns, shall, nor may at any time hereafter, have, claim, pretend to challenge, or demand the said lands and premises, or any part thereof, in any manner how- soever; but the said releasee, his heirs, executors, administrators, and assigns, and the same lands and premises shall from henceforth for- ever hereafter be exonerated and dis- charged of and from all claims and demand whatsoever which the said releasor might or could have upon him in respect of the said lands and premises, or upon the said lands and premises. SHORT FORMS IN BRITISH COLUMBIA. 259 THE MORTGAGES STATUTORY FORM ACT. SCHEDULES. FIRST SCHEDULE. This Indenture, made the day of , one. thousand nine hundred and , in pursuance of the Act respect- ing Short Forms of Mortgages, between [here insert names of parties, and recitals (if any}~\, witnesseth that, in consideration 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 [mortgagor or mortgagors] doth [or do] grant and mortgage unto the said [mort- gagee or mortgagees], his [her or their] heirs and assigns, forever, all [parcels'] [here insert provisoes, covenants, or other provisions~\. In witness whereof the said parties hereto have hereunto set their hands and. seals. 260 CANADIAN NOTARIES. SECOND SCHEDULE. Directions as to the Forms in this Schedule. 1. Parties who use any of the forms in the first column of this Schedule may sub- stitute for. the words " mortgagor ' or 1 ' mortgagors, " or " mortgagee " or " mort- gagees," any name or names; and in every such case corresponding substitutions shall be taken to be made in the corresponding forms in the second column. 2. Such parties may substitute the femi- nine gender for the masculine, or the plural number for the singular, in any of the forms in the first column of this Schedule ; and cor- responding changes shall be taken to be made in the corresponding forms in the second column. 3. Such parties may introduce into or annex to any of the forms in the first column any express exceptions from or other ex- press qualifications thereof respectively; and the like exceptions or qualifications shall be taken to be made from or in the cor- responding forms in the second column. SHORT FORMS IN BRITISH COLUMBIA. 261 4. Such parties may introduce into any mortgage expressed to be made in pursuance of this Act such other or further covenants, powers, and provisions as may be agreed upon between them. COLUMN ONE. COLUMN TWO. 1. Provided: 1. Provided always and these pre- This mortgage to sents are upon this express condi- be void on pay- tion, that if the said mortgagor, his ment of [amount of heirs, executors, administrators, or principal money} assigns, or any of them, do and of lawful money shall well and truly pay or cause to of Canada, with be paid unto the said mortgagee, interest at \rate his executors, administrators, or of interest] per assigns, the just and full sum of cent., as follows: \amount of principal money} of \termsofpayment lawful money of Canada, with in- of principal and terest thereon at the rate of [rate interest] and taxes of interest] per centum per annum, and performance on the days and times and in man- of statute labour, ner following, that is to say : [terms of payment of principal and in- terest], without any deduction, de- falcation, or abatement out of the same for or in respect of any taxes, rates, levies, charges, rents, assess- ments, statute labour, or other im- positions whatsoever already rated, charged, assessed, or imposed, or hereafter to be rated, charged, as- sessed, or imposed by authority of Parliament or of the Legislative 262 CANADIAN NOTARIES. COLUMN" ONE. COLUMN TWO. Assembly, or otherwise howsoever, on the said lands and tenements, hereditaments, and premises, with the appurtenances, or on the said mortgagee, his heirs, executors, ad- ministrators, or assigns, in respect of the said premises, or of the said money or interest, or any other matter or thing relating to these presents, and until such default as aforesaid shall and will well and truly pay, do, and perform or cause or procure to be paid, done, and performed all matters and things in this proviso hereinbefore set forth, then these presents, and everything in the same contained, shall be ab- solutely null and void. 2. The said 2. And the said mortgagor doth mortgagor coven- hereby for himself, his heirs, execu- ants with the said tors, and administrators, covenant, mortgagee. promise, and agree to and with the said mortgagee, his heirs, executors, administrators,, and assigns, in man- ner following, that is to say: 3. That the 3. That the said mortgagor, his mortgagor will heirs, executors, administrators, or pay the mortgage some one of them, shall and will money and inter- well and truly pay or cause to be est, and observe paid unto the said mortgagee, his the above proviso, executors, administrators, or as- signs, the said sum of money in the SHORT FORMS IN BRITISH COLUMBIA. 263 COLUMN ONE. COLUMN TWO. above proviso mentioned, with in- terest for the same as aforesaid, at the days and times and in manner above limited for payment thereof, and shall and will in everything well, faithfully, and truly do, ob- serve, perform, fulfil, and keep all and singular the provisions, agree- ments, and stipulations in the said above proviso particularly set forth, according to the true intent and meaning of these presents and of the said above proviso. 4. That the 4. And also that the said mort- mortgagor has a gagor at the time of the sealing and good title in fee- delivery hereof is and stands solely, simple to the said rightfully, and lawfully seised of a lands. good, sure, perfect, absolute, and indefeasible estate of inheritance in fee-simple of and in the lands, tene- ments, hereditaments, and all and singular other the premises herein- before described, with their and every of their appurtenances, and of and in every part and parcel thereof, without any manner of trusts, reservations, limitations, pro- visoes, or conditions, except those contained in the original grant thereof from the Crown, or any other matter or thing to alter, charge, change, incumber, or defeat the same. 264 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 5. And that he 5. And also that the said mort- has the right to gagor now hath in himself good convey the said right, full power, and lawful and lands to the said absolute authority to convey the mortgagee. said lands, tenements, heredita- ments, and all and singular other the premises hereby conveyed or hereinbefore mentioned or intended so to be, with their and every of tbeir appurtenances, unto the said mortgagee, his heirs and assigns, in manner aforesaid and according to the true intent and meaning of these presents. 6. And that on 6. And also that from and after default the mort- default shall happen to be made of gagee shall have or in the payment of the said sum quiet possession of of money in the said above proviso the said lands. . mentioned, or the interest thereof, or any part thereof, or of or in the doing, observing, performing, ful- filling, or keeping of some one or more of the provisions, agreements, or stipulations in the said above proviso particularly set forth, con- trary to the true intent and mean- ing of these presents and of the said proviso, then and in every such case it shall and may be lawful to and for the said mortgagee, his heirs, executors, administrators, and as- signs, peaceably and quietly to enter into, have, hold, use, occupy, pos- SHORT FORMS IN BRITISH COLUMBIA. 265 COLUMN ONE. COLUMN TWO. sess, and enjoy the aforesaid lands, tenements, hereditaments, and pre- mises hereby conveyed or men- tioned or intended so to be, with the appurtenances, without the let, suit, hindrance, interruption, or denial of him the said mortgagor, his heirs or assigns, or any other person or persons whomsoever. 7. Free from all 7. And that free and clear and incumbrances. freely and clearly acquitted, exon- erated, and discharged of and from all arrears of taxes and assessments whatsoever due or payable upon or in respect of the said lands, tene- ments, hereditaments, and premises, or any part thereof, and of and from all former conveyances, mort- gages, rights, annuities, debts, judg- ments, executions, and recogniz- ances, and of and from all manner of other charges or incumbrances whatsoever. 8. And that the 8. And also that from and after said mortgagor default shall happen to be made of will execute such or in the payment of the said sum further assurances of money in the said proviso men- of the said lands tioned or the interest thereof, or as may be requi- any part of such money or interest, site. or of or in the doing, observing, performing,, fulfilling, or keeping of some one or more of the provi- sions, agreements, or stipulations in 266 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. the said above proviso particularly set forth,, contrary to the true intent and meaning of these presents and of said proviso, then and in every such case the said mortgagor, his heirs and assigns, and all and every other person or persons whosoever having or lawfully claiming, or who shall or may have or lawfully claim, any estate, right, title, interest, or trust of, in, to, or out of the lands, tenements, hereditaments, and pre- mises hereby conveyed or mentioned, or intended so to be, with the ap- purtenances, or any part thereof, by. from, under, or in trust for him the said mortgagor, shall and will, from time to time and at all times thereafter, at the proper costs and charges of the said mortgagee, his heirs, executors, administrators, or assigns, make, do, suffer, and ex- ecute, or cause or procure to be made, done, suffered, and executed, all and every such further and other reasonable act or acts, deed or deeds, devices, conveyances, and as- surances in the law for the further, better, and more perfectly and ab- solutely conveying and assuring the said lands, tenements, heredita- ments, and premises with the ap- purtenances unto the said mort- SHORT FORMS IX BRITISH COLUMBIA. 267 COLUMN ONE. COLUMN TWO. gagee, his heirs and assigns, as by the said mortgagee, his heirs and assigns, or his or their counsel learned in the law, shall or may be lawfully and reasonably devised, ad- vised, or required, so as no person who shall be required to make or execute such assurances shall be compelled for the making or ex- ecuting thereof to go or travel from his usual place of abode. 9. And also that 9. And also that the said mort- the said mortgagor gagor and his heirs shall and will, will produce the unless prevented by fire or other in- title deeds enum- evitable accident, from time to time erated hereunder and at all times hereafter, at the and allow copies request and proper costs and charges to be made at the in the law of the said mortgagee, expense of the his heirs, executors, administrators, mortgagee. or assigns, at any trial or hearing in any action or suit at law or in equity or other judicature or other- wise as occasion shall require, pro- duce all, every, or any deed, instru- ment, or writing hereunder written for the manifestation, defence, and support of the estate, title, and pos- session of the said mortgagee, his heirs, executors, administrators, and assigns, of, in, to, or out of the said lands, tenements, hereditaments, and premises hereby conveyed or mentioned or intended so to be, and 268 CANADIAN NOTARIES. COLUMN ONE. 10. And that the said mortgagor has done no act to in- cumber the said lands. 11. And that the said mort- gagor will insure the buildings on the said lands to COLUMN TWO. at the like request, costs, and charges shall and will make and de- liver or cause or procure to be made and delivered unto the said mort- gagee, his heirs, executors, admin- istrators, and assigns, true and at- tested or other copies or abstracts of the same deeds, instruments, and writings respectively or any of them, and shall and will permit and suffer such copies and abstracts to be ex- amined and compared with the said original deeds by the said mort- gagee, his heirs and assigns. 10. And also that the said mort- gagor hath not at any time hereto- fore made, done, committed, ex- ecuted, or wilfully or knowingly suf- fered any act, deed, matter, or thing whatsoever whereby or by means whereof the said lands, tene- ments, hereditaments, and premises hereby conveyed or mentioned, or intended so to be, or any part or parcel thereof, are, is, or shall or may be in anywise impeached, charged, affected, or incumbered in title, estate, or otherwise howsoever. 11. And also that the said mort- gagor or his heirs shall and will forthwith insure, unless already in- sured, and during the continuance of this security keep insured against SHORT FORMS IN BRITISH COLUMBIA. 269 COLUMN ONE. COLUMN TWO. the amount of not loss or damage by fire, in such pro- less than cur- portions upon each building as may rency. be required by the said mortgagee, his heirs or assigns, the messuages and buildings erected on the said lands, tenements, hereditaments, and premises hereby conveyed or mentioned, or intended so to be, in the sum of of lawful money of Canada at the least in some in- surance office, to be approved of by the said mortgagee, his heirs, ex- ecutors, administrators, or assigns, and pay all premiums and sums of money necessary for such purpose as the same shall become due, and will on demand assign, transfer, and deliver over unto the said mort- gagee, his heirs, executors, admin- istrators, or assigns, the policy or policies of assurance, receipt and receipts thereto appertaining; and if the said mortgagee, his heirs, ex- ecutors, administrators, or assigns, shall pay any premiums or sums of money for insurance of the said premises or any part "thereof, the amount of such payments shall be added to the debt hereby secured, and shall bear interest at the same rate from the time of such pay- ments, and shall be payable at the time appointed for the then next en- suing payment of interest on the said debt. 270 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 12. And the said 12. And the said mortgagor hath mortgagor doth re- released, remised, and forever quit- lease to the said ted claim, and by these presents mortgagee all his doth release, remise, and forever claims upon, the quit-claim unto the said mortgagee, said lands subject his heirs and assigns, all and all to the said proviso, manner of right, title) interest, claim, and demand whatsoever, both at law and in equity of, unto, and out of the said lands, tenements, hereditaments, and premises hereby conveyed, or mentioned or intended so to be, and every part and parcel thereof, so as that neither the said mortgagor, his heirs, executors, ad- ministrators, or assigns, shall or may at any time hereafter have claim, pretend to, challenge, or de- mand the said land, tenements, hereditaments, and premises, or any part thereof, in any manner howso- ever, subject always to the said above proviso; but the said mort- gagee, his heirs, executors, admin- istrators, or assigns, and the said lands, tenements, hereditaments and premises, subject as aforesaid, shall from henceforth forever hereafter be exonerated and discharged of and from all claims and demands what- soever, which the said mortgagor, his heirs or assigns, might or could have upon the said mortgagee, his SHORT FORMS IN BRITISH COLUMBIA. 271 COLUMN ONE. COLUMN TWO. heirs, executors,' administrators, or assigns, in respect of the said lands, tenements, hereditaments, and pre- mises, or upon the said lands, tene- ments, hereditaments, and premises. 13. Provided that 13. Provided always, and it is the said mortga- hereby declared and agreed by and gee, on default of between the parties to these pre- payment for sents, that if the said mortgagor, his month may on heirs, executors, or administrators, notice enter on shall make default in any payment and lease or sell of the said money or interest, or any the said lands. part of either of "the same, accord- ing to the true intent and meaning of these presents and of the proviso in that behalf hereinbefore con- tained, and calendar month shall hav.e thereafter elapsed without such payment being made (of which default, as also of the continuance of the' said principal money and interest, or some part thereof, on this security, the pro- duction of these presents shall be conclusive evidence), it shall and may be lawful to and for the said mortgagee, his executors, adminis- trators, or assigns, after giving written notice to the said mortgagor, his heirs or assigns, of his intention in that behalf, either personally, or at his or their usual or last-known place of residence within this Pro- 272 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. vince, or by affixing the same on the mortgaged premises, not less than previous without any fur- ther consent or concurrence of the said mortgagor., his heirs or as- signs, to enter into possession of the said lands, tenements, heredita- ments, and premises hereby con- veyed, or mentioned, or intended so to be, and to receive and take the rents, issues, and profits thereof, and whether in or out of possession of the same, to make any lease or leases thereof, or of any part there- of, as he shall think fit, and also to sell and absolutely dispose of the said lands, tenements, heredita- ments, and premises hereby con- veyed, or mentioned, or intended so to be, or any part or parts thereof, with the appurtenances, by public auction or private contract, or partly by public auction and partly by private contract, as to him shall seem meet, and to convey and as- sure the same when so sold unto the purchaser or purchasers thereof, his heirs and assigns, or as he, she, or they shall direct and appoint, and to execute and do all such assur- ances, acts, matters, and things as may be found necessary for the pur- poses aforesaid; and the said mort- SHORT FORMS IN BRITISH COLUMBIA. 273 COLUMN ONE. COLUMN TWO. gagee shall not be responsible for any loss which may arise by reason of any such leasing or sale as afore- said, unless the same shall happen by reason of his wilful neglect or default;, and it is hereby further agreed between the parties to these presents that, until such sale or sales shall be made as aforesaid, the said mortgagee, his heirs, executors, administrators, or assigns, shall and will stand and be possessed of and interested in the rents and profits of the said lands, tenements, heredi- taments, and premises in case he shall take possession of the same, or any default as aforesaid, and after such sale or sales shall stand and be possessed of and interested in the moneys to arise or be produced by such sale or sales, or which shall be received by the mortgagee, his heirs, executors, ad- ministrators, or assigns, by reason of any insurance upon the said pre- mises or any part thereof, upon trust in the first place to pay and satisfy the costs and charges of pre- paring for and making sales, leases, and conveyances as aforesaid, and all other costs and charges, damages and expenses which the said mort- C.N. 18 274 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. gagee, his heirs, executors, adminis- trators, or assigns, shall bear, sus- tain, or be put to for taxes, rent, in- surances, and repairs, and all other costs and charges which may be in- curred in and about the execution of any of the trusts in him hereby reposed; and in the next place to pay and satisfy the principal sum of money and interest hereby secured or mentioned or intended so to be, or so much thereof as shall remain due and unsatisfied up to and inclusive of the day' whereon the said principal sum shall be paid and satisfied ; and after full payment and satisfaction of all such sums of money and interest as aforesaid, upon this further trust that the said mortgagee, his heirs, executors, ad- ministrators, or assigns, do and shall pay the surplus (if any) to the said mortgagor, his heirs or assigns, or as he shall direct and appoint, and shall also, in such event, at the re- quest, costs, and charges in the law of the said mortgagor, his heirs or assigns, convey and assure unto the said mortgagor, his heirs or assigns, or to such person or persons as he shall direct and appoint, all such parts of the said lands, tenements, hereditaments, and premises as shall SHORT FORMS IN BRITISH COLUMBIA. 275 COLUMX OXE. COLUMN TWO. remain unsold for the purposes aforesaid, freed and absolutely dis- charged of and from all estate, lien, charge, and incumbrance whatsoever by the said mortgagee, his heirs or assigns, in the meantime, so as no person who shall be required to make or execute any such assur- ances shall be compelled for the making thereof to go or travel from his usual place of abode: Provided always, and it is hereby further de- clared and agreed by and between the parties to these presents, that, notwithstanding the power of sale and other the powers and provisions contained in these presents, the said mortgagee, his heirs, executors, ad- .ministrators. or assigns, shall have and be entitled to his right of fore- closure of the equity of the redemp- tion of the said mortgagor, his heirs and assigns, in the said lands, tene- ments, hereditaments, and premises, as fully and effectually as he might have exercised and enjoyed the same in case the power of sale and the other former provisoes and trusts incident thereto had not been herein contained. 14. Provided that 14. And it is further covenanted, the mortgagee may declared, and agreed by and between distrain for arrears the parties to these presents that if of interest. the said mortgagor, his heirs, execu- 276 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. tors, or administrators., shall make default in payment of any part of the said interest at any of the days or times hereinbefore limited for the payment thereof, it shall and* may be lawful for the said mortgagee, his heirs or assigns, to distrain therefor upon the said lands, tenements, hereditaments, and premises, or any part thereof, and by distress warrant to recover by way of rent reserved, as in the case of a demise of the said lands, tenements, heredi- taments, and premises, so much of such interest as shall from time to time be or remain in arrear and un- paid, together with all costs, charges, and expenses attending such levy or distress, as in like cases of distress for rent. 15. Provided that 15. Provided always, and it is in default of the hereby further expressly declared payment of the in- and agreed by and between the par- terest hereby se- ties to these presents, that if any cured, or. taxes as default shall at any time happen hereinjbefore pro- to be made of or in the payment of vided, the princi- the interest money hereby secured pal hereby secured or mentioned, or intended so to be, shall become pay- or any part thereof, or in payment able. of any of the said taxes, rates, levies, charges, rents, assessments, statute labour, or other impositions whatsoever, then and in such case SHORT FORMS IN BRITISH COLUMBIA. . 277 COLUMN ONE. COLUMN TWO. the principal money hereby secured or mentioned, or intended so to be, and every part thereof, shall forth- with become due and payable in like manner and with the like conse- quences and effects to all intents and purposes whatsoever as if the time herein mentioned for payment of such principal money had fully come and expired, but that in such case the said mortgagor, his heirs or assigns, shall, on payment of all arrears under these presents, with lawful costs and charges in that be- half, at any time before any judg- ment in the premises recovered at law, or within such time as by the practice of equity relief therein could be obtained, be relieved from the consequences of non-payment of so much of the money secured by these presents or mentioned, or in- tended so to be, as may not then have become payable by reason of lapse of time. 16. Provided that, 16. And provided also, and it is until default of hereby further expressly declared payment, the mort- and agreed by and between the par- gagor shall have ties to these presents, that, until de- quiet possession fault shall happen to be made of or of the said lands, in the payment of the said sum of money hereby secured or mentioned, or intended so to be, or the interest 278 CANADIAN NOTAKIES. COLUMN ONE. , COLUMN TWO. thereof, or any part of either of the same, or the doing,, observing, per- forming, fulfilling, or keeping some one or more of the provisions, agree- ments, or stipulations herein set forth, contrary to the true intent and meaning of these presents, it shall and may be lawful to and for the said mortgagor, his heirs and assigns, peaceably and quietly to have, hold, use, occupy, possess, and enjoy the said lands, tenements, hereditaments, and premises hereby conveyed or mentioned, or intended so to be, with their and every of their appurtenances, and receive and take the rents, issues, and profits thereof to his own use and benefit, without let, suit, hindrance, inter- ruption, or denial of or by the said mortgagee, his heirs, executors, ad- ministrators, or assigns, or of or by any other person or persons whom- soever lawfully claiming, or who shall or may lawfully claim, by, from, under, or in trust for him, her, them, or any or either of them. SHORT FORMS IN BRITISH COLUMBIA. 279 THE LEASEHOLDS ACT. SCHEDULES. FIRST SCHEDULE. This Indenture, made the day of , one thousand nine hundred and [or other year], in pursuance of the " Leaseholds Act," between [here insert the names of the parties, and recitals (if any)], witnesseth that, the said [lessor or lessors'] doth [or do] demise unto the said [lessee or lessees'], his [or their] executors, administrators, and assigns, all etc., [par- cels'], from the day of r for the term of thence ensuing, yielding therefor during the said term the rent of [state the rent and mode of payment, also the covenants to be inserted]. In witness whereof the said parties here- to have hereunto set their hands and seals. R. S. 1897, c. 117, Sch. 1. 280 CANADIAN NOTARIES. Second Schedule. Directions as to the Forms in this Schedule. 1. Parties who use any of the forms in first column of this Schedule may substi- tute for the words " lessee " or " lessor ' any name or names [or other designation] ; and in every such case corresponding substi- tutions shall be taken to be made in the cor- responding forms in the second column. 