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Tous les autres exemplaires originaux sont fiimte en commen9ant par la premiAre page qui comporte une empreinte d'impression ou d'illustration et en terminant par ia derniAre page qui comporte une telle empreinte. Un des symboles suivants apparaltra sur ia darnlAre image de cheque microfiche, soion le cas: je symbols — »> signifie "A SUIVRE", le symbols V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent Atre fiimAs A des taux de reduction diffArents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA, il est f limA A partir de I'angle supArieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants lllustrent la m4thodo. ^^ "l;^ •: 2 3 f • i- 3 ♦ •' ••' , 6 S Y N 1* S I S Ol- IHt CHAxNGES IN THE LAW EFFKCIKD 111 THK OIVII. CODE OF UiWKH CANADA. 0) T. McCORI>, Advoc.vtk, blXUCT.VKY It Tlir; CODIFICATION COMMISSION. T r A W A : (1. K. DESHA U ATS. I'R I N T K T. . \m\. red according to the Act of the Provincial Legislature, in liousand Eiaht Hundre.' and Sixty Six, by Thomas Mo( ok Eogi^tyrt year One Tliousand Eight the Office of the Registrar of the Province of Canada. tlu' OKU. in ,k I. ^- The coriipletion oi" the Civil Code, of Lower Canada is an event which forms an epocli in onr history, and is snggestive of many considerations. In the retrospecl, it Ijrinis to mind tlie long and ai'd\ious labor, the study, research and learning bestowed npon lli<' work, by the eininent legists (nitrnstcd with its elaboration ; it announces the successful attainment of a result, aimed atbvthe enlightened patriotism, and achieved by the ability and persevering energy of a statesman whose name must evei "remain coniieeted witli the Cod.; ; and it presents to us our civil laws rescued from antiquity and chaos, and embodied in a form which renders them accessible and intelligible to all classes oi the people whose rights and jn'operty they control. Prospectiv.dy, file Civil Code promises uniformity of juris prudence, wliich contributes to diminish litigation and add to the stability and security of our civil rights, it olTers great ad ditinnal means of legal education, from wbich may be expected .-i higher standard of professional excellence. It will ensure amonu tlie ^individual members of society, a more intimate acquainlan.-c with their reciprocal rights and obligations, tending to increase and facilitate business r.dalions, and to promote the material welfare of the community, Moreover, as a conservatory barriei' against the continual inroads of fragmentary legislation, it is an earnest of stability in tin; law itself. In view of a union of the Dritish American provinces, the t odification of our laws is perhaps better (-alculated than any oilier iivail;iblo mcnii!? lo scciin! to Lower CaiKi.la an advantage nhieli flu,' proposed plan ofconfederatioii appears to have already eontcmplated, that of lu-ing the standard of assimilation and unitv. and oi' entering inio new political relations without under- •.'.ling ilislurbing alterations in her laws or institutions. Such an' the main i'ealun's presented by the Civil Code, regard- ed as an enihodinient of existing laws, hut it has yet other advan- la^cs as a work of legislation, inasmuch as itintroduces numerous ;ind important amendments, intended for th(^ most part to im- prove our law as a system, and lo ado|»t it more perfectly to our |)i'esent slate of society. l( is evidt iitly of great im[»ortance, lliat when Iho (Jode comes into IVtrce, ll»<>se I'hanges in Ihe law should he known before- hand, at leasl to the profession, it not to Ihe (Ninuiuinity at large. They are ilisiinguisiied in the Code by iheii' insertion between brackets. IJnl, as the l'orm(U' law eoi'responding with them, as e.xhibited in the Draft, has (lisa[i[ieared. a previous kimwledge of it is necessary in older to nndei'stanil clearly the dilTerenci; holwcen the old and the ui w inles ; and, as the observations made by tin; Coaimissioneis, in reporting upon these amend- ments, no lunger accompany the text, a like ditlicnlty exists in ascertaining iiu' reasoiis whic,h suggesteil eacii parlieular amend men!. Toob\iate tiiese dithcnlties, and to IV.rnish a [»ron!pl and an easy method of becoming aeqnainted with llu^ new legislation of lh(! Code, Iho h)llowing synopsis has been written, (ireat care has b(>en taken to present as succinctly and clearly as pos- sible all Ihe chang(>s introduced by tlie (lode, ijassifying them according to Iheir charactei' and nnjtives, and referrhig in every case to the number of I lie article containi!ig llu' amendm.ent. Of I li(>se changes generally, it may l)i» remaiknl at tlu^ oufsel Ihat Ihey are not of a subversive chai'actiu', or likely to disturb existing relations or to clash with prevailing notions. They are on Ihe contrary of a nature lo harmonize with Ihe ideas ol the present (lay, and lo adapt our ancient laws to tlie changes whii'h since llunr date society itself has undergone. It is one of llu; cliaiacleiistics of the olden legislation that il appears to have had in view 'I'hings before Persons. The conser vative spirit of the law socins lo have clung to immov(;ables as the >afe-t basi< of social slability, and its policy tended lo restrict lalher than to encourage tho couvoyance of real estate. Hen.