^ IMAGE EVALUATION TEST TARGET (MT-3) A^>^ 4> 1.0 1.1 2.0 lU u u BM H£ l^iJ^Ui^ < 6" » I^iotogFaphic 0CI6OC6S QsporatiGn V S'-fS^': 2J VWBV rMR4 STRHT (/V4)I72-4S03 . tricts. The Undersigned has the satisfaction to inform Your Excellency, that the diffisrent Registrars ofihe Districts of Quebec and Gasp6 have discharged the important duties confided to them by the Law with an intelli- gence and exactness that reflects honor upon them ; and this testimony the Undersigned renders With the more pleasure in consideration of the very serious ob- stacles these Public Officers have had to encounter in carrying ont a new system in this Country, obstacles enhanced by tho defective and obscure comiiosition characterising the Law by which this system was in- troduced. 1 As to the operation of this Law in the Dii tricts of Quebec and Gasp6, the Undersigned takes the liberty of referring Your Excellency to the subjoined Report, made by thn Undersigned conformably to instructions received by him from the Executive of this Province. TJie whole nevertheless humbly submitted. (Signed) J. CRfiMAZIE, Visitor R. D. Q. & G. QvBBEC, Januahv, 1846. REPOKT. FIRST PART. Canada, colonized by France, remained until 1663 without civil Government, without a Judiciary Estab- lishment. Lewis XIV, having by the edict of 1664 ordamed that the Custom of Paris and the Common Law of France should govern New France, this edict transplanted Into this Country all the laws in force at that epoch Within the jurisdiction of the Provost of Paris. The hypothecary system of France was thus established in Canada with all its advantages and de- At a later date, in order to remedy the defects of this system in France, the edicts for controlling Notarial Acts, &c., and establishing guardians of mortgages were promulgated. These two edicts were never re- [•il gislcroil ill Caiijula nml, consequently, their provisions ', not iiaviii!; I'Lvn niloi)itd, oui hypoliieciiry system ro- maincil iiii;ilii;ix'il. From thn passing cf llio Conslitutinniil Aoi of 11 ; Ceo. Ill, (liu atlcntion of tlic l-i'siisliiliiro of Lower Ciinaila "i'les n.)t seem to have been ilirecled to tlii> siiliji'c t, until 1^1-1), when it |iii.ssoil two Acts iillectini; our h\|i.iflieciiry system. Tin lir.st, 9 Geo. IV, c. Vli, meicls jirovides the mi>nns wliidi a purehiiser sjio'.il.l u>o w.'io desires to become ne(|uainled willi ibi' murt- u(>!;i'!' wiili wlirh liis piirelui>e is inicinnbercl, onl to remove thorn. This .Vet, kuMwu by the name rf the RatiJiCi'liun Stulute, diil not attain the iii-l whitli lla! I.csiislatur'' seems to have had in view, onaecouiit oi' its coutrajittory provisions. For example, the Vlltli section declares, tliat thu dower n >t vet opi^n {le douairc non oui'nt) , the riyliis of i-.iinors iind interdicts, shall 1)0 discharged unless iin opposnion lip tiled for the preservation of iIksi,' rii;hls Against obtainiiu; tlie judnmcnt of ratilication, wiiliiii a Rperilioil period. The \IIIlh seel ion on tiio toiilrary cnncis, that noihing contained in tiie said Act shall preiiidico these same riglits. Uotweon these iw . i«i'po- situ ie\is, a ciioiee was to he ujade ; -niil aicuidin^ to the F.nulisli rules for the interpretation of Statiiies, the last section was considered as conlainiug and e\pi' smu!, the ii:teniiiin of the lenislator, and (Mnse(pu!ully the pur- rhas(T rcapi.'d no bent^l'it from this Statute, smi:e i; lefi. the dnver uutoiielied, th;it scourfje ot nil tl,'- tnosiic- , lions and alienations relating to immoveable propeisv in thu country. i The other Act, passed in tlio same session, wa.-. the > snvti'.iy-sevciuh chapter, which enacted, thai, in the ], localities where properly was iield in free and conD.ion ;' soceagn, a special conventional moitffaj;e could oo^ he ,i elVecled ; this provision established an exception to the | rommon h'W of (lie country, which aUowed gin' ral |i mortnasfcs to bo etl'ected and maile them spriiijf o| ne- ressilv, even in delault of stipulation-, solely fioni the j mere execution of a Notarial deed. I| Suhserpiontly, this same Ipgislaturfi, passed the Acts , 10 and 11 Geo. IV., and 1 Will. IV., eslahlishint; iu ' tin Townships of Lower Canada, Ofticesfor ihe retjis- trali.m of ni irlirai^es ; all these Acts were furlher < \- I teniions to the hyimihecary system of the country. | Suposed also great inconveniences and those of very grave nature. Political ditTicullies had buried t:- to 111',' (puck into a!l ihc instiiuti.ins of tlie country, lu spite of this arkmivsledgcii mneia of le- gislation with which the Special (;ouncil \>-,is pus- sessed, no one ima;.^incd that it would signalize the last moments of its existence by taking up such a thorny subject n\ul one sn surrouudi-il with (lllheuliie* ami emb.irrassm'.'iit a:, that of the li\potliec»ry system. Ilut to the gicat surpiise of !he ciMiulry, its people hi held nil at i>ucn the appearauie of /> II, e aliLiwlion and liij- pollircutinn of null projieiii/. As ih'.! cj;nminaiion of this Oi-Jin.nue tonus the sub- jei I "if llii' |u'(sent report, we will cuiisider bow far its 1 lovisioiis justify thu luliy preiei.sions of its title. To attain the object of this examination, we will r.Uisidei', 1st. What is the object of laws esliibllshing Kev;islry Ollices ; kindly. Whether the Ordinance has aitaineii this object or that which it intended, ordly The delects nf the Onlinancc. Iihly. Its operation in reg.M'd to ancii lit liisinmients. 5thly. Its ojieration in reirar,! toncw Insiruimiiils. tjlhly. 'I'hc inellii ieiicy of the (tr'iiiiiiuc aiid its causes. Tthly. Suggestions and Hnieidii I nis lo be madi- in the system introduced by the Oidinanco. Stidy. We shall .«peak of the pa) .ueut or 'a' uy cf the Registrars. I. — What n ruK (huect or Laws cstadli^iii.ng UKIiSTKY VfHi KS .* 11. — Has xnr iIiidinance aitained this object .' Tlie Laws csiuhlislilng Registry Oflices have a; lluir immediiile object the publicity of secret incum- brances ; or, in other leims, their obji ct is to alliinl tu the |iurchaser and to the lendei all the security possible in such liiailers, in giving them the nieiins of knowirg with ea.se and certainly the incunihrances or debts with which the [uopcrty of those witli whom they wi;li to deal is charged, so that the c of the version puLlisbed by authority.) i " Whereas ({real losses and evils have been o.pr- : rienri (I (mm sixni and fraudulent convvtjuncc^ of retil isliitcn, and incumbrances on the same, and _/'/()//* the iincirtiiinty and insecurity of titles to lands //» this Province, to the manifest inj uvy and ocrcsioual ruiii of purchasers, creditors, and others : and icherC'^ as Ihe rcgisterinif if all titles to real or innnoi-eablt estates, and of all charges and incumbrances on Iho same, would not only obviate these lo.sses and evils tor the luturi', but wouhl also, with son)c«//cc«/io« of the , existii.g l.iws, whereby thu removal of inconvenient and iiirrpetlienl restraints and burthens on the alienatiiuiof , real fc>lates might be clVected, grealli/ promote Ihe fic;ricultural and commercial inlcresls of this I'm- viuce, ai:d advaiicn its improvement ami iiros|pcr'.ly. , lie il eiiacled, S:c." Il is evident that the oh/nct of the authoi- of the Or- dinance was Jst. To prevent ^ecrct i;nd fraudulent conveyiinics ; 2nd. To secure possession lo jnirchnsers of inimoveable pMpcrty ; 3rd. To laoililale loans iii order lo promote the agricultural and cui.unerci.il inte- resis by the registration of stcrtt morlgiigcs. IJuf bow fjr has the author attained this object ? An ex.iiiiina- ! lion of the provisions of tlic Ordinance will solve ihi'i f. 3] X i <|i'c-a',v. I'his section is in the liillowing terms : " \:m1 III it fiirtli'^r tirdiiiiied and enacted, that a mc- " inoritl i,fall nnlaiial oblis;ii(iuns, contracts, instrit- " inuntu in wiitinq, jiidiimcnln, JuJicial acts and •' ///M'/'oi/i/ii,'-,'*, recoaaiziincfn, privilesntlanil Inipo- " tht'ciin/ rii(hls and claims, now in force, or which •' shall he in I'un c on the lUy on which this Ordinance " shrill I leiie into force and ell'ecl, whereby any debt ■' or dfhis, sum or sums of monetj, goods or chat- " Uta, liiive been oontracled, stipulated or secured, or " have been recovered or made, and arc payable or de- " liMTiib' ■, mid whereby iiiiy lands, tenements or liero- " di.ameiils, real or iminoveuble estates, have been and ' lira In pntlii ruled, charged or inciimberod, for (lie " p;ni;iril, salislailioii, orileliverv thereof, shall be re- " i^i-oTcd ill Micli ni:iiiii r as is hereinafter prescribed, " Withm Iwulve cali.iii|.o- in uitlis, from and after tiie " diiv on wliicli lliis • )i(Iiiiaiice siiall come into force and '■ cQ'.ci ; iiii'.l Mich r jr --i!' lion, '.vlien so made within '* ihe I'Ci'iod ia^l jiforesiiid, sliiill have the elV-cl of pie- " sei vii.4- si:ili livpahecs, priviliLji'd and liyp^ilhecary "■ riplils ;iM(l cliiiiiis, acciii'ilini;' to their respective rank " and I'li. riiy, in the same manner ns if this Ordinance " liiKl lilt been made." In rivullii:; this clause, ihe words all contracts, ins- tni.nii nlit in wrilini^, would seem to rompreliend all the ciiiiiriids or insiruiiieiii< in writing of whatever na- liiie H -v lie, and to whatever specii's they belong bill .!'i' riiilhor desiring lo explain to us of what < ulilr.ici'- or i'lslriMTients lie wishes to speak, adds: " in/i':re';ii ani) delil or dvlila, sum or sums of mo- '•• f.ei, Kioils or challdf, have been contracted, sti- »' puliited or scciirrd, or tiave been recovered or " inv(h\ itiid nrc. iiiii/abli- or deliverable, and where- " bi/ an'/ lond.i, Ivnemenis or liitreditaments, real or '* imiDovenhic vulatus, have been and are In/pot/ieca- •' liuK diiiriiiul or IncuHihcrcd, for the payment, sa- " lixii'ttiotu or delivery lliereof." T i us, Pu'.virtlir.:: loliie leniis if ibis clause and tlio ex- pbiiian.iu uliiih It (onliiiiis, the Ordinance re(|uires only tiiii leirisli'iition o! Acts or biirgaiiis having for their i-'lijcji ;l;iii:rs of a n:oveiiMc nature, or the delivery of elle'.ls iT mcrclianilizo, or llie payment of a certain sum of money, foi the prument or delivery of which ihe security of a liypotlioc lias been added. It follows llieii, from it, thatthiscliiuse, cnntuining iioihiiig which .ill'ects or which can be reasonably made to ajiply to Deeds or Titles securing immoveable property, it fol- lows therefrom, '^es.iy, that Acts of sale, of donation, wills, contracts ol marriage, in a word, all Insiriinii iils conveying properly of n date anterior to the c ominunce- inent of the operation of (he Ordinaimo do not fall under the controiil of the Ordinance, any more linn do the Acts relating to tutors and curators (of tulellc and ctirulelle) which wore passed previously to this period. Here tlicro is an omission very fatal to tlin jiiibli- city of hypothecs and to the operation of the system