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32X

CODIFICATION OF THE LAWS OF LOWER CANADA.

.4.

SOME REMARKS

1% ('>

ON THE

TITLE "OF obligations;

AS REPORTED

BY THE COMMISSIONEES.

"v.-

T. W. RITCHIE.

~." -i

.V-'i

( •.•

Ponlrtal :
PRINTED BY JOHN LOVELL, ST. NICHOLAS STREET.

1863.

TN June, 1857, the Legislature passed an Act, the importance of which
-'• it would be difficult to exaggerate, providing for the Codification of the
Laws of Lower Canada, relative to civil matters and procedure. The pre-
amble of the Act declares that such codification is " manifestly expedient."
Nevertheless, the Government of the day allowed a period of more than
eighteen months to elapse before the Act was put in force, by the nomina-
tion of Commissioners to execute the important work thus decreed by the
Legislature. The Act provides that three Barristers should be named as
Commissioners for Codifying the Laws (but any Judge or Judges of the
Queen's Bench or Superior Court might be appointed), and two Secreta-
ries, also Barristers. The Act instructs the Commissioners to reduce into
one Code, to be called the Civil Code of Lower Canada^ those provisions
of law which relate to civil matters, and are of a general and permanent
character ; and into another Code, to be called the Code of Civil Proce-
dure of Lower Canada, provisions of law, of the like character, relative to
procedure in civil cases. In these Codes, the Commissioners are to embody
only such provisions of law as they hold to be actually in force, giving the
authorities in support of them. They may, however, suggest amendments,
stated separately and distinctly, with their reasons for proposing them.
The three French Codes, known as the Code Civil, the Code de Commerce,
and the Code de Procedure Civile, are expressly given to the Commissioners
as models, in so far as respects general plan and the amount of detail on
each subject. The Commissioners are instructed from time to time to
report to the Governor their proceedings and the f progress of the work.
When sufficiently advanced, sections are to be printed, and sent with a
Report to the Governor, who may transmit copi-.s to each of the Judges
of the Queen's Bench and Superior Court. The duty is imposed upon tho
Judges to ejsamine the portions so submitted, more especially that part of
the work purporting to state the laws in force, and return the same stating
their opinion, with their reasons and authorities, and drafts of any amend-
ments proposed, either to the work of the Commissioners or to the law itself.

Early in the year 1859, the Commissioners and Secretaries were named,
and commenced their labors. The first part of the work reported to the

■V

Governor is the title under consideration, and was submitted in October,
18C1. Although eighteen months have since elapsed, no review or even
notice of this important part of the project of the Code has, to my know-
ledge, appeared in print in the English language. This is doubtless to be
accounted for by the fact that copies have not been furnished to members
of the profession generally ; otherwise, surely the work would not have
been received in silence by the English-speaking members of the Bar.
Some criticisms would have appeared upon the manner in which this impor-
tant title has been prepared. It has, however, been laid before the
Judges, as the Act contemplated, and it would appear from a subsequent
report of the Commissioners, that they had confidently expected great
assistance from the enlightened observations of the experienced jurists
whose duty it is from month to month to lay down the law in an authorita-
tive manner. It is, however, left to be inferred that the Commissioners
have been disappointed in the hopes thus entertained.

The arrangement of this part of the work leaves nothing to be desired.
The Commissioners have substantially followed the order of Pothier, which
is more natural and philosophical than that of the Code Napoleon, the
errors of arrangement of which, pointed out by different commentators,
have been carefully avoided in the Title in question. In the French Code,
the subject of Obligations is divided into two distinct titles, " Des Contrats
ou des Obligations conventionelles en g6n<5ral," and " Des Engagemens
qui se forment sans convention." Such a division was entirely unnecessary,
the greater part of the rules laid down with respect to conventional obliga-
tions applying equally to those arising from quasi-contracts, quasi-offences,
or from operation of law. This is shown by the fact that the former title
contains nearly three hundred articles, the latter only seventeen. That
the order adopted by our Commissioners is preferable to that of the Code
Civil, will appear by a mere glance at the general division of the project of
this title. The chapters are entitled as follows : 1. Of Contracts ; 2. Of
Quasi-Contracts ; 3. Of Offences and Quasi-Offences ; 4. Of Obligations
which result from the opei'ation of the law solely ; 5. Of the object of
Obligations ; 6. Of the effect of Obligations ; 7. Of different kinds of Obliga-
tions ; 8. Of the extinction of Obligations ; 9. Of Proof.

The idea of a Code has been well apprehended by the Commissioners.
A Code should be a comprehensive body of practical rules of law, expressed
in language pure, conciae and unambiguous. It ought to exclude mere
definitions and legal axioms ; for it can never supply the place of scientific
treatises upon legal subjects. Nor ought it to be encumbered with more
details and examples than are absolutely necessary to a practical under-
standing of the rules laid down. It is scarcely necessary to add that the
subtleties in which many of the authors delight, would be entirely out of

'V'

place in a body of positive legislation such as a Civil Code. These views
arc not dissimilar to those which the Commissioners seem to have enter-
tained in the execution of the Title of Obligations.