2. Such parties may substitute the femi- nine gender for the masculine, r the plural number for the singular, in the forms in the first column of this Schedule, and corre- sponding changes shall be taken to be made in the corresponding forms in the second column. 3. Such parties may fill up the blank spaces left in the forms 6 and 7 in the first column of this Schedule so employed by them with any words or figures; and the words or figures so introduced shall be taken to be inserted in the corresponding blank spaces left in the forms embodied. SHORT FORMS IN BRITISH COLUMBIA. 281 4. Such parties may introduce into or annex to any of the forms in the first column any express exceptions from or express qualifications thereof respectively, and the like exceptions or qualifications shall be taken to be made from or in the correspond- ing forms in the second column. 5. Where the premises demised shall be of freehold tenure, the covenants 1 to 13, in- clusive, shall be taken to be made with, and the proviso 14 to apply to, the heirs and as- signs of the lessor ; and where the premises demised shall be of leasehold tenure, the covenants and proviso shall be taken to be made with and apply to the lessor, his execu- tors, administrators, and assigns. COLUMN ONE. COLUMN TWO. 1. That the said I. And the said lessee doth here- [lessee] covenants by for himself, his heirs, executors, with the said administrators, and assigns, cove- [lessor] to pay nant with the said lessor that he, rent; . the said lessee, his executors, ad- ministrators, and assigns, will, dur- ing the said term, pay unto the said lessor the rent hereby reserved, in manner hereinbefore mentioned, without anv deduction whatsoever; 282 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. 2. and to taxes ; 3. and pair ; to re- 4. and to up fences; 5. and not to cut down timber; pay 2. and also will pay all taxes, rates, duties, and assessments what- soever, whether parochial, munici- pal, parliamentary, or otherwise, now charged or hereafter to be charged upon the said demised pre- mises, or upon the said lessor, on account thereof, except such taxes, rates, duties, and assessments which the lessee is by law exempted from ; 3. and also will, during the said term, well and sufficiently repair, maintain, pave, ' empty, cleanse, amend, and keep the said demised premises, with the appurtenances, in good and substantial repair, and all fixtures, and things thereto be- longing or which at any time dur- ing the said term shall be erected and made, when, where, and so often as need may be; 4. and also will from time to time, during the said term, keep up the fences and walls of or be- longing to the said premises, and make anew any parts thereof that may require to be new-made, in a good and husband-like manner, and at proper seasons 'of the year ;, 5. and also will not, at any time during the said term, hew, fell, cut down, or destroy, or cause or know- ingly permit or suffer to lie hewed, keep SHORT FORMS IN BRITISH COLUMBIA. ZOo COLUMN ONE. COLUMN TWO. felled, cut down, or destroyed, without the consent in writing of the lessor, any timber or timber trees, except for necessary repairs or firewood, or for the purpose of clearance, as herein set forth; 6. and to paint 6. and also that the said lessee, outside every his executors, administrators, and year; assigns, will in every year in the said term paint all the out- side woodwork and ironwork be- longing to the said premises with two coats of proper oil colours, in a workmanlike manner; 7. and to paint 7. and also that the said lessee, and paper every his executors, administrators, and year; assigns, will in every year paint the inside wood, iron, and other works now or usually painted with two coats of proper oil colours, in a workmanlike manner; and also repaper, with a paper of a quality as at present, such parts ot the , premises as are now papered; and also wash, stop, whiten, or colour such parts of the said premises as are now plastered; 8. and to in- 8. and also that the said lessee, sure from fire, in his executors, administrators, and the joint names of assigns, will forthwith insure the the said [ lessor^ said premises hereby demised to the and the said \les- full insurable value thereof, in see\ ; some respectable insurance office, in the joint names of the said les- 284 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. to show receipts case of fire. sor, his executors, administrators, and assigns, and the said lessee, his executors, administrators, or assigns, and keep the same so insured during the said term; and will, upon the request of the said lessor or his agent, show the re- ceipt for the last premium paid for such insurance for every current and to rebuild in year; and as often as the said pre- mises hereby .demised shall be burnt down or damaged by fire, all and every the sums or sum of money which shall be recovered by the said lessee, his executors, administrators, or assigns, for or in respect of such insurance, shall be laid out and ex- pended by him in building or re- pairing the said demised premises, or such parts thereof as shall be burnt down or damaged by fire, as aforesaid. 9. and the said [lessor] may en- ter and view state of repair, and that the said \ lessee] will repair ac- cording to notice. 9. And it is hereby agreed that it shall be lawful for the said lessor and his agents, at all reasonable times during the said term, to en- ter the said demised premises, or any of them, and to examine the condition thereof; and, further, that all wants of reparation which upon such views shall be found, and for the amendment of which notice in writing shall be left at the pre- mises, the said lessee, his executors, SHORT FORMS IX BRITISH COLUMBIA. 285 COLUMN ONE. COLUMN TWO. administrators, and assigns, will, within three calendar months next after every such notice, well and sufficiently repair and make good accordingly. 10. That the 10. And also that the said lessee, said [Zessee] will his executors, administrators, and not use premises assigns, will not convert, use, or as a shop. occupy the said premises, or any part thereof, into or as a shop, warehouse, or other place for carry- ing on any trade or business what- soever, or suffer the said premises to be used for any such purpose, or otherwise than as a private dwell- ing-house, without the consent in writing of the said lessor. 11. And will 11. And also that the said lessee, not assign without his executors, administrators, or as- leave. signs, shall not, nor will, during the said term, assign, transfer, or set over, or otherwise, by any act or deed, procure the said premises, or any of them, or the term hereby granted, to be assigned, transferred, or set over, unto any person or per- sons whomsoever, without the con- sent in writing of the said lessor, his heirs, executors, administrators, or assigns, first had and obtained. 12. And will not 12. And also that the said lessee, sub-let without his executors, administrators, and leave. assigns, shall not, nor will, during 286 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. the said term,, sublet the said pre- mises hereby granted, or any part thereof, to any person or persons without the. consent in writing of the said lessor, his heirs., executors, administrators., or assigns, first had and obtained. 13. And that he 13. And further that, the said will leave prem- lessee, his executors, administrators, is.es in good repair, and assigns, will, at the expiration or other sooner determination of the said term, peaceably surrender and yield up unto the said lessor, his heirs, executors, administrators, or assigns, the said premises hereby demised, with the appurtenances, together .with all buildings, erec- tions, and fixtures now or hereafter to be built or erected thereon, in good and substantial repair and condition i-n all respects, reason- able wear and tear and damage by fire only excepted. 14. Proviso for 14. Provided always, and it is re-entry by the expressly agreed, that if the rent said lessor on non- hereby reserved, or any part there- payment of rent, of, shall be unpaid for fifteen days or non-perform- after any of the days on which the ance of covenants, same ought to have been paid (al- though no formal demand shall have been made thereof), or in case of the breach or non-perform- ance of any of the covenants and SHORT FORMS IN BRITISH COLUMBIA. 287 COLUMN ONE. COLUMN TWO. agreements herein contained on the part of the said lessee, his execu- tors, administrators, or assigns, the,n and in either of such cases it shall be lawful for the said lessor, his heirs, executors, administrators, or "assigns, at any time thereafter, into and upon the said demised premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, re- possess, and enjoy as of his or their former estate, anything herein con- tained to the contrary notwith- standing. 15. The said 15. And the lessor doth hereby, \lessor] covenants for himself, his heirs, executors, with the said \les- administrators, and assigns, cove- see] for quiet en- nant with the said lessee, his, ex- joyment. ecutors, administrators, and assigns, that he and they, paying the rent hereby reserved, and performing the covenants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premis.es for the term hereby granted, without any interruption or disturbance from the said lessor, his heirs, executors, administrators, or assigns, or any other person or persons lawfully claiming by, from, or under him, them, or any of them. E. S. 1897, c. 117, Sch. 2. CHAPTER XVII. SHORT FORMS IN MANITOBA. The Manitoba Short Form Act, 1 differs only in detail from the acts of like nature in other Provinces. Three schedules are set out in the Act applicable to conveyances, mortgages and leases respectively, with two columns of words, the use of the words in the first column giving the instruments the same effect as if the corresponding words in the second column were contained in it. Substitutions may be made for the words " covenantor," " releasor," " grantor," "lessor," etc., the feminine gender may be substituted for the masculine, and express exceptions and qualifications may be intro- duced into the forms in the first column. No words of limitation are necessary. FIRST SCHEDULE. Deed of Conveyance. This indenture made the day of , in the year of our Lord one 1 1913, R. S. Man. ch. 181. SHORT FORMS IN MANITOBA. 289 thousand nine hundred and , in pursuance of " The Act respecting Short Forms of Indentures," between (here in- sert the names and recitals, if any), witness- eth that, in consideration of (if there be, recitals) the premises and of dollars (if no recitals, omit the word " premises'' and say of dollars) of lawful money of Canada, now. paid by the said party of the part (the receipt whereof is here- by by him or them acknowledged), he (or they) the said party of the first part doth (or do) grant unto the said party of the part, his (or her or their) heirs and assigns forever, all and singular the lands following, that is to say: (describe lands). (Here insert covenants and other provi- sions, conditions, etc., etc., if any.) In witness whereof the said parties have hereto set their hands and seals. Signed, sealed and delivered in the presence of: The forms of covenants are the same as those set out in the British Columbia Real Property Conveyance Act (p. 252 et seq.) C.N. 19 290 CANADIAN NOTARIES. SECOND SCHEDULE. Deed of Mortgage. This indenture made the day of , in the year of our Lord one thousand nine hundred and , in pur- suance of ' ' The Act respecting Short Forms of Indenture," between (here insert parties and recitals, if any), witnesseth that, in con- sideration of (if recitals, say, the premises and of dollars (if no recitals, omit the premises), of lawful money of Canada, now paid by the said party of the part to the said party of the first part (the receipt whereof is hereby by acknowledged) he (or they), the said party of the first part, doth (or do) grant and mortgage unto the said party of the part all and singu- lar the lands following, that is to say: (describe lands). (Here insert provisoes, covenants and other provisions and stipulations according to agreement). SHORT FORMS IN MANITOBA. 291 In witness thereof the said parties have hereto set their hands and seals. Signed, sealed and delivered in the presence of : The forms of provisoes and covenants are the same as those set out in the British Columbia Mortgage Statutory Form Act (p. 261 et seq.) ' THIRD SCHEDULE. Deed of Lease. This indenture, made the day of , in the year of our Lord one thousand nine hundred and , in pursuance of " The Act respecting Short Forms of Indentures," between , of the first part, and , of the second part; (any recitals required may be here inserted) ; Witnesseth that in consideration of the premises and (if any recitals; if not, omit of the premises and) of the rents, cove- nants and agreements hereinafter reserved and contained on the part of the party of the second part, his (or their) executors, admin- 292 CANADIAN NOTARIES. istrators and assigns, to be paid, kept, observed and performed, lie (or they), the said party of the first part, hath (or have) demised and leased, and by these presents doth (or do) demise and lease, unto the said party of the second part, his (or their) executors, administrators and assigns, all that messuage or tenements, lands and pre- mises situate (or all that parcel or tract of land situate, lying and being ; here insert a description of the premises with sufficient certainty). To have and to hold the said demised pre- mises for and during the term of , to be computed from the day of , one thousand nine hundred and , and from thenceforth next en- suing 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 (or their) heirs, executors, administra- tors or assigns, the sum of , to be pay- able on the following days and times, that is to say: (on, etc.), the first of such pay- SHORT FORMS IN MANITOBA. 293 ments to become due and be made on the day of next. {Here insert any provisoes, conditions and covenants required.) In witness whereof, etc. Signed, sealed and delivered ) in the presence of | COLUMN ONE. COLUMN TWO. 1. That the said 1. And the said lessee doth here- [lessee] covenants by, for himself, his heirs, executors, with the said \les- administrators and assigns, cove- sor] to pay rent, nant with the said lessor that he, the said lessee, his executors, ad- ministrators and assigns, will, dur- ing the said term, pay unto the said lessor the rent hereby reserved, in manner hereinbefore mentioned without any deduction whatsoever: (a) Provided that, in the event of the said demised premises being destroyed by fire or tempest, or the act of God, during the said term, or not being totally destroyed but to such an extent as to render the same unfit for occupation, the said lessee, his or her heirs, executors, administrators and assigns, may, at any time within ten days after such destruction or injury to said pre- 2 ( J4 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. mises, give notice to the lessor re- quiring the said premises to be re- paired and put in such condition as may be necessary to render them suitable for occupation for the pur- poses for which they have been leased, and with such notice shall serve a certificate of an architect as to the time within which such premises could be so repaired; and the lessor shall, within three days, give notice to the lessee that he in- tends so to repair ; and upon failure to so repair within such time as may be so certified to by such archi- tect as reasonably sufficient to make the necessary repairs., the said lease shall then determine; (6) Provided, further, that, if the lessor do not so give notice within such three days, the lessee may either surrender the said pre- mises or repair the same and charge it against the rent thereafter to be paid. And the said lessor may at any time within ten days after the de- struction or accident to the said premises as aforesaid, give notice to the lessee that it is not his in- tention to .repair said premises, whereupon the said lessee may either surrender the said premis.es SHORT FORMS IN MANITOBA. 295 COLUMN ONE. COLUMN TWO. or repair the same and charge it against the rent to be thereafter paid; (c) Provided, always, that in case the tenant surrender said pre- mises under either of these condi- tions, rent shall cease to be payable after such damage or destruction as aforesaid; (d) Provided, further, and it is expressly understood by and be- tween the parties hereto that the said lessee, his executors, adminis- trators and assigns shall not be bound to repair, where the same may be necessary from reasonable wear and tear, or the damage be caused by fire, tempest or the act of God. 2. And to pay 2. And, also, will pay all taxes, taxes. rates, duties and assessments what- soever, whether municipal, parlia- mentary or otherwise, now charged or hereafter to be charged upon the said demised premises, "or upon the said lessor on account thereof. 3. And to re- 3. And, also, will, during the said pair. term, well and sufficiently repair, maintain, amend and keep the said demised premises, with the appur- tenances, in good and substantial repair, and all fixtures and things 296 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. thereto belonging, or which at any time during the said term shall be erected and made, when, where and so often as need shall be : (a) Provided that, in the event of the said demised premises being destroyed by fire, tempest or the act of God, or during the said term, or not being totally destroyed but to such an extent as to render the same unfit for occupation, the said lessee, his or her heirs, executors, administrators, and assigns, may, at any time within ten days after such destruction or injury to said premises, give notice to the lessor requiring the said premises to be repaired and put in such condition as may be necessary to render them suitable for occupation for the pur- poses for which they have been leased ; and with such notice shall serve a certificate of an architect as to the time within which such pre- mises could be so repaired ; and the lessor shall, within three days, give notice to the lessee that he intends so to repair, and upon failure to so repair within such time as may bo . so certified to by such architect as reasonably sufficient to make the necessary repairs, the said lease shall then determine: SHORT FORMS IN MANITOBA. 297 COLUMN" ONE. COLUMN TWO. (&) Provided, further, that if the lessor do not so give notice within such three days the lessee may either .surrender the said pre- mises or repair the same and charge it against the rent thereafter to be paid. And the said lessor may at any time within ten days after the de- struction or accident to the said premises as aforesaid, give notice to the lessee that it is not his in- tention to repair the said premises, whereupon the said lessee may either surrender the said 'premises or repair the same, and charge it against the rent to be thereafter paid ; (c) Provided, always, that, in case the tenant surrender said pre- mises under either of these condi- tions, rent shall cease to be payable after such damage or destruction as aforesaid; (d) Provided, further and it is expressly understood by and be- tween the parties hereto, that the said lessee, his executors, adminis- trators and assigns, shall not be bound to repair where the same may be necessary from reasonable wear and tear, or the damage is caused by fire, tempest or the act of God. 298 CANADIAN NOTARIES. COLUMN" ONE. COLUMN TWO. 4. And to keep 4. And also will, from time to up fences. time during the said term, keep up the fences and walls of or belong- ing to the said premises, and make anew in a good and husbandlike manner, and at proper seasons of the year any parts thereof that may require to be new-made. 5. And not to 5. And also will not at any time, cut down timber, during the said term, hew, fell, cut down or destroy or cause or know- ingly permit or suffer to be hewed, felled, cut down or destroyed, with- out the consent in writing of the lessor, any timber or timber trees, except for necessary repairs or fire- wood, or for the purpose of clear- ance as herein set forth. 6. And that the 6. And it is hereby agreed that said [lessor'] may it shall be lawful for the lessor and enter and view his agents, at all reasonable times state of repair, during the said time, to enter the and that the said said demised premises to examine [lessee] will re- the condition thereof, and, further, pair according to that all want of reparation that notice. upon such view shall be found, and for the amendment of which notice in writing shall be left at the pre- mises of the said lessee, his execu- tors, administrators and assigns, will, within three calendar months next after such notice, well and suf- ficiently repair and make good ac- cordingly: SHORT FORMS IX MANITOBA. 299 COLUMN" ONE. COLUMN TWO. (a) Provided that, in the event of the said demised premises being destroyed by fire, or tempest, or the act of God, during the said term, or not being totally destroyed but to such an extent as to render the same unfit for occupation, the said lessee, his or her heirs, executors, administrators and assigns, may, at any time within ten days after such destruction or injury to said pre- mises, give notice to the lessor re- quiring the said premises to be re- paired and put in such condition as may be necessary to render them suitable for occupation for the pur- poses for which they have been leased ; and with such notice shall serve a certificate of an architect as to the time within which such premises could be so repaired; and the lessor shall, within three days, give notice to the lessee that he in- tends so to repair, and upon failure to so repair within such time as may be so certified to by such archi- tect as reasonably sufficient to make the necessary repairs, ithe said lease shall then determine; (6) Provided, further, that, if the lessor do not so give notice within such three days, the lessee may either surrender the said pre- 300 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. mises or repair the same and charge it against the rent thereafter to be paid; And the said lessor may at any time within ten days after the de- struction or accident to the said premises as aforesaid, give notice to the lessee that it is not his in- tention to repair the said premises, whereupon the said lessee may either surrender the said premises or repair the same and charge it against the rent to be thereafter paid; (c) Provided, always, that, in case the tenant surrender said pre- mises under either of these condi- tions, rent shall cease to be pay- able after such damage or destruc- tion as aforesaid; (d) Provided, further, and it is expressly understood by and be- tween the parties hereto, that the said lessee, his executors, adminis- trators and assigns, shall not be bound to repair, where the same may be necessary from reasonable wear and tear or the damage is caused by fire, tempest or the act of God. 7. And will not 7. And, also, that the lessee shall assign or sub-let not nor will, during the said term, without leave. assign, transfer or set over, or SHORT FORMS IN MANITOBA. 301 COLUMN ONE. COLUMN TWO. otherwise by any act or deed, pro- cure the said premises or any of them to be assigned, transferred, set over or sublet, unto any person or persons whomsoever without the consent in writing of the lessor, his heirs or assigns first had and ob- tained. 8. And that he 8. And, further, the lessee will, will leave the pre- at the expiration or other sooner mises in good re- determination of the said term, pair. peaceably surrender and yield up unto the said lessor the said pre- mises hereby demised, with the ap- purtenances, together with all build- ings, erections and fixtures thereon, in good and substantial repair and condition, reasonable wear and tear and damage by fire, tempest or the act of God only excepted. 9. Proviso for 9. Provided, always, and it is re-entry by the .hereby expressly agreed, 'that, if said ( lessor] on the rent hereby reserved, or any non-payment of part thereof shall be unpaid for fif- rent or non-per- teen clays after any of the days on formance of cov- which the same ought to have been enants. paid, although no formal demand shall have been made thereof, or in case of the breach or non-perform- ance of any of the covenants or agreements herein contained on the part of lessee, his executors, admin- istrators or assigns, then, and in 302 CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. either of such cases, it shall be law- ful for the lessor at any time there- after, into and upon the said de- mised premises, or any part thereof in the name of the whole, to re- enter, and the same to have again, repossess and enjoy as of his or their former estate, anything here- inafter contained to the contrary notwithstanding. .. ; 10. The said 10. And the lessor doth here- \lessor'} covenants by, for himself, his heirs, 4 executors, with the said lies- administrators and assigns, cove- see] for quiet en- nant with the lessee, his executors, joyment. administrators and assigns, that he and they, paying the rent hereby reserved and performing the cove- nants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, without any inter- ruption or disturbance from the lessor, his heirs, executors, admin- istrators and assigns, or any other person or persons lawfully claiming by, from or under him, them or any of them. CHAPTER XVIII. STATUTES RESPECTING CONVEYANCING IN ONTARIO. In the Province of Ontario there is in force an Act called l i The Conveyancing and Law of Property Act, 1 similar in its nature to the English Act of the same title, by which the method of conveyancing is greatly simplified. It is intended here to deal with the more important provisions of the Act affecting deeds of purchase, mortgage and leases. The Act provides that it shall be un- necessary in the limitation of an estate in fee simple to use the word " heirs;" or in the limitation of an estate in tail, to use the words l i heirs of the body ; " or in the limita- tion of an estate in tail male or in tail female, to use the words " heirs male of the body," or ' ' heirs female of the body, ' ' but that for the purposes of limiting an estate it shall be 1 1914, R. S. Ont., ch. 109. 