introduced by the Ordinance, a singular romiily apjilied to secret and fraudulent conveyances and salrs of real estates of which the Orilinancc speaks in ils pre- amble. And how ascertain if the vendor is reiillv ilie proprietor of the immoveable |)roperty sold, it' im is in possession of this immoveable jiroperty ciilv as usufructuary, or conditionall)', £,.c. &c. Hm Uiis i> not nil : admitting that the omission we have nbs' give publicity to hyiiothecs. Let us suppose that Peler wi>bi'S to inirrdasn Lewis's farm, lie goes to the IJcirisiiv oliice i.l the County in which the land is siliiale ; be a^ht the Registrar if there is any liypotlu < ni his I?ej;isiers against Lewis's property. The ll.'gislrar, afii r hav- ing made a search, (ells him lluru is none, and hands him n certificate declaralory of this fict. On this information I'etcr imrchases. For greater so- rurity Pcler ajiplies for letters of llalilication of his deed of purchase ancoriling to tin: \'i'm isions of ihe Statute of Lower Canada, 9 Geo. ! V c. 20 ; no oppo- sition being filed to the demand of I'eler, he obtains the ratification or confirmation of tiilo wiiicli he asked for and pays Lewis the purchase money. It would appear that, after having observed nil these formalities, Peter, iindor the jjiiarantec of two laws eiiacled expressly with the object of protccling the purciiiiser, ought never after to jo ousted from the immoveable pni- porly acquired from Lewis. Nevertheless, some years after, Peler, to his great sin prise, receives notice to surrender to Charles half of the projierty pur- chased fr-iin Lewis, Charles pretending that ho is llio proprietor ol half this properly, because his fiillier, at his marriage in 181t), was tlie proprietor of this )iro- perly — That not having made a coiilract of marriatr.', the half of this properly was applicnble to the customary dower, and that by the death of bis fiilhor and niolhcr, be Charles, finds himself tiic proprietor of halt of , Peter's property. To this Peter replies : but your title lo !lio dower which you claim was not registered at the lime of my purchase of the property from Lewis, and moi cover mv property is freed from the dower. Not at all, replies Charles, (he Ordinance (o which you appeal, section IV, does not require the registration of liiies lo real property; and tli»i'^;li it did require it, the dower which I claim does not fall under its controul, bccaiiso this sec- tion only requires the registration of Acts, Contracts or instruments in writing ; now the dower in qiiesiion does not issue from an Act in writing, since none such exists, and my title to the properly accrues from tlii' mere operation of the law. This section seems to as- sume that no other moans exists whereby lo create a right or a hypothec, hut by an Actor Inslrunient in writini;. This law which you invoke caciint niililaic against me. liut, Petor will sny, I have obtained a judgmoni [4] of confirmnlion of my purilmse, you fikil no op- position to sccurt! your cliiiin ; yon nro, hy virtue of the Statute wliirh rt'gultilcs llio prortus to lie fullowi'd in •uch casics, foreclosed of tlic right which you prt-tond to have. No, snys Chnrles again : when you presented your demand for ratiliiiiiion, tho dower which i claim was not yet open ; my father did not die until after you obtained your judgment ; and the Statute to whieh you appeal contains an express provision in favour of my right. What answer can Peter make ? None — except to deliver up amicably lliu half of the pro|MTly which Charles demands, or to wait until it be forcibly taken from him bv law. Tho case which I have just •upposcd is not iiypolhctical ; on Iho contrary, it will occur, unfortunately but too often, and is equally ap- [ilicablc to iho purchaser and to tho creditor. Another important consideration is this, that it may h.ippcn that n pro|)erty may be encumbered with a right of usufruct, of power of rc-empticm created before tlie 31st December, ISIl, which tho seller carefully conceals from the purchaser. How can this purchaser guard against tho fraud of the seller, how can ho be- come aware of it ? If the Ordinance had required the registration of titles to immo'-eable pro|)crties bearing dale anterior to the 31sl December, 18 tl, the purchaser would have had the means of securing himself against fraud. This, then, is the publicity required by the Ordinance as regards the Acts done before it came into operation. 'I'here would still be numerous and weighty observations to make on the omission which this fourth section of the Ordinance contains, but the limits of this Report do not permit us to enter upon tlicm. We are now going to shew that the mode of publi- city prescribed by the Ordinance works no better in regard to the Acts passed subsequently to its coming into force, that is to say since tho 31st December, 18U. The auihcr of tlie Ordinance, after the preamble which we have cited above, enters abruptly on his subject mailer, enacting that all Acts, Contracts or Instruments in writing, &c.| done or executed from the day on which the Ordinance shall have force and elFucI, shiill be registered, under {>enalty of nullity against a third patty. By tiie XXVIIIth Section, it declares that the gene- ra! conventioniil hypothec is abolished for the future, leaving only the special conventional hypothec ; and as a means of facdilnting the knowledge or publicity of this hypolher, as far, it is said, as may be practicable, the XXlii Section obliges the Registrar to keep an Index of the names, and another of the immoveable properties. Let us endeavour, with the assistance of these In- dexes to discover if the pro|>erty of Peter situated at St. John is burthened with hypothecs or bond fide in- cumbrances created since the commencement of the operation of the Ordinance. VVe repair to the OPice of the Registrar of the County in which the pro|)erty is situated. In answer to the demand made to him, the Registrar says to us : 1 see by the Index to real properties that Peter possesses several properties in the Parish of St. John, of which two are encumbered wilh several hypothecs, the others have only two hypothecs on them ; but for more ample information I shall examine in the legister the entry of memorials registered for loo preservatiim of these hypothcci. ••• Tho searching of tho register concluded, lie tiads that these properties are descrilied nssilunle, generally, in the pari»n of St. John, and are of the same extent ; btit let us Rup|M(so that Peter has only one |>roperly. Since the 31st December, 1841, he liHsU'comea |iarty to obligations to dilTerent creditors severally charging and hypolheculing this properly — all ihem; obligations have been registered. Uut( singularly, each of ihcsu obli- gations varies in tho description of this properly, whether in being of a greater or a smaller extent, or in the bounds or nbultal^, or finally in the point of the compass, in such a manner that each obligation shall appear to contain the description of a dilferent proper- ly. To those who are in the habit of examining the titles to pro|)crly and the Acts executed in the country parts, this ditl'erence of description of one and the famo properly odi-rs nothing to cause surprise. How can the Registrar in such a case certify the number of hypothecs with which tho properties of Peter are en- cumbered ? What satisfactory information ran be de- rived from the examination of the Registers } But if we cannot with certainly succeed in arriving at the discovery of s|>ccial hyiMthccs, how penetrate the chaos of general hypothecs anterior to the 31st December, 1841, of which the Ordinance requires the registration ? Those who have had occasi(m to search for these mortgages in the Registry Offices, know what is the value of the pretended publicity which the Ordi- nance undertakes to give to them. Accordingly, the Registrars in the Districts of Quebec and Gasp^, persuaded of ihe impossibility of discovering with what hypothecs a properly is encumbered, give to those who demand it a certificate declaring, not that a property is encumbered with an ascertained number of hypothecs, but that their Registers only contain such entries against such a one, personally. And they are right ; for otherwise they would expose themselves to actions for damages. Enough has been said to show that the mode of pu- blicity adopted by the Ordinance is faulty, and can only create confusion on confusion. III. — Defects or the Oboiitance. It would be impossible for us in this report to point out all the defects of this Ordinance, and all the dif- ficulties to which its repugnance to the common law of Ihe country gives rise. The limits of this report do not permit us to engage in this task as extensive as difficult ; we shall confine ourselves to saying a word on each of its provisions which ap|)car to be the most faulty. Moreover, the svstcm which it has introduced being entirely new to this country, its opera- tion not having had its complete and entire effect for scarcely so much as a year, it would be difficult to define all the contrarieties which time and circum- stances can alone devclopc, and which the tribunals will have to decide. One of Ihe radical defects of this Ordinance is tho want of unity, of harmony which pervades its pro- visions borrowed as they are from the laws of other countries, the compiler of this law not having ap- parently reflected on Ihe mournful consequences of Ihe strange amalgamation to which he has given the name ot Law, and which fully justifies the character of a law made piecemeal by the seisaora which the Honorable L. H. Lafontaine has given it in his excel- lent analysis of ihis Ordinance, which he regards with 4 •p. BMIMW [5] rcnson, ns a lam to he sludiedin itn inrongruilira and oininsionn miifh more than in ita irrilli'niirorisions. Wo liiivu s|).ikt'n nlicivu of (lio inmlc! of |iiil)lirily ai|ii|i*nl li)' (III.