It is manifest that in the review of a Code, the articles of which ought
to be not unlike the jewels composing a diamond necklace, pure, simple
and transparent, verbal criticisms will almost necessarily suggest themselves,
which would appear trivial, and even captious, if applied to any ordinary
literary work. In the following observations it will be seen that no changes,
even of a purely verbal nature, have been considered unworthy of notice,
where they appeared to give any promise of greater perfection in the work.
These remarks are unbiassed, and are submitted through a desire to contribute
something towards a work which ought to interest every Lower Canadian,
and especially every member of the profession. It is to be hoped that
each title of this great work, as it makes its appearance in print, will
receive from legal critics, more competent for the task than the present
writer canjpretend to be, the thorough and careful examination, criticism
and discussion, demanded by the importance of the subjects of which the
Code will contain an authoritative exposition.

In the brief remarks which follow, it will be seen that many articles and
amendments are passed over in silence. Aiier a careful examination of
the corresponding provisions in the Code Civile and reference to most of
the authorities cited, no alterations suggested themselves with respect to
the articles and amendments in question. Those portions of the project
are, therefore, unreservedly approved. The number of such omissions is
the best evidence of the opinion of the writer in reference to this impor-
tant title, as a whole.

The title of Obligations, as reported by the Commissioners, consists of
275 Articles. The amendments proposed to some of these articles, by
the substitution of others in th Vr stead (as alterations in the law,) are
twenty-one in number. Besides aese, five articles entirely new are sub-
mitted by the Commissioners, also as amendments of the existing law.

I.
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•e
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)f

TITLE "OF OBLIGATIONS."

GENERAL PROVISIONS.

nPHE general provisions are contained in the two following articles :

"1. It is eeeential to an Obligation tlmt it should have a cause from wliich it
•' arises, persons between whom it exists, and an object."

"2. Obligations arise from contracts, quasi-contracts, ottencen, quasi-oft'ences, and
" from tlie operation of the law solely."

The words italicized in Art. 2 may be omitted. They are not found in
Pothier, nor in the French version of this article.

CHAPTER I.

OF CONTRACTS.

Section I. — Of the Requisites to the validity of Contracts.

" 3. There are four requisites to the validity of a Contract :

" Parties legally capable of contracting.

" Their consent legally given.

" Something which forms the object of the Contract.

*' A lawful cause or consideration."

These requisites might be more concisely, and with equal clearness
stated thus : " Parties capable of contracting ; their consent ; an object ;
a lawful consideration." The words omitted are clearly superfluous.

The word " legally " may also be omitted in the first paragraph of Art.
6. " Those legally incapable of contracting," &c.

Section II. — Of the causes of nullity in contracts..

The redaction of this section, particularly of the paragraph " Of violence
and fear " is not happy. Articles 11 and 12 are passed for the moment.
The Commissioners, finding that " Fear " is by the Roman law declared to
be a cause for annulling contracts, have added it to " violence," which is
given by Pothier and the French Code. It is manifest that this addition is
of no value, and only tends to create confusion of ideas. It is violence ereat-

ingfear which annuls the contract. The existence of fear can only be
established by proof of violence ; and although it may be theoretically true
tha. a consent obtained throuj^h fear is not a good consent, the statement
of the principle in a practical code is useless. The first three articles of
Section III. are as follows :

" 13. Violence or fear is a cause of nullity, whetlier practised or proiluceil by tli»
" party for whose benefit the contract is made, or by any other person."

*' 14. The fear, whether produced by violence or otherwise, must be a reasonable
" and present fear of serious injury. Tlie age, sex, character, and condition of the
" party are to be taken into consideration."

" 15. The fear Huft'ered by a contracting party is a cause of nullity, whether it be
" a fear of injury to iiiniself, or to his wife, children, or other near kindred, and
" eonietimes when it is a fear of injury to strangers, according to the discretion of
" the Court."

These articles, leaving out of course the revival " fear," might be ren-
dered in two, thus :

" 1.3. Violence is a cause of nullity, whether practised by the party fur whose
" benefit the contract is made, or by any other person."

« 14. The violence must be such as to produce, in the party influenced by it, a
'* reasonable and present fear of serious injury to himself, his wife, child, or other
" near kindred; or sometimes (in the discretion of the Court), to any other person.
" Tlie age, sex, and condition of the party are to be taken into consideration."*

In the following article the words italicized may be omitted.

"16. The mere reverential fear of the father or mother, or other ascendant, with .
" out any violence having been exercised, or threats made, will not invalidate the Con-
" tract."

"18. A contract for the purpose of delivering the party making it, or the husband,
" wife, or near kinsman of such party, from violence or threats of injury, is not
" invalidated by reason of such violence or threats : provided the person in whose
" favour it ia made be in good faith, and not in collusion with the ortending party."

To this should be added ; " But if the obligation be manifestly excessive,
the Court may in its discretion reduce it." (Poth. Oblg. No. 24.)