304 CANADIAN NOTARIES. sufficient to use the words ' l in fee simple, in tail, in tail male, or in tail female, ' ' accord- ing to the limitation intended. Where no words of limitation are used, the conveyance passes all the estate, right, title, interest, claim and demand which the conveyancing party has4n, to or on the property or which he has power to convey, unless a contrary intention appears from the conveyance. Every conveyance of land, unless an ex- ception is specially made therein, includes all buildings on the land, water privileges, easements, profits, commodities, emolu- ments, hereditaments and appurtenances belonging or appertaining to the land, and if it be a conveyance in fee simple, also the reversion or reversions, remainder and re- mainders, rents, issues and profits, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand of the grantor. In every conveyance for valuable con- sideration other than a mortgage, the follow- ing covenants by the person who conveys, CONVEYANCING STATUTES ONTARIO. 305 and is expressed to convey as beneficial owner, are implied: 1. Right to convey; 2. Quiet enjoyment; 3. Freedom from encumbrances, and 4. Further assurances; according to the forms of covenants num- bered 2, 3, 4 and 5 of the Short Forms of Conveyance Act, and subject to the provi- sions of that Act. 2 In a conveyance, when the person con- veying is, and is expressed to convey as a trustee or mortgagee, or as a personal re- presentative of a deceased person, or as a committee of a lunatic, or under an order of the Court, there is implied the following covenant, namely: " That the person so conveying has not executed, or done, or knowingly suffered, or been party or privy to any deed, act, matter or thing, whereby or by means whereof the subject matter of the conveyance, or any part thereof is or may be impeached, -Post, p. 308 et seq. C.N. 20 306 CANADIAN NOTARIES. charged, affected, or incumbranced in title, estate or otherwise, or whereby or by means whereof the person who so conveys is in anywise hindered from conveying such sub- ject matter, or any part thereof, in the man- ner in which it is expressed to be conveyed. Under the provisions of " The Mort- gages Act," 3 in a conveyance by way of mortgage, the person who conveys covenants impliedly : 1. For payment of the mortgage money and interest, and observing in other respects of the proviso in the mortgage; 2. For good title ; 3. For right to convey ; 4. That, on default, the mortgagee shall have quiet possession of the land ; free from all encumbrances ; 5. That the mortgagor will execute fur- ther assurances of the said lands as may be requisite; and 6. That the mortgagor has done no act to encumber the land mortgaged; accord- 3 1914, R. S. Ont, ch. 112, sec. 6. CONVEYANCING STATUTES ONTARIO. 307 ing to the forms of covenants in the Short Forms of Mortgages Act, for such pur- poses. 4 THE SHORT FORMS ACTS. Other Acts in force in Ontario by which conveyancing in that Province has been sim- plified are the Short Forms Acts, namely, the three Acts respecting short forms of conveyances, leases and mortgages respec- tively. 5 These Acts provide forms for the bodies of the instruments, setting out sche- dules of the covenants which, taken with the provisions of the Act, provide a means of making long covenants by the use of a few words. In other words, when a con- veyance is expressed to be made in pursu- ance of the Short Forms Act, the use of the few words contained in the first column of the schedule are held to be of the same effect in the instrument as if it contained the form of words set out in the second column of 'Post, p. 320, et seq. 6 1914, R. S. Ont, chaps. 115, 116 and 117. 308 CANADIAN NOTARIES. the schedule. For example, by using the words " the said grantor covenants with the said grantee ' ' the deed is made of the same effect as though it contained " and the said grantor doth hereby for himself, his heirs, executors and administrators covenant, pro- mise and agree, with and to the said grantee, his heirs, executors, administrators and as- signs, in manner following, that is to say ' It must be borne in mind that the oper- ation of instruments under these acts is also governed by the provisions of " The Conveyancing and Law of Property Act ' and " The Mortgages Act." The Where a deed of land is made according Form* of to the form in Schedule "A" of the Act, or ances Cy ~ any other deed of land is expressed to be made in pursuance of the Act or referring thereto, and contains any of the forms con- tained in column one of Schedule "B" of the Act, and distinguished by any number thereon, such deed shall have the same effect as if it contained the forms of words in col- umn two of Schedule "B" distinguished by the same number as is annexed to the form CONVEYANCING STATUTES ONTARIO. 309 of words used in such deed, but it is unneces- sary in any such deed to insert any such number. In using any of the forms in the first col- umn of Schedule "B" there may be substi- tuted for the words " grantor " and " gran- tee " any name or other designation and in every such case a corresponding substitu- tion shall be taken to be made in the corre- sponding form of the second column. Simi- larly, the feminine gender may be substi- tuted for the masculine, or the plural for the singular. Further, a party may intro- duce into, or annex to, any of the forms in the first column any express exceptions from, or other express qualifications thereof, and the like exception and qualification shall be taken to be made from and in the corresponding form in the second column. SCHEDULE A. Form of Conveyance. This Indenture made the day of , one thousand nine hundred and in pursuance of The Short 310 CANADIAN NOTARIES. Forms of Conveyances Act, between (here insert names of parties and recitals, if any) y witnesseth, that in consideration of dollars, of lawful money of Canada, now paid by the said (grantee) to the said (grantor) the receipt whereof is hereby by him acknowledged, he the said (grantor) doth grant unto the said (grantee) in fee simple (or otherwise as the case may ~be) all, etc. (parcels.) (Here insert covenants, or any other pro- visions.) In witness whereof the said parties here- to have hereunto set their hands and seals. SCHEDULE B. The forms in this Schedule are the same as those in the second schedule of the British Columbia Real Property Conveyance Act, ante (p. 252 et seq.) with the addition of a section numbered 9, it being necessary to join a wife in a deed in Ontario to bar her dower. Section 9 of the Ontario Act is as follows ; CONVEYANCING STATUTES ONTARIO. 311 COLUMN ONE. COLUMN TWO. 9. And the said 9. And the said wife of the said wife of the said grantor, for and in consideration of grantor hereby the sum of one dollar of lawful bars her dower in money of Canada, to her in hand the said lands. paid by the said grantee at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted and released, and by these presents doth grant and release unto the said grantee, his heirs, executors, ad- ministrators and assigns, all her dower and right and title which, in the event of her surviving her said husband, she might or would have to dower, in, to or out of the lands and premises hereby conveyed or intended so to be. Tlie second column of No. 7 in tlie On- tario forms omits tlie proviso contained in the corresponding form of the British Col- umbia Act. Where a lease under seal, made accord- T^ ing to the form in Schedule "A," or anyfjjj|j gof other such lease expressed to be made injjj 888 pursuance of the Act or referring thereto, contains any of tjie forms of words in col- umn one of Schedule " B," the lease shall 312 CANADIAN NOTARIES. have the same effect as if the corresponding- forms in column two of schedule "B" were contained in it. Parties who use the form in the first col- umn of Schedule U B" may substitute other words or designations for the words " les- sor " and " lessee," or may substitute the feminine for the masculine gender and the plural for the singular, and may introduce into or annex express exceptions or qualifica- tions ; and the same changes will automatic- ally be made in the second column of the Schedule. Unless the contrary is expressly stated in the lease, all covenants not to assign or sub-let without leave entered into by a lessee in any lease under the Act, shall run with the land leased, and shall bind the executors, administrators and assigns, whether men- tioned in the lease or not, unless it is by the terms of the lease otherwise expressly pro- vided, and the proviso for re-entry contained in Schedule " B " shall, when inserted in a lease, apply to a breach of either an affirma- tive or negative covenant. CONVEYANCING STATUTES ONTARIO. 313 5. Where the premises demised are of freehold tenure, the covenants 2 to 9 shall be taken to be made with, and of the proviso 12 to apply to, the heirs and assigns of the lessor ; and where the premises demised are of leasehold tenure, the said covenants and proviso shall be taken to be made with and apply to the lessor, his executors, adminis- trators and assigns. Where the word " les- sor " occurs in the second column, it in- cludes the heirs, executors, administrators and assigns of the lessor if the premises de- mised are of freehold tenure, and when the premises demised are of leasehold tenure it includes the executors, administrators and assigns of the lessor. Where the word l i les- see ' ' occurs in the second column it includes the executors, administrators and assigns of the lessee. 314 CANADIAN NOTARIES. SCHEDULE A. Form of Lease. This Indenture, made the day of , in the year of our Lord one thousand nine hundred and , in pursuance of The Short Forms of Leases Act, between , of the first part, and , of the second part, wit- nesseth, that in consideration of the rents, covenants and agreements, hereinafter re- served and contained on the part of the lessee, the lessor doth demise and lease unto the lessee, his executors, administrators and assigns (here insert a description of the pre- mises with sufficient certainty.) To have and to hold the said demised premises for and during the term of , to be computed from the day of , one thousand nine hundred and , 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 lessor, his (or their) CONVEYANCING STATUTES ONTARIO. 315 heirs, executors, administrators or assigns, the sum of , to be payable on the fol- lowing days and times, that is to say (or, efc.), the first of such payments to become due and be made on the day of next, (here insert covenants or any other provisions). In witness whereof, etc. SCHEDULE B. COLUMN OKE. COLUMN TWO. 1. The said les- 1. And the said lessee doth hereby see covenants with covenant with the said lessor in the said lessor. manner following, that is to say: 2. To pay rent. 2. That he, the said lessee, will during the said term, pay unto the said lessor, the rent hereby received, in manner hereinbefore mentioned, without any deduction whatsoever. 3. And to pay 3. And also will pay all taxes, taxes, except for rates, duties, and assessments what- local improve- soever, whether municipal, parlia- ments, mentary or otherwise, now charged or hereafter to 'be charged upon the said demised premises, or upon the said lessor on account thereof, ex- cept municipal taxes for local im- provements or works assessed upon the property benefited thereby. 4. And to re- 4. And also will, during the said pair, reasonable term, well and sufficiently repair, 316 CANADIAN NOTARIES. COLUMN ONE. wear and tear and damage by fire, lightning and tempest only ex- cepted. 5. And to keep up fences. Gj. And not to cut down timber. 7. And that the said lessor may enter and view state of repair, COLUMN TWO. maintain, amend and keep the said demised premises with the appur- tenances in good and substantial re- pair, and all fixtures and things thereto belonging, or which at any time during the said term shall be erected and made by the lessor, when, where, and so often as need shall be, reasonable wear and tear and damage by fire, lightning and tempest only excepted. 5. And also will, from time to time, during the said term, keep up the fences and walls of or belonging to the said premises, and make anew any parts thereof that may require to be new-made in a good and husband-like manner and at proper seasons of the year. 6. And also will not at any time during the said term hew, fell, cut down or destroy, or cause or know- ingly permit or suffer to be hewed, felled, cut down or destroyed, with- out the consent in writing of the lessor, any timber or timber trees, except for necessary repairs, or fire- wood, or for the purpose of clear- ance as herein set forth. 7. And it is hereby agreed that it shall be lawful for the lessor and his agents, at all reasonable times during the said term, to enter the CONVEYANCING STATUTES ONTARIO. 317 COLUMN ONE. COLUMN TWO. and that the said said demised premises to examine lessee will repair the condition thereof; and further, according to no- that all want of reparation that tice in writing, upon such view shall he found, and reasonable wear for the amendment of which notice and tear, and i n writing shall be left at the pre- damage by fire, mises, the said lessee Avill, within lightning and three calendar months next after tempest only ex- suc h notice, well and sufficiently re- cepted. p a i r an( | m ake good accordingly, reasonable wear and tear and dam- age by fire, lightning and tempest only excepted. 8. And will not 8. And also that the lessee shall assign or sub-let not, nor will during the said term, without leave. assign, transfer or set over, or otherwise by any act or deed pro- cure the said premises or any of them to be assigned, transferred, set over or sub-let unto any person or persons whomsoever without the consent in writing of the lessor first had and obtained. 9. And that he 9. And further, the lessee will, at will leave the pre- the expiration or other sooner de- mises in good re- termination of the said term, peace- pair, reasonable ably surrender and yield up unto wear and tear and the said lessor, the said premises damage by fire, here'by demised, with the appur- lightning and tenances, together with all build- tempest only ex- ings, erections and fixtures erected cepted. or made by the lessor thereon, in good and substantial repair and CANADIAN NOTARIES. COLUMN ONE. COLUMN TWO. condition, reasonable wear and tear, and damage by fire,, lightning and tempest only excepted. 10. Provided that 10. Provided, always, and it is the lessee may re- hereby expressly agreed, that the move his fixtures, lessee may at or prior to the ex- piration of the term hereby granted, take, remove and carry away from the premises hereby demised all fix- tures, fittings, plant, machinery, utensils, shelving, counters, safes or other articles upon the said pre- mises in the nature of trade or ten- ants' fixtures or other articles be- longing to or brought upon the said premises by the said lessee but the lessee shall in such removal do no damage to the said premises, or shall make good any damage which he mav occasion thereto. 11. Provided that in the event of fire, lightning or tempest, rent shall cease until the pre- mises are rebuilt. 11. Provided, and it is hereby declared and agreed, that in case the premises hereby demised or any part thereof shall at any time dur- ing the term hereby agreed upon l>e burned down or damaged by fire, lightning or tempest so as to ren- -der the same unfit for the purposes of the said lessee, then and so often as the same shall happen, the rent hereby reserved, or a proportionate part thereof, according to the nature CONVEYANCING STATUTES ONTARIO. 319 COLUMN ONE. COLUMN TWO. and extent of the injuries sus- tained, shall abate, and all or any remedies for recovery of said rent or such proportionate part thereof shall be suspended until the said premises shall have been rebuilt or made fit for the purposes of the said lessee. 12. Proviso for 12. Provided always, and it is said lessor on non- hereby expressly agreed, that if and re-entry by the whenever the rent hereiby reserved payment of rent or any part thereof shall be unpaid or non-perform- f or fifteen days after any of the ance of covenants, days on which the same ought to have been paid, although no formal demand shall have been made there- for, or in case of the breach or non- performance of any of the cove- nants or agreements herein con- tained on the part of the lessee, then, and in either of such cases, it shall be lawful for the lessor at any time hereafter, into and upon the said demised premises or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess and enjoy, as of his or their former 'estate, anything hereinafter contained to the con- trary notwithstanding. 320 CANADIAN NOTARIES. COLUMN" ONE. COLUMN TWO. 13. The said les- 13. And the lessor doth hereby sor covenants with covenant with the lessee that he the said lessee for paying the rent hereby reserved, quiet enjoyment, and performing the covenants here- inbefore on his part contained, shall and may peaceably possess and en- joy the said demised premises for the term hereby granted, without any interruption or disturbance from the lessor, or any other person or persons lawfully claiming by, from or under him. The Where a mortgage of land made accord- Forms of ing to the form in Schedule "A" or in any TIKI'S other mortgage of land, expressed to be made in pursuance of the Act in referring thereto, contains any of the forms of words in column one of Schedule " A," the mort- gage shall have the same effect as if the cor- responding forms of words in column two of Schedule "B" were contained in it. Other words and designations may be substituted for ' ' mortgagor ' ' and ' ' mortgagee, ' ' the feminine may be substituted for the mascu- line gender, the plural may be substituted CONVEYANCING STATUTES ONTARIO. 321 for the singular, and express exceptions or qualifications may be introduced or annexed, and corresponding changes shall be taken to be made in the corresponding forms in the second column. SCHEDULE A. Form of Mortgage. This Indenture, made the day of , one thousand nine hundred and , in pursuance of The Short Forms of Mortgages Act, between (here in- sert the name of parties and recitals, if any), Witnesseth, that in consideration of of lawful money of Canada, now paid by the said mortgagee to the said mortgagor, the receipt whereof is hereby acknowledged, the said mortgagor doth grant and mortgage unto the said mortgagee, his heirs, execu- tors, administrators and assigns for ever, all (parcels). (Here insert provisoes, covenants or other provisions). In witness whereof the said parties here- to have hereunto set their hands and seals. C.N. 21 322 CANADIAN NOTARIES. SCHEDULE B. COLUMN ONE. COLUMN TWO. 1. And the said 1. And the said wife of the said wife of the said grantor, for and in consideration of mortgagor hereby the sum of one dollar of lawful bars her dower in money of Canada to her in hand the said lands. paid by the said mortgagee, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted and released, and by these presents doth grant and release unto the said mortgagee, his heirs, executors, administrators and as- signs, all her dower and right and title which in the event of her sur- viving her said husband, she might or would have to dower, in, to or out of the lands and premises here- by conveyed or intended to so be. The provisoes and covenants are in the same form as set out in Schedule 2 of the British Columbia Mortgages Statutory Form Act (p. 261 et seq.), except that in the insurance clause the words " of lawful money of Canada " are used in the Ontario Act, instead of " currency," used in the British Columbia Act. CONVEYANCING STATUTES - ONTARIO. 323 OTHER FORMS ix ONTARIO. By virtue of the provisions of The Regis- try Act, a registered mortgage is discharged by a certificate in statutory form executed by the mortgagee, his executors, administra- tors or assigns, and duly proven in the man- ner provided for the proof of other instru- ments, which certificate, together with the required affidavit, are rendered in the same manner as other instruments. This Indenture, made the day Collvey . of , 19 , (in pursuance of The Conveyancing and Law of Property Act) , between of the of in " The Convey- the County of , , hereinafter anc ig and Law called the grantor, of the first part, and of Pro- of the of in the County of Act." , , hereinafter called the grantee of the second part (Recitals, if any). Witnesseth that in consideration of dollars of lawful money of Canada, now paid by the grantee to the grantor (the receipt whereof is by him acknowledged), he, the 324 CANADIAN NOTAKIES. grantor, as beneficial owner, doth convey unto the grantee in fee simple (or otherwise as the case may be) all, etc. In witness whereof, etc. Signed, sealed, etc. short This Indenture, made (in duplicate) the deed with day of , A. D. 19 , in pur- suance of the Short Forms of Conveyances Act: Between of the first part; wife of the said party of the first part, of the second part ; and of the third part : Witnesseth that in consideration of of lawful money of Canada, now paid by the said part of the third part, to the said party of the first part (the receipt whereof is hereby by him acknowledged) the said party of the first part do grant unto the said part of the third part, heirs and assigns, for ever. All and singular th certain parcel or tract of land and premises, situate, lying and being (description'}. CONVEYANCING STATUTES ONTARIO. 325 To have and to hold unto the said part of the third part, heirs and assigns, to and for their sole and only use for ever; subject, nevertheless, to the reserva- tions, limitations, provisoes and conditions expressed in the original grant thereof from the Crown. The said part of the first part covenant with the said of the third part, that ha the right to convey the said lands to the said part of the third part notwith- standing any act of the said part of the first part. And that the said part of the third part shall have quiet possession of the said lands, free from all incumbrances. And the said part of the first part, covenant with the said part of the third part, that will execute such further assurance of the said lands as may be re- quisite. And the said part of the first part, covenant with the said part of the third part, that ha done no act to en- cumber the said lands. 326 CANADIAN NOTARIES. And the said part of the first part re- lease to the said part of the third part all claims upon the said lands. And the said part of the second part, wi of the said part of the first part, hereby bar dower in the said lands. In witness whereof, etc. Signed,, sealed, etc. ghort This Indenture, made (in duplicate) .tte day of , A.D. 19 , in pursuance of the Short Forms of Mortgages Act. Between Witnesseth, that in consideration of of lawful money of Canada, now paid by the said mortgagee to the said mortgagor (the receipt whereof is hereby acknowledged), the said mortgagor do grant and mortgage unto the said mortgagee heirs and assigns forever : All and singular, th certain parcel or tract of land and premises. Provided this mortgage to be void on payment of lawful money of Canada, with CONVEYANCING STATUTES ONTAKIO. 327 interest at per cent, per annum as follows ; and taxes and performance of statute labour. The said mortgagor covenant with the said mortgagee that the mortgagor will pay the mortgage money and interest and observe the above proviso ; That the mortgagor ha a good title in fee simple to the said lands ; and that he ha the right to convey the said lands to the said mortgagee and that on default the mortgagee shall have quiet possession of the said lands, free from all encum- brances. And that the said mortgagor will execute such further assurances of the said lands as may be requisite. And that the said mortgagor ha done no act to incumber the said lands ; and that the said mortgagor will insure the build- ing on the said lands to the amount of not less than currency; and the said mortgagor do release to the said mort- gagee all claims upon the said lands, subject to the said proviso; 328 CANADIAN NOTARIES. Provided that the said mortgagee on default of payment for month may enter on and lease or sell the lands ; Provided that the mortgagee may dis- train for arrears of interest ; provided that in default of the payment of the interest hereby secured, the principal hereby secured shall become payable; provided that until default of payment the mortgagor shall have quiet possession of the said lands. In witness whereof, etc. Signed, sealed, etc. PROVINCE OF ONTARIO. To WIT : Dominion of Canada. statutory To the Registrar of the do certify of s mort gc that ha satisfied all money due on gage. or fo g row (j ue on a certain mortgage made by , which mortgage bears date the day of A.D. 19 , and was registered in the registry office for the on the day of , A.D. 19 , at minutes past o'clock noon, in Liber CONVEYANCING STATUTES ONTARIO. 329 for as No. (Here mention the day and date of registration of each assign- ment thereof, and the names of the parties or mention that such mortgage has not been assigned, as the case may be). And that I am the person entitled by law to receive the money ; and that such mortgage is therefore discharged. Witness my hand this day of , A.D. 19 . Witn2SS: CHAPTER XIX. SHORT FORMS IN NOVA SCOTIA: No Act respecting short forms of deeds, leases and mortgages was passed in Nova Scotia until 1912, 1 and as yet it is seldom that the provisions of the Act are taken ad- vantage of in making instruments in this Province. The Nova Scotia Act is of the same nature as the short forms acts of the other Provinces. It will be noted that in the form of deed under the Act no words of limitation are used, but instead the words " in fee simple" as in Ontario. In this respect the Nova Scotia Act was defective until 1913, when an amendment was passed 2 to the effect that deeds under the Act containing the words " in fee simple " should pass the whole estate of the grantor. The schedules of the Act, of course, con- tain the two columns of words, the use of 1 Acts of N. S. 1912, ch. 2. 