-. Ordiimiux', wo Iibvc oxjioscil ils (li.'fuul.s iiiul iimlilily. ii Anollior liiiilt in (his Iiiw, is its oxnp|i(i()Miil nlinrnc- I Icr. " III slmri," siiys IMr. l.iiloiitiiiiu , " lliis Ordi- " tiiincij li.is till tliH iiiciiiivfiiiL'iHfS nl' cxiciiiidiiiil " laws. Iiidii'il, it iloos iii)t |ircMniilk;i)tu u new li\|ii)- " llicc.iry sysli'in |irii|ii'rly so tlio Judge (if n Court that lins never existed, to prove the free consent uf (ho wife to (liii alienation? Is it liy preserving the general liy|«ithcc in favour of minors and interdicts on (ho property of their tutors and ciinilors, mill hy refusing this right against other nti- niinislriitors, such ns tliose of Kahriiiucs, &c. .' Is it hy granting to the married woman (his general hypo- thec on the property of her hushand for (lie restitution of her dowry, and (he payment of every claim or do- maiid (hat she may have against her hushand in coiise- (pience of estates or inheritances fallen to her, or como to her in the way of donatiun during marriage, ami in denying to her this right for the advantages stipula- ted hy (he husband in favour of (bo wife by (ho con(rnct of marriage ? Is i(, in fine, by amalgamadng (ho pro- visions of some Statntcsof Upper Canada with inutilatcil and scadercd tex(s from the ('ivil ('odo of Franco, and in composing a legal hotchpoich {potpourn) which has been presented to the people of this coiintrv under the title of an Ordinance to prescrihc and ref^ulate the rcffhtering of titles to Idnd.t, tcnenienta and he- reditanienta, real or imuinveiiblc estates, and of char- gen and incumbrancci on the same ; and for the alteration and improwmenl of the law, in certain particulars, in relation to the alienation and hy- pothecation of real estates, and the rights and in- terest acquired therein. But let us cxamino more in detail tliu provisions of tlic Ordinance. Sec. I. Tho author enters abrupdy on (ho subject ma((er by enacting tho regis(ra(ion of all Deeds, Con- tracts. Instruments in writing, &c. &c., which shall bo passed, executed or made after tho day on which the Ordinance shall come into force(31st December, I8J I.) It would naturally seem litting (bat lie should have commenced by developing the principles on which tho system he wishes to introduce is based, and by mak- ing it coordinate with the existing lawe. Sec. II. 15, sec. 2. Repealed by tho Statute 6 Victori.i ch. By the preamble of this Ordinance, it is easy to see that (ho object of its author was to ameliorate our hypothecary system by the means of tiiat which be calls some alteration. Hut where are these ameliorations to be lound .' Is it by restoring, inits vigour, the law of Stellionat in the case only of sale, and leaving, in all other Iriinsaclions, the door open to dishniiosty and fraud? Is it liv rendering rt'iationsiind friends respon- sible in default of the registration of Acts of guardian- ship and trustecsiiip, (Actes de tutelle. el curatelle) Is it hv abrogating the law of the country a? regards voluntary dower, and leaving entire the customary dower still more injurious and harassing ? Is it by depriving the children of their claim of the customary dower, and by giviii^^ tho wife the right to free from that dower by selling (hem, (he immoveables which are subject to it, and by reserving in favour of the said children the property of the voluntary dower Is it by forgetting that (he voluntary dower is not less than (ho ; customary dower subject (o the inconveniences which, ' for such a longtime past, have caused the ruin of so many '' purchasers, and become (he subject of universal com-' plaints? Is it in ihecaseof the alienation of the properties of wivtJs under marital power by prescribing that exami- nation a( once ridiculous in itself, and injurious to (ho muralii of (he country, tiiat a wife must undergo before Sec. IV. We have spoken of it above. Sec. V. VI. VII. VIII. IX. Reprwlured from tho Statute of Upper Canada 35 Geo. 3. ch. 5. Sec. X. This clause regulates (he manner in which I the Ilegistrnrs ought to enter Memorials in their j Reijisters. It exacts (hat tho Memorial be presented I and acknowledged by the parly himself, or presented ] ar.il sworn by one of the witnesses present at ihe drawing up or ."iigning of Ihe Memorial by tho parly. This acknowledgment or altestadon to bo made before the Registrar. This section is reproduced almost fcr6a/(»i from (he S(atute of Upi>er Canada cited above. The author of the Ordinance, who now and (hen lays the Civil Code of France under con- tribution, has passed over in it the manner of presenting the Bordereaux adopted by this Code which, conten- ting itself with exacting thai the Bordereau (Memo- rial) shall bo presented by (be party himself or by a (bird person (o (ho keeper of Hypothecs (Registrar) is much more simple and much easier. Tho mode proscribed by the Ordinance, obliges the party or one of the witnesses to present himself at the oflice, whatever bo the distance from their domiciles to the oHicc, to register a Memorial. This formality, as useless as it is expensive and inconvenient, was followed until the 20th Marcli 1845, the [(>] rii|i(fy of llio iloldor. It nmils, iicvcrllii'li')'', tci miv wlirii iititl liDW It ik'liinr nIiiiI) III' ri'|iuli'il im' ('(iiiKulcrcil (ii lit' II li.iiiknipt, 'riiii Stuttid' * N'lrliiriu vliiip. 10, liuM iiii|i|ilit'(l lliiH i>inib»ion. \\\- iliink it riiilit I'l iiilrii(lii('(' Ihtc wIiiiI Mr. Trup- limi; iiNs ill till' jiifl'mt' 111 llii' tiriiliM' mi jiiirilruiis anil lii/jK it lives, ii|iiin llii' -'I lli Ailiilc nl' ilio CimIi'. '' 'I'liis Arliilij" SiijNJu" " loiliiils ijiu cull V 111' li}|io- " lliri » williill tril iliiVN 111' lliu iliMilvi'lH ) , iilll|iiUL;h " till) i'iill->u III' tlir jiyiiiillircs lir iilitl rinr ; lliis, 111 (Old- "to our vii!W, is II irxoliiiiu; iiijiisliii'. line, In " truth, nil iili'a "I' IViiuil, of cnlluvinii, iMi^;iit In liu " Iiiiiii.nIu'iI. 'I'Iii; MiurciMil' ilii! 1i> piiiliic is |iiirr. Wliy " llirii sliiiiilil WL' I'irliiil ilsi'iiiii|iK'tioii ? \S'iiulil ^vo " |iliii'L' iiiirMilvi'.s ill (liti hue |iiiMilinii iiiiij ('i|iiiiaiily re- " CHiicilt.' till! ri){lils of till' iiiiiK.s Willi till' ri;;lilii uf |irc- " fiTi'iMi' iiri|uiiril liy tliiril |iiirtirs.' |l woiilil In' iicct's- " Miiy to liikii MS a giiiilu tin' ilrriiiiiitiuii nf l*(li, mill " limit oiirsi'lvi's lo riiiioviiig tlirii liy;iotliitcrior totho Jl.st Dii eiuliri- 1HI1, ill a givi'ii tiuii.'. Kxtratlcil from tlio .sanii) Staluto ol' i or to iIio.'-l' rrcnltil beforu that iliite ? Wo liavo sren jicriiKl at which it wni iiini'iuloil by llio Statiito 8 Vii;- toriu I'll. J7, whiili iiiithoriiitL's .liistiii'n of tlm I't'iicc, NolariuN, ami t'oiimiissioiiiTs a|i|miiiti'il to ii'n'ivo alii- tluvits, lo ailiiiiiiislcr llio oatli ri'ijuircil by lliu Dnli- nuiici'. Sec. \II. It iirustribcii llio mnnner of nltesling or mnkiiin oath lo .Nlrinorials iiiailo wiilmut the liypoihi'- i.iiry ilistritt in wliirli the iinnioviMhle iirojHrly is situate ri'siH'ctins^ wiiicli an rlitiy is ilrsireil to be iiuiili', as Will as to tiione inailo in (ireal lirll.iiii, or Irclaliil or ill l''oreijj;n pails. As In tlu'se hist, wu aro at a loss loilisc'over why liu: aullior hasiuaile iheiii figure in the Ordiiiaiii'o. 'I'o what lioos this prnv i^ioll ainount in renanl lo theiii .' To iiiako itcviileut that tlii' Mrinorial lias lieeii inailu by the person iiaiiieil in tins Meiiio- riiil ? Hill liow lire we to .issuro ourselves of the aii- themil) of the Deed or liistiiinient in writini;iiin\ hicli this Memorial is foinideir.' It does not say one word about till! iiiatler. ^VIlal purpose erin this entry .s«lM iliin rii'iiiir.so .il;.iiiinI llic'lr liii>liiiii(K ': Is it iliinii'; lihilriii^i! or lil'li.' lill' (ll'illfl III' lIlC IiIInIiiIIkI, III' H M{Ml.llillll bL'lWCIJII till' IiiinImiiiI IIIIiI Wil'r .' Aiid il' ill" lHI»liiillil |iiis.si:.ss l|il |ii.)jioil» III' his own, iir il' III' Im'Ciiiih' or (liu iiiMilvunt .' Till' luiiliiir, Nvlii'ii nil iliiM ir.iik, iiiinlil liiiiiivi' goiii' n Kli'|i laillii'i iiiiil >iiiil lliiit III! iinsiiii I'liiijij III! iiiiiiii.'(l 'I'liiiir, Sill rii|^iiii' Tiiiiir (ir Cuiiilur, riiii iisHUii tiki' lie iniffHH .mil riinliils widiout li>i\ iiit( yxt',- \ l>lu^l^ |ii'iisril liix Milviiiry ; iiml ilial u iii.iii nIiduIiI not ciiiiliicl iiiiiniuj^r iililu.HS Iki jiroMMl llial In; liail, llllll HIVI! StMlirilV lllilt 111) Wlllllll lllWH)S jhiSM'SS Kiiflicii'iit |irii|i('rly til l»i iiiiHWi'riilili! fir iiiiy iliiiiiiiircs wliirli III ^lil rrsiilt frniii liis lunli'cl li> r^;^i^l^.'r liiil coiitiiii't III' iiiiirriiii^u ? It is Iriiu iliiit liy ii rollnwin^ Nuctiiiil till' Onliiiiiiii r iillow.s lliiit this ri'^iMnilinti iiiiiy 1)1! miiili', ill (|v(.iiilt III' (III! |ior.s(iiis iilmvt! nuiiiiul, liy tiiij wivoR, liy till! iiiiiiurs ihi'iriMilvrn. Wliy liiis lie iiiit iiImi iiiIiIi.mI liy l.uiiiitirs ; I'm', inilt'i'il, if tliuir CillHt'irs iir rL'liitiniis iiln! rnciiils lliLrli'ct In coiirniiii |o till' |iri'\ iniiiii ill' lliii Oriliiiiuiri', wliii will |iriiit'cl ilio iii- trrcsl-iol' ilirsi' iiiirurluiiiilo iii'iiit;s? An iiliiissiniiii^iiiii ; ilniililloss tills liisl |iri)vi.siiiii Wlllllll lio ;i!isiiril, Inil it lu- Mills, iii'Vii-llii'li'ss, I'riiiii thu |iriiii i|ili' liiiil linwii liy lliu iiiitlior. 'I'liis M'ctiiiii is still li'ss r.iliiiiiiil tliiiii lliu |iri'criliii({ mil'. Who will Irll tin; luairicil wmnuii or till! iniiior ihiil this ri!i(isli'iilimi imisl hi! iniiilo witlmiit iL'liiy ? Willi will It'll lliL'iii tli.ii till! law allows ilioin (ii ilo it liiL'iiisulvi.'s ? Who? It will lint hu till! hus- liiiiiils, till! tutors ami llio (.'urators, who have iiu inlc- rt'st ill Mils rrt;i>iraliim imt luiiii'^ iiiaili; ; it will not he tlio lulalions ami fiiiMids iy;iioiaiit nf tlio t'xisli'iiie of this law ; hut who thru shall iiirorni them of this |ii'o- visioii so iiii|iortaiit In ihoin ? The Onlinance iloulit- luss. The iiiithorhas iiiiatrineil that every wife in her boudoir, evmy niinor among his jilavlliiiij^s, wmilil have a eii|iy nl' his ()rirninii(.i-, nr that it woiilil fiinl its |iliu'u ainonij the Wiililiiii; prt'seiils of the hriilo, in the " An lo llio iiilrresiii of wotnrii Iiy renwin of iheir " ilowrie.s ami iiuiniiiifr .•ullttiiitnl.i in ihe iiiinio\i'i|. " hie |iro|)('rly of iheir Inislialiii'., and rminllii.; I'lnin " the day of llio inairliii;i', the wih; has no h)|i''llni: Inr " the dotal mims which issue Irolii smcissions fallen in " III her or from ilmialimis inadu lo her ihirini; ihe " iiiarriii|j;p, t'xci |il in i oiiniiii'^r from the o|h niiii{ < liho " .siiL'cessimis or from the {iity on wliii h lli'' duiialioiin " ha\e taken elli it. She has no liy|iolliee l'"r the re- " |ia\iiieiil of lit Ills whidi she has cmiiriK In! '.villi lnT " linsbaiid, and fir lliu ir|ihiriii.^ of her own iiiili\ iil'ial " ones, exte|il in (.ouiiliiiy from tiiu day nf the nlilly;a- " tjoii or (ho Kale," Lei MS ,seu liow the anilior of lliLs Ordinance) Imj garbled ihiu iirtitlo of the Cmle. " From Ihi! day on whidi Ihis Oidinaiice s'l ill have " form and iII'itI, the maniid womiiii shall mily have " II li'iial hy|iotliee on the |.ro|ii'rly nf her liiiMi.iiiil, lo " sei'ine Ihe recovery nr |iauii( iil ni' nil iluirri/, ihiim " and dvinaitd .she iiiiiy he entitled lo [irel'i'i' .u^'iliist " lier liushaiid, arisinj^ from Micci'ssinn or inheriiancu ■ " which may hecnmc dm: or aci rue to sm li man ied I " wniiian, null of all doiiiitimis to her made dm ii:';' her I " Iiiairiage ; which liy|inllie(! shall date fmiii ihe ri'.v- I " jifclive itcriodii at which ihn said Miccrssimi ^ll,lll " oci'iir,or from the execntion of sue h dnnaiimi," As it is easy los<;r, iheso two lexis dilllr iiiiimii'.olv ill their ellV'Ct, fiy the first, the wife lias ii li'^.il md privilej^ed liy|iolliee on llm iiro|i( riy of her hnsliMiiil, not un]y ior [\\{> recorcri/ i>f licr dowri/, Imt evm for the e\eculioii of //(« iiuiiri(i,!