Marcad^ characterizes this doctrine of Pothier as not to be thought of,
at the present day ; but his reasoning is more subtle than just, and he
admits that if the obligation be '^vraiment excessive,''^ the Judge may
hold that the party had been deprived of his reason by the effect of fear,
and consequently that the obligation was null for want of consent, and

* Since these notes were written, I am indebted to a friend, a member of the N«w York bar, for n
copy of the Draft of a Civil Code for the State of New York, a work of mucli interest. The division
of Obligations, as there reported, contains only 136 sections or articles. The article most nearly paral-
lel to the one under consideration is in the following terms:—" An apparent consent is not real or free
When obtained through 1. Duress; 2. Menace; 3. Fraud; 4. Undue influence ; 6. Mistake; or, 6. Acci-
dent." These are, of course, resolvable into three: error, fraud, and violence.

thereupon may fix tlic sum to bo paid, irrespective of any express contract,
according to the service rendered, and by the effect of the ((uasi-contract
ffestion cCaffairea. Tlus is only doing indirectly what our article permits
to be done directly.

In Article li) the word " fear " should bo omitted, to make it correspond
with the preceding article.

Returning to Articles 11 and 12 :

"11. KiTur Ih a cau8c of nullity only wlien it uccurH in the nature of the contract
'' itselj] or in tlio Hub.stance of the thing whicli i-s the object of the contract, or in
" BOmethiiig which i.s a principal conHideration fur making it."

The words italicized may be omitted. They arc not found in Potliier,
nor in the French Code.

'' 12. Fraud is a cause of nullity when the artifices |)ractiHed hy one party, or with
" his knowledge, are such that tlie other party would not have contracted without
'Mheni."

There are hero two important omissions. Tlic article ought to read thus :
*' Fraud is a cause of nullity when the artifices practised or participated
in by one party to deceive the other are such that the latter would not have
contracted without them." (Pothier, No. 28.) There is a distinction to be
drawn between harmless artifices, and those of a fraudulent and deceitful
kind. It is only manoeuvres pour tromper un autre that give rise to nul-
lity. (Pothier, No. 28 ; 5 Marc. No. 417.) The fraudulent arts must be
, the act of the other contracting party, or at least he must have participated
in them. (Poth. No. 32.) It is not sufficient that they should be merely
with the knoivledye of the party. The article, as reported, is therefore
inaccurate in two material respects.

In Section 4, " Of lesion," there is little to remark.

" 25. The minor is not relievable from stipulations contained in his marriage con-
" tract, made with the consent and assistance of those whose consent is required for
" the validity of his marriage, prodded the donation or other advantage stipulated be
" 7iot excessive.^'

The Commissioners very properly suggest the omission of the words in
italics, as an amendment to the existing law.

" 28. Contracts by minors for the alienation or incumbrance of their immoveable
" property, with or without the intervention of their tutors or curators, unattended
" with the formalities required by law, may be avoided without proof of lesion."

This article is unnecessary ; and, if not so, is misplaced,

" 29. Minors are entitled to relief for cause of simple lesion in contracts executed
"by their tutors, or by tliemselves, with the tutor's authority, and clothed with all
" the formalities of law, and even in sales by judicial authority upon an avis de
"parens.

The Commisaioncrs suggest tho following article in place of the forego-
ing: " When all tho formalities rcijuired with respect to minors or intcr-
" dieted persons, for the alienation of immoveable property, or the partition
" of a succession, have boon observed, such contracts and acts shall have
" tho same force and effect as if they had been executed by persons of
'^ the ago of majority, and free from interdiction."

The proposed amendment is an important one, but there is little doubt
it ought to be adopted. It expresses tho rule contained in the Code
Napol<^on. (Art. 1314.)

In Article -M are given the cases in which persons of the ago of major-
ity are entitled to be relieved from their contracts, on the ground of lesion.
The Commissioners propose to abolish lesion as alone a ground of annulling
contracts entered into by persons of major ago. Tho new article suggested
is in these words : " Persons of the ago of majority are not entitled to
" relief from their contracts for cause of lesion only."

This ia in accordance with modern ideas, and probably ought to be
adopted.

Section III. — Of the interpretation of Contraots.

Calls for no comment. The rules laid down are derived from Pothier,
and are, of course, unexceptionable.

Section IV. — Of the effects of Obliijations.

" 44. The contract alone does not transfer the right of property m a thing; it givca
*' only the^HS ad rem, not the jus in re ; to tranr^fer the property, tradition is necea-

pary.

(This is true, except as to deeds of lands held in free and common
soccage. Consol. Stat. L. C, Cap. 37, Sec. 56.) The Commissioners
propose the following amendment to this article : — " The contract of alien-
" ation of a thing certain and determinate makes the purchaser owner of
" the thing by the consent alone of the parties, although no delivery be
" made."

This conforms to Article 1583 of the Code Civil ; and suggests a useful
amendment. The additional article (4(3) proposed, in amendment, makes
the previous rules apply also to third parties in respect of real estate, and
is doubtless worthy of approval.

Section VI. — Of the avoidance of contracts and payments made in

fraud of creditors.

This section has evidently been prepared with great care, and the
subject is of the utmost importance. The law in respect of it is now

somewhat unsettled. Merely remarking that the whole section, and the
amendments proposed by the Commissioners, appear to the writer to call
for nothing but unqualified praise, particular attention is drawn to the
articles composing the section. They are as follows :

" 51. Creditors may in their own name impeach tlie acts of their debtors in fraud
" of their rights according to the rules provided in this section."