2 Acts of N. S. 1913, ch. 54. SHORT FORMS IX NOVA SCOTIA. 331 the words in the first of which give to the instrument expressed to be made in pursu- ance of the Act the same effect as if the corresponding words in the second column were contained in it. The same substitu- tions, annexations and exceptions may be made in the forms as are provided for in the directions for use of the forms in the British Columbia Acts. 3 Form of Deed. This indenture made the day of one thousand nine hundred and in pursuance of The Act respecting Short Forms of Conveyances. Between (here insert names of parties, and recitals if any), witnesseth, that in con- sideration of dollars, of lawful money of Canada, now paid by the said (grantee) to the said (grantor) the receipt whereof is hereby by him acknowledged, he the said (grantor) doth grant unto the said (grantee) in fee simple (or otherwise as the case may be) etc., all, etc., (parcels) * Vide p. 247, et seq. 332 CANADIAN NOTARIES. (Here insert covenants, or any other pro- visions.) In witness whereof the said parties hereto have hereunto set their hands and seals. Forms of Covenants in Deed. These forms are similar to the corres- ponding schedule of the British Columbia Real Property Conveyance Act, except that it does not contain covenant numbered six of that schedule as to the production of title deeds. The Nova Scotia form further contains the bar of dower in the following form unnecessary in the British Columbia Act* COLUMN ONE. COLUMN TWO. 8. And the said 8. And the said (A. B.) wife of (A. B.} wife of the said grantor, for and in con- the said (grant- sideration of the sum of or) hereby bars dollars of lawful money of Canada her dower in the to her in hand paid by the said said lands. grantee, at or 'before the sealing and delivery of these presents, the receipt whereof is hereby acknow- ledged, hath granted and released, 4 fide p. 249, et sey. SHORT FORMS IN NOVA SCOTIA. 333 COLUMN ONE. COLUMN TWO. and by these presents doth grant and release unto the said grantee, his heirs, executors,, administrators and assigns, all her dower and right and title which in the event of her surviving her said husband, she might or would have to dower, in, to or out of the lands and premises hereby conveved or intended to so be. Form of Mortgage. This Indenture, made the day of one thousand nine hundred and , in pursuance of The Act re- specting Short Forms of Conveyances. Between (here insert names of parties, and recitals if any). Witnesseth, that in consideration 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 mortgagor (or mortgagors) doth (or do) grant and mortgage unto the mortgagee (or mortgagees) his (her or their), heirs, execu- 334 CANADIAN NOTARIES. tors, administrators and assigns for ever, all (parcels) (here insert provisoes, covenants or other provisions). In witness whereof the said parties hereto have hereunto set their hands and seals. Form of Covenants, etc., in Mortgage. COLUMN ONE. COLUMN TWO. 1. And the said 1. And the said (A. B.), wife of (A. B.) wife of the said mortgagor, for and in con- the said mortga- sideration of the sum of gor, hereby bars of lawful money of Can- her dower irr the ada, to her in hand paid by the said said lands. mortgagee, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknow- ledged, hath granted and released, and by these presents doth grant and release unto the said mort- gagee, his heirs, executors, admin- istrators, and assigns all her dower, and right and title which in the event of her surviving her said hus- band, she might or would have to dower, in, to or out of the lands and premises hereby conveyed or in- tended so to be. SHORT FORMS IN NOVA SCOTIA. 335 The remainder of the form is similar to the corresponding schedule of the British ^Columbia Mortgages Statutory Form Act 5 except that it does not contain covenants numbers 9 and 13 in the British Columbia schedule dealing with the production of title deeds and entry in default of payment res- pectively. Form of Lease. This indenture made the day of in the year of our Lord, one thou- sand nine hundred and , in pursu- ance of The Act respecting Short Forms of Conveyances. Between of the first part, and of the second part, Witnesseth that in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the said party (or parties) of the second part, his (or their) executors, administrators and assigns, to be paid, observed and performed, he (or they) the said party (or parties) of 5 Vide p. 261, et seq. 336 CANADIAN NOTARIES. the first part hath (or have) demised and leased, and by these presents doth (or do) demise and lease unto the said party (or parties) of the second part, his (or their) executors, administrators and assigns, all that messuage or tenement situate (or all" that parcel or tract of land situate) lying and being (here insert description of the premises with sufficient certainty. ) To have and to hold the said demised premises for -and during the term of to be com- puted from the day of one thousand nine hundred and , and from thenceforth next ensuing and fully to be completed and ended. Yielding and paying therefor yearly and every year during the said term hereby granted unto the said party (or parties) of the first part, his (or their) heirs, executors, administrators or assigns, the sum of to be payable on the following days and times, that is to say (on, etc.,) the first of such payments to become due and be made on the day of next. SHORT FORMS IN NOVA SCOTIA. 337 Forms of Covenants in Lease. These forms are similar to the corres- ponding schedule in the Ontario Short Forms of Leases Act. 6 Vide p. 315, et seq. C.N. 22 CHAPTER XX. NEGOTIABLE INSTRUMENTS. One of the powers exercised by notaries public that cannot, except under special circumstances, be exercised by any other officer is the presentment, noting and pro- testing of negotiable instruments. By rea- son of this fact, together with the so fre- quent use of bills of exchange and other negotiable instruments in commercial trans- actions, this function has become the one which Canadian notaries are most often called upon to perform. The law relating to negotiable instru- ments is governed by the Bills of Exchange Act, 1 which is applicable to all the Pro- vinces, the British North America Act mak- ing this subject one for legislation by the Dominion Parliament only. As it is impos- sible to comprehend fully either the neces- sity for or the requisites of presentment and protest without at least a superficial know- ledge of the nature of negotiable instru- '1906, R. S. Canada, ch. 119. NEGOTIABLE INSTRUMENTS. 339 ments and the laws relating to them, it is proposed here to outline in brief some of their main features and so much of the Bills of Exchange Act as is useful for that pur- pose. Though the short title to the Act is ' ' The x atu rc Bills of Exchange Act," it relates not only instm- to bills of exchange but to promissory notes tt and cheques. A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, re- quiring the person to whom it is addressed to pay, on demand or at a fixed or determin- able future time, a sum certain in money to, or to the order of, a specified person, or to bearer. 1 1 Sec. 17. The usual bill of exchange is in some form similar to the following: $100.00 Ottawa, Ont, June 1st, 1915. At sight (or days after date) pay to the order of E. F. at the Central Bank, Ottawa, the sum of one hundred dollars. Value received and charge to the account of To C. D., Ottawa, Ont. (Sgd.) A. B. Sometimes the place of payment is not mentioned in the body of the bill but is expressed in the acceptance which is written across the face of the bill. 340 CANADIAN NOTARIES. A promissory note is an unconditional promise in writing, made by one person to another, signed by the maker, engaging to pay, on demand, or at a fixed or determin- able future time, a sum certain in money, to, or to the order of, a specified person, or to bearer. 2 A cheque is a bill of exchange drawn on a bank payable on demand. The parties to a bill of exchange are the drawer, the drawee and the payee. When the bill has been accepted by the drawee the latter is called the acceptor and becomes liable to the payee for payment of the sum mentioned in the bill. The payee may nego- tiate the bill by endorsing his name upon it and delivering it to another person. When this is done such person becomes an en- dorsee and is entitled to receive payment of 2 The usual promissory note is in some form similar to the following: Ottawa, Ont., June 1st, 1915. $100.00 days after date I promise to pay to the order of A. B. at the Central Bpnk, Ottawa, Ont., the sum of one hundred dollars. Value received. (Sgd.) C.D. NEGOTIABLE INSTRUMENTS. 341 the amount of the bill at maturity and the payee becomes also an endorser and is liable to the endorsee for payment of it if the acceptor dishonors the bill by non-payment. In every case the drawer by drawing the bill contracts with the payee, and every per- son to whom the right of receiving payment may be subsequently transferred, that the bill will be duly paid at maturity. The parties to a promissory note are the maker, the payee and the endorsers, the maker engaging to pay the amount men- tioned in the note to the payee or to any per- son to whom it may subsequently be en- dorsed, and corresponding with the acceptor of a bill of exchange. Endorsement may be effected by the en- E dorser simply signing his name on the in- lr strument without any additional words. Such an endorsement is an endorsement in blank and an instrument so endorsed be- comes payable to bearer. The endorsement may, however, specify the person to whom or to whose order the instrument is to be payable, in which case it is called a special 342 CANADIAN NOTARIES. endorsement. The endorsement of all in- struments (which is not complete without delivery) whether specially or in blank, con- sists of three distinct contracts: (1) the transfer by the endorser of the property in the instrument, which is a jus in rem; (2) the transfer by the endorser of the right to receive payment from the acceptor or maker, which is a jus in personam; and (3) the assumption by the endorser of a contin- gent liability for payment of the amount of the bill or note. 3 An endorsement, however, in some cases does not create this new liability on the part of the endorser. By the use of ithe words " without recourse," " sans recours," or any other words of similar meaning, after his signature, the endorser may negotiate the instrument without creating any new right of others against himself. The endorsement is usually written on the back of the instrument, but it has been held that an endorsement written on the face of the bill is valid. 4 3 Russell on Bills, p. 241. * Young v. Glover, 13 Jur. N. S. 637. NEGOTIABLE INSTRUMENTS. 343 Bills of exchange because of their nature Present- must usually be presented for the drawee 's foTL- acceptance, sometimes to fix the date of cepta maturity and always in order to make the drawee liable upon them. Promissory notes, of course, do not need to be presented for acceptance because the maker of a note, who corresponds with the acceptor of a bill, is liable upon the note as soon as he makes and delivers it, and the time of maturity is also then a fixed or determinable date. With respect to cheques it may be said that the presentment for acceptance is merged in the presentment for payment, for a cheque is a bill of exchange payable on demand. The only cases in which it is necessary ac- cording to the Act, to present bills for ac- ceptance, in order to render liable the par- ties to the bill, are 5 (1) Where a bill is pay- able at sight or after sight. (Presentment here is necessary in order to fix the date of maturity.) (2) Where a bill expressly stipulates that it shall be presented for ac- ceptance before it is presented for payment. "See. 75. 344 CANADIAN NOTARIES. (3) Where a bill is drawn payable else- where than at the place of residence or place of business of the drawee. In no other case is presentment for acceptance necessary in order to render liable any party to the bill. It must be borne in mind, however, in this connection that the words " party to the bill" as used here do not include a drawee who has not accepted the bill, and that in every case when it is sought to make the drawee liable upon a bill the bill must be accepted by him, thus involving the neces- sity of presentment. It was held by the Privy Council in a case that the person in possession of a bill as agent for the legal holder is bound to present it for acceptance, notwithstanding that presentment in the particular case was optional for the purposes of the Act. 6 The presentment of a bill for acceptance must be made by or on behalf of the holder to the drawee or to some person authorized to accept or refuse acceptance on his behalf, ' Bank of Van Diemeris Land v. Bank of Victoria, L. R. 3 P. C. at 542. NEGOTIABLE INSTRUMENTS. 345 at a reasonable hour on a business day and before the bill is overdue, 7 the holder, of course, being the payee or endorsee who is in possession of it, or the bearer in posses- sion of a bill payable to bearer, or on which the only or last endorsement is an endorse- ment in blank. Presentment could not be made to a servant who opened the door, but giving the bill to a clerk in the drawee's office or placing it in the bill box in the usual way is a proper presentment. 8 If the pre- sentment is to be made to a business man it should be made during business hours, and if it is to be made at a bank it should be made during banking hours. 9 A " business day" is any day other than a day directed to be observed as a legal holiday or non- juri- dical day. 10 Where the holder of a bill pay- able elsewhere than at the place of business 7 Sec. 78 (a). Chalmers on Bills, 6th ed., 138. 'Russell on Bills, 269. 10 Sec. 43 of the Act reads as follows: 43. In all matters relating to bills of exchange, the fol- lowing and no other days shall be observed as legal holi- days or non- juridical days: (a) In all the provinces of Canada Sundays, New Year's Day, Good Friday, Easter Monday, Victoria Day, 346 CANADIAN NOTARIES. or residence of the drawee, lias not time, with the exercise of reasonable diligence, to present the bill for acceptance before pre- senting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance is excused, and does not discharge the drawer and endorsers. 11 When the bill is accepted or endorsed after maturity it is deemed as against the acceptor who so accepts, or any endorser who so endorses it, a bill payable on de- mand. 1 Dominion Day, Labour Day, Christmas Day, the birthday (or the day fixed by proclamation for the celebration of the birthday) of the reigning sovereign; any day ap- pointed by proclamation for a public holiday, or for a general fast, or a general thanksgiving throughout Canada -, the day next following New Year's Day, Christmas Day, Victoria Day, Dominion Day, and the birthday of the reigning sovereign when such days respectively fall on Sunday. (6) In the province of Quebec in addition to the said days The Epiphany, The Ascension, All Saints' Day, Con- ception Day. (c) In any of the provinces of Canada, any day ap- pointed by proclamation of the Lieutenant-Governor of such province for a public holiday, or for a fast or thanks- giving within the same, and any non-juridical 'day by virtue of a statute of such province. 11 Sec. 76. 'Sec. 23 (2). NEGOTIABLE INSTRUMENTS. 347 Where a bill is addressed to two or more drawees, who are not partners, presentment must be made to them all, unless one has authority to accept for all, or for any of the others, in which case presentment to that one who has such authority is sufficient presentment to those for whom he has authority to accept. 2 The person present- ing the bill in such a case should indicate that an acceptance is required, not only by the person to whom it is presented, but also on behalf of the other or others, otherwise it will not operate as a presentment to the latter. Where the drawee is dead the holder may at his option present it to personal re- presentative of the drawee or treat the bill as dishonored. 3 Presentment by mail is sufficient when it is authorized by agreement between the parties. 4 Under certain circumstances present- ment for acceptance is excused and the bill 2 Sec. 78 (b). Sec. 78 (c) and 79 (a). 4 Sec. 78 (d). 348 CANADIAN NOTARIES. may be treated as dishonored by non-accept- ance. 5 One of such cases, as has been al- ready seen, is where the drawee is dead. The other cases are where the drawee is a fictitious person; where the drawee has not capacity to contract by bill, as in the case of a corporation under whose memorandum of association or charter there is no author- ity to deal with negotiable instruments; where after the exercise of reasonable dili- gence, such presentment cannot be effected ; and where, although the presentment has been irregular, acceptance has been refused on some other ground. The drawee, when a bill is presented for acceptance, has three days inclusive of day of presentment within which to accept or refuse the bill, and when at the expiration of that time there has been no acceptance the bill must be treated as dishonored by the person presenting it, otherwise the holder loses his right of recourse against the drawer and endorsers. 6 In the case of a bill pay- able at sight or after sight, in which case 8 Sec. 79. "Sec. 80. NEGOTIABLE INSTRUMENTS. 349 the date of maturity of the bill is fixed by the date of acceptance, the acceptor may date his acceptance as of any of the three days that he has in which to consider accept- ance or refusal, and if an acceptance is not dated as of one of those days the holder may at his option refuse to take the acceptance and may treat the bill as dishonored by non- acceptance. 7 Dishonor of a bill by non-acceptance, which includes within its meaning an ex- cused presentment, gives the holder an im- mediate right of recourse against the drawer and endorsers without presentment for payment. As it will hereafter be seen, however, any action taken upon the dis- honored bill must be preceded by notice of dishonor to the parties against whom the action is to be taken, and sufficient time must be allowed for the notice to reach these parties. 8 Presentment for payment is a formality present- often necessary to be made by the holder foTpay- ment. 7 Sec. 80 (4) and (5). "Vide p. 357, et seq. 350 CANADIAN NOTARIES. of an instrument. With certain exceptions, the omission on the part of the holder of a bill of exchange to present it for payment discharges the drawer and endorsers, and relieves them not only from liability Dn the bill but also from any revival of liability for the indebtedness in payment of which it was given. Presentment is effected by ex- hibiting the instrument to the person by whom payment should be made and demand- ing payment of him on the date of maturity, or, if the instrument be one payable on de- mand, within a reasonable time after its issue. 9 Where a bill is not payable on demand, three days, called days of grace, are, in every case where the bill itself does not otherwise provide, added to the time of pay- ment as fixed by the bill, and the bill is due and payable on the last day of grace. When- ever the last day of grace falls on a legal holiday or non- juridical day then the busi- ness day next following is the last day of Sec. 95 (3) and 86. NEGOTIABLE INSTRUMENTS. 351 grace. 10 The presentment must be made at a reasonable hour, and the burden of show- ing that the presentment was made at a pro- per time and in the proper manner is upon the holder. In a case where it was proved that pre- sentment was made after a store closed, and the witness was not asked at what hour of the day presentment was made, the Court drew the inference that the store had been closed at the usual business closing hour and that the presentment was not made at a rea- sonable time of day. 1 In a learned opinion in the matter of the time for present- ment for payment, in the Journal of the Canadian Bankers' Association, 2 it is said that since there is no provision for the hour for presentment for pay- ment in the Act, while there is such a provision regarding presentment for ac- ceptance, it might be argued that the holder has the whole day for presentment, but 10 Sec. 42. Legal holidays and non- juridical days are set out ante, pp. 345, 346, note. 1 Patterson v. Tapley, Allen, N. B. 292. 2 9 J. C. B. 237. 352 CANADIAN NOTARIES. that this view must be rejected because pre- sentment for payment at a reasonable hour is implied in the provision which requires reasonable diligence on the part of the holder to find the proper person at the proper place. Presentment at a bank must be made during banking hours or later where it is customary for the clerks to remain after hours. 3 Presentment must be made by the holder or by some other person authorized to receive payment on his behalf either to the person designated by the instrument as payer or to his representative or some other person authorized to pay or refuse pay- ment on his behalf, if, with reasonable dili- gence, such person can be found. 4 The most difficult matter in connection with present- ment for payment is often finding out the proper place for presentment of a particu- lar bill or note. Where, of course, a place of payment is mentioned in the instrument, either in the body of the instrument or, if it be a bill, in the acceptance, the instru- 3 Russell on Bills, 278, 279, 280. 4 Sec. 87. NEGOTIABLE INSTRUMENTS. ment is to be presented at that place. If no place of payment is mentioned, but the address of the payer is given in the instru- ment, it must be presented at such address, and where such address also does not appear in the instrument, it must be presented at the payer's place of business, if known, and if not known then at his ordinary residence if known. If neither the place of business nor the place of residence be known the in- strument may be presented to the payer per- sonally wherever he can be found, or. pre- sented at the payer's last known place of business or residence. 5 In all of the cases mentioned except that of presentment to the payer wherever he can be found, it is immaterial that the payer is not present when the instrument is presented, if after the exercise of reasonable diligence he can- not be found at that place, 6 and if an instru- ment is payable at a bank or other place and is at the place of payment at maturity this is a sufficient presentment. 7 When, if the instrument is a bill, it is drawn upon or 8 Sec. 88. 7 Russell on Bills, p. 283. Sec. 89. 354 CANADIAN NOTARIES. accepted by, or, if it is a note, it is made by, two or more persons who are not partners, and no place of payment is specified, pre- sentment must be made to them all, and where the payer is dead and no place of pay- ment is specified, presentment must be made to a personal representative, if there is one who can with reasonable diligence be found. 8 It has been held in Manitoba that a note payable at a particular bank, not nam- ing the place, the bank named having agencies in more than one place, is payable at the agency in the place where the note is made. 9 When the place of payment specified is any city, town or village, and no place therein is specified, the instrument must be presented at the payer's known place of business or ordinary residence in such city, town or village, and if there is no such place of business or resi- dence, it may be presented at the principal post office therein. 10 8 Sec. 87 (2) and (3). 9 Commercial Bank v. Bissett, 1 Man. 586. "Sec. 90. Sec. 88 (d) permits presentment at the last known place of business or residence instead of at the post office, under such circumstances. NEGOTIABLE INSTRUMENTS. 355 Delay in making presentment on the pro- per day is excused only when it is caused by circumstances beyond the control of the holder, and is not in any way caused by his own default, misconduct or negligence, and in every case as soon as the cause of de- lay ceases to operate, presentment must at once be made. 1 Presentment for payment of a bill of exchange is not necessary in order to ren- der the acceptor liable when no place of payment is specified. 2 When, in a bill, a place of payment is specified, the acceptor is not discharged by the omission to pre- sent the bill on the day that it matures, but if an action be taken against the acceptor the holder, unless he has after the date of maturity presented the bill for payment, may be deprived of the costs of the action. 3 While presentment for payment is neces- sary in order to make the endorsee of a pro- missory note liable, it is not necessary for 'See. 91. 2 Sec. 93. 3 Sec. 93, and Vide Russell on Bills, 297 et seq., for dis- cussion upon the meaning of this section. 356 CANADIAN NOTARIES. the purpose of rendering the maker liable.* When, however, a note is payable at a par- ticular place it should be presented for pay- ment and the result of omission is the same as in the case of a bill in which the place of payment is specified in respect to present- ment to the acceptor. 5 Where in a promissory note a place of payment is indicated by way of memoran- dum only and is not named in the body of the note, presentment at the place indicated is sufficient to render the indorser liable, but a presentment to the maker elsewhere, if sufficient in other respects, is sufficient for this purpose also. 6 Presentment for payment in cases where under the Act it would otherwise be neces- sary is dispensed with when, after the exer- cise of reasonable diligence it cannot be effected according to the requirements of the Act, and when the drawee of a bill is a fictitious person, and when presentment is expressly or by implication waived. A 4 Sec. 183. 3 Stipra p. 352, et seg. 6 Sec. 184. NEGOTIABLE INSTRUMENTS. 