(e selllfminis iiiade In her fa- vour hy Ihe hiishanil, for Ihe rv]m /ninit vf Ihe ilibln to which she han hrvniur d parti/ and for Ihe replacing of her otcn indiuiduul onen. The Ordinmien, on the rnnlrary, limits lliis lii|iotlior whiiilop of the yoiin;^ lioy, or should bo pari of the ] to Ihe realilution of the douu'i/ and of the < luinis of doll's wardrobo of every little girl, I The Civil Code of Fr.ince permits the relations and \ friends lo m ike the eiilrv on the pmporty of the tutor urciirainr ; and if they w.ll not m.ike it, this entry is rerniiri'd to he made hy llie Attorney (ieneral. Alul in all cases the married wommi, minors and interdicts are not pniiislied liy the loss of their rights fiom a npgli- ginee which they could not reasonably cilliur foreseo or Canada, prevent. Sec. XXV'. On Iho recourse allowed by Iliis clause against the tutor, subnicrate tutor, fathers and mothers of minors contracting marriage, \vc may make the same remark as wu have made on tiio preceding clause. Ihe i<>\fe against her husband on accounl of siirces- aion or donation acci aid durinif Ihi; marriii};e. Ily the Civil Law of the cnimtry, the wife his all ihr ri;;li|s upon the jirnperty of her hiisliaiul allowed lo fir hy ihe i\\\b Artiide of the Civil Ciiilr, which is onlv a npe lition, on this head, - vcrns us. Tlii.i Oidinanco as we have already riiiuiik cd, is only an exception to the Civil Law of lyjwer h A wom.Tnlias contrncicd marrinije since 31st Pi-rem- bcr 181 1, the period when the Oidiiiaiice cainc inio operation ; the contract of marriage cnutains cerlain rights by the liii.shiiud conferred on the wile, the I clauses ol indemnity from debts, restilutiou ol' her Town, &c. &c. According to the cniumnii law of ;li'j Sec. XXIX. This clause enacts that the legal hy- | country, will this wife have a legal li\ |iothic on ihe jjothec shall, for the future, only lake place and subsist, i property of her Imsliand for her marriiiqe niillemrnty 1st. in favor of married women on the properly of their husbands ; 2nd. in fiivor of minors and interdicts on the properly of Ihcir tutors and curators ; 3rd. in favor of the Cro-vn. By the Civil Code from which this provision, ollhough garbled, has been borrowed, this legal hypothec of women and minors exists indepen- dently of all entry. By the Ordinance, on tlio contrary, if this entry has not been made, (ho hypothec ceases to exist in regard to third parties, and cannot in any case become the subject of an action ; or, in other terms, the Ordinance destroys in one section the privilege which it grants in another. Rut let us examine a little more in detail the elTcct of the legal hypothec granted to the wife by the Ordinance. The 2135 Article of the Code from which this section is extracted, says, indcm n it ij from debts a nd the rrsi i tut ion of h rr oir n :> or, will this hypothec bo restricted to cases parlicnlarised and defined hy the Ordinance ? In a word will the exceptional Ordinanco have the elfect of annulling on this head, the common law ; or, the exception making I no mention of marriage settlements, of indemnily from debts and the restitution of the individual property of the wife, will the common law be the only rule for de- nision in this case ? This is a (lucstion wiiicli interests in tiie highest degree wives and mothers. The courts of justice will decide it. We shall read, doubtless with pleasure, the opinion of Mr. Troplong on the effect of tho legal hypothec preserved by the Civil Code to married women and C8] niinoM. " Tlio oii|M)ncnl» "f tliin liyiHilln3c " »nyt lie, " Will l'« k ixily III Kill) itiiio III' till) i|iitnliiiiii('iir) luiiiit ) totliix llii'V ili'iniinil, lliiil "ill! sli.ill Im MicriCiriul. Hill lliurr i» iiinilliir poiiil " of vi.'W involving liij(lirr considi'mlimis, llie iiiiirf*! " (if lilt' riiiiiily mill o|" iliii Stale, wliirli wuiilil iif " iili.ik'ii, il" iliii iliiNvrirsi of wmiirn iiiiii tin' piilriinDiiy *' of iiiiii'irs WLTf lint sucuri'ii iigiiiii^l [iriilliKiiif wiisir " n '. |iliiiiilcr. 'I'lii* is lli" iiiU'riNt wi >lrriiiiini!.ly " imiilil.iiin.ll in lliu Cnlllifil of Stiile. 'I'lic i|iirMiiiii " Wiullnis |iiil ; — Shall llif liorrowtrn, «lii> ratiilii tati' " tliL' Il iiiiN I'l lliu I'liiitriu't lio inorr l.ivonrcil lliiiii ' " WDiiii'ii iiiiil ininnrn wlm cannot ilclVml lliriiinrlvi'M ? i •' Al\v,i).H liriMij;lil liack In llii.i niliNidtTHlinn li_v llio " vi^iMi'iis lii;;ic III' lla^ lint ('hiiniiI lliu miliilion of llir '> |irli'iii ciiiilil lint Ihi (IoiiIiU'iiI, niiil it wim ilrciilril ' " llitil lite mciiiilif of the wife and minor oii,';til ! " /() hi iJir/'eircd lo thai of punliiist if awl Ivndirn ; ' '> ii'iijiiiii;' can sliaki- this cunclunioii, so cniilurinalik- lo , " llic tiiirs ol jiiNlice." "Soil llio iiironNisloncy of tlio (iiTvocatcd of ropis- " ir.itiiin. Ti •!/ Ihink public order inlerrsted in •' uimirn and „ 'nom hnvinff a Ivifal lii/initlivc, and " iiirirlhilins lliei/ diHirc to makv lliin lii/polhec " dipind on It nupplenienlari) Acl, the omi-aion of " xi'hirh would rentkr it no effect. 'I'liis is i;\ iiloiilly " lo cnali' Willi ont! Iiiinil what oiii! ;li'slrovs with ihc " ntlnT. If till' wilt! iiml lli«; minor urn iiK'a|iali|p of " iTtaliiii,' a iiyiiotliri; for llicir prnlit, llii! sninc iiicnpa- " ciiy applios'tj ilivir muking an iiitry wliicli iilioulil " cuiii|)li'lt' il. " '1'.) .inNWiT this insurntiounlablo ohjucliim it was " priipii«.il tu put in motion numeroua agents to mnko " tlio ( iiiry . Hut is it not a crying; injiistico lo iihan- '' lion till' pr(".(Mvation of rights su precious tolho tare " of pi'iixii's, whoso ollicial zeal may slumber, ond tu " miiku thrir iiu)iligunco fall u|ion lliu wifo nml (he '' minor. VVheiher wo suddlo willi llio burlhcn of tlio " entry .Fii.stire.s of iho I'eane, the Ollicorsof the Re- " ci-tnitioji, .Votaries, relations, friends, aubrogale " lutorx, i\'C., wu shall never arrive nt » satisfactory " sysiini. I low often do persons marry without a eon- " trail of inarriatje. The tutorship of fathers nnrt " nioihtr.s lakes ell'ect without public form.^. Whom " ilicii are we lo charge with the duly of icgistra- " lion ? In ail cases, privileged persons, whom the | " law iiivirons with its special favour, will only h«ve | " (Itrivi (1 from the necessity of registration, sources j " of n|i|ircliijiisi(m and causes of disasters. Their re- i " prcsi.iitiiiive'!, however vigilant wo may suppose " ihi'in, iirc most commonly ignorant of the position of " tin; iinniovealilu property which it is proposed to " (.'iHUinber with registration. The husband and the " tutor have an interest in keeping them in tho dark ; " tliu (greater jiart of the immoveable property pledged " to llie wife anil the minor will be freed from their *' livpoilii'c. Belter would it have been to do nothing " for llicm than make them so fatal a gift. " If registration were prescribed only to inform the " public tiiat such and such immoveable property be- " longs lo such a married man or guardian, it must " be confessed that its advocates impose much trouble, " and peril many interests, lo make evident a fact " which most commonly is not unknown to those who " wish lo buy or to lend, and which, moreover, they '' have always the means of ascertaining. Tho impor- " tant point which registration ought to attain, is the " ascertaining the quota of the sums for which (he " hypothec is iicquircd. Without this, here exists ; " only a bastard hypothec ; tlio scale oi fortunes re- j " iniiiii* unknown, and public conndi'iico m iM>t Mli»- " lii'il. 'I'liii (iiTiMiin h'i{iiiliiliirit Were wrll aware of " iliii. h'nr till y di'crtril ihat rt'u;i>lraliiiii >liiiuhl bo " III no I'lli'i I, if It did not contiiin the taliiulion of ull " unili'li'rinliieil claiiiiH wlialuvcr. " Hut if we hail not, d priori, ciin.«pirid the ruin of " witi's mill minors, how could wu cMirl, in the lacii " of ilii' contr.ui of inairi.mi' smh as ihe Civil ('odo " ha". nrU'ini^i'd it in Friiiur, in ilic Lnn ol our tysleni " of uii.iriliaiiship, an inrvociiblc dirhiriilion of ihii " ainoiiiil of llie rights of llicse pcrsnni, when iIicimi " ril;lll^ iIi'imihI upon a iiiiilliliiiltHifi'vi'nis,oii ihe unfor- " seen opriiilig of a succession, on ralrlilalimis of reve- " lilies toiici riie,oii the reinvestiiii'iit of propcrlies which " sliiill be alieiiiitcd, on inili.'inliilies lor ilebts which " shall be conlriicled, &c, &c. Willi iIicmi diMislroim " anil Irieiiieiliable iiiconveiiicnces altacliing lo regis- " iriition, sliiill we diire In put in opposition (Iiom> "wliicli tesull from the absence of regi.ilralion .' '* ISIarriage and guardianship conslilnio in incicly a " |iiiblie estate. Notoriety attaches lo their existence. " 'I'liinl parties are inexciusablu for being ignoraiil of " il. Il is a riilu of cicmenlary priidenc.) ilnil wu ought " always toverify and ascertain the position of him U'lVA " wlwin we enter into u contract. This research may I " be soinclimes dillieull, bill il presents nothing imprac- I " tieiibfe, and we must not tiirget tha( in (he niatler " of tlin registration df legal hypothecs wo aro wrcst- I " ling with imiiussibilities." I ' " The borrower lins other mcnns of warding oil" the ' " inconveniences which are allachcd to the uiuh'ter* " mined nature of the claims uf women and minors. " lie can exact that (be wifo renounce her legal hy- " [lothec on the immoveable properly olleicd as guaran- ' " tee fof ilie money wliii'h is reiiuircd ; the restriction I " of (lie minor lo hypolhec obtained confoiniably with j " Article !ii'l3 of the C'ivil C"ode, is alfo a security ' " which the law places at his disposal, (''iiiiilly, ihcro " is no oliligalion on him (o lend. Il is less necessary " Ihitl loans should exist than marriages or tutorships." " It is pretended that the exemption from registra- " lion which the wife enjoys under the existing system " is often the cause of the disorder of these mailers, " because Ihu creditors only lend (o the husband upon " obliging her to bind herself jointly and severally " Willi him. liut Ibis difliculty, says Mr. Bigot, is tu " be met with in all systems. Whatever may lie said, " and here we borrow (ho idea of the First Consul, " the hypothecs of the wife icill be more safe, if, " in order to preserve, it is fnfflcicnt that she " docs not renounce them, than if it was neccssari/ "for her, in order to give effect to them, to be an " active party and to register. Many wives refuse " with firmness to sign every Act whi<'h may compriw " inise their dowry. Very few arc able (o engage in *' such matters or conduct their own ullairs." " Up to the present period. Jurisprudence has pre- " sented only a limited number of cases in which len- " ders of money have been shown to have been taken " by surprise by tho legal hypothecs of women ard " minors. On the contrary the appearance of the law " of the year VII (exacting the registration of these " hypothecs) excited general remonstrances in favour " of the married women ; and experience proves that " this class, forming one half of society, had been in " a great measure deprived of (lieir pro^ierty, with- " out remedy." [!)] « ^' M !