"52. A contract cannot be avoided unless it be made by the debtor with intent to
" defraud, and will have the effect of injuring tlie creditor." i-

"5.S. A gratuitous contract is deemed to be made with intent to defraud, if the
" debtor be insolvent at the time of making it."

"54. An onerous contract made by an insolvent debtor with a person who knowa
' him to be insolvent is deemed to be made with intent to defraud."

"55. Every payment by an insolvent debtor to a creditor knowing his insolvency,
" ie deemed to be made with intent to defraud, and the creditor may be compelled to
" restore the amount or thing received, or the value thereof, for the general benefit of
" the creditors.

" 56. If any contract or payment designated in the three next preceding articles be
" made by a mer<^iant or trader wHhin ten days previous to his bankruptcy,* his insol-
" vency and intent to defraud and the knowledge thereof by the creditor or the party
" with wliom he contracted is presumed."

" 57. An onerous contract made with intent to defraud on the part of the debtor
" but in good faith on the part of the person with whom he contracts, is voidable."

" 58. No contract or payment can be avoided by reason of anything contained in
" this section at tlie suit of a creditor posterior thereto, unless he be subrogated in
" the rights of an anterior creditor, saving nevertheless the exception contained in the
" following article."

" 59. Contracts and payments maile by a merchant or trader within ten days pre-
" vious to his bankruptcy may be avoided for the causes assigned in this section, at
" the suit of any creditor, although posterior thereto."

" 60. No contract or payment can be avoided by reason of anything contained in
" this section at the suit of any individual creditor unless the same be brought within
" one year from the time of hie obtaining a knowledge thereof."

"Il" the suit be by assignees or other representatives of the creditors collectively, it
" must be brought within a year from the time of their appointment."

■3

CHAPTER II.

Section I. — Of the Quasi- Contract negotiorum gestio.

" 63. He who, of his own accord assumes the management of any business of
" another, tvith or without the knowledge of the latter, is obliged to continue the
" management which he has begun until the business is completed, or the person for
" whom he acts, is in a condition to provide for it himself; lie must also take charge
" of the accessories of the same business."

" He subjects himself to all the obligations which result from an express mandate."

* " Bankruptcy " it eleewhcre defined to be "the condition of « trader wbo taae discontinued hit
paynente."

The words in italics are not in the article, but ought to be added, for
although, strictly speaking, the article as reported, expresses the law in so
far as it respects a quasi-contract, the addition would be of practical
utility. A similar provision is found in the French code, Article 1372.

" 64. He is obliged to continue his management, although the person for whom he
" acts die before the business is terminated, until such time as the heir or other legal
" representative is in a condition to take the management of it."

To this article there is only a verbal criticism, the omission of the words
italicized.

" 65. He is bound to exercise in the management of the business, all the care of
" a prudent administrator.

" Nevertheless the court may moderate the damages arising from his negligence or
" fault, according to the circumstances under which the management of the business
" has been assumed."

A " prudent administrator " is not a happy rendering of the French
" un bon pdre de famille." Why not translate the words literally ?

"67. He who receives what is not due to him, through error of law, or of fact,
" is bound to restore it, or if it cannot be restored in kind, give the value of it
" with the profits received upon it."

The Commissioners suggest the following as an amendment instead of
article 67 : —

'' He who receives what is not due to him through error of law or fact is bound to
" restore it; or if it cannot be restored in kind, to give the value of it.

" If the person receiving be in good faith, he is not obliged to restore the profits of
" the thing received by him."

Ought not the second paragraph to be altered so as to compel restitution
of profits in all cases, where they have not been consumed by the person
receiving ?

<' 68. He who pays a debt, believing himself by error to be the debtor, has a right
" of recovery against the creditor,

"Nevertheless that right ceases when the title (add, evidencing the debt) has in
" good faith been cancelled, or has become ineffective, in consequence of the payment
" saving the remedy of him who has paid against the true debtor."

" 72. He to whom the thing is restored, is bound to repay to a possessor, in bad faith,
" the expenses which have been incurred for its preservation."

The following is suggested as more in conformity to the law as it now
exists : " He to whom the thing is restored is bound to repay, even to a
possessor in bad faith, the useful expenses which have been incurred for
its preservation."

74. The last clause should change places with the one immediately
preceding it.

" 82. The object of an obligation must be something possible, and not forbidden by
" law or good morals."

Proposed amendment : —

" The object of an obligation must be something possible in itself, and
" not contrary to law or good morals."

" 84. The obligation to keep the thing safely, subjects the person charged there-
" with to apply more or leaa care, and renders him liable for his gross default, or
" very slight fault, according to the nature of the different contracts, the effects of
" which in this respect, are declared, under their respective titles."

Instead of this Article, the Commissioners suggest the following : " The
" obligation to keep the thing safely obliges the person charged therewith,
" to keep it with all the care of a prudent administrator," which appears
to be a sound amendment.