357 waiver may be before or after maturity and may be either written or verbal. Since it is for the court to decide in each case whether the facts shown amount to a waiver it is usually safer not to rely on anything but an express waiver in writing to dispense with the necessity of presenting an instru- ment. Presentment is also dispensed with as regards the drawer of a bill when the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill w r ould be paid if presented. As regards the endorser of a bill or note, pre- sentment is dispensed with where the bill or note was accepted or made for the accom- modation of that endorser, and he has no reason to expect that the bill would be paid if presented. When an instrument has been dishon- Notice of dishonor. ored by non-acceptance or by non-pay- ment, formal notice of the fact must be im- mediately given to the drawer, if it be a bill, and to every endorser whose name was on the instrument when it came into the 358 CANADIAN NOTARIES. holder's possession, 7 unless such notice is excused. The drawer and any endorser to whom such notice is not given is discharged from liability on the instrument, but when a bill of exchange is dishonored by non- acceptance the rights of a subsequent holder in due course are not prejudiced by an omis- sion to give such notice. 8 It is not necessary to give the acceptor of a bill or the maker of a note notice of dishonor by non-pay- ment. 9 Where a bill is dishonored by non- acceptance and due notice of dishonor is given, it is not necessary to give notice of a dishonor by non-payment unless the bill has been in the meantime accepted. 10 There is a distinction between an endor- ser who was at the time of his endorsement the payee or holder and an endorser who was not and whose endorsement is really only a guarantee that the party primarily liable will pay at maturity. An endorser of the latter class stands in the position of 'Sec. 96. 8 Sec. 96. Sec. 96 (2). 10 Sec. 96 (b). NEGOTIABLE INSTUUMENTS. 359 a surety whose principal is the party the payment by whom he guarantees, and as his rights and obligations are determined by the law of principal and surety, he like his principal is not entitled to notice of dis- honor. 1 Notice of dishonor, whether for non-ac- ceptance of a bill or for non-payment of any instrument, to be effectual must be given not later than the juridical or business day 2 next following the dishonor. 3 It must be given by or on behalf of the holder or by or on behalf of an endorser who at time of giv- ing it is himself liable on the bill ; 4 it may be given by an agent (such as a bank) either in his own name or in the name of any party entitled to give notice, whether that party is his principal or not ; 5 and it may be given either to the party to whom the same is re- quired to be given, or to his agent in that behalf. 6 1 Russell on Bills, 304. 2 See definition of days, ante, pp. 345, 346. 3 Sec. 97 (a). Sec. 97 (b). s Sec. 98 (c). 6 Sec. 98 (b). 360 CANADIAN NOTARIES. When the person to whom notice should be given is dead and party giving the notice is aware of the fact, the notice must be given to the personal representative of the de- ceased if there is one and he can with the exercise of reasonable diligence be found. 7 When there are two or more drawers or endorsers who are not partners, notice must be given to each unless one has authority to receive notice for the others. 8 Notice may be given either in writing or verbally and in any terms which identify the instrument and indicate that it has been dishonored and whether by non-acceptance or non-payment, 9 and if the notice is written it need not be signed. 10 The returning of a dishonored bill to the drawer is a sufficient, though not alwa} T s an advisable, mode of giving notice of the dishonor of the bill. 1 An insufficient written notice may be sup- plemented and made valid by verbal com- 7 Sec. 97 (c). 'Sec. 97 (d). 9 Sec. 98 (d). 10 Sec. 99 (b). 'Sec. 99 (a). NEGOTIABLE INSTRUMENTS. 361 munication, 2 and a misdescripition of the instrument does not vitiate the notice un- less the party to whom the notice is given is in fact misled by such misdescription. 3 When notice of dishonor is duly ad- dressed and posted it is deemed to have been given notwithstanding any miscarriage by the post office. 4 Delay in giving notice of dishonor, like delay in making presentment for payment, is excused when the delay is caused by cir- cumstances beyond the control of the party on whom the obligation rests, and when the cause of delay ceases to operate the notice must be given with reasonable diligence. 5 Notice of dishonor is dispensed with when, after the exercise of reasonable dili- gence, it cannot be given as required by the Act, and when the giving of it is expressly or impliedly waived. As in the case of pre- sentment it is open to risk to omit to give 2 Sec. 99 (2). 3 Sec. 98 (2). 4 Sec. 104. 5 Sec. 105. 362 CANADIAN NOTARIES. the notice relying upon a waiver unless the waiver is express and in writing. As re- gards the drawer of a bill of exchange only, notice of dishonor is dispensed with where the drawer and drawee are the same person ; where the drawee is a fictitious person or an infant or other person not having capacity to contract ; where the drawer is the person to whom the bill is presented for payment ; where the drawee or acceptor is, as between himself and the drawer, under no obligation to accept or pay the bill; and when the drawer has by notice to the drawee stopped payment of the bill. 6 As regards the en- dorser of an instrument notice of dishonor is dispensed with where the drawee is a fictitious person or a person not having capacity to contract, and the endorser was aware of the fact at the time he endorsed the bill; where the endorser is the person to whom the instrument is presented for pay- ment; and where the instrument was made or accepted for the endorser's accommoda- tion. 7 6 Sec. 107. 'See. 108. NEGOTIABLE INSTRUMENTS. 363 \Vhcu an instrument has been dishon- protest, ored by non-payment or if the instrument be a bill, by non-acceptance, it may and in some cases must be protested in order to render the drawer and endorsers liable upon it, and it is in connection with the matter of protesting that the duties of notaries arise under the Act. It is necessary here to distinguish be- tween what are known in the Act as inland bills and notes and what are known as for- eign bills and notes, for foreign bills and notes must be protested and inland bills and notes may or may not be, according to holder's wishes. The same rule applies to cheques. An inland bill is defined as one which is, or on the face of it purports to be, either drawn within Canada and payable within Canada, or drawn within Canada upon some person resident in Canada. Any other bill is a foreign bill. 8 The effect, of the definition is that if a bill is or on its face purports to be drawn and payable in Canada, it is an 8 Sec. 25. 364 CANADIAN NOTARIES. inland bill notwithstanding that it is drawn on some person resident outside of Canada, and if the ,bill on its face purports to be drawn in Canada upon some person who is resident in Canada it is an inland bill not- withstanding that on its face it is payable abroad. Furthermore, it is provided by the Act that the holder may treat an}^ bill as an inland bill which does not negative on its face either that it is drawn and payable within Canada, or that it is drawn within Canada upon some person resident therein. A note which, on the face of it, purports to be both made and payable within Canada, is an inland note, and any other note is a foreign note. 9 The beginning of the making of protests dates back to the early history of negotiable instruments in Europe, when their use was almost entirely confined to foreign trade transactions. Protests were used in Eng- land and elsewhere as documentary proof of the regularity of the proceedings abroad re- specting the instruments, and were, natur- Sec. 177. NEGOTIABLE INSTRUMENTS.' 365 ally, made by notaries because of the inter- national character of the office which per- mitted the reception in eA T idence in most countries of their documents without far- ther proof of their authenticity than the hand and seal of the notary, and as evidence of the matters stated therein. Since the law seems to be now settled that unless by some statute it is so provided, a notary's certificate is neither evidence of the matters contained in it or of its own authenticity, the Canadian Bills of Ex- change Act contains the following provi- sions: " Sec. 11. A protest of any bill or note within Canada and any copy thereof as copied by the notary or justice of the peace, shall in any action be prim a facie evidence of presentation and dishonor, and also of service of notice of such presentation and dishonor as stated in such protest or copy." " Sec. 12. If a bill or note, presented for acceptance, or payable out of Canada, is protested for non-acceptance or non-pay- ment, a notarial copy of the protest and of 366 CANADIAN NOTAKIES. the notice of dishonor, and a notarial certi- ficate of the service of such notice, shall be received in all courts, as prima facie evi- dence of such protest, notice and service." The convenience and, indeed, necessity of a protest can readily be seen in a case, for instance, where a bill which is payable abroad is the subject of an action wit'hin Canada. Should the question whether or not the bill had been presented for payment at the place named be in dispute, then, if pro- tests were not receivable as evidence of the presentation, it would be necessary to ex- amine witnesses by commission in the place abroad as to the facts, a proceeding which usually involves considerable delay and ex- pense. Strictly speaking, a protest is the docu- ment made by the notary attesting that the instrument has been dishonored. In prac- tice, however, it includes more, for the mak- ing of the mere formal attestation is not the only procedure necessary to be carried out by the notary in order to render the parties liable. First of all, when a protest is NEGOTIABLE INSTRUMENTS. 367 required to be made, the instrument must be presented a second time to the drawee, ac- ceptor or maker, as the case may be. Techni- cally this presentment should be made by the notary himself as the protest should only certify to facts that have come within the notary's own observation and hearing, and not as to matters for the truth of which the notary must rely upon the statement of some other person. Notwithstanding this, however, it is customary in Canada, as in England and parts of the United States, for the notary's clerk to make the presentment, As to the place and manner of making the presentment the notary must be guided by the same rules that govern presentment for acceptance or presentment for payment, as the case may be, by the holder, for it is the same presentment made over again, made in the, second case by the notary so that he can give evidence of the dishonor. If the protest be for dishonor for non- payment, the presentment by the notary may be made at any time after three o 'clock in the afternoon of the day when payment 368 CANADIAN NOTARIES. should have been made. In the case of dis- honor by non-acceptance it must be borne in mind that the drawee has the day on which it is first presented for payment and two days thereafter to make up his mind whether he will accept or not. Where in the latter case the drawee does not either accept or give a refusal to accept, the final present- ment and the protest should be made after six o 'clock on the last day on which it could be accepted, but when, however, the drawer refuses acceptance before the expiration of the period allowed him, the bill may then be treated as dishonored, and the steps neces- sary to protest may be taken at once. 10 An instrument must be protested at the place where it is dishonored, or at some other place in Canada situate within five miles of the place of dishonor. 1 When, however, a bill is presented through the post office for acceptance, as is permissible where there is agreement between the parties to that effect, and returned by-post dishonored, it may be "Sec. 121 (a). 'Sec. 161. NEGOTIABLE INSTRUMENTS. 369 protested at the place to which it is returned, not later than on the day of its return or the next juridical day. 2 Where an instrument is lost or destroyed or is wrongly or accidentally detained from the person entitled to hold it, or is accident- ally retained in a place other than where it is payable, presentment may be made by exhibiting a copy of the instrument or writ- ten particulars of it. 3 The protest must contain a copy of the instrument protested, or the instrument itself may be annexed, and it must specify the person at whose request the instrument is protested, the place and date of protest, whether the instrument is protested for non- acceptance or non-payment, the demand made at the time of presentment by the notary, and the answer given, if any, or the fact that the proper party could not be found.* When protest is made because the acceptance of a bill of exchange is qualified, as, for instance, in the case where the drawer z Sec. 121 (c). 3 Sec. 120. 4 Sec. 122. 0.x 24 370 CANADIAN NOTARIES. accepts for a smaller amount than that named in the bill, or where he names some condition in the acceptance, payment by him being dependent upon the fulfilment of that condition, or where the bill is accepted payable on a different date than that men- tioned in the bill, the protest must not state a general refusal to accept, for the holder has the right either to treat the bill as dis- honored by non-acceptance or as accepted with qualification, and if the protest states a general refusal to accept, the holder cannot avail himself of the qualified acceptance. 5 The protest must be signed at the end by the notary. There is some conflict of opin- ion as to the necessity for the notary's seal on a protest, 6 but the use of the seal is cus- tomary, and in the case of foreign instru- ments often necessary, as in some countries a protest will not be received in evidence without a seal. Usually a protest is drawn up in dupli- cate, the notary retaining one copy and giv- "Maclaren on Bills, 3rd ed., p. 290. 6 On this subject, see Merchants Bank v. Spinney, 1 R. & G. 91, and Maclaren on Bills, 4th ed., 303. NEGOTIABLE INSTRUMENTS. 371 ing the other to the holder with the protested instrument, though protesting in duplicate is not compulsory. Very often notaries keep what is known as a Protest Register, in which a copy of the protest is made for future use should the necessity arise. The notary's charges for protesting must be endorsed on the back of the protest, so that the amount of his fees can be re- covered by the holder as well as the amount of the instrument from the party liable, as the holder pays the charges when the protest is made. 7 Instead of drawing up the protest on the day of dishonor the notary may, after mak- ing the presentment, simply note the instru- ment for protest and extend the protest at a later date. 8 The noting is an " incipient protest and is unknown in law as distin- guished from the protest. ' ' 9 The provision of the Act respecting not- ing is seldom taken advantage of as it is * See appendix for notary's fees on protest. Sec. 118. 'Chalmers on Bills, 8th ed., 284. 372 CANADIAN NOTARIES. usually as convenient to draw up the protest in the first instance as to make the minute, especially where the notary has at hand printed forms to be filled in as the circum- stances require. It is one of the essentials of protest that when the protest be drawn up or the note of protest entered, the notary give notice thereof to the same parties and in the same manner and addressed in the same way as notice of dishonor. 10 The notice of protest must be given on the same day as the protest is made or on the next following juridical or business day. 1 Protest is dispensed with by any circum- stances which would dispense with notice of dishonor, and delay in protesting is excused according to the same rules as those regard- ing delay in giving notice of dishonor. 2 No clerk, teller or agent of any bank may act as a notary in the protesting of any in- strument payable at the bank in which he 10 Vide, p. 357 et seq., for rules as to notice of dishonor, ^ec. 126. Vide, ante, p. 345, for juridical and business days. 2 Vide, p. 357 et seq., for rules as to notice of dishonor. NEGOTIABLE INSTRUMENTS. 373 is employed. 3 It has been held that a notary who is an endorser on an instrument is not entitled to make the protest. 4 A notary is liable in damages for any loss occasioned his client through neglect or lack of skill on the part of himself or his clerk in protesting instruments. Besides protesting for non-acceptance r r bet- and non-payment a notary may be called upon to protest a bill of exchange for better security. This may occur where the ac- ceptor of a bill suspends payment before it matures, the holder having the right in such a case of causing the bill to be protested for better security against the drawer and en- dorsers. 5 The Imperial Bills of Exchange Act per- mits protest for better security when the acceptor " becomes bankrupt or insolvent," but since there is no general bankruptcy act in Canada the Canadian Act has a different wording in this particular. In some coun- s Sec. 13. 4 PeUetier v. Brosseau, M. L. R. 6 S. C. 331 (1890). Sec. 116. 374 CANADIAN NOTARIES. tries when the acceptor suspends payment before the date of maturity the holder can demand security from the drawer and en- dorsers, and in France if the acceptor fails the bill may at once be treated as dishonored. When, therefore, the acceptor of a foreign bill suspends payment it is advisable that the bill be protested for better security. In England and Canada the only right which suspension of payment by the ac- ceptor gives is that of having the bill pro- tested for better security, the effect of which is that it permits a second acceptance, being what is called an acceptance for honor supra protest by some person not already liable on the bill, whereas ordinarily there cannot be two acceptances of the same bill. When a bill is to be protested for better security the notary should first of all ascer- tain whether that acceptor has in fact sus- pended payment and then make the demand for better security for its payment than is afforded by the acceptance. If better secu- rity is not obtained the bill may be then pro- tested and notice of the protest sent to the NEGOTIABLE INSTRUMENTS. 375 drawer and endorsers. The holder, however, must wait until the bill has been dishon- ored by non-payment before enforcing any rights, and if the bill be a foreign bill, it must also be protested for non-payment. In any case where a bill of exchange has Accept- ance for been protested for dishonor by non-accept- honor, ance or protested for better security, and is not overdue, any person, not being a party already liable thereon, may, with the consent of the holder, intervene and accept the bill supra protest, for the honor of any party liable thereon, or for the honor of the person for whose account the bill is drawn. 6 The acceptance for honor supra protest must be written on the bill and indicate that it is an acceptance for honor. 7 It is usual for the acceptance for honor to state for whose honor the bill is accepted. The Act pro- vides, however, that where this is not ex- pressly stated on the bill it is deemed an ac- ceptance for the honor of the drawer. 8 Sec. 147. 'Sec. 151. "Sec. 149. 376 CANADIAN NOTARIES. The acceptor for honor of a bill engages that he will, on due presentment, pay the bill according to the tenor of his acceptance, if it is not paid by the drawee, provided it has been duly presented for payment to the ac- ceptor and protested for non-payment, and that he receives notice of these facts, and the acceptor for honor is liable to the holder and to all parties to the bill subsequent to the party for whose honor he has accepted. Where a bill payable after sight is ac- cepted for honor, its maturity is calculated from the date of protesting for non-accept- ance. 10 If the acceptor for honor pays the bill, he is entitled to have recourse against the per- son for whose honor he accepted and against all parties liable to the latter on the bill for repayment of the amount and expenses. Act of It is one of the rules of the law merchant, accept- which by the Act still applies to instru- ments, 1 that an acceptance for honor supra "Sec. 152. 10 Sec. 150. 'Sec. 10. NEGOTIABLE INSTRUMENTS. 377 protest must be attested by what is called an act of honor. 2 An act of honor is the certifi- cate of a notary appended to a copy of the bill setting forth that after the bill had been protested for non-acceptance a person not liable thereon declared that he would accept the bill for the honor of some party to it and that all the other parties who would thereby become liable to him are held responsible for the amount of the bill and expenses. The act of honor should be made in triplicate by the notary, one to be kept by the notary himself with a copy of the note, one to be given to the holder of the bill for his secu- rity, and the third to be given the acceptor supra protest with which to enforce his right against the parties who become liable to him on the bill. The expenses of the act of honor are paid by the acceptor supra protest and if he ac- cept for the full amount of the bill he also must pay the expenses incidental to the pro- test. 8 Mitchell \. Baring, 10 B. & C. 4. 378 CANADIAN NOTARIES. Payment Wlicre a bill or note has been protested honor, for non-payment any person may intervene and pay it supra protest for the honor of any party liable. Where the holder of the instrument re- fuses to receive payment supra protest he loses his right of recourse against any party who would have been discharged by such payment. When an instrument has been paid for honor, all parties subsequent to the party for whose honor it is paid are discharged, but the party who pays for honor is auto- matically placed in the same position as and succeeds to the same rights and duties of the holder as regards the party for whose honor he pays and all parties liable to that party. 3 The payer supra protest has the right to the possession of the instrument for the purpose of enforcing his rights against those parties as soon as he pays the amount of the instrument and the notarial expenses incidental to its dishonor. 8 Sec. 155. NEGOTIABLE INSTRUMENTS. 379 In order that payment for honor supra Act of -, i j_i honor on protest may operate as such and give the payment. payer any rights against the person for whose honor he pays, and not merely as a voluntary payment, the payer, or his agent in that behalf, must before or at the time of payment declare before a notary his inten- tion to pay the bill for honor and for whose honor he pays, and the notary must attest this fact by what is called a notarial act of honor, which may be appended to the protest or form an extension of it. The act of honor should be made in dupli- cate and one copy kept by the notary and the other given the payer in order that he may enforce his rights. Section 125 of the Bills of Exchange Act Forms . provides: " The forms in the schedule to this Act may be used in noting or protesting any bill {includes note and cheque) and in giving notice thereof. " 2. A copy of the bill and endorsement may be included in the forms, or the original bill may be annexed and the necessary charges in that behalf made in the forms. ' ' 380 CANADIAN NOTARIES. The forms in the schedule to the Act are copied from Schedule B to R. S. C. (1886) chapter 123, where they were applicable to the Province of Quebec only. It was form- erly necessary in Quebec to make the protest in duplicate, and thus the words * l protested in duplicate " are to be found in the forms of protest given in the schedule. It is usual but not compulsory to protest in duplicate, and when the instrument is not so protested the words may be omitted. FORMS PROVIDED BY SCHEDULE TO BILLS OF EXCHANGE ACT. NOTING FOR NON-ACCEPTANCE. (Copy of Bill and Endorsements.) On the 19 , the above bill was, by me, at the request of , presented for acceptance to E. F., the drawee, personally (or, at his residence, office or usual place of business) , in the city (town or village) of and I received for answer : ' NEGOTIABLE INSTRUMENTS. 381 The said bill is therefore noted for non- acceptance. A T> Notary Public. (Date and place.} 19 * Due notice of the above was by me served f A. B.. ) ,, I drawer, ) upon \ ' the \ personally, ( C. D., ) ( endorser, j 1 on the day of (or, at his' residence, office or usual place of busi- ness), in , on the day of (or, by depositing such notice, directed to him at in His Majesty's post office in the city, [town or village] , on the day of , and prepaying the postage thereon). A.B., Notary Public. (Date and place.} 19 . PROTEST FOR NON-ACCEPTANCE OR FOR NON- PAYMENT OF A BILL PAYABLE GENERALLY. (Copy of Bill and Endorsements.) On this day of , in the year 19 , I, A. B., notary public for the province of , dwelling at , 382 CANADIAN NOTARIES. in the province of , at the request of , did exhibit the original bill of exchange, whereof a true copy is above written, unto E. F.. the I thereof I drawee j personally (or, at his residence, office or usual place of business) in , and, speaking to himself (or his wife, his clerk, or , f acceptance } his servant, &c.,) did demand [ payment thereof; unto which demand 1 , an- swered: ' .' Wherefore I, the said notary, at the re- quest aforesaid, have protested, and by these presents do protest against the acceptor, drawer and endorsers (or drawer and en- dorsers) of the said bill, and other parties thereto or therein concerned, for all ex- change, re-exchange, and all costs, damages and interest, present and to come for want ,, ( acceptance ) ,, . , , .,, of of the said bill. ( payment j All of which I attest by my signature. (Protested in duplicate.) A. B., Notary Public. NEGOTIABLE INSTRUMENTS. 