^- " 111 iIm' tniiin, I iniiiiiit duiiy (hnt tliu ilifipoii^iii'^ with •' rrisiNiiiitiiiii iii.iy liii ilii' Dtrndiini nl' iniiiiv I'viN, lliil " nil lliii iIIm iinnI'iii stiiiiiilil liu trovcriird hv IIuhu Iwd " trulliN wlihli lire iiii iiiiswir t'lrvriy ihiii'^ iidviiiirril : " lliDcinc, thill tln' Iniilrr, in ponn' iiion oj nil his ri- " I'il ('i/(ii(i7i/, I'liiinot (/(■.<(')•)•(■ // . siitue innhcHon '' <;.i wiiiiii'n anil minora, irlio arv iniitfrnlih ; Ihv " Dihvr, Unit the hnilrr liif Iuh ]trnilrncv iinil the " Uiiiina irliidi thi' law phicrH at Ai'.i iHhiiohiiI, van • " ohriiili till' iliHiKli'inilaifrsiif his iHisiliiHi, \hiliil on '* the roiilrnrfi III!' iiiTin.iilif of ii\i(iiiliiilii>n would " onlii rininr In the wiri'.-i iinil miniirn irvtnuiliable " irrors unit irrfiionihU ciilumitieii." 8oc. XXX. Hv this ciaujo n liypotiicc in virtue of n juiIl;!!)!!))! ciiii only bu ii('(|iiir(.'(! on tliu iniiiKivi'iiMu |iru|iiMtv "I wliirli iliu ili'litiir In III iiiisM.'ssion mi iliu iliiy oiiwliirli I lie judijiiK'iit is rciidi.'i'i'd. Il'tlii' dclilor [iDH- Ni'SSL'it IK) Iniiiinvoiildc |iri>|ii:rt\, tliiiitL'iliioi' I'liiiUliiinNolt' wiilioiii iiiiy li'i,'iil liy|ioilic'c wiiutLVcr. In Frimcc, lliu li'^'al liy|"illiir ro.siillim^ l"n)in ii jiiili,'inciit t.'niliiiiccs iMjUiilly |iit'S(.'iil .ind futiiii' |iii)|ii!rty, vivIm!,' tin; ro^lric- lion wliiuli i;iiii lpi! hiiuii' til lliis liyiiotlicc wlicii lliu rcijis- trulion is i.lli'cluil on a i^ruiitiir iiiiiuiiiit ul' iiiiiiiDViiiiiiL' |irii|iirlv limn is nccessiiry lor tin; nssiirimro ortlujclniin. IJy tlui (i)iniii(iii liiw "I'llio cMiiiitry, tliu judiciiiiy liypo- iliiic i.'inhiiicus prosimt and luiiiru |)rii|M!rtv ; llio Orili- nuncu '.',\|ni'ssly dustroys ilio lii.'ii on tliu riituie. Sec. XXXI. Tills clause and tlic fnllowint; ono nro token fidin tliu Articles ^lUJ, :>|ll!), 2110, ^111, 'JI13, of tlio Civil Coilo. I ! I Sec. XXXIfl. This sfiction nnncts that the rpgislrn- ! tion oC gills mlrr viros whicdi shall hu inado from nnd ' after the day on whiidi tliu Ordinaiiee shall coinu into I force 1111(1 elli'ct, shall take the placo of lliu registration ' (•xncted hy tliu Civil I.uw of Lower Canada which I required the rcgistrntinn of these deeds at full length. I As we have had occasion to rninaik, the deeds of gift I ititcr viro.i passed hoforc tliu day on which tho()rdi-l nance came into force and eliect, arc not included in ' thu class of deeds of which Mio fouilh clausu exacts the registration. Sec. XXXIV. This section after a " whcrons" in wliich it is said that " the alienation of ihe real estates " of married women, held in free and common soccago " is governed hy diirercnt rules from those which " govern the alienation of real estates held under other " and dilforent tenures," permits the married woman possessing property iiniler whatever tenure, to nliimatc this property, provided that hefore such alienation the married woman has hccn examined hutore a Judge of the Court of Queen's Bench or of Common I'lcas, or of a District, apart from the presence of her hushaiul, in order to he assured of the free consent of the wife to this alienation. We cannot do hotter in regard to this singular provision than republish the relleciions which suggcsteii themselves to the Iloiihle. L. II. Lafon- TAiNE in the work which wo lune already cited. " This provision," says he, *' is taken from English " Law. But what are its eflccis in pmcticc ? You " wish to protect the wife from force on the part " of her husband, or as the rngli.sh Law expresses it " from coercion, and even ft' .n the fear of coercion " on the part of her husbant' ' Very well. To attain " this object, you oblige her to appear before the " Judge, apart from the presence of 1 er husband, to " declare w!ic,ijr she gives freely and voluntarily or " not, her consent to the sale ! ! ! " Vim iiipixise Iheii (which may very well occur) " thill her hushiind may forcii her in spile of hcrsulf, tu "consent to the sale. .\iid if she ai hnowlodgus thi* " fitct before the Judge, the sido wid not laku plain " on Ihnl (lav. And you may suppose by this means "thill you liavii protected tliu wife iroiii the force of " coercion i»\ the part of her inishaiid I I'lidcceivo " yourselves. The wife will relurn on the morrow to " ti 11 the Judge that she consents to lliu sale freely " and Voluntarily ; the Judgu will he obliged to give " hit cerlilicale ; the deed of italo will bu passed, and " Vou will not know what took place between tlio " Iiushand nnd wifu iM^tween her refusal onu day and " consent on llie next. Vou will suspect it perhnfis, "for in all probiihilily it will have heetJ new ads of " viohiice, new nets of coercion, which, in fact, will " hu the result of her first declaration heliire tlio Juilgo. " Behold the moral actiuii of this law." The nuthor of iho Ordiiinnco adds, ilmt when the wifu shall reside out of Iho limil.> of Lower Canada, the iilieiiation shall bo made without the {irevioiis exa- mination of tlio wife. " The Legislator," remarks again t!io Honorable L. II. Lafontaine, " has then " acte.i under the impression that women in foreign " cmintrius were better treated by th.;ir husbands than " in Lower Canada. The morals of iho country furnish " no apology for this injurious impression. It is truo " that the Ordinanco is a law of the Special Council. " And what has not this Council done .'" But apart from its character of insult, this provision is impracticable in tho great majority of rases. It au- thorises a Judge of the Court of Queen's Bench, or a Judge of Common Fleas, or of a District Court within a District, to make this examination of the wife and to grant her, according to ihi case, a certificate of freo consent. Of all the Judges enumerated in this section there have existed only the Judges of the Queen's Bench, and even their jurisdiction is not that which the author of the Ordinanco contemplated. As to tlio others, they have happily only existed in the collection of the laws I of the Special Council ; and even that is too much. I Thus, according to the terms of the Ordinance, a married woman liv.ng ten, twenty, thirty leagues ami ' more from the seat of the jurisdiction of the Court of Queen's Bench, will be obliged t" moke a long journey to undergo this examination, 'f she wishes to alienate her property. This is a method of facilitating tho alienation of the real estate of morried women as ingenious as it is becoming. Sec. XXXV. This clause permits tho married woman to release from her legal or customary dower tho immoveable property charged with it. The author has forcfottcn the conventional dower, (/e douaire prffix,) which is (juite as embarrassing and obstructive to tho alienation of real estate as the customary dower. This omission, however, has been supplied by the Statute 8 Victoria, chap. 27, sec. 4. And to avoid every dilTiculty which could arise in consequence of this omission, this Statute declares, Section 3, that the words " legal or aislomary dotcer," used in Iho Ordinance, have signified, do signift/, and shall ^i^ni/ff also the stipulated dower (le douaire prifix) or conventional ! ! ! Sec. XXXVIL This Section enacts that, for the future, the legal or customary dower of infants shall only be charged on the property of which the husband shall be seized and in possession at the day of bis [10] •I'inise, ami which shall not have been released by the wile. The conventional dower (le douairc prefix) is also omitted in this Section ; (he Statute 8 Victoria has amended this provision by includini; within it the stipu- lated dower (ic douaire prefix) as wo have just seen in the preceding clause. Those two provisions derogate from the formal texts of the Articles ilU and 25 1 of the Custom of Paris. This exception will have the ftfect of creating numerous dillicullies, which the Or- dinance and the Statute before us have not foreseen, by abrogating only one part of iho title of the customary dower, and maintaining the rest. Sec. XXXVIII. This Section permits the nlienntion by deed under sign manual of property liold in free and common soccago. Tliis provision, by tho Sintuto 7 Victoria, cliaji. 22, sec. 1 1, has been extended to the nlionatioii of property subject li> every otlier tenure. We think it rigiit to remark that this provision is very dangerous in a country wiiere education is so ' little advanced. It opens a wide door for fraud, for deception, for numerous dillicuitics, and those of a i Very weighty kind, by permitting persons having no ' ofTu'ial and recognised cliaracter, |)ossessing no requisite i (jualitication, to execute deeds as important as tiioso | which concern the alienation of immovcablo property. I Sec. XXXIX The Ordinance limits itself in this ' section to exacting, that tho transcription of Acts under \ sign iTianual, mentioned in the preceding section, si)all ' be made in a book bound in leather, without enacting tiint tills book shall bo authenticated in the manner provided for the registers in which tho registration of nuthcntic Acts is performed. Yet, it would seem that the auliienticity of these books is still more ne "'issary than that of the other registers. I Sec. XLV. This section permits tho Registrar, on j ]irescntalion made to him of a certificate signed by tlic I creditor admitting payment or satisfaction of the debt of the debtor, to enter in the margin of tho registry ; made of this debt, tho erasure of the hypothec register- j cd against the property of the debtor. Unhapi)ily, ' this erasure can only be for tho whole of the debt ; ■ acconling to this section, the erasure can not be i l)artial. The debtor who has a hypothec of £1000 on ] liis property, and on account of which he has paid £750, i will see his property still encumbered with a hypothec ! {or the payment of tho sum total of £1000. And even if the creditiir, in tlie case of payment of the whole, will not z^rant to the debtor the ccrtiticato demanded by liim, who shall compel him to give it ? And where is the recourse of this debtor, thus handedover to tho malice or bad faith of the Creditor ? Again an omis- sion. Has not the autlior, who has consulted and ar- ranged, in his own way, certain Articles from the Civil Code, from which iie has borrowed the erasure of hypothecs, comprehended tho necessity of making this provision be followed by others analogous to Arti- cles S157, 2158, 2159, of the same Code .' Happily for tho debtor, the Statute 8 Victoria, chap. 2Z, sec. 8, has come to his aid. Sec. XLIX. Tlie Office hours of the Registrar are fixed by this section at from nine o'clock in the morn- ing to throe o'c'ock in the al'ternoon. A difficulty has arisen in the interpretation of this section. Some maintain that it was only made for tho interest of tho Registrar, who can, of his own accord, keep his office open after the hour specified. Others, on the contrary, say, that the effect of this clause is to prevent the Registrars from receiving registrations after three o'clo(^k in tho afternoon, and that registrations madu after that '"lur are null and void. We have met with, in uur vif'itation of tiie offices, some registrations made after three o'clock in the afternoon, which may give rise to difficulties on the subject of priority bo- ; tween Iho creditor, whose title shall have been re- I gistered after threo o'clock, and him whoso title shall I not have been registered until the following morning at nine o'clock. This difficulty presented itself in France, w' 'ire tho law enacts that the offices shall bo open four hours in the morning and four hours in the afternoon ; the hours of attendance being marked on tho door of the offices. The Iribunalj of Apt, of Savenay, of Avcsnes, and of Purthenay, bv judgments of tho 2lsl March, 1823, 20lh August, 1821, 17th October, 1835, 8tli February, 1837, have decided that registrations could bo legally made after tho fixed hour. The judgment of tho tribunal of Avcsnes has been over- ruled by decree of 28th February, 1838.