In Section II " Of defaults," the following additional article is sug-
gested by the Commissioners : " In all contracts of a commercial nature,
" in which the time of performance is fixed, the debtor is put in default by
" the mere lapse of such time." This amendment is in favour of com-
merce and ought to be adopted.

Section III. — Of the damages resulting from the inexecution of

Obligations.

'' 91. The debtor is liable to pay damages in all cases in which he fails to establish
" that the inexecution of the obligation proceeds from a cause which cannot be im-
" puted to him, although there be no bad faith on his part."

After " inexecution " the words " or delay in the execution," ought to
be inserted. They occur in the French code, and are necessary to render
the article more complete.

"96. When a certain sum is stipulated as the amount of damages to be paid on
" failure to execute an obligation, the sum may be reduced by the court if it appear
" excessive."

A majority of the Commissioners suggest the following amendment :

" When it is stipulated that a certain sum shall be paid for damages for the inexe-
'' cution of an obligation, such sum and no other, either greater or less, shall be
" allowed to the creditor for such damages.

"But if the obligation have been performed in part, to the benefit of the creditor,
" and the time for its complete performance be not material, the stipulated sum may
" be reduced, unless there be a special agreement to the contrary."

From this opinion Judge Morin justly dissents. The proposed change
was made in France, because the courts went great lengths in setting aside
clauses containing a stipulated amount of damages, but it is not alleged that
the same reason exists in this country. A majority of the Commissioners

declare the reasons of Pothier in support of the law, as it now stands to be
inconclusive. It is diflficult to concur in this decision. The rule of the
law as it now exists, is most equitable, and the argument of Pothier
unanswerable, that a creditor ought not to be permitted to recover excessive
stipulated damages from a debtor, who has, from a false confidence, been
tempted to submit himself to them, never for a moment dreaming that a
possible failure to perform his obligation would render him liable to the
actual payment of excessive damages. As interest ought always to be
the measure of actions, a creditor in whose favour such a clause has
been stipulated should be held to prove that the damage has been really
suflfered by him. No doubt, contracts ought, as the law of the parties, to
be enforced in so far as they can be in justice and equity ; but an
improvident debtor ought not to be mulcted in excessive damages merely
to secure the carrying into effect of an unconscionable contract obtained
from him by a designing and heartless creditor. Possibly a middle course
might be advisable, namely, that the stipulation of a specific amount as
damages should create a presumption in favour of the plaintiff, absolving
him from proof in the first instance, but liable to be rebutted and destroyed
by evidence on the part of the defendant. The same remarks apply to
Article 154 respecting penal clauses.

The next article which arrests attention is 110, which is as follows : —

"110. That which is due with a term of payment cannot be exacted before tlie
" expiration of the term; but that which lias been paid in advance vohmtarily and
" without error or fraud cannot be recovered."

It is doubtful whether the second part of this article expresses cor-
rectly the existing law. However, it is well to provide that payment
before the expiration of the term should be invalidated by the same causes
which suffice to avoid contracts. Although possibly included in the
term " voluntarily," the word " violence " may be added after the word
" error."

Art. 131, for " prosecuted " read " sued."

" 138. In case the creditor have renounced his joint and several action against one
'* of the debtors, if one or more of the remaining co-debtors become insolvent,
" the shares of those insolvents shall be made up by contribution by all the other
" co-debtors, except the one so discharged, whose part in the contribution shall be
" borne by the creditor."

The Commissioners recommend that this rule of law should be preserved.
They admit, however, that of the French code to be different, although
many commentators interpret it as throwing the loss upon the creditor.
So that the law be clearly laid down, it matters little which rule is adopted ;
but as the law ought to favour the conventional liberation of the debtor,
it would be better to change the article, so as to make the loss arising

from the insolvency of the co-debtor fall upon the debtor as to whom the
creditor has agreed to waive his joint and several right. It might often
happen that a creditor would be willing to release a debtor from his soli-
darity — a benefit to the debtor — when he would not be willing to assume
any responsibility arising from the insolvency of any of the other debtors.
If the debtor wished his release to have a more extended meaning, he
should expressly stipulate for it.

CHAPTER III.

Section I. — 0/ Payment.

The next Article to be noticed is —

<' 160. Payment may be made by any person, although he be a stranger to the
" obligation, and the creditor may be put in default by the offer of a stranger to per-
" form the obligation on the part of the debtor, without the knowledge of the latter,
'' but it must be for the advantage of the debtor, and not merely to change the creditor,
" that the performance of the obligation is so offered."

The wording of this article is open to criticism on the ground of vague-
ness. An improved rendering would be the following : " Any person,
even a stranger to the obligation, and although without the knowledge or
against the will of the debtor, may make payment and put the creditor in
default to receive the same, provided such person act m discharge of the
debtor, and without subrogation in the rights of the creditor."

" 166. Payment made by a debtor to his creditor, to the prejudice of a seizure or
" attachment, is not valid against the seizing or attaching creditors who may, accord-
" ing to their rights, constrain the debtor to pay a second time, saving in such case,
" only his remedy against the creditor so paid."

Here is a case of mis-punctuation somewhat altering the sense. The
comma after the word " case " in jthe last line, should be after the word
"only."