383 PROTEST FOR NON-ACCEPTANCE OR FOR NON- PAYMENT OF A BILL PAYABLE AT A STATED PLACE. (Copy of Bill and Endorsements.) On this day of iu the year 19 , I, A. B., notary public for the province of , dwelling at , in the province of , at the request of , did exhibit the original bill of exchange whereof a true copy is above written, unto T-, T-, ( drawee ) ,, E. F., [ thereof, at , ( acceptor j being the stated place where the said bill is payable, and there speaking to ,. , , , ( acceptance ) , , -, i-n did demand f of the said bill ; I payment j unto which demand he answered : ' . ' Wherefore I, the said notary, at the re- quest aforesaid, have protested, and by these presents do protest against the acceptor, drawer and endorsers (or drawer and en- dorsers) of the said bill and all other par- ties thereto or therein concerned, for all 384 CANADIAN NOTARIES. exchange, re-exchange, costs, damages and interest, present and to come for want of | acceptance ) . -. , ., n of the said bill. ( payment j All of which I attest by my signature. (Protested in duplicate.) A.B., Notary Public. PROTEST FOR NON-PAYMENT OF A BILL NOTED, BUT NOT PROTESTED FOR NON-ACCEPTANCE. // the protest is made hy the same notary who noted the hill, it should immediately follow the act of noting and memorandum of service thereof, and begin ivitli the words i and afterwards on, etc.,' continuing as in the last preceding form, hut introducing hetween the words ' did ' and ' exhibit ' the word i again,' and'in a parenthesis, hetween the words i written ' and i unto,' the u'ords: ' and which bill was by me duly noted for non-acceptance on the day of . ' But if the protest is not made ~by the same notary, then it should follow a copy of the NEGOTIABLE INSTRUMENTS. 385 original bill and endorsements and noting marked on the biUand then in the protest introduce, in a parenthesis, between the ivords i written ' and i unto,' the words: 1 and which bill was on the day of , by , notary public for the province of , noted for non-acceptance, as appears by his note thereof marked on the said bill. ' PROTEST FOR XOX -PAYMENT OF A XOTE PAYABLE GENERALLY. (Copy of Note and Endorsements.} On this day of , in the year 19 , I, A. B., notary public for the province of , dwelling at , in the province of , at the request of , did exhibit the original pro- missory note, whereof a true copy is above written, unto , the promisor, personally (or, at his residence, office or usual place of business,) in , and speaking to himself (or his wife, his c.x 25 386 CANADIAN NOTARIES. clerk or his servant, etc.) did demand pay- ment thereof; unto which demand j I she J answered : ' . ' Wherefore I, the said notary, at the re- quest aforesaid, have protested, and by these presents do protest against the promisor and endorsers of the said note, and all other parties thereto or therein concerned, for all costs, damages and interest, present and to come, for want of .payment of the said note. All of which I attest by my signature. (Protested in duplicate.) A. B., Notary Public. PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE AT A STATED PLACE. (Copy of Note and Endorsements.} On this day of , in the year 19 , I, A. B., notary public for the province of , dwelling at , in the province of , at the request NEGOTIABLE INSTRUMENTS. 387 of , did exhibit the original promissory note, whereof a true copy is above written, unto , the promisor, at , being the stated place where the said note is payable, and there, speaking to did demand payment of the said note, unto which demand he answered : ' . ' Wherefore I, the said notary, at the re- quest aforesaid, have protested, and by these presents do protest against the promisor and endorsers of the said note, and all other parties thereto or therein concerned, for all costs, damages and interest, present and to come, for want of payment of the said note. All of which I attest by my signature. (Protested in duplicate.) A. B., Notary Public. 388 CANADIAN NOTARIES. NOTARIAL NOTICE OF A NOTING, OR OF A PROTEST FOR XOX- ACCEPTANCE, OR OF A PROTEST FOR NON-PAYMENT OF A BILL. {Place and Date of Noting or of Protest.} 1st. To P. Q., (Me drawer} at Sir, Your bill of exchange for $ , dated at , the day of , upon E. F., in favor of C. D., payable davs after i , *? \ was this day, at the re- [ date j , , f noted } , quest of dulv i , i by ( protested j f non-acceptance ) me tor j i non-payment j A. B., Notary Public. NEGOTIABLE INSTRUMENTS. 389 (Place and Date of Noting or of Protest.) 2nd. To C. D., (endorser) (or F. G.), at Sir, Mr. P. Q. 's bill of exchange for $ , dated at the day of , upon E. F., in your favor (or in favor of C. D.,) payable days after \ _ ' \ nd { date, J by you endorsed, was this day, at the request -1^1 ( noted ) , of , duly , \ bv I protested; ( non-acceptance 1 me for I ( non-payment . A. B., Notary Public. 390 CANADIAN NOTARIES. NOTARIAL NOTICE OF PROTEST FOR NON- PAYMENT OF A NOTE. (Place and Date of Protest.) To at Sir, Mr. P. Q. 's promissory note for $ dated at , the day of das payable months after date to { ._ \ or I H/. _r . J I on -- order, and endorsed by you, was this day, at the request of , duly protested by me for non-payment. A.B., Notary Public. NOTARIAL SERVICE OF NOTICE OF A PROTEST FOR NON-ACCEPTANCE OR NON-PAYMENT OF A BILL, OR NOTE. (To ~be subjoined to the Protest.) And afterwards, I, the aforesaid pro- testing notary public, did serve due notice, NEGOTIABLE INSTRUMENTS. 391 in the form prescribed by law, of the fore- f non-acceptance 1 going protest tor 1 \ of the ( non-payment j { bill 1 ; f P. Q., i thereby protested upon i ^ ^ ' [ ( note j { C. D., j f drawer ] the \ ( personally, on the ( endorsers j day of (or, at his residence, office or usual place of business) in , on the day of ; (or, by depositing such notice, directed to the said I- at , in His Majesty's I i ty-> j post office in on the day of , and prepaying the postage thereon). In testimony whereof, I have, on the last mentioned day and year, at aforesaid, signed these presents. A. B., Notary Public. 392 CANADIAN NOTARIES. ADDITIONAL FORMS AND PRECEDENTS. 1. Noting for non-acceptance of a bill : Ottawa, Out. May, 1915. $100.00. Sixty days after date, pay to the order of A. B. the sum of One hundred dollars. Value received and charge to the account of C. D. To E. F. St. John, N.B. Endorsements. A. B. Alliance Bank. On the day of May, A.D. 1915, the above bill was, by me, at the request of the Bank of New Brunswick, presented for acceptance to E. F., the drawee, at his office in the City of St. John, and I received for NEGOTIABLE INSTRUMENTS. 393 answer : " I have no account with C. D. and will not accept, " or words to that effect. The said bill is, therefore, noted for non- acceptiance. a. H., Notary Public. St. John, in the Province of New Bruns- wick, the day of May, A.D. 1915. Due notice of the above was by me served upon C. D., the drawer, and A. B. and Alli- ance Bank, the endorsers, respectively, by depositing such notices directed to each of them respectively at Ottawa, Ontario, in His Majesty's post office, in the City of St. John, aforesaid, on the day of May, A.D. 1915, and prepaying the postage thereon. G. H., Notary Public. St. John, in the Province of New Brurs- wiek, the day of May, A.D. 1915. 394 CANADIAN NOTARIES. 2. Notarial notices of the above Noting for non-acceptance : (a) To Drawer : St. John, N.B., May , 1915. To 0. D., at Ottawa, Ont. Sir: Your bill of exchange for $100, dated at Ottawa, Ont., the day of May, 1915, upon E. F., in favor of A. B., payable sixty days after date, was this day, at 'the request of the Bank of New Brunswick, duly noted by me for non-acceptance. G. H., Notary Public. (b) To Endorser, who is payee named in the bill: St. John, N.B., May , 1915. To A.B., at Ottawa, Ont. Sir: Mr. C. D.'s bill of exchange for $100, dated at Ottawa, Ont., the day of May, NEGOTIABLE INSTRUMENTS. 395 1915, upon E. F., in your favor, payable sixty days after date, and by you endorsed, was this day, at the request of the Bank of New Brunswick, duly noted by me for non- acceptance. G. H., Notary Public. (c) To Endorser, who is not the payee named in the bill : St. John, N.B., May , 1915. To Alliance Bank, at Ottawa, Ont. Sirs : Mr. C. D.'s bill of exchange for $100, dated at Ottawa, Ont., the 1st' day of May, 1915, upon E. F., in favor of A. B., payable sixty days after date, and by you endorsed, was this day, at the request of the Bank of New Brunswick, duly noted by me for non- acceptance. G. H M Notary Public. 396 CANADIAN NOTARIES. 3. PROTEST FOR XOX-ACCEPTANCE OF A BILL. (Copy of bill and endorsements as in Form 2.) On this day of May, in the year 1915, I, G. H., Notary Public for the Pro- vince of New Brunswick, dwelling at St. John, in the Province of New Brunswick aforesaid, at the request of the Bank of New Brunswick, did exhibit the original bill of exchange, whereof a true copy is above written, unto E. F., the drawer thereof at his office in St. John aforesaid, and, there speaking to his clerk, did demand accept- ance thereof; unto which demand he answered : l i We cannot accept this bill. ' ' Wherefore, I, the said Notary, at the re- quest aforesaid, have protested, and by these presents do protest against the drawer and endorsers of the said bill, and all other parties thereto or therein concerned, for all exchange, re-exchange, and all costs, dam- ages and interest?, present and to come, for want ( 'f acceptance of the said bill. NEGOTIABLE INSTRUMENTS. 397 All of which I attest by my signature. (Protested in duplicate.) G. H., Notary Public. (Notarial Seal.) And afterwards, I, the aforesaid protest- ing Notary Public, did serve due notice, in the form prescribed by law, of the foregoing protest for non-acceptance of the bill there- by protested upon C. D., the drawer, and A. B. and Alliance Bank, the endorsers, respectively, by depositing such notices directed 'to C. D., A. B. and Alliance Bank, respectively, at Ottawa, Ontario, in His Majesty's Post Office in St. John, New Brunswick, on the day of , and prepaying the postage thereon. In testimony whereof, I have, on the last- mentioned day and year, at St. John afore- said, signed these presents. G. H., Notary Public. (Notarial Seal.) 898 CANADIAN NOTARIES. 4. NOTARIAL NOTICES OF THE ABOVE PROTEST FOR NON-ACCEPTANCE. (a) To Drawer: St. John, N.B., May , 1915. To 0. D., at Ottawa, Out. Sir: Your bill of exchange for $100.00, dated at Ottawa, Ont., the day of May, 1915, upon E. F., in favor of A. B., payable sixty days after date, was this day, at the request of the Bank of New Brunswick, duly pro- tested by me for non-acceptance. G. H., Notary Public. (b) To Endorser, who is payee named in the bill: St. John, N.B., May , 1915. To A. B., at Ottawa, Ont. Sir: Mr. 0. D.'s bill of exchange for $100.00, dated at Ottawa, Ont., the day of NEGOTIABLE INSTRUMENTS. 399 May, 1915, upon E. F., in your favor, pay- able sixty days after date, and by you en- dorsed, was this day, at the request of the Bank of New Brunswick, duly protested by me for non-acceptance. a H., Notary Public. (c) To Endorser, who is not the payee named in the bill : St. John, KB., May , 1915. To Alliance Bank, at Ottawa, Ont. Sirs : Mr. C. D.'s bill of exchange for $100.00, dated at Ottawa, Ont., the 1st day of May, 1915, upon E. F., in favor of A. B., payable sixty days after date, and by you endorsed, was this day, at the request of the Bank of New Brunswick, duly protested by me for non-acceptance. G. H., Notary Public. 400 CANADIAN NOTARIES. 5. NOTING FOR NON-PA YMENT4DF A BILL 1915 - at Toronto, Ontario. Sir: Mr. C. D.'s promissory note for $100, dated at Halifax, N.S., the day of May, 1915, payable three months after date to you or order, and endorsed by you, was this day, at the request of E. F., duly noted by mo for non-payment. G. H., Notary Public. (b) To Endorser, who is not payee named in the note. When there is an endorser on the note who is not the payee, the notice to him should be in the foregoing form, the words "A. B. or order ' being used instead of " vou or order." 412 CANADIAN NOTARIES. 16. PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE AT A STATED PLACE. (Copy of note and endorsement as in Form 14.) On this day of May, A.D. 1915, I, G. H., Notary Public for the Province of Ontario, dwelling at Toronto, in the Pro- vince of Ontario aforesaid, at the request of E. F., did exhibit the original promissory note, whereof a true copy is above written, unto C. B., the promisor, at the Crown Bank, Toronto, Ont., being the stated place where the said note is payable, and there, speaking to the Teller of the said Bank, did demand payment of the said note, unto which he answered : ' ' No funds to pay it, ' ' or words to that effect. Wherefore I, the said Notary, at the request aforesaid, have protested and by these presents do protest against the pro- misor and endorser of the said note and all other parties thereto or therein concerned, for all costs, damages and interest, present NEGOTIABLE INSTRUMENTS. 413 and to come, for want of payment of the said note. All of which I attest by my signature. (Protested in duplicate.) G. H., Notary Public. (Notarial Seal.) And afterwards I, the aforesaid protest- ing Notary Public, did serve due notice, in the form prescribed by law, of the foregoing- protest for non-payment of the note thereby protested, upon A. B., the endorser, by de- positing such notice, directed to the said A. B., at Toronto, Ontario, in His Majesty's Post Office in Toronto aforesaid, on the day of May, A.D. 1915, and prepaying the postage thereon. In testimony whereof I have, on the last-mentioned day and year, at Toronto aforesaid, signed these presents. G. H., Notary Public. (Notarial Seal.) 414 CANADIAN NOTAEIES. 17. NOTARIAL NOTICES OF THE ABOVE PROTEST FOR NON-PAYMENT. The notices are as in the Form 15, using the word " protested " instead of " noted. * < 18. NOTING FOR NON-PAYMENT OF A NOTE PAYABLE GENERALLY. Halifax, N.S., May , 1915. $100.00. Three months after date, I promise to .pay A. B. or order the sum of one hundred dollars. Value received. C. D. Endorsement. A. B. On the day of May, A.D. 1915, the above note was, by me, at the request of E. P., presented for payment to C. D., the promisor, personally in the City of Hali- fax, and I received for answer: " I never made the note and refuse to pay it." NEGOTIABLE INSTRUMENTS. 415 The said note is, therefore, noted for non-payment. p TT Notary Public. Halifax, in the Province of Nova Scotia, the day of May, 1915. Due notice of the above was, by me, served upon A. B., the endorser, by deposit- ing such notice, directed to him at Toronto, Ontario, in His Majesty's Post Office, in the City of Halifax, on the day of May, A.D. 1915, and prepaying the postage thereon. n TT JJT. 1., Notary Public. Halifax, in the Province of Nova Scotia, the day of May, 1915. 19. NOTARIAL NOTICES OF THE ABOVE NOTING FOR NON-PAYMENT. The notices are as in Form 15, " Hali- fax, N.S." instead of " Toronto, Ont," be- ing named as the place of noting. 416 CANADIAN NOTARIES. 20. PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE GENERALLY. (Copy of note and endorsements as in Form 18.) On this day of May, in the year 1915, I, G. H., Notary Public' for the Pro- vince of Nova Scotia, dwelling ab Halifax, in the Province of Nova Scotia aforesaid, at the request of E. F., did exhibit the original promissory note, whereof a true copy is above written, unto C. D., the promisor, per- sonally in Halifax aforesaid, 1 and speaking to himself, did demand payment thereof, unto which demand he answered: " I never made the note and refuse to pay it. ' ' Wherefore I, the said Notary, at the re- quest aforesaid, have protested, and by these presents do protest against the pro- misor and endorser of the said note, and all other parties thereto or therein con- cerned, for all costs, damages and interest, 1 Or at his office, residence, or usual place of business, according to the circumstances and the rules of present- ment set out elsewhere in this chapter. NEGOTIABLE INSTRUMENTS. 417 present and to come, for want of payment of the said note. All of which I attest by my signature. (Protested in duplicate.) G. H., Notary Public. (Notarial Seal.) And afterwards I, the aforesaid protest- ing Notary Public, did serve due notice, in the form prescribed by law, of the foregoing protest for non-payment of the note thereby protested, upon A. B., the endorser, by de- positing such notice, directed to the said A. B., at Toronto, Ontario, in His Majesty's Post 1 Office at Halifax aforesaid, on the day of May, A.D. 1915, and prepaying the postage thereon. In testimony whereof I have, on the last-mentioned day and year, at Halifax aforesaid, signed these presents. G. H., Notary Public. (Notarial Seal.) C.N. 27 418 CANADIAN NOTARIES. 21. NOTARIAL NOTICES OF THE ABOVE PROTEST FOR NON-PAYMENT. The notices are as in Form 15, the words "protested" being used instead of " noted," and " Halifax, N/S.," being named as the place of protest instead of ' i Toronto, Ont. ' ' 22. PROTEST FOR NON-PAYMENT OF A BANK CHEQUE. Fredericton, N.B., May , 1915. The Farmers' Bank. Pay to A. B. or order the sum of one hundred ( T ,fr) dollars. $100.00. C. D. Endorsement. A. B. On this day of May, in the year 1915, I, G. H., Notary Public for the Pro- vince of New Brunswick, dwelling at Fred- ericton, in the Province of New Brunswick aforesaid, at the request of the Maritime NEGOTIABLE INSTRUMENTS. 419 Bank, did exhibit the original bank cheque, whereof a true copy is above written unto the Farmers' Bank, the drawee thereof, at the office of the said Bank, at Number 35 F. Street, in Fredericton aforesaid, and there, speaking to a clerk of the said Bank, did demand payment of the said bank cheque, unto which demand he answered : "C. D. has no account at this Bank." Wherefore I, the said Notary, at the re- quest aforesaid, have protested, and by these presents, do protest against the drawer and endorser of the said bank cheque, and all other parties thereto or therein concerned, for all exchange, re-exchange, costs, dam- ages and interest present and to come, for want. of payment of the said cheque. All of which I attest by my signature. (Protested in duplicate.) G. H., Notary Public. (Notarial Seal.) And afterwards I, the aforesaid protest- ing Notary Public, did serve due notice, in 420 CANADIAN NOTARIES. the form prescribed by law, of the foregoing protest for non-payment of the cheque thereby protested, upon C. D., the drawer, and A. B., the endorser, by depositing such notices, directed to the said C. D. and A. B. at Fredericton, N.B., and Hamilton, Ont., respectively in His Majesty's Post Office, in Fredericton, N.B., on the day of May, 1915, and prepaying the postage thereon. In testimony whereof I have, on the last-mentioned day and year at Fredericton aforesaid, signed these presents. G. H., Notary Public. (Notarial Seal.) 23. NOTARIAL NOTICES OF THE ABOVE PROTEST FOR NON-PAYMENT. The notices follow the same form as those used in protesting bills of exchange, the words " bill of exchange," of course, being changed to " cheque." NEGOTIABLE INSTRUMENTS. 421 24. PROTEST OF BILL FOR NON-ACCEPTANCE WHEN PRESENTMENT IS MADE THROUGH POST OFFICE. (Copy of bill and endorsements.) On this day of , in the year 19 , before me, G. H., Notary Public for the Province of , dwelling at , in the Province of aforesaid, appeared A. B., holder of the bill of exchange, whereof a true copy is above written, and producing to me the said original bill, declared that he had demanded acceptance of the same by C. D., the drawee thereof, by presentment to the said C. D., through the post office at the address (state address) written on the said bill and that he, the said A. B., had this day received back the said bill, through the post office, unaccepted, together with a letter from the said C. D., which the said A. B. also pro- duced to me, and wherein the said C. D. unto the said demand, answered: " (copy as much of the letter as constitutes the refusal to accept)." Wherefore I, etc. (usual farm). 422 CANADIAN NOTAKIES. 25. PROTEST OF BILL FOR NON-ACCEPTANCE OR NON-PAYMENT WHEN, AFTER THE EXERCISE OF DUE DILIGENCE,, PRESENT- MENT CANNOT BE EFFECTED. (Copy of bill and endorsements.) On this day of , in the year 19 , I, G. H., Notary Public for the Province of , dwelling at , in the Province of aforesaid, at the request of A. B., holder of the original bill of exchange, whereof a true copy is above written, did make and cause to be made diligent and careful search and in- quiries at the Post Office, the Bank of and other places and quarters in the City of , and no person at any of the said places was able to inform me where the said C. D. resides and I could, therefore, not obtain acceptance (or pay- ment) of the said bill. Wherefore, etc. (usual form). NEGOTIABLE INSTRUMENTS. 423 26. PROTEST OF A BILL FOR NON-PAYMENT WHERE THE ORIGINAL IS LOST OR DE- STROYED AND A COPY IS PRESENTED FOR PAYMENT. {Copy of bill and endorsements or written particulars.) On this day of , in the year 19 , I, G. H., Notary Public for the Province of , dwelling at , in the Province of aforesaid, at the request of A. B., did exhibit a copy (or written particulars) of the original bill of exchange which has been lost (or destroyed) unto C. D., the acceptor thereof, etc. (pro- ceed in tlte usual form). 27. NOTARIAL ACT OF HONOR ON ACCEPTANCE WRITTEN AT THE FOOT OF THE PROTEST. Afterwards, on the same day, month and year, before me, the said Notary, personally came and appeared Mr. J. K., of this City, merchant, who declared he was ready and 424 CANADIAN NOTARIES. would accept the said bill of exchange now under protest, for the honor and account of Mr. L. M., the drawer (as the case may be), holding him, the said drawer thereof, and all others concerned always obliged to him, the said appear er for reimbursement, in due form of law. Which I attest. (Notarial Seal.) G. H., Notary Public. 28. NOTARIAL ACT OF HONOR ON PAYMENT. On the day of , one thousand nine hundred and , I, . Notary Public for the Province of , dwelling at the , in the said Province, do hereby certify that the original bill of exchange for five hundred dollars annexed to the protest thereof on the other side hereof written, was this day NEGOTIABLE INSTRUMENTS. 425 exhibited to C. D., of , agent, who declared before me that he would pay the amount of the said bill and protest charges for the honor of A. B., the last en- dorser thereof, holding the drawer and en- dorsers thereof and all other persons responsible to him, the said C. D,, for the said sum and for all interest, damages and expenses. I have, therefore, granted this notarial act of honor accordingly. Which I attest. G. H., Notary Public. Principal $100.00. Notarial charges. (Notarial Seal.) Received the day of , 19 , from C. D. the sum of dollars and cents ($ ), the amount of the said bill and notarial charges thereon. 426 CANADIAN NOTABLES. 29. ENDORSEMENT OF NOTARY 'g FEES, ETC., ON PROTESTS. The notary's charges should always be endorsed on the protest. A table of the fees will be found elsewhere in this work. The backing of a protest may be endorsed in form similar to the following: Protest, Bill of Exchange, A. B.., Drawer. Amount of Bill $ Protest Fees CHAPTER XXI. SHIP PROTESTS. One of the duties of notaries who prac- tise at seaport places is the noting and making of ship protests. When a ship is compelled to put into a port through storms at sea, accident, or damage to the ship or its cargo, it is cus- tomary for the master, and, in some of the more serious cases, also the mate and one or more of the crew, to go before a notary pub- lic and have a protest or an entry of protest made, for the purpose of showing that the delay in entering the port, or the damage, was caused, not by any negligence on the part of the master or crew of the ship, but by the storm or accident. The protest may be made in the first instance, or simply a note or entry of protest which may, when and if occasion demands, be extended to a regular protest by the same or some other notary. 428 CANADIAN NOTARIES. The primary object of a ship protest is to found a claim against underwriters. In the Santa Anna? Dr. Lushington said: 11 Protests are important for this purpose, and this only: to state the damage which has occurred, and that it has taken place for the sake of supporting a claim against underwriters; not that the owner of the ship would be debarred from claiming against the underwriters, but, of course, unless it is stated in the protest, suspicion arises that it did not occur." Protests do, however, serve other purposes. In many countries a master 's protest, when authenti- cated by the notary, is received as con- clusive evidence of the facts stated in it, ihough this is not so under English law. The protest, however, is nearly always given credence by underwriters, merchants and others in adjusting claims, because it is a declaration or narrative of the particulars of the voyage, of the storms or bad weather met with by the ship and of the course of conduct which the master took in the emerg- >32 L. J. P. M. & A. 198. SHIP PROTESTS. 429 ency, made immediately after the happen- ing of the events de-tailed in it, when the facts are fresh in mind. In the United States, in some jurisdictions, the protest, if made within twenty-four hours after the ship is moored, is held to be competent evi- dence for the owner. The entry or note of protest is in sub- stance only a notice of the master's inten- tion to protest, should the extended protest afterwards become necessary. To serve its purpose, it should be made as soon as pos- sible after the arrival of the ship in port, and, if made later than twenty-four hours after the arrival, should contain a brief statement of the cause of delay in making it. The same is, of course, true of the pro- test itself when made in the first instance. There is no particular form in which either the entry of protest or the protest itself should be made. They must bear the correct date -and they should contain the name of the ship, its tonnage, the name of the master, the port and date of departure, the port to which it is bound, the nature of 430 CANADIAN NOTAKIES. the cargo with which it is laden, and then a narrative in chronological order of the facts upon which the protest is based. The entry of protest should conclude with some words to the effect that the master by the entry gives notice of his intention to protest and the extended protest made afterwards should mention the noting. The entry of protest is made on the ship's register and is signed by the master and certified by the notary public. The notary should keep a copy. When a pro- test is made, the original is kept by the not- ary and certified copies should be given or mailed to the master, ithe owner, and, when the protest is made against any particular person, to such person. Besides protests against storms and accident, there are also frequently made protests against the conduct of particular parties having business dealings with the ship, for the purpose of exculpating the master when differences arise and com- plaints may be made against him. SHIP PROTESTS. 