— (C/iam- pioniirc ct Rif;aud, Traile des Droits d'cnregia- trement, Vol. i, page 788, No. 3799.) We have exposed, as briefly as possible, tho most prominent defects of tho Ordinance ; and these defects will henceforth become a fruitful source of contests and dil) culties, niid to many the cause of ruin. IV'. — OF THE WORKING OR OPERATION OF THE ORDINANCE Wo arc now about to examine the acti(m or opera- tion of the Ordinance since it came into force. Wo shall occupy ourselves first with the working of this Law with regard to instruments executed or mailo be- fore the 31st December 1811, which we shall call old instruments; wc shall then consider its working a: regards instruments posterior to that date, and which wc shall designate by the appellation of iiew inalrtt- menis. 1st. — Working of the law as regards old Instni- ments. In order to be assured to what point the working of the Ordinance is extended as regards old instruments it suffices to consider tho Table No. I annexed to the present Reiiort, drawn up after an extract made from the registers of tlie dilTercnt Registry Offices in the Dis- , Iricts of (:iuebec and Gaspe. Another Table, No. II, j serves to show how many of those instruments have i been registered and how many ought to have been and have not been, on the supposition that each propri..'tor in each County, according to the result of li,.^ last Con- I sus, had, when the Ordinance came into for-jo, three old instruments to enrcgistcr. Not having in our pos- i session the Census of tho other Districts of Lower Ca- ii nada, and being ignorant of what has been the working ;• of the Ordinance in these Districts, it is impossible for II us to say any thing positive regarding the general work- 1 ii.gof it in Lower Canada. But in taking as the basis jl of a general calculation tho number of proprietors in li Lower Canada and continuing the supposition that each I proprietor at the time of tho Ordinance coming into operation had at least three old instruments requiring registration, wo shall have tho t'>'al of these instru- ments, and by subtracting from this number the total of those which have been registered, wo shall have that of tho instruments which have not and which ought to have been registered, and Ihissummist Jx- enormous to judge of it by tho number of iV-so i istruments which have not been registered in ;hc llistricts of Quebec and Gaspe. It will bo remarked that in our [in Tables wo only includu the 'jiroprielors and not tho licaiU of ruinilit:!), uf wli(>tn u large number nro not pro- jirivtors, nnd wlio, iiuvnrlliuluss, must hnvo instru- ments requiring rcgislnitiim. We think that (lie sum total of tlicso instruments must exceed 100,00U. 2nd. — Working of the law in regard to new Instruments. If the Ordinance has not performed its functions for tho past, its working has not been more happy in regard to new instruments passed since 31st December 1841. Tho Table No. Ill, annexed to tlie present Report, fur- nisiios a convincing proof of it, and the supposition on which it is basud is rather under than over the reality. It only comprehends the Districts of Quebec and Guspe. Ill order to ascertain what would Imvc been the work- ing of the law in regard to tho new instruments during the period which has elapsed since the 31st December IHll, until tho res|icctivo times at which the different olficos have been visited, let us take tho sum total of the Notaries in each County, and su|)posing that each of them executes 100 instruments in a year, of which one half have required the formality of registration, (sec ^itated among the Juris- consults of France and Foreign countries, is to ascer- tain if the Civil Code gives to purchasers and creditors all the security that can be desired, or if there be [ 13] nicuns of further increasing this security, by eninrging the urinciple of publicity and making it penetrate the ' lci;al hypothecs of women and minors." I " Two hypothecary Codes, that of Naples and of j I'iemont, have laboured to reproduce 'ho principal I bases of the Civil Code of Franco. On the contrary, ' in Bavaria, in Lomlmrdy, in Belgium, Hollaml and in tho Canton of Geneva, new paths have been opened (ir established and our hypothecary system has there fallen into greater or less discredit. This ado|)tion on . the one ;:art, 'lis rejection on tho other, are weighty facts, tho causes of which ought to be investigated " " Tho NoBpoIlfan Code has nevertheless made some slight modifications in our Code ; and I shall brielly here advert to those of tlio most importance, •111(1 wliieii may administer to the iierfecting of our Code." " Wiiijgt expressly providing that tlie neglect of re- ^islratiiin camiot prejudice the wife or tlio minor, thu Neapolilan Code Ins put 'u\ mn\ot\ a grcaternuin- ber of At^cnla tli:iii the French Code for procuring the regisirntiou of legal liyi>ollrx's. It obliges Notaries, who receive deeds rotislituliiig dower, to register llinni for thu wile, under peiudly of deprivation, costs ami dam- ages. More than tliis, llie Acts of tutorship can only iiii coinplcled by llio Clerk on proof made of a registra- tion cll'ectLd on tlie property of tlio tutor. When the m.trriage is dissii!vo(l or the iniimrity has ceased, this t^odu wills that the wife and tlic minor have a delay of a year to make their registration, to count from the dis- solution of marriage, or from tho majority." " According lo the same Code, C(mtrnc(s ])assed in riroigu countries are not deprived of all hypothecary ollect ; only tho tribunals must take cognizance of them and order their registration, if there is opportunity." j " Bolder attempts are to bo found in tho iiypothe- i cary Code of Bavaria, in the Genevan, Jlilancsc, lielgian and Dutch Codes." ; " The Bavarian and Milanese Codes have not been restrained by any formality or any consideration, in or- der to establish credit between individuals on solid foundations." " All the real rights which encumber the immovea- ble security given to the lender, or the property sold to tho purchaser, must bo exposed to the light of day. It was desired that tho creditor should be completely certain that his hypothec couhl not deceive liim ; it was desired that the purchaser should not have, under any pretences, to dread unexpected dispos- session. To arrive at this result, it has been decreed that when the proprietor alienated his property to two dilferent proprietors, the property belonged the first registered, whatever might be the date of the deed." ** Every individual who pretends to exorcise a realty right on an immoveablu properly possessed by a third party, whether by title of servitude, upon a contingency by possessiiui, lease, usufruct, mortgage, right of re- demption or reversion, conditionid surrender or feollment ; of trust, whether by title of conventional or legal hy- / pothec, must verify the same by a registration exist- ing at the moment of the alienation made against the third party in pos,scssion. In default of which he is at once debarred of his right, and has only a simple claim against him with whom ho has contracted." " Registration is necessary whether the right of pro- prietorship has been entirely or jiartially transferred by deed inter vivos, or whether it has been transferred by succession or testament. No one can lose his property, without the registration of the title of forfeilure." I " For bettor securing possessors against the rights , of children subsequently born or against actions of res- I cission or nullity, tlio law prescribes on the one hand that tho donor sluill only have a jiersonal action against the donee, on the other hand that actions of nullity or of revocation should be subject to a very short prescrip- tion." " When a question of contested right arises, the assumed right can elfcct a provisional registration called prenotatinn ; and if the claim be maintained, this prenotation becomes a definite registration, with retro- active elfect from the day on which it is dated. Transfers of mortgages are also subject to registration, so tliat tho transferees do not run the risk of heinu de- ceived by anterior conveyances of which they were ignorant." The Registers are kept according to thcfolloiving arrangements . FIliST COLUMN. SECOND COLUMN. THIRD COLUMN. Description ol'tlie properly. Its cstiinatoJ value. Ileal rights, such na titles, seigniorial iluoe. — scrvituilos, &c., with which the p-operty is oiiGuiiibcred. Resignation ol' the owner. Description of his lule — tho restrictions which limit it oi can make it void such as reservation of alimenlary nourishment — right of re-emptioii, &c. Hypothecs with which the inunoveaMe property is encumbered. Transfers of Mortgages, whidi shi ,• the progress of the hypothecary claim. The erasure ofhypothecsi. The tirst column specifics the state of the property in regard lo other parties {tiers) ; tho second shows the slate of the property in its bearings with its actual jiropiiotor, and by it the creditor or the purchaser dis- covers with a glance of the eve the probabilities of dis- 4 possession which encumber those with whom they arc contracting. I Two Tables specify, one the name of the registered ' properties, the other that of the proprietors, [ U] " By this