-.- the numerous distinctions of prop-rty and the diiTerent rules of law to which Persons wre suhject in respect of each kind u' Thing. Hence loo, tlie old rule •• TradiHonibus non mvlis pactis dominia rmim transfn-untur;' and similar maxims. Hence also I he facilities affonhMl for getting back alienated property hy means of rrtmitx^ rcmcrh^ and rntltutions. On the other hand, in mod.n-n society the freciuency and nn.l- liplicitv of transactions have become so great that real properly now changes hands as rapidly as moveables did formerly. \crreements and promises are practically dealt with as repre- .miting the objects to which they relate. The tendency of the a-o is' to make Things subservient to Persons, and to bring immoveables as well as all other things under complete subjec- tion to the will of man, without any other restriction than ,i due irgard for the rights aid interests of others. In order to adapt the old law to tho new state of society Ih-' Code has introduced a number of new provisions. Some ..! fhL'se are intended to facilitate the free exeirise of mans dominion over property. Some, by rendering contracts and other expressions of man's will detinitive and reliable, aiv Fni:r: ni.POSAi. ok I'noi'Eirrv. These mav be enumerated as follows : Under the E'lU -7r.s secowlcs noce^, in force here, a wido\Ner, having children and intending to remarry, could not settle by oift upon the wif.> be was about to take, any more than a very Umited portion of his property. He might however, subject to a eomparatively slight restriction, siive away his property to a stranger, or will it away entirely, without any restriction whatever, even to his second wife. This anomaly is removed for the future by article 764, which al)olishes the provisions n'l the Edict, and has the further advantage of favoring marriage. Hithei'to gifts made in favor of an ascendant, who had licen tutor or curator to the donor, were null if the ascendant had remarried, or they became so if he afterwards married before the death of the donor. This double restriction, upon the disposal of property and upon second marriages, is removed by article 767. Gifts could not legally be made in favor of persons wifli whom the donor had lived in concubinage, nor in favor of the donor's incestnons or adulterine children; and illegitimate children, not incestuous or adulterine, could only receive from their parents to a very limited extent. These restrictions are in a great measure removed by article 768, which places illegitimate children, not incestuous or adulterine, upon the same footing, as regards gifts, as other persons, and allows concubinaries to make gifts in favor of each other wdien they are contracting marriage ; a provision which certainly appears to be more consistent with morality than the former rule. Gifts made in favor of the spiritual, medical, or legal advisers of tlie donor, were liable to be reduced or set aside, upon the presumption of their having been obtained by undue influence. This presiimption has no longer any foundation, and as, even in the matter of wills, where there might sometimes be cause for it, it is no longer recognized, it is properly abolished by article 769. ruder this article, undue influence, in these as in all other cases, must be proved. According to the ancient law, children were entitled, not- withstanding any previous disposals by will or by gift, to one half of the share they would have had in the succession of their parents, had no will or gift been made. All gifts and legacies were liable to contribute to this legitim, and were therefore in so far subject to be annulled. The statute of 1801 removed this reservation with regard to legacies, and some were of opinion that its provisions extended by implication to gifts likewise. All uncertainty upon this point is removed l)y article 775, which abolishes legitim. Gifts of moveables, not immediately delivered, were not valid under the old law unless the deed contained or was accom. l»auied by an enumeration of the property given. Article 786 dispenses with this formality, and article 788 adds further faci- lity for the conveyance of property by gift, by providing that the acceptance of a gift needs no longer to be in express terms, but may be inferred from the deed or from