431 FORMS. CANADA,, PROVINCE OF COUNTY OF To wit: f\ ^- j i! Entry of On this day of , in the year protest. of our Lord one thousand nine hundred and , personally came and appeared before me, a Notary Public, by lawful auth- ority duly appointed in and for the Pro- vince of and residing and practising at , in the County of , and the said Province of , Thomas Smith, master of the steamship (or vessel) Flora, of the Port of , of the burthen of tons, by register measurement or thereabouts, , which sailed from on the day of last bound for , laden with a cargo of , and put into on this day of , ; but fearing damage from heavy gales, etc., and against stranding on the Ridge, where the said ship 432 CANADIAN NOTARIES. remained for about a day, and tons of her said cargo were discharged to lighten the ship and were taken on again when she floated, which the said Master fears has been damaged, the said Master hereby gives notice of his intention to protest, and causes this note or minute of all and singular the premises to be entered in this register. (Sgd.) Thomas Smith, Master. (Sgd.) Alfred Brown, /XT i > a i\ Notary Public. (Notary's Seal.) CANADA, PROVINCE OF COUNTY OF To wit: Be it known and made manifest to all to whom these presents shall come, that on the day of , in the year of our Lord one thousand nine hundred and , personally came and appeared before me, a Notary Public, by lawful authority duly SHIP PROTESTS. 433 appointed in and for the Province of , and residing and practis- ing at , in the County of , and the said Province of , Thomas Smith, Master of the vessel Flora, of the Port of , of the burthen of tons, , by register measurements or thereabouts, which sailed from , on the day of , last bound for , laden with a cargo of , and noted a protest in my office upon arrival of his said vessel at aforesaid against heavy gales, etc., and against stranding on Ridge, where 'the said ship remained for about a day, and tons were dis- charged to lighten the ship and were taken on again when she floated, which the said Master feared to have been damaged. After- wards on this day of , etc., before me, the said Notary Public, again appeared the said Thomas Smith, and required of me to extend his protest noted as aforesaid, and who did solemnly declare and state as follows: C.N. 28 434 CANADIAN NOTARIES. CANADA, PROVINCE OF COUNTY OF To wit : Be it known and made manifest to all to whom these presents shall come, that on the first day of , in the year of our Lord one thousand nine hundred and , personally came and appeared before me, a Notary Public, by lawful authority duly appointed in and for the Province of , and re- siding and practising at , in the County of , and the said Province of , Thomas Smith, Master of the vessel Flora, of the Port of , of the burthen of tons, by register measurement or there- abouts, which sailed from on the day of , last bound for , laden with a cargo of , who did solemnly declare and state as fol- lows : That this appearer and the crew of the said ship set sail in her from , SHIP PROTESTS. 435 on last bound for , laden with a cargo of That they proceeded on their said voy- age with fine weather and variable winds, with occasional rain, until when near , in latitude , longitude , they had heavy gales from the north-east; at about eight o'clock p.m., with darkness coming on, the vessel plunging in heavy seas, lost her rudder ; the vessel was running towards land on the , and when the said rudder was lost, the sails were immediately lowered to prevent grounding. That the said vessel drifted with the wind in a north-easterly direction, until half -past ten on the said night, and finally stranded on Ridge, latitude , longitude That on morning, the weather moderated and they were sighted by a fish- ing boat from Harbor, and tug boats were obtained, and they were obliged, in order to lighten the ship and for the safety and preservation of the vessel, crew 436 CANADIAN NOTARIES. and cargo, to discharge into the said tugs tons of the cargo. That the said vessel was floated with high tide at seven o'clock p.m., on , and the said tons of cargo were taken on again, and they were towed into Harbor, in order to have the rudder replaced, where they arrived and anchored at eight-thirty p.m. Wherefore this appearer protests, as well on his own behalf as on behalf of the owners, freighters, officers and crew, and I, the said Notary Public, at his request, do by these presents also publicly and solemnly protest against all and singular the premises, and against all gales of wind, high seas, stranding, etc., facts, incidents and occurrences aforesaid, and against all and every accident and against all persons whom it doth, shall or may concern, to the end that all loss, damage, detriment, cost and ex- pense that have arisen, or shall or may arise by reason thereof, or which 'the insurer or insurers of the said vessel or her cargo, is or are liable to pay or make contribution or SHIP PROTESTS. 437 average, may be borne by those to whom the same may of right appertain, such loss, etc., having occurred by reason of the perils of navigation and not by reason of the negli- gence, misconduct or want of skill of this appearer nor of any of the crew. Whereof an act being required of me, the said Notary Public, I have granted these presents under my hand and seal, to serve and avail as need or occasion may require. In testimonium veritatis. A.B. A Notary Public. (Notarial Seal.) I, Thomas Smith, Master of the vessel Flora before mentioned, do solemnly declare that the contents of the foregoing protest are true and correct, and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath, and by virtue of the Canada Evidence Act. Thomas Smith, Master. 438 CANADIAN NOTARIES. Declared before me at , the day of A.D. 19 . A. B., Notary Public. (Notarial Seal.) CANADA. PROVINCE OF COUNTY OF Certifi- TO Wit I CtltG fit- tached to I, A. B., a Notary Public, by lawful auth- protost. ority appointed in and for the Province of and residing and practising at , in the County of , and the said Province of , do hereby certify that the paper writing here- unto annexed is a true and correct copy of the protest of Thomas Smith, the therein- named Master of the vessel Flora, bearing date the day of , instant, and made and declared before me, said paper SHIP PROTESTS. 439 writing having been by me carefully ex- amined and compared with said original protest. In faith and 'testimony whereof I have hereunto subscribed my name and affixed my official seal, at aforesaid, on this day of A.D. 19 . A. B., A Notary Public. (Notarial Seal.) CHAPTER XXII. OATHS AND AFFIDAVITS,, &c. In taking affidavits little formality is re- quired of the notary, but the oath should be administered in a reverent manner, how- ever. In the case of Curry v. The King^ the Supreme Court of Canada gave a decision based on English cases, that it is unneces- sary for a deponent to kiss the Bible or to hold it in his hand. In that case the Chief Justice said: " It is now admitted to be the absolute right of every person in the Eng- lish Courts to be sworn for every purpose in Scotch form without the use of any book and without any question being asked. It may be open to question whether it is not better as a matter of public policy for our Courts and other persons administering oaths to adhere to the time-honored custom of swearing witnesses upon the Bible or MI s. c. R. 532. OATHS, AFFIDAVITS, ETC. 441 Testament in all cases except those where the witness or party claims to have con- scientious objections to swearing in that mode or form. But we think, however that may be, that where no such objection is raised and 'the oath is taken voluntarily by a person with uplifted hand and calling God to witness the truth of his evidence or state- ments, it would be alike a mocking of justice and a disregard of the common law as we understand it to allow such a person in an indicttonent for perjury to escape on the sole ground that he took the oath without being sworn on the Bible or New Testament. ' ' The deponent should stand up. If the Bible is used it should be held by the depon- ent in the right hand and raised to touch the lips, or it may be merely held in the right hand. Male deponents excepting Hebrews should uncover their heads. This is un- necessary in the swearing of women, and the Hebrew does not usually recognize the oath as binding upon his conscience unless his head is covered. It is often thought when a person is being sworn with the Bible in 442 CANADIAN NOTARIES. hand that the glove should be removed from the hand holding it, so that there should be nothing whatever between the book and the flesh of the person holding it, but this is unnecessary, and it has been said by Eng- lish Judges more than once that it is not un- gloved hand, but the reverence with which an oath is taken, that makes it binding. It has often been wondered whether it is necessary for the notary taking an affi- davit to read it or have it read to -the de- ponent to ascertain whether the deponent understands its nature and contents. It is the practice, however, not to do so and the better opinion seems to be that it is unneces- sary except: in the case of illiterates and blind persons. The affidavit is signed by the deponent and the oath taken before the notary. The usual form of oath administered to the de- ponent of an affidavit is as follows : " Is this your name and handwriting ' (pointing to the signature). ' ' You do swear that the contents of this your affidavit are true ? So help you God. " OATHS, AFFIDAVITS, ETC. 443 When there is an exhibit to the affidavit, the notary should add : " Is this ffche document referred to in your affidavit?" The form of jurat is usually set out in the statute or rules of the Court under which the affidavit is made. In nearly all cases, however, the jurat is in the following form : " Sworn to at in the County (or district) of this day of 19 before me, A.B. A Notary Public. (Seal.) Occasionally more than one deponent must be sworn to the same affidavit:. In such cases if the deponents are sworn indi- vidually before different notaries or on dif- ferent days there must be a separate jurat for each deponent and the name of the de- ponent swearing must appear in each. If the deponents are both sworn at the same time the oath is put as follows : 444 CANADIAN NOTARIES. " Is that your name and handwriting?" (To each separately naming him and point- ing to the signature.) " (To all) You do severally swear that the contents of this your affidavit are , true. So help you God. " The jurat, when the deponents are sworn at the same time, commences " Sworn by both (or all) of the above-named depon- ents. ' ' When an affidavit is to be sworn by an illiterate or blind person, it should first be read over to the deponent by the notary or some other person in his presence, and the signature or mark should be made in the presence of the notary. The notary should then put the oath as follows: " Did you perfectly understand the affi- davit which has been read over to you ? ' ' Is this your name and handwriting ? ' ' (or, if he has made his mark, " Is CD. your name"). ' ' You do swear that the contents of this your affidavit are true. So help you God." OATHS, AFFIDAVITS, ETC. 445 The jurat to an affidavit as above would read : Sworn to, &c., before me, I having first truly, distinctly and audibly read over the contents of this affidavit to the deponent (if the deponent is blind add " he being blind." If there are exhibits add " and explained the nature and effect of the ex- hibits therein referred to) who appeared perfectly to understand the same and made his signature (or mark) thereto in my pre- sence. The mark should be made thus, the notary having written the deponent's name, his the mark " C. XD."or " C. X D." mark of If the deponent be physically incapable of signing his name, the form of jurat may be : " Before me, the deponent having made his mark to this affidavit in my presence, he being physically incapacitated from writing his name (or without the deponent affixing hereto any signature or mark, he being physically incapable of doing so). 446 CANADIAN NOT ABIES. Where a deponent is deaf and dumb, the notary before swearing should question such person in writing as to the name and signature, pointing to the same, and then show him the oath in writing. The notary should point to each word and as he pro- ceeds in administering the oath and the de- ponent should be made to kiss the book. The jurat may be in the usual form. Any person objecting to being sworn on the ground that he has no religious belief or that the taking of an oath is contrary to his religious belief, is permitted to make his solemn affirmation instead, and this usually applies to the proof of execution of instru- ments, as well as to affidavits for use in the Courts. The affirmation should be as fol- lows: I, A. B., do solemnly, sincerely and truly declare and affirm that the contents of this affirmation are true. Jurats and certificates may be varied by using the words " solemnly affirmed," instead of " sworn to '' and " made oath." By virtue of the Canada Evidence Act, 2 notaries, among other functionaries, are 2 1906, R. S. Can., ch. 145, sec. 36. OATHS, AFFIDAVITS, ETC. 447 empowered to receive solemn declarations of persons made voluntarily, in attestation of the execution of any writing, deed or instrument, or the truth of any fact, or of any account rendered in writing. These declarations cannot be used in the Courts for any purpose for which an affidavit or affirmation is required, but are intended to cover matters which are not part of a judicial proceeding. The following form is given by the Statute and must be strictly adhered to: I, A. B., do solemnly declare that (state the fact or facts declared to), and I make this solemn declaration, conscientiously be- lieving the same to be true, and knowing that it is of the same force and effect as if made under oath, and by virtue of the Canada Evidence Act. Declared before me , at , the day of , A.D. 19 . (Notarial Seal.) A Notary Public for the Province of 448 CANADIAN NOTARIES. In taking a declaration, the notary asks: " Is that your name and handwrit- ing?" And then: " You do solemnly and sincerely declare that the contents of this, your declaration, are true." Affidavits, affirmations or declarations required by insurance companies authorized to do business in Canada in regard to any loss of, or injury to, person, property or life which is insured may be taken before a notary public, and a notary cannot refuse to take such affidavit, affirmation or declara- tion. 3 3 Can. Evidence Act, 1906, R. S. Can., ch. 145, sec. 37. APPENDIX. NOTARIAL FEES. In one jurisdiction only dealt with by this work has statutory provision been made for the notary's fees of office. In New Brunswick the Table of Costs and Fees l provides the following schedule : Taking acknowledgment or proof of execution of deed or other instrument for registration and certifi- cate, the same fees as are payable to the Registrar of Deeds for like services. Noting protest relating to ship, vessel or cargo . . $5 00 Drawing protest or other papers, per folio Certificate and seal thereto : Presentment and noting of bill of exchange or promissory note for non-acceptance or non- payment 50 Protest of note or bill of exchange when made, including presentment, notary and notice. . 1 00 As to the fees for taking acknowledgment in New Brunswick, the Registry Act 2 provides : The fee for taking and certifying acknowledgments or proof (as the case may be) within the province shall be sixty 1 1903 Con. Stat. of N. B., ch. 188, Part XXI. 2 1903 Con. Stat. of N. B., ch. 151, sec. 52, Part C. C.N. 29 450 CANADIAN NOTARIES. cents for one person and twenty cents for each addi- tional person whose name is included in the same certi- ficate. The Bills of Exchange Act contains the following section respecting notary's charges for protesting, etc. : 124. The expenses of noting and protesting any bill 3 and the postage thereby incurred, shall be allowed and paid to the holder in addition to any interest thereon. (2) Notaries may charge the fees in each province heretofore allowed them. The following tariff adapted from MacLareii on Bills * is generally accepted as setting forth the correct charges to be made under that provision of the Bills of Exchange Act: Alberta, Saskatchewan, Yukon and North- West Territories For noting or protest $2 00 For each notice 50 And postage in addition. British Columbia For noting or protest and notices 2 50 And postage in addition. Manitoba For noting or protest 1 00 For each notice 50 And postage in addition. 3 " Bill " includes note and cheque as used in this section 4 4th ed., 305. NOTARIAL FEES. 451 New Brunswick (Vide the Xew Brunswick Table of Costs and Fees, supra. 5 ) In addition the notary charges the postage. Nova Scotia For noting or protesting bills or notes of $40 or upwards drawn or made within the province upon or in favor of any person in the province $ 50 And for each notice 25 In all other cases for the noting or pro- test, including notices 2 50 Postage additional in all cases. Ontario For noting or protest 50 For every notice 25 And postage in addition. Prince Edward Island Tariff similar to that in Nova Scotia. In all other matters notaries must be guided by what under the circumstances seem reasonable charges to make, and in many cases the amount is a matter of agreement between the notary and his client. In taking affidavits and doing other acts which may be done by other functionaries also, the notary should be governed by the scale of fees, if any, provided by statute for such functionaries. For example, in taking an affidavit within the province for use in Court where 5 P. 449. 452 CANADIAN NOTARIES. the notary's seal is not required, the notary should charge the same fee as is allowed commissioners for taking affidavits, usually twenty cents. When, however, an affidavit is made outside the province and the seal is necessary, the sum of one dollar is usually charged. For noting and making ships' pro- tests, from five dollars upwards, according to the length of the document, would not be unreasonable. Ten cents per folio is the usual charge for copies of docu- ments. INDEX. PAGE ACKNOWLEDGMENT OF MARRIED WOMEN. See Registra- tion, Conveyancing. ACT OF HONOR. See Negotiable Instruments. AFFIDAVITS. See Oaths, etc. AFFIRMATION. See Oaths, etc. APPOINTMENT OF NOTARIES CHAPTER II. Appointment in England 8 Court of Faculties 8 Appointment in Canada 8 Appointment by provincial authority 8 Power of Governor-General to appoint 8, 9, 10 Acts providing for appointment of notaries 13-17 Validity of appointment made before passing of Notaries' Acts 11 Qualifications in England 12 Appointment in Alberta 13 Appointment in British Columbia 13 Appointment in Manitoba 13,14 Appointment in New Brunswick 14, 15 Appointment in Nova Scotia 15 Appointment in Ontario 15,16 Appointment in Prince Edward Island 16 Appointment in Saskatchewan 16, 17 Appointment in Territories 17 ASSIGNMENT OF LEASE. See Conveyancing. ASSIGNMENT OF MORTGAGE. See Conveyancing. BILLS OF EXCHANGE. See Negotiable Instruments. BLIND PERSONS. See Conveyancing. 454 INDEX. PAGE CHEQUE. See Negotiable Instruments. CONVEYANCING CHAPTER XIV. See also Short Forms, Statutes Respecting Conveyancing in Ontario. Alien, meaning and effect of 114 Alterations in deeds 108 Appurtenances. See Conveyancing, cub-title Deeds. Assignment of Mortgage is a transfer 131 operative words in 131 assign and set over 131 grant and convey 131 covenants in 131 covenant that mortgage is good security. . . . 131 covenant that mortgage is not discharged . . . 131 covenant to enforce mortgage covenants.... 131 Assign and set over, meaning and effect of 131 Assigns, word following name of grantee 123 Attestation clause 127, 128* Bargain and sell, meaning and effect of 114 Blind persons, execution of deeds by 108 Bond to accompany mortgage 130, 131 C'estui que trust "". 125 Confirm, meaning and effect of 115 Convey, meaning and effect of 115 Consideration in deeds 112, 113 in leases 133 Corporations, deed to corporation sole 122 deed to corporation aggregate 122 Covenants. See Conveyancing, sub-titles Deeds of Purchase, Leases, Mortgages, Assignment of Mortgage, etc. INDEX. 455 PAGE CONVEYANCING Continued. Declaration of use 124, 125, 126 Deed, meaning of the word 106 definition 106 may be in handwriting or typewritten 107 must be sealed 107 what is sufficient seal 107 sealing depends on intention 107 must be delivered .... 107 sealing imports delivery 107 must be signed 107-108 of illiterate and blind persons 108 execution by illiterate and blind persons 108 attestation of deeds of blind persons and illiterates 108 erasures and interlineations 108 attestation of deed with alterations 108 component parts 109 premises 109 names, addresses, etc., how set forth, 110, 111, 112 description of parties 110, 111,112 recitals 112 stating consideration 112, 113 receipt clause 113 operative words 113, 114, 115 words of conveyance 113, 114, 115 words of limitation 115, 116 habendum 116, 120, 121 description of property 116, 117 land comprehends what 117, 118, 119 " together with the buildings " 117 deed passes what 117, 118, 119 456 INDEX. PAGE CONVEYANCING Continued. Deed, "with the appurtenances" ...117, 118 omission of sanctioned words 117, 118 what is appendant or appurtenant 118, 119 rights of way passing with land 118, 119 appurtenances should be defined 119 the all the estate clause. 119 exception distinguished from reservation.... 120 right-of-way as re-grant not reservation 120 re-grant 120 execution by grantee when way reserved.... 120' habendum 120, 121 what habendum includes 121 tenendum not part of habendum 121 declaration of uses not part of habendum. . . . 121 grant in fee simple, how made. . .122, 123, 124, 125 "heirs" as words of limitation 121, 122, 123 words of limitation 121, 122, 123 passing of fee without use of " heirs ", 121, 122, 123 deed to King 122 deed to corporation sole 122 deed to corporation aggregate 122 " successors " used in passing fee 122, 123 " in fee simple " used in passing fee 122 deed to trustee 122, 123 estate per autre vie, how created 123 life estate, how created 123 limiting the estate 123 limiting the estate in habendum 123 limiting the estate in premises 123 words of limitation in premises explained in habendum but not abridged 123 . INDEX. 457 PAGE CONVEYANCING Continued. Deed, when no habendum 123 "assigns" following name of grantee. .. .123, 124 uses and trusts 124, 125, 126 declaration of use or trust 124, 125, 126 Statute of Uses and its effect 124, 125 feoff ment without declaring use 125 resulting trusts 125, 126 declaration of use not always necessary.... 125 omission of sanctioned words 126 effect of omission of declaration of use in deed without consideration 126 form of words in covenants 126 notaries' duties and responsibilities with re- spect to covenants 12? testimonium clause 127 attestation clause 127, 128 necessity for signature by witness 127, 128 Deed of Purchase. See Conveyancing, sub-titles Purchase Deeds and Deeds. Deed of Quit Claim. See Conveyancing, sub-titles Quit Claim Deeds and Deeds. Declaration of Uses, not part of habendum 121 declaration of use or trust 124, 125, 126 not essential to ordinary conveyance in fee simple 125 effect of omission in deed without considera- tion 126 Delivery, essential to deeds 107 imported by sealing 107 Description of property 116, 117 458 INDEX. PAGE CONVEYANCING Continued. Demise and lease, meaning and effect of 133, 134 covenants implied by 133, 134 Enfeoff, meaning and effect of 114, 115 Estate, for life 123 in fee simple 122 per autre vie 123 exceptions 120 Foreclosure and sale 129, 130 Forms, purchase deed with covenants, wife joining to bar dower 138 description of water lot 141 inclusion of right of way in deed 141 revesting right of way in grantor 142 quit claim deed 142 operative part of another form of quit claim deed 144 deed from executor 144 mortgage 147 assignment of mortgage 151 release of mortgage 154 partial release of mortgage 156 lease of concert hall 159 lease of house 166 use of passageway in lease 173 reservation of passageway in lease 173 covenant restricting use of premises in lease 173 covenant for renewal of lease 173 assignment of lease 175 consent by lessee to assignment of lease .... 177 INDEX. 459 PAGE CONVEYANCING Continued. Forms, testimonium and attestation where a com- pany executes 178 testimonium and attestation when a company and a private individual execute 178 attestation where instrument is signed by mark 179 attestation where interlineations and altera- tions have been made 179 powers of attorney 179, 180, 181 Grant, meaning and effect of 114 does it imply covenant 114 Habendum, definition 120, 121 words of limitation in 116, 121 what it comprises 121 limiting estate in 116, 121 does not abridge estate in premises 116, 121 when no habendum estate in premises passes 116, 121 Illiterate persons' deeds 108 Lease, meaning and effect of word 133 Lease, definition ..: 132 usual clauses in 132, 133 names and description of parties 133 consideration 133 stating consideration 133 operative words 133, 134 covenant for quiet enjoyment implied by operative words 133 460 INDEX. PAGE CONVEYANCING Continued. Lease, effect of express covenants on implied covenants 133 is covenant for title implied by operative words .133, 134 description of parcels 134 habendum states term demised 134 reservation of rent form 134 covenants 135, 136, 137 what are usual covenants 135 lessee's covenants 135 covenant to pay rent and taxes 135 covenant for good repair 135 clause respecting re-entry 135 clauses usually inserted by custom 135, 13o lessor's covenants 136 covenant for quiet enjoyment .136 value of covenant to pay rent 136 rights of landlord respecting rent, when lease assigned 136 covenants implied by " demise " 136 covenant for quiet enjoyment limited to acts of lessor 136, 137 covenant for renewal 137 Let, meaning and effect of 133 Life estate 123 Mortgage, definition 129 how regarded at common law 129 how regarded in equity 129 payment how enforced 129 foreclosure 129 form of mortgage 130 INDEX. 