glance nt the principal founiiations of the Bavarian ami Miiiint'se Codes, we s«c tliat tins Legis- lator lias left very far Ixiliiiul liim the Ci' il Cmle of France, whether it Ih; in that which concerns tlie trans- fer of property, or in that wliicii concerns legal hypo- thecs." % I " So exclusive a respect for the most ihsnlnte publi- city, so lively and energetic application of n princi- ple which our legislators have never more than partial- ly s;anclioned, cannot he explained hy the love of logic alone, If he wlio gives laws to a people was only » logician, he wouUl soon drive his siihjccts into despair, and the men wiio have drawn up the Bavarian Code nnd the Edict of Milan .had intelligence enough to know that the best legislation is not tiiat which adheres most closely to the inllexiblc rules of the syllogism, but that which is best adapted to the customs of a na- tion." " The Code of Holland decrees the abolition of legal liypothecs in favour of the Crown, of women and of minors, nnd only allows these hypothecs in as far as they are conventional and special, It proscribes the judiciary and legal hypothec. It wills that every hy- pothec should be stipulated, special nnd public. As to privileges, they cense to import a jus in re ; they have no longer any right of mortgage, and have clfect only between the creditors of a common debtor. Privileged creditors have only prefeienco over creditors by note of hand, but they are anticipated by tlie hypothecary cre- ditors. Registration secures the Iiypothec without re- ' newal. The cession of an hori'.age is suppressed ; the privileges of the vendor and the copartner nre abolished. The mode of payment is subjected to important modi- fications which (lo not seem to me to have been in all cnscs happily conceived; for example, the right of over- bidding {la sur-enchire) is not authorized, and the cre- ditors remain almost disarmed against the fictions of value so frequent amongst us." i I " All these reforms, realized or projected in a foreign country to a greater or a less extent, should be the more important to us, since there exists in Franco a very , strong if not a general opinion, which holds our pre- : sent hypothecary system in great distrust. To the enthusiasm which the Civil Code excited at its first ap- pearap.cc, reflexion nnd ])racticnl experience have suc- ceeded, which have caused more than one error to arise. Criticism has raised its voice ; and, when it lias for its advocates such men as the unfortunate Jour- dan, carried otF too soon for the science of law which he lighted up by the vivid brilliancy of his philosophi- cal and historical perception, it has made use of vehe- ment and cutting, I should almost say, of criminatory language. The hypothecary labour of the legislator of 1804 has been pitilessly sacrificed to the more advanced theories of our German neighbours. The work of Na- poleon, Portalis and Treilhard has been stigmatized as a jumble oi hderogeneous elements, of inexplicable provisions, und irreconcileable contradictions, pro- ducing only multiplied suits and difficulty on all Bides." / " For my part, I purpose to constitute myself neither , the absolute defender, nor the exclusive adversary of, the hypothecary system, the object, as it is, of so many i, attacks. Great faults exist in the Code ; grievous jl omissions are obvious. But, viewing it as a whole, its ' defects are not all so enormous, they are not so nume- rous as those think who reproach it with destroying the credit which landed property ought to enjoy." " Perhaps under this last head, sulTiciont attention ia not pnid to the fact that we would render the hy|>othe- cnry sy»tem respitiisiblu for a state of things, which be- longs, in part, to the very nature of properly." " Let us not demand of hypothecttry legislation cfTects which it can never produce. Let us forbear from seeking through it lo engender a rapidity in business, convenience in the recovery of debts in- compntilJIo with the complicated forms which pro- tect real projierty ; let ns discontinue to exact that it should impart to the person, who has only his immo- veable iirofierty to otter as security, und who is ordinn- rily suspected of sull'ering from |H:cuniary embarrass- ments from tho very fiict that ho is contracting debts, that confidence, which is the attribute of him, who. by his commercial relations, his good conduct, his industry nnd reputation, stands high in public credit nnd com- mands capital, \Vv must not strive against impossibi- lities," *' A good hypothecary system cannot bo conceived which should not conform to the law which deter- mines tho transfer of real property." We have thought that, the principal provisions of I hi- Registration Ordinance being partly extractetl from thi- hypothecary Code of France, the obseivutioiis which Mr. Troplong has made on the hypothecary system of France would bo perused with interest and their repro- duction approved. Other nations of £uro|)e havinn also organized their hypothecary Code, dillering moro or less from the Code of France, we have thought it our duty to bring to view their principal provisions, in order that they may be compared, and the importanco and utility of introducing them or not into our hypotht;- cary system be iluly considered. We shall now occupy ourselves with the amend- mcnts which we think necessary in the hypothecary system introduced by the Ordinance. It is a self evident fact, and one admitted by all, that the hypothecary law of the Special Council is bad, as much in its exceptional principle as in its details, and that the country should be rid of it as soon as possible. But it is equally evident that it is impossible, without manifest injustice, to return to the former plan by repealing this law and tho very system itself of the publicity of liy|)otliecs, the principle of wl ich it has introduced. Once entered on this path, it is impossible for legislation to go backwards or stop. It becomes necessary, then, to substitute another general law and one which har- monises in every particular with the law of the country in regard to the system established hy the Or- dinance. This law should be formed upon or bor- rowed from the Civil Codes of other countries. In the first case, it might, perh.".i.s, bo more proper to confide this important task to a Commission composed of the most eminent Juriscon'.ults of the country. In the se- cond case, the Civil Jodeof France, with some modi- fications which our Civil Law nnd our paiticuldr usages , require, would apt ear to be that which would suit us tho ; best, being more in harmony with the old French Law which governs i s. The Neapolitan Code and the Ger- man Co«les wni(h recognize tithes and seigniorial i rights, might also be consulted with advantage. There is a suggestion of importance, which we think ought to occupy the first place, and it is tho publicity of future hypothecs, and the means of accomplishing the certainty of this publicatiun. The difTerent seig- [ 15] uiors of Lower Canailn possess plans of tlicir 8eii;nio- rius : would it not be ndvi.SL-nlJIu lo ohiigu tliutn to niimlior encli lot of hinil concoduil iind to lie conceded in their d(>main.s, and in tlio diir.'reiU r.im'e.>ions or r«ni;es .' This hibour i« easily accomplished, and would co8t hut lilTlo, since every seignior huvini; a plan of his seigniory, on which the properties are divided into lots •.»u\ ranges, the only trouble would be to give a lUiiMher »o each lot and to inscribe on it the name ol' the actual po.ssessor, as in tlie following table : Plan of the Seigniory qf Pariah of 1 ee 6C- 'ii 6^ ri -'^ i uS r, >^ A i^ «', ►. /. ". K >. y, >. ^. >, i^ >> i^ >^ X >-■ ■^.t- B ^1 » cc ca u to. K » 'X ,^ First Range. Tliis plan thus made, the Registrar of each county would lake a copy of it, for the perfecting of which a reasonable salary should be allowed him, paid out of the public; funds. By this moans the Registrar would have iii his ollicu nil the plans of ihc seigniories in his county. The Province should pay the cost of a number of these ^ilans to be distributed in each seigniory to the Notaries who practise there. And by makmg it imperative on ' the Notaries, under a penalty, to state in every Act alfecting immoveable property, the number of the pro- ■ j)erly, scdd or hypoihecaled, we should obtain easily and certainly the pul)licity of hypothecs for the future. A Notary, with the pUn of the seigniory before him, W'll easily be able to find the number of the lot in ques- tion, upon learning the name of the person who pos- sessed it at the time of the numbering of the lots of the seigniory. In oaler to make this plan answer the end proposed, it would be ncce$.sary that Acts alfecting im- moveiible property should be passed by the Notaries who reside in the seigniory in which the property to be af- fected by the Acts is silunte. Having in his possession a pliin of each seigniory of his county, the Registrar should have a book for each seigniory in which each number should occupy a leaf, and on which he should enter all the registrations which have been made in his office concerning the property, the number of which shall be found to be therein enrol- led. By this means, the Registrar could at all times know and certify the number, the specification and amount of th^ hypothecs, charges and rights with which each lot might be encumbered. We are only speaking of future hvputhecs ; for as to the general or special hypothc.s .,_,gone, it is, wo believe, impossible ever to succeed in tracing them with the smallest hope of certainly or success ...... We submit the utility which Would be the result of giving to these books the form of the Bavarian registers, of which we have spoken above. In the townships, where all the lots are numbered, nothing is more easy than to accomplish the publicity of hypothecs ; and it is from the want of a similar arrangement that the publicity of hypothecs in the seigniories has been to this day a perfect chaos, nn inextricable labyrinth from which we shall never escape, we believe, except by the ntimbering of the lots. Another suggestion which we take the liberty of ma- king, in order to assure more completely the publici- ty dt hypothecs and charges, and tc increase the ope- ration of the system of registrntion, would he to declare, that iin Act would bear ii hypothec only from the day on which it shall have bcun deposited in Ihc onTice of the Hegi.strar. This provision would have the ellcct of ensuring the regular and general operation of tho law, and at the siimo time of overcoming that antipathy which tho country people liave for every tiling, good or had, to which they have not been ac^;ustomeil and of which iliey do not understand the etH'cls. This impor- tant |)rovision (or imparting .strength to tho operation of the sy.stem of Iho publicity of hypothecs, is to be found iu the Civil Codes of France, Bavaria, Naples, &c. It is the surest guarantee for the operation of the syslem of publicity of hypothecs, and the adop- tion oil' it is essential to this system. Wo ihiiik it our duty to suggest that the extent ol the Counties of Riniou,slvi anriorily over posterior Acts registered before the ist November 18-14, the last jie- riod fixed for the registration of old Acts. Nobody could complain of this provision, for the creditors or purchasers posterior to these Acts, who have caused [ l(i] R ; liiLir liili's to be rci;isti'rcil btfort; lliu 1st NovcnibiT j If^lJ, cDiiliI iiDl i:iiin|iliiiii, siiiio tln'V biwo onlv bouli J iiblt to iiilculali' (111 tbu cIlicnciouMn'ss of tbi' ii'i^istrn- j tioii of thiir tilli.'s ill order to llio iicmiirint; of a prio- ritv of fliiiiii or for i oi'.tractiiij;, so lonij ns llio lixfil t (lei.o for llif ri'nislriitioii of obi Ai.ts biiil not rx|iirt'(l, | iiiiil bi'CiiiiNC tbi'V sboiilil Ic pri'imrcil to wait fur unto- j riur creditors or |'urtluis(;rs, wbose Acts iiliboiiirb re- j;istcrcil posii;rior to tbo iinscriUil dvbiv, would Imvu priiiiiiv over lliciii. 