"168. A debtor cannot compel his creditor to receive payment of his debt in part,
'' even if the debt be divisible.

"The Circuit Courts and Commissioner's Courts, may nevertheless in their discre-
" tion order the sum for which judgment has been given in either of them to be levied
" by instalments, in the manner provided by the statutes, regulating the authority
" of these courts."

The Commissioners recommend that this power of granting a terme de
grdce be taken away from the courts. It is not alleged, however, that it is
abused, and there are many cases in which the exercise of this discretion
operates as a great favour to the debtor, without being at all prejudicial to
the creditor. It ought not, therefore, to be abolished, but should no doubt

"be riestricted to eases in which confession of judgment is offered in the
first instance, and is doubtless a poAver to be exercised with a sound discre-
tion, due regard being had to the relative circumstances of plaintiff and
defendant.

" 169. The debtor of a certain specific thing ia discharged by the delivery of the
^' thing, in the co.Jition in which it is at the time of delivery, provided that th«
*^ deterioration in the thing (read, which has occurred to it,)* hath not been caused by
" any act or fault for which he ia responsible; and that previously (previous) to the
'' deterioration, he was not in default."

In Article 174, respecting conventional subrogation, the Commissioners
recommend an alteration, permitting the act of loan and acquittance to be
executed before witnesses. Here, and in the Articles 195, 196 and 197,
the word " hypothecation " is inaccurately used instead of " hypothec,"
which has been adopted in our recent legislation, and is to be preferred.
" Hypothecation " means the act of hypothecating, a signification entirely
different from that of " hypothec."

Instead of Article 175, the Commissioners suggest an amendment, ex-
tending subrogation by the sole operation of law. The 5th paragraph
requires a slight alteration, by the supplying of the words in italics, so as
to read thus : — " 5. "When a rent or debt due by one married party alone
" has been redeemed o?' paid with the moneys of the community, in this
" case the other party is subrogated in the rights of the creditor accord-
" ing to the share of such party in the community."

178. Add the word " but " after " interest " in the penultimate line. It
is found in the French version.

" 181. When a creditor refuses to receive payment, the debtor may make an actual
" tender of the money, or other thing due, and in any action afterwards brought for
" its recovery, he may plead and renew the tender, and if the thing due be a sum
'' of money, may (read must) deposit the amount; and such tender, or such tender
" and deposit, if the thing due be a sum of money, are equivalent, with respect to the
" debtor, to a payment made on the date of the first tender : provided that, from the
" date of the first tender, the debtor continue always (add capable and) willing to
" deliver the thing, or to pay the sum of money."

" 182. Paragraph 4. That (add, if of money,) it be made in coin declared by law
" to be current, and a legal tender."

"184. If a certain specific thing be deliverable on the spot where it is, the debtor
" must by his tender (read notice of tender) require the creditor to come and take it

there."

« If the thing be not so deliverable, and be from its nature difficult of transporta-
" tion, the debtor must indicate by his tmder (read notice of teJider) the place where

* In several of the following articles, for the sake of brevity, suggested amendments arc inserted
in parenthesis as in the present article.

" it is, and the day and hour when Ije u ready (will be ready) to deliver it at the
" place where payment ought to be made."

" If the creditor fail in the former case to take the thing away, or in the latter to
" signify his willingness to accept, the debtor may, if he think fit, remove the thing
<' to any other place fur safe keeping at the risk of the creditor."

Section III. — Of Novation.

»' 189. Novation can be effected only between persons capable of contracting."

This article is entirely unnecessary.

197 and 198. The term " debtors in soUdo,''^ as in the Code of Louisiana,
would be better than "joint and several debtors." The same alteration
ought to be made in other articles where similar expressions occur.

Section IV. — Of Memission.

" 202. The surrender to one of the joint and several debtors of the original title of
" the obligation is available in favor of his co-debtors."

This article might be rendered somewhat more definitely, thus : " The
" surrender to one of several debtors in solido of the original title of the
" obligation has the same effect as if made to all."

" 205. That which the creditor receives from a surety as a consideration for releaa-
" ing him from his suretyship, must be imputed upon the debt, and goes in discharge
*' of the principal debtor and tlie other sureties, unless the surety discliarged have
^' reason to fear that the debtor is insolvent, or about to become so."

The Commissioners suggest the following as an amendment to the law
now in force : — " That which the creditor receives from the surety as a
" consideration for releasing him from his suretyship is not to be imputed
" in discharge of the principal debtor, or of the other sureties, unless the
" condition of the latter have been made more onerous by the release of
" such surety." The amendment is a good one. There is no reason why
the principal debtor should profit by the consideration of a contract of
release to which he is a stranger.

Section V. — Of Compensation.

" 208. Compensation is not prevented by a term granted by indulgence for the pay-
' ment of one of the debts."

This article will, of course, follow the fate of Article 168, which, as well
as the present, the Commissioners wish to abolish. Their recommendation,
as will have been seen before, is not concurred in by the writer.

'* 213. When compensation by the sole operation of the law is prevented by any of
" iTie causes declared in this Section, or by others of a like nature, the party in whos«
" favor alone the cause of objection exists may demand the compensation by ezcsp*

'' tion, ami in such case the compensation takes place IVoni the time of pleading the
'* exception only."