461 PAGE Cox vEYAXciJf G Con tinned. Mortgage, proviso 130 covenants 130 covenants for lawful entry 130 covenant for peaceful enjoyment 130 covenant for title 130 insurance clause 130 time for repayment of money secured 130 interest, how payable 130 accompanied by mortgage bond 130, 131 necessity for mortgage bond 130, 131 Mortgage, Assignment of. See Conveyancing, sub- title Assignment of Mortgage. Mortgage Bond, usually accompanies mortgage 130,131 value of bond 130, 131 Mortgage, Release of. See Conveyancing, Release of Mortgage. Names, and description of parties. See also Con- veyancing, sub-title Deeds, Leases, etc. Notary's responsibility in drafting covenants. . 127 Operative words. See Conveyancing, sub-titles Deeds, Leases, etc. Parcels, description of, in leases 134 Partial release of mortgage 132 Purchase deed. See also conveyancing, sub-title Deeds 109 et seq. Quit claim, meaning and effect of word 114 Quit claim deed, definition 128 operative words 114 not proper deed for conveying 128 transfers maker's present interest 128 4()2 INDEX. PAGE CONVEYANCING Continued. Quit claim deed, does not transfer subsequently acquired title 128 proper use 128 quit claim deeds classified 128, 129 containing words of grant 128, 129 Receipt clause 113 Recitals in deeds 112 Re-entry clause in lease 135 Release, meaning and effect of 115 Release of mortgage. See also Conveyancing, sub- title Mortgages. in form of deed poll 131, 132 commencement 131, 132 recitals 132 to whom made when equity of redemption sold 132 Remise, meaning and effect of 115 Reservation of rent in leases 134 Resulting trust 125, 126 Rights of way passing with the land 118, 119 Signature, necessity for 107, 108 Statute of Uses 124, 125 Tenedum clause 121 Testimonium clause 127 Trust, declaration of 124, 125, 126 Trustee, deed to , . . 122, 123 Use, declaration of 124, 125, 126 Uses, Statute of 124, 125 Words of conveyance 113, 114, 115 Words of limitation, in premises 121, 122, 123 in habendum . ..121, 122, 123 INDEX. 463 PAGE CONVEYANCING UNDEB THE TORRENS SYSTEM. Covenants, not implied by transfer 184 implied by registration 184, 185, 186 special covenants in mortgage 186, 187 Discharge of mortgage 187 Discharge of incumbrance 187 Forms, Alberta 190 et seq. transfer 190, 191 lease 191-195 mortgage 195-197, 200-204 incumbrance 197-199 transfer of mortgage or incumbrance 199 transfer of part of mortgage or iijcumbrance, 199, 200 short covenants in mortgage .200-204 power of attorney 204-206 revocation of power of attorney 206 receipt or acknowledgment of payment of mortgage, etc 206, 207 Forms, Manitoba 207 et seq. memorandum of transfer 207 memorandum of lease 207, 208 memorandum of mortgage 208, 209 memorandum of incumbrance 209, 210 transfer of lease, mortgage or incum- brance 210, 211 discharge of mortgage 211, 212 Forms, Saskatchewan 212 et seq. mortgage 212, 213, 217-221 incumbrance 214, 215 affidavit accompanying mortgage or incum- brance 215, 216 short covenants in mortgage 217, 221 464 INDEX. PAGE CONVEYANCING UNDER THE TORRENS SYSTEM Continued. Forms, receipt or acknowledgment of payment of mortgage, etc 221 lease 222, 225 surrender of lease 225 power of attorney 225, 227 revocation of power of attorney 227 transfer 227, 228 transfer of mortgage, incumbrance or lease.. 228, 229 transfer of part of mortgage or incumbrance 229, 230 Forms, Territories 230 et seq. transfer- 230V 231 lease 231, 234 surrender of lease 234, 235 mortgage 235, 236, 240-244 incumbrance 237, 238 receipt or acknowledgment of payment of mortgage or other incumbrance 238 transfer of mortgage, incumbrance or lease 239 transfer of part of mortgage or incumbrance 239, 240 short covenants in mortgage 240-244 power of attorney 244-246 revocation of power of attorney 246 Incumbrance, purposes of 185 do not contain covenants 187 transfer of 187 discharge of 187 Lease, for term three years or under 188 INDEX. 465 PAGE CONVEYANCING UNDER THE TORRENS SYSTEM Continued. Lease, registration of short term leases 188 covenants implied 188 powers in lessor implied 188-189 transfer 189 surrender 190 Mortgage, definition 185 form 185, 186 covenants implied by registration 186 special covenants 186, 187 transfer 187 discharge 187 Powers implied in lease 188, 189 Powers of Attorney, in Alberta and Saskatchewan 190 in Manitoba 190 Registration, covenants implied by 184, 186 Short forms 186, 189 Surrender of lease 190 Transfer, form 183, 184 words of limitation unnecessary 184 operates as absolute transfer 184 does not imply covenants 184 Transfer of incumbrance 187 Transfer of lease 189 Transfer of mortgage 187 Words of limitation 184 DECLARATION. See Oaths, etc. DEED. See Conveyancing, Short Forms, Statutes Re- specting Conveyancing in Ontario, Registration. c.x. 30+ 466 INDEX. PAGE DISCHARGE OF INCUMBRANCE. See Conveyancing under Torrens System. DISCHARGE OF MORTGAGE. See Conveyancing, Registra- tion. DOCUMENTS OF NOTARIES AS EVIDENCE. CHAPTER IV. Notary's attestation without further proof . . 26 et seq. Attestation of power of attorney executed abroad 26, 27 Verification of the office 27, 28, 29 Certificate of protest 28 Certificate of protest abroad : 28 Certificate of execution of deed without further proof 29, 30 Statutes respecting admission in evidence of notaries' certificates 30, 31 ENTRY OF PROTEST. See Ship Protests. EXECUTION OF INSTRUMENTS. See Registration, Con- veyancing. FORMS. See sub-title Forms under various titles. FUNCTIONS AND DUTIES IN GENERAL CHAPTER III. Definitions of notary public 18 Functions of notary in England 18, 19 Notaries in other countries 19 Notaries in Province of Quebec 19, 20 Functions of notary in Canada 20 et seq. Functions created by statute 21 Functions under Bill of Exchange Act 21 Proving execution of conveyances 21, 22, 23 Proof of foreign documents 22, 23 Other officers who may act in certain cases 23 Taking of affidavits 24 Making ship protests 24 Other functions under statutes 24 Notary must act in best interests of client 24 INDEX. 467 PACK FUNCTIONS AND DUTIES ix GENERAL -Continued. Duty to explain instruments to illiterates 25 Disqualification in certain cases 25 HISTORY OF THE OFFICE CHAPTER I. Derivation of word " Notary " 1 Notaries 1, 2, 3 Tabellion J, 2, 3 Introduction of Notaries in England 3, 4 Changes in the nature of the office 4, 5 Beginning of use of seals 4, 5 Papal and Imperial notaries 5 Appointment by Archbishop of Canterbury 5 King takes power of appointment 5 Court of Faculties established 5 Connection of office with canon law 6 Appointment in Scotland 7 ILLITERATE PERSONS. See Conveyancing. INCUMBRANCE. See Conveyancing under Torrens Sys- tem. LEASE. See Conveyancing, Short Forms, Statutes re- specting Conveyancing in Ontario. MARRIED WOMAN'S ACKNOWLEDGMENT. See Registra- tion, Conveyancing. MORTGAGE. See Conveyancing, Short Forms, Statutes respecting Conveyancing in Ontario, Registration. MORTGAGE BOND. See Conveyancing. NEGOTIABLE INSTRUMENTS CHAPTER XX. Acceptance after maturity 346 Acceptance for Honor, supra protest. when made 375 must be written on bill 375 must state what 375 when not stated for whose honor accepted.. 375 468 INDEX. PAGE. NEGOTIA BLE I .\ STR r M K .\ TS Co n tinned. Acceptance for honor, supra protest, acceptors liabilities 376 maturity of bill payable after sight 376 must be attested by Act of Honor 376, 377 See also Negotiable Instruments, sub-title Act of Honor on Acceptance Supra fro- test. Act of Honor on Acceptance Supra Protest, acceptance for honor attested by 376, 377 nature of act 377 made in triplicate 377 expense of, paid by acceptor supra protest. . . 377 See also Negotiable Instruments, sub-title Forms. Act of Honor on Payment Supra Protest, payment for honor attested by 379 made in triplicate 379 See also Negotiable Instruments sub-title Forms. Bill of Exchange, definition 339 parties to 340 Cheques, definition of 340 Delay, in presenting for acceptance 345, 3445 in presenting for payment 355 in giving notice of dishonor 361 Destroyed instrument, protest of 369 Endorsement, how effected 341, 342 in blank 341 special 341, 342 requires delivery to complete it 342 contracts implied by 342 IXDEX. PACK IXSTBCMEXTS Continued. Endorsement, *o* recoiir* 342 on face of instrument .". 342 Endorser who is mere guarantor 358, 359 Foreign bills and notes 363 Forms (Schedule to Bills of Exchange Act), noting for non-acceptance 380,381 protest for non-acceptance or non-payment of bill payable generally 381, 382 protest for non-acceptance or non-payment of bill payable at stated place 383, 384 protest for non-payment of a bill noted but not protested for non-acceptance 384, 385 protest for non-payment of note payable gen- erally 385, 386 protest for non-payment of note payable at a stated place 386, 387 Notarial notices of a noting, or of a protest for non-acceptance or of a protest for non-payment of a bill 388, 389 notarial notice of protest for non-payment of a note 390 notarial service of notice of a protest for non- acceptance or non-payment of a bill, or note 390, 391 Forms and precedents (Additional), noting for non-acceptance of bill 392, 393 notarial notices of above noting for non- acceptance 394, 395 protest for non-acceptance of bill 396, 397 notarial notices for above protest for non- acceptance 398, 399 470 INDEX. PAGE NEGOTIABLE INSTRUMENTS Continued. Forms and precedents (Additional), noting for non-payment of bill payable at a stated place 400, 401 notarial notices of above noting for non-pay- ment 401 protest for non-payment of bill payable at stated place 401, 402, 403 notarial notices of above protest for non-pay- ment 403 noting for non-payment of bill payable gen- erally 404, 405 notarial notices of above noting for non-pay- ment 405 protest for non-payment of bill payable gen- erally 405, 406, 407 notarial notices of above protest for non-pay- ment 407 protest of bill for better security 407, 408, 409 noting for non-payment of note payable at a stated place 410 notarial notices of above noting for non-pay- ment 411 protest for non-payment of note payable at a stated place 412, 413 notarial notices for above protest for non-pay- ment 414 noting for non-payment of note payable gen- erally 414 notarial notices of above noting for non-pay- ment 415, 416 protest for non-payment note payable gen- erally 416, 417 INDEX. 471 PAGE NEGOTIABLE INSTRUMENTS Continued. Forms and precedents (Additional), notarial notices of above protest for non-pay- ment 418 protest for non-payment of cheque. . . .418, 419, 420 notarial notices of above protest for non-pay- ment 420 protest of bill for non-acceptance when pre- sentment made through post office 421 protest of bill for non-acceptance or non-pay- ment when, after due diligence, present- ment cannot be effected 422 protest of bill for non-payment when original lost or destroyed and copy is presented for payment 423 notarial act of honor on acceptance .423, 424 notarial act of honor on payment 424, 425 endorsement of Notary's fees on protest 426 Guarantor distinguished from other endorsers. 328, 329 Inland bills and notes 363 et seq. Law merchant 376 Lost or destroyed instrument, protest of 137, 369 Nature of instruments 339 et seq. Notary, teller or agent of bank cannot be protesting notary 372, 373 endorser cannot be protesting notary 373 liability for neglect or lack of skill in pro- testing 373 Note. See Negotiable Instruments, sub-title Pro- missory Note. Notice of dishonor, by non-acceptance 349 472 INDEX. PAGE NEGOTIABLE INSTRUMENTS Con Jiw ued. Notice of dishonor, necessary after non-accept- ance or non-payment 357, 358 discharge from liability or omission 357, 358 need not be given acceptor or maker 358 bill dishonored by non-acceptance and subse- quently by non-payment 358 need not be given endorser who is mere guar- antor 358, 359 when to be given 359 by whom given 359 to whom given 359, 360 when party dead 360 two or more drawees or endorsers 360 may be written or verbal 360 by returning dishonored bill 360 may be supplemented 360, 361 misdescription of instrument in 361 miscarriage of post office 361 delay in giving when excused 361 when dispensed with 361, 362 waiver of 361, 362 when drawer and drawee same person 362 drawer fictitious person or incapacity to contract 362 when payment stopped 362 accommodation instrument 362 Notice of protest 140, 372 Noting for protest 371, 372, 373 Parties to instruments 340, 341 Payment for honor supra protest, when made 378 holder refusing payment 378 INDEX. 473 PAGE NEGOTIABLE INSTRUMENTS Continued. Payment for honor, supra protest, discharge of parties by payment 378 rights of payer 378 Act of Honor on payment 378 See also Negotiable Instruments, sub-title Act of honor on payment supra protest. Presentment for acceptance, purposes 343 as respects cheques and notes 343 cases when necessary 343, 344 when person in possession as agent 344 by whom made 344 time for making 344, 345, 346 upon whom made 344, 345, 346 delay when excused 345, 346 bill addressed to two or more drawees 347 when drawee dead 347 presentment to personal representative 347 when sufficient by mail 347 when excused 347, 348 drawee's three days to accept 348 bill payable at or after sight 348, 349 Presentment for payment, effect of omission to present 350 how effected 350 days of grace added to time for payment. .350, 351 last day of grace falling on legal holiday. .350, 351 time for presentment 350, 351, 352 what is a reasonable hour 351 presentment at a bank 352 by whom made 352 place for presentment 352, 353, 354, 355 C.N. oOa 474 INDEX. PAGE NEGOTIABLE INSTRUMENTS Presentment for payment, payee usually need not be present ............................ 353 presentment to two or more payers ......... 354 instrument payable at bank with several agen- cies ................................... 354 presentment at post office .................. 354 place of payment in town or village ....... 354 delay when excused ....................... 355 acceptor's liability when no place mentioned, 355 effect of non-presentment of bill .......... 355 effect of non-presentment of note ........ 355, 356 place of payment indicated by memorandum 355 when excused ........................... 356, 357 when cannot be effected ................... 356 drawee a fictitious person ................. 356 when presentment waived ................ 356 waiver of presentment ...... ............ 356, 357 when no reason to believe payment will be made ................................. 357 Presentment for protest, by whom made ............................ 367 by notary's clerk ........................... 367 rules applicable . 1 .......................... 367 time for making ........................ 367, 368 dishonor by non-acceptance ................ 368 Promissory note, definition ................................ 340 parties to ................................. 341 Protest. See also Negotiable Instruments, sub- title Forms. upon non-acceptance or non-payment . . 363 et seq. inland bills and notes .................. 363, 364 INDEX. 475 PAGE NEGOTIABLE INSTRUMENTS Continued. Protest, foreign bills and notes 363, 364 history of making of 364, 365 provisions in Bills of Exchange Act regarding protests as evidence 365, 366 necessity for protests 366 what is a protest 366, 367 includes a second presentment 366, 367 See also Negotiable Instruments, sub-title Pre- sentment for Protest. must be made where 368 where made when presented through post office ,...368,369 when instrument lost or destroyed 369 what protest contains 369, 370 protest for qualified acceptance .369, 370 must be signed by notary 370 seal on protest 370 drawn in duplicate 370 protest register 371 endorsing protest fees 371 noting for protest 372, 373 notice of protest 372 when dispensed with 372 cannot be made by title or agent of bank. 372, 373 cannot be made by endorser 373 notary's neglect or lack of skill 373 See also Negotiable Instruments, sub-title Protest for Better Security. usually but not necessarily made in duplicate 389 Protest for better security, when necessary 373 476 INDEX. PAGE NEGOTIABLE INSTRUMENTS Continued. Protest for better security, when acceptor of for- eign bill suspends payment 374 notary's duties 374, 375 notary must ascertain fact of suspension of payment 374, 375 Protest register 371 Qualified acceptance, protest upon 369, 370 Seal on protests 370 Suspension of payment, rights given holder by.. 374 Waiver of presentment for payment 356, 357 before or after maturity 356, 357 written or verbal 356, 357 NOTARY, Derivation of word 1 History of office 1-7 Appointment of 7-17 Functions and duties generally 18-25 Disqualifications of 25, 372, 373 Evidence of 26-31 Duties under registry acts generally 35 Responsibility in drafting covenants 127 Liability for neglect 373 NOTE. See Negotiable Instruments. NOTE OF PROTEST. See Ship Protests. NOTING. See Negotiable Instruments. OATHS, AFFIDAVITS, ETC. Manner of taking oath 440, 441, 442 Without the Book 440, 441 Oath taken on the Book 441, 442 Uncovering the head 441 Taking affidavits 442 Illiterate and blind persons 442 INDEX. 477 PAGE OATHS, AFFIDAVITS, ETC. Continued. Form of oath to deponent of affidavit 442, 443 Form of jurat to affidavit 443 Form of oath and jurat when more than one deponent 443, 444 Form of oath and jurat when deponent illiterate or blind 444, 445 Form of jurat when deponent physically incap- able of signing 445 Oath of deaf and dumb person 446 Solemn affirmation 446 Solemn declaration 446, 447 Affidavits, etc., required by insurance companies 448 PARTIAL RELEASE. See Conveyancing. PAYMENT FOR HONOR. See Negotiable Instruments. POWER OF ATTORNEY. See Conveyancing. PRESENTMENT OF INSTRUMENTS. See Negotiable Instru- ments. PROMISSORY NOTE. See Negotiable Instruments. PROTEST. See Negotiable Instruments, Ship Protests. QUIT CLAIM DEED. See Conveyancing. REGISTRATION OF INSTRUMENTS GENERALLY CHAPTER V. Object of registration legislation 32, 33 Systems of registration in Canada 33, 36 The old system 34, 35 The Torrens system 34, 35 Notaries' duties under Registry Acts generally. . 35 The Land Titles Acts of Nova Scotia and On- tario 35, 36 REGISTRATION IN ALBERTA AND SASKATCHEWAN CHAPTER VI. The Canadian Torrens System 37 et seq. Object of the Torrens System 37, 38 478 INDEX. PAGE REGISTRATION IN ALBERTA AND SASKATCHEWAN Cont'd. Registrar of Titles 39 Certificates of title 39,40 Matters not covered by certificate of title 39, 40 The transfer 40, 41 Procedure upon transfer of land 41 Books containing encumbrances 41 Leases and the effect of the acts as to their regis- tration 42 Unregistered interests 42 Caveat ' 42,43 Execution of instruments within the Province. .43, 44 Form of affidavit of execution 44 Instrument executed by corporation 45 Execution of instruments outside of Province . . 45 Affidavit as to age of maker of instrument 45, 46 Form of affidavit of age 46 Affidavits supporting caveat 46, 47 Form of affidavit supporting caveat in Alberta.. 46, 47 Form of affidavit supporting caveat in Saskatche- wan 47 REGISTRATION IN BRITISH COLUMBIA CHAPTER VII. British Columbia Land Registry Act 48 et seq. Effects of registration 49 Certificate of indefeasible title 49, 50, 51 Matters not covered by certificate of indefeasible title .51, 52 Procedure on conveyance of land 52 Leases not exceeding three years 52 Execution of instruments 52 et seq. Who may acknowledge or prove execution 53 Acknowledgment by party executing in person. 53, 54 INDEX. 479 PAGE REGISTRATION IN BRITISH COLUMBIA Continued: Form of certificate of acknowledgment by party executing in person 54, 55 Execution of instrument by attorney in fact 55, 56 Form of certificate of acknowledgment by attor- ney in fact 56,57 Execution of instrument by corporations 57, 58 Form of certificate of acknowledgment of exe- cutions by officer of corporation ....58, 59 Execution of instrument by married woman.... 59, 60 Form of certificate of acknowledgment of married woman 60, 61 Effect of conveyance by married woman 61 Execution proved by subscribing witness 61, 62 Form of certificate of acknowledgment- of sub- . scribing witness 62, 63 Caveat 63, 64 Form of affidavit verifying caveat 64 REGISTRATION ix MANITOBA CHAPTER VIII. The Torrens System in Manitoba 65 et seq. Affidavits accompanying instruments 65 Affidavit in support of caveat and form 66 Before whom affidavit may be sworn 67 The " old" system in Manitoba 67 et seq. Effects of registration and non-registration 67 What instruments must be registered 67 Leases not exceeding three years 67 Affidavit of execution 68 Form of affidavit of execution 69 Affidavits made outside the Province 70 Execution of instruments of corporations 70 Notary a party to instrument 70 Proof by affirmation or declaration 70 480 INDEX. PAGE REGISTRATION IN NEW BRUNSWICK CHAPTER IX. The New Brunswick Registry Act 71 et seq. Effect of non-registration of instruments 71, 72 Leases not exceeding three years 71 Execution of instruments 72 et seq. Proof by subscribing witness 72 Proof by affirmation or declaration 72, 73 What notaries may act within Province 73 What notaries may act outside Province 73 Other officers who may take acknowledgments outside Province 73 Authentication of office by notary 73, 74 Additional acknowledgment of married woman.. 74 Form of certificate of acknowledgment of execu- tion by husband and wife with married woman acknowledgment 75, 76 Form of certificate of proof of execution by sub- scribing witness 76, 77 Form of notary's certificate authenticating hand- writing and certificate of other functionary. 78 REGISTRATION IN NOVA SCOTIA CHAPTER X. The Registry Act of Nova Scotia 79 et seq. Effects of registration and non-registration.... 79 What instruments should be registered 79,80 Proof of execution for registration purposes. .80 et seq. Acknowledgment by party in person 80 Form of acknowledgment by party in person ... .80, 81 Proof of execution by subscribing witness 81 Form of certificate of proof by subscribing wit- ness 81,82 Conveyances of married women 82, 83 Form of married woman's acknowledgment 83 Instruments executed outside the Province.. 84 INDEX. 481 PAGE REGISTRATION IN NOVA SCOTIA Continued. Certificate of execution outside the Province.... 84 Form of certificate of execution outside the Pro- vince 85 Form of certificate of acknowledgment of mar- ried woman outside Province 85, 86 Execution of instruments by corporations 86 Form of certificate of execution by corporation. .86, 87 REGISTRATION IN ONTARIO CHAPTER XI. The Registry Act of Ontario 88 et seq. Effects of registration and non-registration 88 Instruments covered by the Act. . .^ 88, 89 Leases for term not exceeding seven years 89 Requirements upon registration 89, 90 Form of affidavit of subscribing witness 90, 91 Instruments in nature of security to be read and explained 91 Form of affidavit on instrument in nature of secur- ity 91, 92 Execution by corporation 92 Proof by affirmation or . declaration 92 Notary's seal when necessary 93 REGISTRATION IN PRINCE EDWARD ISLAND CHAPTER XII. Statutes effecting registration in P. E. 1 94 et seq. Effects of registration and non-registration. .. .94, 95 Non-registration of leases 95 Acknowledgment or proof of execution 95, 96 When notary may act 96 Notary must certify under his seal 96 Form of certificate of acknowledgment of party in person 96 Form of certificate of oath of subscribing witness 97 Joinder of married woman in husband's deed.. 97, 98 Additional acknowledgment by married woman, 98, 99 482 INDEX. PAGE REGISTRATION IN THE TERRITORIES CHAPTER XIII. Dominion Land Titles Act 99 et seq. Certificate of title "59 Matters not covered by certificate 99, 100 Transfers, how made 100, 101 Effects of registration and non-registration...... 101 Leasehold interest not exceeding three years.... 101 Proof of execution 102 Instruments of corporation 102 Form of affidavit of subscribing witness 103, 104 Evidence of age of the maker 104 Form of affidavit of age of maker 104 Caveat 104, 105 Form of affidavit accompanying caveat 105 RELEASE OF MORTGAGE. See Conveyancing, Statutes re- specting Conveyancing in Ontario, Registration. SEAL OF NOTARY. See Registration, Negotiable Instruments. SHIP PROTESTS CHAPTER XXI. Purposes 427, 428, 429 Note or entry of protest 427, 430 When to be made 428, 429 Form in which made 429, 430 Form of entry of protest 431, 432 Form of beginning of extended protest 432, 433 Form of protest in first instance 434, 438 Form of certificate attached to copy of protest. . 438 SHORT FORMS. See also Conveyancing under Torrens System, Statutes respecting Conveyancing in On- tario. SHORT FORMS IN BRITISH COLUMBIA CHAPTER XVI. What the grant includes 248 The schedules 248 et seq. The Real Property Conveyance Act 249 et seq. INDEX. 483 PAGE SHORT FORMS IN BRITISH COLUMBIA Continued. The Mortgage Statutory Form Act 259 et seq. The Leaseholds Act 279 et seq. SHORT FORMS IN MANITOBA CHAPTER XVII. Theory of the Act 288 Words of limitation 288 Deed of Conveyance 288, 289 Deed of Mortgage 290, 291 Deed of Lease 291 et seq. SHORT FORMS IN NOVA SCOTIA; CHAPTER XIX. Theory of the Act 330 Words of limitation 330 Form of Deed 331 et seq. Form of Mortgage 333 Form of Lease 335 STATUTES RESPECTING CONVEYANCING IN ONTARIO CHAPTER XVIII. The Conveyancing and Law of Property Act, 303 et seq. words of limitation 303, 304 conveyance includes what 304 covenants implied 304, 305, 306 form of conveyance by beneficial owner... 323, 324 The Mortgage Act 306, 307 implied covenants 306, 307 The Short Forms Acts 307 et seq. theory 307, 308 Short Forms of Conveyance Act 308 et seq. Short Forms of Leases Act 311 et seq. Short Forms of Mortgage Act 320 et seq. Form of Conveyance 309 et seq. Form of Lease 314 et seq. Form of Mortgage 321 et seq. Statutory Discharge of Mortgage 328 484 INDEX. TORKENS SYSTEM. See Registration in Alberta, Sas- katchewan, Manitoba and Territories, Convey- ancing under Torrens System, Short Forms. TRANSFER. See Conveyancing under Torrens System, Registration. TRANSFER OF INCUMBRANCE. See Conveyancing under Torrens System. TRANSFER OF LEASE. See Conveyancing under Torrens System. TRANSFER OF MORTGAGE. See Conveyancing under Tor- rens System. . SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES