CHAP. 106. during the period of three months before the commencement of the term; and if any person be living on the lands, or in actual possession and cultivation of the same, or any part thereof, a copy of the notice shall also be delivered to him.

Penalty in case

tenant neglects lord of notice,

to inform land

how recovered.

Proceedings in case of non-appearance.

3. If any tenant shall wilfully neglect to give information of the notice to his landlord, in case he shall be within the Province, or to his known attorney, or agent, in case he shall be absent therefrom, he shall forfeit a sum not exceeding four hundred dollars, to be recovered by the party injured.

4. Upon proof of such notice, if there be no appearance and plea by a party who shall be entitled to traverse the inquest, the Court, upon hearing evidence which shall be taken in writing by the judge in the usual manner and filed with the Prothonotary, and being satisfied of the nonfulfilment of the conditions of the grant, shall give judg ment, re-vesting the lands in whole or in part in the Crown; Costs, how paid, whereupon the usual costs shall be taxed, and being cer tified by the judge, shall be paid out of the Provincial Treasury.

&c.

Proceedings in case of appearance and plea. Costs.

Inquest may in-
clude several
lots, but trials
shall be sepa-
rate.

Where grant in-
cludes several

lots, &c., for

5. Should such appearance and plea be put in, the cause shall be tried in the same way as other causes at common law: if judgment pass for the Crown, the defendant shall be liable for the usual costs; and if the defendant succeed, his costs to be taxed in like manner and certified by the judge, shall be paid by the Commissioner of Crown Lands.

6. Any number of lots within the county may be included in the same inquest, but the traverses and trials shall be separate.

7. Where one grant includes several lots, or where under one grant separate allotments are subsequently feiture of each, assigned to grantees or their assigns, the liability to forfeiture of each lot shall depend upon the performance of the conditions in respect of that particular lot.

how incurred.

Plea, nature of.

8. The plea traversing the inquest shall be confined to a simple denial of the liability to forfeiture under the terms of the grant, and of this Chapter; and no other plea shall be allowed unless by special leave of a judge. Granting of es- 9. Land so escheated shall not be granted to any person except to the original owner, his heirs or assigne, before the expiration of one year from the date of the judgment.

cheated lands.

1

CHAP. 107.

CHAPTER 107.

OF DISTRESS FOR RENT.

ed to be ap

sold within five

1. Where any goods are distrained for rent reserved Goods distrainand due upon any lease or contract. and the tenant or praised and owner of the goods shall not within five days next after days after nothe distress taken, and notice thereof with the cause of tice if not replevied. taking served upon him, or left at the most conspicuous place on the premises charged with such rent, replevy the same with security to be given to the Sheriff; the landlord, with the Sheriff or his deputy or a constable, who are required to aid therein, may cause the goods so distrained to be appraised by two sworn appraisers.

and after rent

2. After the appraisement the landlord shall sell the Goods to be sold, goods distrained for the best price to be gotten therefor, paid, surplus to towards payment of the rent due and expenses incurred leaving the surplus, if any, in the hands of the officer for the owner's use.

remain for ; owner.

3. Sheaves or cocks of grain, grain loose or in the straw, hay in a barn or upon a hovel, stack or rick, or upon the land charged with such rent, may be locked up or detained upon the premises by a landlord having rent in arrear, for or in the nature of a distress, until the same shall be replevied upon security to be given as above; and in default of being replevied within the time above in that behalf specified, after appraisement made in like manner, be sold: but the same shall not be removed out of the place where found and seized by the distrainer, to the damage of the owner, before such sale.

Grain in the

straw, hay in a

barn, &c., how

distrained.

of pound breach

4. Upon any pound-breach and rescue of goods dis- Remedy in case trained for rent, the person aggrieved thereby may recover and rescue of his damages against the offender, or against the owner of goods distrained. the goods distrained if the same be afterwards found to have come to his use or possession.

of a distress for

none is in arrear.

5. In case any distress and sale be made by any person Remedy in case for rent, where none is in arrear, the owner of the goods rent, where distrained, his executors and administrators, may, by suit, recover against the persons distraining or either of them, his or their executors or administrators, the value of the goods distrained, and such further damages as the jury may award.

regularity not

6. Where any distress shall be made for any kind of Subsequent irrent justly due, and any irregularity or unlawful act shall to render disbe afterwards done by the party distraining or by his tress unlawful. agent, the distress itself shall not be therefore deemed to

be unlawful, nor the party making it deemed a trespasser Remedy of ab initio ; but the person aggrieved by such unlawful act or party aggrieved

Proviso.

CHAP. 107. irregularity may recover full satisfaction for the special damage he shall have sustained thereby, and no more: Provided, nevertheless, that no tenant or lessee shall recover in any action for any such unlawful act or irregularity as aforesaid, if tender of amends shall have been made by the person distraining or his agent before such action brought.

Goods not

liable to be removed under execution till

rent paid, but

year's amount, &c.

7. No goods being upon any messuage or tenement leased shall be liable to be taken by virtue of any execution, unless the party at whose suit the execution is sued not to exceed one out shall before removal of such goods from off the premises pay the landlord or his bailiff at least one year's rent thereof, if so much is in arrear and due; and if the rent be not actually due then a rateable part thereof up to the levy of the execution. If the arrears exceed one year's rent of the premises, then upon payment to the landlord or his bailiff of one year's rent, the execution creditor may proceed to execute his judgment as in other cases; and the Sheriff, his deputy or other officer is required to levy and pay to the execution creditor, as well the money so paid for rent as the execution money.