When compensation cannot take place de ple'm droit, by reason of tlic
absence of one of the four conditions included in Articles 206 and 207,
it may still be demanded when the condition wanting can be supplied. This
compensation is called by Marcad6 facultative. The four conditions
required for compensation by operation of law arc : 1. Mutual debtors ;
2.J)Ghisfon<jihles; 3. Dchisliquides; 4. Debts exiijihles. The article, as
reported, is vague, referring as it does to causes which are not specified,
and others of a like nature. An improved rendering would be the follow-
ing : " When compensation by sole operation of law cannot take place by
" reason of the absence of any of the conditions reciuired in Articles 206
" and 207, the debtor who causes the accomplishment of all the conditions
" which may be wanting may demand compensation by exception. "In
•" such case the compensation takes place only from the time it is so
" demanded."

" 218. The confusion which takes place by the concurrence of the qualities of
'' creditor and principal debtor in the same person avails the sureties."

The words in italics are superfluous, being included ia the definition in
the preceding article.

'^ 219. When the certain specific thing wliich is the object of an obligation perishes
" (add, is taken out of commerce, C. C, 1302), or the delivery of it becomes from any
'' other cause impossible, without any act or fault of the debtor, and before he is in
'' default, the obligation is extinguished."

CHAPTER IX.

Of Proof

The title of this Chapter is objectionable, as well as the use of
word "proof" instead of " evidence " in several of its articles. " Th
" word evidence, in legal acceptance, includes all the means by which
" any alleged matter of fact, the truth of which is submitted to investi-
" gation, is established or disproved. This term and the word proof are
" often used indiflferently as synonymous with each other, but the latter
" is applied by the most accurate logicians to the effect of evidence, and
" not to the medium by which truth is established." (Greenleaf, § 1.)
This distinction ought to be observed throughout the chapter. In Articles
223 and 224, the word evidence should take the place of the word proof.

" 227. It is necessary to the authenticity of an instrument, executed before a
<' notary pubhc, that it be received by him in the actual presence of another subecrib-
^* ing notary, or of two lawful subscribing witnesses.

" The wiincsses imist be malen, not less tliaii twenty years of age, of Bound mind,
" not related to either of the parties within the degree of cousin yermain, without
'• interest in the instrument, not civilly dead, not deemed infamous by law."

The Commissioners sug^^est that the witnesses be twenty-one years of
age. The article has been so drawn as to make the actual presence of
two notaries, or a notary and two witnesses, absolutely necessary. It is
well known that the most solemn acts are now passed before one notary,
and afterwards countersigned by another notary who has ' no knowledge
whatever of the instrument or the parties to it. A stop ought to be put
to this abuse, but perhaps it would be well to require the actual presence
of two notaries, or a notary and one ivitness instead of two witnesses.

" 230. An authentic writing may be contradicted, and set aside as false, in whole
'*' or in part, by inscribing enfavx in the manner provided in the Code t>f Procedure,
" and in no other manner."'

Instead of the words " by inscribing enfaux,^^ read " upon an inscrip-
tmi defaiu'.^'

•'231. Counter letters have effect between the parties to them only : they do not
'* make proof against third parties.''

Instead of " do not make proof," read " have no effect." (C. N., 1321.)

'* 234. Copies of notarial instruments, certified to be true copies of the original by
*' the notary or other public officer who has the legal custody of such original, are
" authentic, and make proof of what is contained in the original," of which the pro-
duction may always be demanded.

The words italicized ought to be mmkk added to the article.

Articles 237 and 238, should be amended so as to include original
instruments destroyed.

" 239. Paragraph 2. Exemplifications of any will executed out of Lower Canada,
'' under the seal of the Court wherein the original will is of record, or under the sig-
•' nature of the Judge or other officer having the legal custody of such will, and the
" probate of such will under the seal of the Court."

Add the following clause : " Such probata is also received as primd
facie evidence of the death of the testator."

"3. Copies of the exemplification of such will, and of the probate thereof certified
" by the Prothonotary of any Court in Lower Canada^ in whose office the exemplifi-
'' cation and probate have been recorded, at the instance of an interested party, and
*' by the order of a judge q/"sMcA (7oMr<."

Omit the words italicized.

"4th. Certificates of marriage, baptism, or birth and burial of persons {married,
*' baptized, or interred) out of Lower Canada, under the hand of the clergyman or
" public officer who officiated, and extracts from any register of such marriage, bap-
" tism, or birth and burial, certified by the clergyman or public officer having the
'' legal custody thereof."

Add the words in italics.

" 5tli. Notarial co|(ip^ of any power <it' attorney (purporiiittj fo hi) executed out ol'
" Lower Canada, in the ju'escncc (if one or more witnesses, and authenticated before
*' any mayor, or other {Miblic ullioer of the country wliere it hear.-i date, the original
'' vvliereof is deposited with tlie notary public in Jjower Canada.''

Supply the words italicized, and the same in the f)aragi'a}t]i »>.

