751. WARRANT of ATTORNEY to CONFESS JUDGMENT. To E. F., of

and G. H., of

attorneys of , jointly and THESE ARE TO DESIRE AND AUTHORIZE you, the attorneys above named, or any of you, or any other attorney of the said court of Queen's Bench aforesaid, to appear for me, A. B., of

her Majesty's court of Queen's Bench at

severally, or to any other attorney of the same court.

of

as

term last or some subsequent term in the said court, then and there to receive a declaration for me in an action of debt for $ for money borrowed, at the suit of C. D., of and thereupon to confess the said action, or else to suffer a judgment by nil dicit, or otherwise, to pass against me in the same action, and to be thereupon forthwith entered up against me, of record of the same court, for the sum of $ and costs of suit; AND I, the said A. B., do hereby further authorize and empower you, the said attorneys, or any one of you, after the said judgment shall be entered up as aforesaid, for me and in my name, and as my act and deed, to sign, seal, and execute a good and sufficient release in the law to the said C. D., his heirs, executors, and administrators, of all and all manner of error and errors, writ and writs of errors, and all benefit and advantage thereof, and all misprisions of error and errors, defects and imperfections, whatsoever, had, made, committed, done, or suffered, or to be had, made, committed, done, or suffered, in, about, or concerning the aforesaid judgment, or in, about, touching, or concerning any writ, warrant, process, declaration, plea, entry, or other proceedings whatsoever, of or any way concerning the same; AND it shall not be at any time necessary to revive the said judgment by writ of scire facias, or do any other act, matter, or thing to keep the same on foot, although the same shall have been entered on record for the space of one year or upward: AND whatsoever you, my said attorneys, or any one of you, shall do, or cause to be done, in the premises, or any of them, this shall be to you, and to every of you, a sufficient warrant or authority.

IN WITNESS WHEREOF, I have hereunto set my hand and seal, the in the year of our Lord one thousand

day of

eight hundred and fifty

A. B.

I, L. M., do hereby declare myself to be attorney for and on behalf of the said A. B.

TO ALL TO WHOM THESE PRESENTS SHALL COME: We, whose names are hereunder written and seals affixed, creditors of A. B., of the

of

in the county of

send greeting:

ince of Canada, WHEREAS the said A. B. does justly owe and is indebted unto us, his said several creditors, in divers sums of money; but, by reason of sundry losses, disappointments, and other damages, happened unto the said A. B., he is unable to pay and satisfy us of our full debts and just claims and demands, and therefore we, the said creditors, have resolved and agreed to undergo a certain loss, and to accept of cents for every dollar owing by the said A. B. to us, the several and respective creditors aforesaid, to be paid in full satisfaction and discharge of our several and respective debts;

Now KNOW YE that we, the said creditors of the said A. B., do, for ourselves, severally and respectively, and for our several and respective heirs, executors, and administrators, covenant, promise, compound, and agree, to and with the said A. B., by these presents, that we, the said several and respective creditors, shall and will accept, receive, and take, of and from the said A. B., for each and every dollar that the said A. B. does owe and is indebted to us, the said several and respective creditors, the sum of cents, in full discharge and satisfaction of the several debts and sums of money that the said A. B. does owe and stand indebted unto us; to be paid unto us, the said several and respective creditors, within the time or space of months next after the date of these presents; AND WE, the said several and respective creditors, do severally and respectively covenant, promise, and agree, to and with the said A. B., that he, the said A. B., shall and may, from time to time and at all times within the said time or space of months next ensuing the date hereof, assign, sell, or otherwise dispose of all his goods. and chattels, wares and merchandise, at his own free will and pleasure, for and toward the payment and satisfaction of the said cents for every dollar the said A. B. does owe and is indebted unto us, as aforesaid; AND that neither we, the said several and respective creditors, nor any of us, shall or will, at any time or times hereafter, sue, arrest, molest, or trouble the said A. B., or his goods and chattels, for any debt or other thing now due and owing to us, or any of us, his respective creditors; So As the said A. B. well and truly pay, or cause to be paid, the said sum of cents for every dollar he does owe and stand indebted to us, respectively, within the said time or space of months next ensuing the date hereof; AND all and every of the grants, covenants, agreements, and conditions herein contained shall extend to and bind our several executors, administrators, and assigns.

IN WITNESS, &c., (as in n. 751.)

323

753. DEED of COMPOSITION with CREDITORS.

THIS INDENTURE, made the

A. B., of

Province of Canada,

of

of

of

day of

between

in the county of

in the county of

and

in the county of

province aforesaid, of the second part; and the other persons whose names and seals are hereunder signed and set, [being creditors of the said A. B.,] of the third part, witnesseth as follows:

(1.) THE SAID A. B. assigns unto the said C. D. and E. F., their executors and administrators, all the personal property of the said A. B., with power for the said C. D. and E. F., and the survivors of them, his executors or administrators, or their or his assigns, or his or their substitute or substitutes, in the name of the said A. B., his executors or administrators, to recover, receive, and give receipts for the same premises; UPON TRUST that the said C. D. and E. F., and the survivor of them, his executors or administrators, or their or his assigns, shall realize the said premises, either by sale or otherwise, [with absolute discretion as to the conditions, time, and mode of sale, and with power to buy in and resell the premises, to contract and rescind contracts, and to execute assurances,] and shall pay the moneys realized, with all intermediate income, [after satisfying all expenses of the trust and of the preparation of these presents,] to the creditors of the said A. B., rateably according to their respective debts. PROVIDED (1.) That the said trustees, or trustee, may allow the said A. B. to retain any wearing apparel, or household furniture; may employ, at such remuneration as they or he shall think fit, any person or persons [including the said A. B.] in winding up the affairs of the said A. B.; may abandon or compound any suit or action; and may, at all times, pay in full any creditor whose debt is under dollars. (2.) THAT all moneys for the time being in the trustee's hands, above dollars, shall be paid into the banking-house of Messrs. (3.) THAT the trustees' receipts shall discharge all persons paying purchase or other money, or transferring trust property from liability in regard to the application thereof. (4.) THAT the surviving and continuing trustees and trustee [or the executors or administrators of the last surviving or continuing trustee] may appoint one or more persons in the place and with the powers of every original or future trustee who shall die, be abroad, retire, or refuse or become incapable to act, the premises being, on each appointment, either revested or not at discretion. The vacancies may be supplied either at the same or several times and in any order, and any one or more may be left unsupplied; and every refusing or retiring trustee shall be deemed

continuing for the purpose of supplying [if willing] his own or any other then subsisting vacancy. (5.) THAT no trustee shall be responsible for omitting to realize any of the premises, notwithstanding any consequent loss or expiration of interest. (6.) THAT every trustee, who shall be a solicitor or attorney, [including the said

shall be entitled to the same professional remuneration as if he had not been a trustee.

(2.) IN CONSIDERATION of the foregoing assignment, the said parties hereto of the second and third parts release the said A. B., his heirs, executors, and administrators, from all debts or claims due from him to the said parties hereto of the second and third parts, respectively, and from all legal and equitable proceedings for recovering and enforcing the same.

(3.) PROVIDED (1.) THAT no creditor's specific security, of which he shall have delivered a written account to the said trustees or trustee, shall be prejudiced by these presents; but so that no creditor, holding a specific security, shall be entitled to a dividend in respect of any debt not so secured, unless he shall vest the security or securities held by him in the said trustees or trustee, upon the trusts and subject to the clauses and provisoes herein expressed. (2.) THAT, unless executed on or before the day of

by all creditors of the said A. B., [whose debts are above dollars,] these presents shall become inoperative for all purposes, and the said A. B., his executors or administrators, shall be entitled, at his and their cost, to a reassignment of the premises hereby assigned [so far as the same shall not have been realized] and to all moneys then in the trustees' or their bankers' hands. (3.) THAT if, while these presents shall continue in operation, the said A. B. shall be arrested, or any legal or equitable proceedings be commenced, by a creditor or creditors who have not executed the same, the said trustees and trustee shall bail the said A. B., and discharge [with or without defending the same, and either by way of compromise or not,] such creditor's debt or debts, with all the

expenses.

IN WITNESS, &c., (us in n. 751.)

28

325

CHAPTER VII.

LEASES AND AGREEMENTS FOR LEASES.

NOTES.

754. It is far better to execute a lease at once than to take the double trouble of an agreement to be followed by a lease, because an explicit agreement requires nearly as much care in drafting as the lease itself, and one that is not explicit leaves an opening for misunderstandings, which frequently cause vexation and expense; still, as there are circumstances in which an agreement may be preferred, the following hints are suggested for guidance at a time when haste might cause some important points to be forgotten.

755. Written agreements are always to be preferred, and should state clearly what is intended to be done.

(1.) Take care by due inquiry that the lessor really has a term as great as that which he proposes to grant.

(2.) If the lease is to be executed under a power of leasing, care must be taken that the contract is not inconsistent with the power. (3.) If the lessor is himself a lessee, and subject to any unusual covenants, they should be distinctly set out, and that the purchaser is to be subject to them.

756. If lessor is tenant in tail, it should be ascertained whether he has issue likely to succeed and to endure as long as the proposed term; for, though the 32 Hen. viii., c. 28, enables tenants in tail to grant leases for 21 years, or for 3 lives, which shall be binding on the issue in tail, [see also Revised Statutes, Cap. LXXXIII., s. 4,] the remainder-man or reversioner is not bound by them.

757. A husband seized in right of his wife may grant leases under the same statute; but a contract for a lease will not be enforced against a wife who survives her husband, or against her heirs, at whatever time she may die.

758. If lessor does not intend to show his title, that should be stated; for, though the lessee cannot enforce its production, so neither can the lessor enforce specific performance without it, unless such production is expressly waived in the contract.

759. Entry by lessee before a lease executed will be held to be a waiver of the right to investigate the lessor's title, and so will acts of ownership, but a special agreement may prevent this.

760. The term should be clearly defined, for it is essential that a term have a certain beginning and a certain ending; still, the happening of an uncertain event may put an end to it, as in the case of a lease for ninety-nine years, determinable upon a life or lives.