Goods fraudulently removed

viously sold in good faith, be seized within twenty-one days.

8. In case any lessee of any messuage. lands or tene. to avoid distress ments, upon the demise whereof any rents are reserved, may, unless pre- shall fraudulently or clandestinely convey from such demised premises his goods, with intent to prevent the landlord distraining the same; such landlord, by himself or his servants, may within twenty-one days then next ensuing such conveying away, seize such goods wherever found as a distress for such arrears of rent, and dispose of the same as if they had been distrained upon the premises, unless such goods shall have been sold in good faith and for a valuable consideration before such seizure, in which case they shall not be liable to a distress.

Rent reserved

9. Rent in arrear and due upon a lease for life or lives, life recovered as may be recovered by action in the same way as if reserved

upon lease for

in other cases.

for within six

upon a lease for years.

Rent distrained 10. Rent in arrear and due upon a lease for life or months after de- lives, or for years or at will, ended or determined, may be termination of distrained for after such determination, in the same way

lease in certain

cases.

Executors, &c., may distrain

ceased. and in what cases.

as if such leases were not determined; if such distress be made within six months after such determination, during the continuance of the landlord's title or interest and during the possession of the tenant from whom such arrears are due.

11. Executors or administrators of a landlord may for rent due de- distrain upon lands demised for a term or at will, for rent due in his lifetime, and such rent may be distrained for after the determination of such term or lease at will, in the same manner as if such term or lease had not been

587

ended or determined; but the distress in such case must CHAP. 108. be made within six months next after the determination of

such term or lease and during the continuance of the possession of the tenant from whom such rent is due.

fruits, &c

12. A landlord or his bailiff may seize as a distress for Cattle, corn, arrears of rent any cattle or stock of his tenant feeding taken as distress. upon any common belonging to any part of the premises demised, and may also seize all sorts of corn, grain, grass, hops, roots, fruits, pulse or other product growing on any part of the premises demised, as a distress for arrears of rent, and may cut, gather, cure, carry and lay them up when ripe in barns or other places on the premises so demised.

Such distress

how kept where

barn, &c.,

upon premises.

13. In case there is no barn or proper place on the premises for receiving the same, then he may cause the no same to be placed in any barn or proper place to be procured as near as may be to the premises, and in convenient time shall appraise and dispose of the same towards satisfaction of the rents and the charges of such distress as in other cases. The appraisement shall be made after the crop is cut, cured, and gathered, and not before.

of such deposit,

14. Notice of the place where the goods so distrained Notice of place are deposited, shall within one week after their being when and how 30 deposited, be given to the tenant or left at his last place of abode.

given.

TITLE XXV.

OF PROVISIONS AS TO CERTAIN SPECIAL CASES.

CHAPTER 108.

OF TRUSTS AND TRUSTEES.

terms.

1. The several words hereinafter named are herein Definition of used and applied as follows respectively, that is to say:

The word "seised" shall be applicable to any vested Seised. estate for life, or of a greater description, and shall extend to estates at law or in equity, in possession or in expectancy, in any lands. »

The word "possessed" shall be applicable to any vested Possessed. estate less than a life estate at law, or in equity, in possession, or in expectancy, in any lands.

Trustee.

The words "trust" and "trustee" shall extend to and Trust. include implied and constructive trusts, and shall extend to and include cases where the trustee has some beneficial estate or interest in the subject of the trust.

1

CHAP. 108.

Supreme court, court, &c.

Construction of words not defined.

In case of infant
trustee, court
may make
order.

If trustee out of jurisdiction,

such order.

The terms "the Supreme Court," and "the Court," shall mean the Court of the Equity Judge, or the Judge in Equity, or the Court or Judge exercising occasionally the functions of that Court, except when otherwise expressed or clearly indicated.

All other words not hereinbefore defined, but hereinafter used, shall be construed, as nearly as may be, in the sense in which corresponding words are defined in the EnglishTrustee Act of 1850."

2. Where any infant shall be seised or possessed of any lands upon any trust it shall be lawful for the Supreme Court to make an order vesting such lands in such person in such manner and for such estate as the Court shall direct; and the order shall have the same effect as if the infant trustee had been twenty-one years of age, and had duly executed a conveyance or assignment of the lands in the same manner and for the same estate.

3.

When any person solely seised or possessed of any court may make lands upon any trust, shall be out of the jurisdiction of the Court, or cannot be found, it shall be lawful for the Court to make an order vesting such land in such person in such manner and for such estate as the Court shall direct; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate.

If joint trustee is out of jurisdiction.

In case of doubt as to which

trustee was survivor.

In case it is not known whether trustee last

4. When any person shall be seised or possessed of any lands jointly with a person out of the jurisdiction of the Court or who cannot be found, it shall be lawful for the Court to make an order vesting the lands in the person so jointly seised or possessed, or in such last mentioned person, together with any other person, in such manner and for such estate as the Court shall direct; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same manner and for the same estate.

5. Where there shall have been two or more persons jointly seised or possessed of any lands upon any trust, and it shall be uncertain which of such trustees was the survivor, the Court may make an order vesting such lands in such person in such manner and for such estate as the Court shall direct; and the order shall have the same effect as if the survivor had duly executed a convey. ance or assignment of the lands in the same manner and for the same estate.

6.

Where any one or more persons shall have been seised or possessed of any lands upon any trust, and it seised is living shall not be known, as to the trustee last known to have been seised or possessed, whether he be living or dead, the

or dead.