'l'\i\s dubiy, of course, C(uil(l not ; jiroiuiliio I ttditors or \nMTbasi.'rs posirrior to ilic 1st NoVfiiibcr I.Hll, wbo iliLiuM'lvt's, iiiivo niiulc toiiiriiiis or (lurLliases under tbo LMUinuUco of tlie biw, wliich, as Inr ns llicv ine iciiu'oriiiil, diciiiios lo !.(.' null nil iiiilu- rior Alls wliii li lire not Llotlied wil.'i the I'orinalil/ ol rejfisiriiiion. Anoilier siiliject to wbitb wc bei; to cull llio nlten- ' tinii of lli(3 IjOL'isliiliiro, is ibi; iiliiditioii of iliu dower, or (it leasl of lliu lusloiiiary dower c nalid by ibe sole opeiaiiou of tlie Civil £,aw of ilic couiihy, Tliu exis- tence of ibis d iwcr is iiiconi|ialible Willi every sy.sleni , ol puldicitv of b\|iolbces. Tlic omission of a simi- lar provision in tlie Ordinance of the Special Council will, ill fiUiiie, be a source of i;rave liillicullies, and tlie cause of a ^Tcat number of divposses>ioiis. We , tliink liint tlie prefix {iliniaire pn'fi.v) or couventioiuil ilower sliould also be subjected to (be same fate ; for it is a serious obstacle in tlic alienation of projicrly. It . is true tliat llio actual law allows Ibe sale of properly art'ectcd by il, but tiien tbo object wbicli il bad in view in establisbiiig tliis dower lias completely failed. IIow sliall we ctl'ecttlio publicity of bypolliecs ? Is It by n v;islration by means of memorial (suinmary) or by transcription? Tbo Ordinance of tbn S|iecial j Council lias introduced tlie first nietbod, and the Pro- | vincial Statute 7 Victoria, chapter XXII lias allowed , the use of the second. Hear what Mr. Tioiilong says on both the modes of publication. "Tlie B.ivarian, Milanese and Genevan Codes have adopted reuistriition by memorial. This method has ap[)cared to bo more in iinis in with the instrument of publicity in use for the hypothec ; it has been found to be as simple as it possibly can be, without taking away at all from its clearness. It has been thought to i^ive greater regularity in the writings, because it facilitates the means of placing opposite to each other, in the same Register, (he alienations of real rights and the constitutions of the hypothecs. On the contrary tlie law of Urutnaire, Vllth year, had given the preference to transcription; and on many accounts, I think, deservedly so. Registra- tion by memorial is a delicate proceeding, which might be vitiated by an omission or an act of neg- ligence ; it consists of an attentive summary of the principal circumstances, tbo enunciation of which ought to bo at once brief and faithful. But ibis sum- mary may easily fall into a mistake from inaccuracy, and at once tbo most precious rights arc compromised. This danger is not to bo feared in transcription, which consists of a literal and material copy of the Act which it is desired to render public." We also prefer transcription. Wo liavc had the op- portunity of seeing many memorials in the ufllccs which we have visited. Wo believe that more than a third of these are informal and incomplete. In some of (hem the forms specified in the Ordinance have been copied verbatim, without making such changes in them as the nature of the Acts or other circumstances might require. Wc have also seen registrations of many judgments renilercil in 1843, (ho mvmoriali ut' which were us follows : " Memorial (o bo regis(ere(i of a judginen( rendered In Her MHJc»(y's Court of Com* mon Pleas, wilhin this division, living (ho division con- tained in the territorial division of (Quebec, in the term, &c." And this, because the formula No. 7 of (hoOr- dinancu for the registration ol judgments conimouccs thus. There are so few persons in tbe country parts who are able to draw up a Memorial. This duty requires b'ual knowledge and habits of analysis and coliceiitra- ti'iii which it is nut imssiblu to find among the people. IIow many Memorials are there drawn up by Notaries, the siillicieni'V of which may be coii(usled ? The method of transcription, since the passing of the .Statute cited above has liecn almost exclusively fol- lowed, as may be seen by Table No. I, of which we have already spoken. This method, besides the security wbicli it obtains (or the parly registering, has moreover the advantage of being less expensive. Thus for an Act containing four hundred words, the cerliUcite of regislre.iion will cost four shillings, accord- ing t.) tbe method of transcription ; and by Memorial, tlie reiristralioii will cost six sbilliligs and six pence, that is to say, two shillings and six pence for drawing up the Memorial, two sjiilliiins and six pence for the registration of it, and one shilling and six iieiice for the certilicale. The Notaries usually draw up these Memorials; and moreover, when the registration was made by Memorial only, tbe Registrars, we have been informed, received many more Acts in their OIViccs ; tbe reason is easily gues>e(l. For the rtst, these two methods of registration may be left to the ojition of those interested. There is an important point on which wo think that wo ought to make some remarks, and that is the salary o( the Registrars. It will be seen liy the Table No. Ill, annexed to this Report, how small has been Ibe re- munoratiim received by the ollicers for the registration of instruments operation. scarcely coy; _ olViecs. All JEc^ Regist rars, ]\vrn"iout exfiepit^iqn, com- pTam^o^jt, and with reason. Tlicv hn\o an im- mcnse resjionsiBility, lli o working of lTic~1 iypolliccary system r equircs^rhuch laTHiur, care a nd aftcrition ; atiil' ncycrfTielesSi _tho"maiorily7"' *l'<'sc Ollt<^ers do not rc-_ ccive the daily wa ires of a iriecliayiic. JC nTTiTr such a impossible that the actual Rcgis- stato'or'tTiings, it is trars should continue to bobl oHice, and il will come to pass that the ofliccs, if the Registrars are not suflicient- ly remunerated to enable them to live honourably out of the revenue of their office, will fall into the hands of persons disqualified in every particular. We have no interest, direct or indirect, in the emoluments of the Registrars, but we think tlii'.t, in justice to those Ofilcnrs wli<- have all discharged with honour to themselves and advantage to the public, the important duties which have lieon confided to them, and who, above all, h^vv had the merit of bringing into ojieration n system so surrounded with dilficultics as that introduced by the Ordinance, we think, we repeat it, that it is our duly to call attention to this subject. We may he permitted to suggest that, by reducing the actual tarifl, and giving the force of law to the provision of which wc have spuken above, which would decree the ex'stenceof the hypothec only from the day of its registration, a rea- sonable salary would doubtless be obtained for (he Re- gistrars. By this means registration would become ob- ligatory on all, and would be wilhin the means of every fortune ; which is not the case under the actual system. received by the ollicers for the registration ■nls passed since ibe Ordinance camo into A / Xkl? .lymuncialion is so low tliat_it T ./"y ve rs the expenses of i Tie. Deput ies and llje / Jf in [17] % / In France, tlie Excliequcr collects the duet for regis- tration accuriling to a taritr tlxed by taw, and pays their salaries to the Registrars. We beliuvo that the same rule prevails in tlio other countries where the publicity of iiypolhccs exists. But how far this sys- tem wouhl bo admissiliio in our country, is a question, the solution uf which presents very great dilHculties. For the present, wo think that the suggestion which wo have just made might bo put in practice, and if not successful, we might adopt another mode of remu- nerating the Registrars. We conclude our report by a final ul>. .'vatiun. We have had an opportunity of seeing a very considerable number of Notarial Acts bearing as a heading that they have been passed before " Notaries Public fur liio Province of cfanada." Since no Notaries commis- sioned for tho Province of Canada exist, the legality of these Acts will bo duubtloiu called in question. Al- ready tho newspapers have reported a decision of one of the Courts of the District of Montreal which has declared null an Act excepted against as null on this point. Would it not Iw proper that the Legislature in its next session pass a law to assure tho legality of these Acts ? Wo cannot refrain from pointing out an unpardonable ignorance on the part of several No- taries, who, since tho Registration Ordinance came into force, have passed obligations containing simply a general hypothec on the part of debtor"! in favour of creditors who, believing their claims to je well secured, have made haste to register tliem y 3. Uilluruiico. GaB\)t :)5J 579 -juy.i alio 1117 1SJ8 a 108 Si'iO la'ji s-u 10S3 0928 871 1122 1080 1850 1871 1922 lliOl 4813 810 231)1 1112 1324 3415 1933 3200 3258 5008 5013 5700 5! 173 1IJ3J 2148 0993 3330 3I>72 10335 5799 Uunitvcnturo 3013 IlimouHki 2079 Kiiiiiouranka 3495 3505 1319 4015 12127 1588 5702 2512 2890 :i.jo7 Inlet. I3i;lleclin8do DorehcHler Miifiiiitic. I'ortiit'ul'. Montmorency S.ijfiicnay (luchoc LuthiaicSrc 1S25 Toluls 25708 25C5I 57002 51170 TABLE Ao.III SHEWING the operation of the Ordinance in regard to tlie new Acts in the Districts of Quebec and Gaspe. REMARKS. Oa«pe Ilonavenlure.. . Iliinouskl Kuiiiaurn.il\a.. . Islet ik'llceliasse.. . . DorduiMtcr. . . . l*ortneuf S.i^uenay Meijaiitic .Moiitnioroney.. (iuel)ec Lotbiiiivrc Totala... («) Tlicre is no Xotary in this County, ilie Acts are [insseil there by the JumicoK of the Peace and Missionaries. ('«) This Olficc Ii;i9 boon in e.\-iytenco since the Ut March, IS44. (<■) Do ((/) Uo (.■) Do (to ilo . MONTREAL :— Piinted by Stewart Dehbishiri: & Geoboe Desbarats, Printer to the Queen's Most Excellent Majesty. / /