'* 241. Private writings, acknowledged by the party against whom tiiey are set up,
*' or legally held to be acknowledged or proved, have the same ell'ect in nuvking proof
" between the parties thereto, and between their heirs and legal representatives, a8
" authentic writings."

This article is quite too general. The private writings which arc held
in certain cases to be proved should be specified. The following is sug-
gested in the place of this article : " The following writings arc presumed
to be genuine without evidence ; any bill of exchange, promissory note,
fedule, check, note, or promise, or other act or private agreement in
writing when produced and fyled in any action la which the defendant
makes default, or for any other reason the plaintiff becomes entitled
to proceed ex parte. Such instruments may, however, be denied and
proof thereof required in the manner provided by the code of proce-
dure." Another article might here be conveniently added relating
to protests, &c., produced under chapter 83 of the Consol. Stat, of Lower
Canada. It might read thus : " The protest, notice and service of any
writing included under the next preceding article, if any be alleged by the
plaintiff in any such action, are presumed to have been regularly made,
unless affidavit to the contrary be made in the manner provided in the code
of procedure." (Consol. Stat. L. C, cap 83, sec. 86.) Article 243 would
then be unnecessary.

" 246. Family registers and papers do not make proof in favor of him by whom
" tliey are written."

This is not a good translation of the French, " lea registres et papier 8
domestiques.^^ " Private Registers, &c." would be better.

Sec. III. " Of testimony." The title " Of Oral Evidence" would be
preferable.

" 249. The testimony of one witness is sufficient in all cases in which proof by
" testimony is admitted."

Instead of "proof by testimony," read " oral evidence."

" 250. All persons are legally competent to give testimony except :
"1. Persons deficient in understanding, whether from immaturity of age, insanity,,
" or other cause ;

" 2. Those insensible to the religious obligation of an oath ;

''3. Those civilly dead ;

" 4. Those declared infamous by law;

" 5. Husband and wife for and against each other."

Of course persons who are insensible to religious obligation ought not to
be admitted to testify under oath, but the law should be altered so as
to allow such persons to afSrm, under the penalties of perjury in case

(

of wiltul falsity, tlioir c'RMUI)ility only being aftoctod by their want of
religious conviction. The condition of the persons described in paragraphs
3 and t might also be permitted to go against their credibility, and not
to exclude them altogether from giving evidence.

'•2.')1. Tc.-tiiiiiiiiy H;ivcii liy 11 jmrty in tlic suit ciiiiiiot uvuil in his favor." A'.M
" hill siii-li li'.itiinoiii/ nmiti)l he <liciili-il to hit! picjtulii'c."

Art. 'I'i'l, last claii-'c Imt one, *' In a\\ utlicr mattors, ju'ouf miiibI lit' inttdo by wril-
'• iii^r, "i" I'V tlio (/iitii III' till' parly,'' ri'a<l 'UuU'vise party.''

" '25H. Legal jrt'csniiiptinns arc llmse which aro Hpocially attacliod hy law to certain
*' fact-'. They exempt frmii makiii;: other jiroul' tlmwe in whose favur ihey exist;
'• certain nf them may he cniitradioleil hy other jiruof; others are pre-nmpti(jnsj'wm
'' et ({eJHie, and canni't he cinitradicleil."'

Instead of "• making dther proof," rejvl '"' adducing evidence." In the
next line, for ''proof " read "■ evidence.'' This last remark applies also
to Art. 251>.

" 2G0. The authority of a final judgnu'iit (res jmliraiu) is a presiunption jiois et
'^ de jure, it a[»plies only to that which has been the object of the judgment, and
" when the demand is founded on the same cau^^e, is between the same parties acting
" in the same qualities, and for the same thing as in the action ailjndged upon.''

Add " The successors or representatives of the parties in the action
adjudged upon arc reputed to l)c the same as those parties."

*' 265. A party may l)e examined untler oatli in like manner as a witnesn, or upon
" interrogatories on faita et articbs, or by decisory oath. And the Court may in its
" discretion examine either of the parties, in order to complete imperlect proof."

Omit the words in italics, and for " proof" read " evidence."

'* 266. The decisory oatli may be otl'ered by either of the parties to tlie other upon
" any issue raised in an acfivn in which the parties may legally bind themselves by
** admission or compromise, in any state of the cause, and without any commence-
*' meat of proof."

Instead of the words italicized, read " in any action."

*' 268. He to whom the decisory oath is offered, and who refuses to take it, and
" does not consent to refer it to liis adversary, or the adversary who refuses to take
** it when it is referred to him, fails in his demand or exception."

Omit the words " consent to " as worse than useless.

In Article 272, instead of "joint and several creditors or debtors," read
" creditors in solido,^^ &c.

§ 2. " Of the oath put officially." The word put is objectionable.

This title ought to be " Of the oath called juramentum judidale^^' as in

Pothier and the Code of Louisiana. In Art. 273, instead of " some proof

has been made," read " some evidence adduced." If proof had been

made, the supple tory oath would not be needed.

<' 274. The oath put by the Court officially to one of the parties cannot be referred
•" by him to the other party."

Instead of put hy the Court officially^ read tendered by the Court."
The same remark applies to Article 275.

,'i'