circumstances. The intention of a testator, or of a donor, to prevent the pro- perty bequeathed or given from being alienated by the legatee or the donee, had no eflect under our former law unless the deed mentioned some sufRcient motive for such intention, or imposed some penalty in case of non-fullllment. Article 972 frees pro hibitions to alienate from these obstructive formalities. Article 1267 allows minors, provided they are duly assisted, to make in their contracts of marriage all such agreements or gifts, in favor of their future consorts or children, as contracts of this nature admit of. Our former law restricted their right in this respect to certain portions of their property. Although the article has chiefly in view the favoring of contracts of marriage, its effect is also to assist the free disposal of property, and it^has for convenience been included in the present category. \f But the most important change introduced by the Code in connection with the free disposal of property, is the adoption of the principle that consent alone suffices, without delivery, to convey ownership. This new rule of law, in direct opposition to the old familiar ma.\im '•^ traditionibus )ion nudis pactis^ ^c." and especially its applicaticn in positive terms even to third parties, created at first some alarm in the minds of persons who had not br(jught to bear upon the subject as much study, knowledge, and reflection as the Codification Commissioners had done. Among those may be safely counted the Quebec Hoard of Trade, which in a laconic petition to the Legislature, "'• objected" to the then proposed amendment " as tending inju- riously to atlect the interests of third parties, by ofiering induce- ments and facilities for secret and fraudulent transfers of pro- perty." That these fears were groundless is sutficiently shown by the experience of over fifty years in France, where the courts have persistently maintained the new doctrine in its full extent, notwithstanding the doubtful wording of the Code Napoleon as regards third parties. That the rule is not a dangerous one 8 > y i:iiiy also lit! iuforred fi'uui tin; i'act of its Itoiiig adoploil in the ('.ode of Louisiana aiuliii the Codes of several of the States of I'iurope, and from its more recent enactment in England by the i!!iperial statutes of l.^.")(), chapters 00 and 1)7. Practically, the n; ly (liif(,'n!nc(.' bet\v(!en tin; two systems is, that under the Code the want of delivery cannot Ito invoked against a purchaser in i;oi)d faith ; that against a purchaser in bad faith, the well e.>',ablished rule that fraud must be firoved obtains in this as in olher cases ; and that the absence of delivery, altlnmgh it may afford strong evidence of fraud, cannot constitute a presum[)tion Juris et dc jure. Artiide 1025 lays down tht." principle. Its appli- cation to innnoveables is. however, in the interest of thii'd parties, subjected by article 1027 to the provisions of the Code concerning registration. The same article also declares, as regards moveables, that of two purchasers of the same thing, from the same ownei', the one who is in Iio)k1 fide possession of il shall be deemed owner. The reasons of this e.Kcepfion are the ,dmost impossibility of foliowiug a moveable when it passes llirough many hands, the inconvenience and expense of annulling the several transactions by which it v/as transferrtMl, and the cfjnsequent embarrassment !' commiTcial dealings. The sufTiciency of consent without delivery is applied to Gifts liv article 777, and by article 795. Tin." former declares delivery unnecessary, and gives donees, whose deeds are registered before the donor's cb^ath, a right to claim from his heirs things given but not yet delivered. The latter declares acceptance, without delivery, sufficient to complete gifts inter vivos. Article 1472 applies tlie same rule to Sale, which it conse- quently defines as a contract by wdiich a man gives a thing for a price, ^c, instead of, as formerly, a contract by whicdi a man obliges himself to fjive Ihc eiijoymetit of a thing, ^c. As a corollary of this definition it follows that a person tannot sell what does not belong to him, and that, if he does, iie is liabh; in damages towards any purchaser ignorant of the fact. This is declared in article 1487. But, in order to avoid practical inconvenience, article 1488 admits the validity of the sale when the matter is commer- cial, ov when the vend(jr afterwards becomes owner of the thing. It also retains the rules of tlie old la\\ with respect to things lost or stolen. These, when bought at a judicial sale, cannot be reclaimed, and when bought in a fair or market, at a public sale, t 9 ui' from a trader dealing in similar arlicle.>. can unly he n'cl.uui- 0(1 upon rnimbursiiig tlio price paid for thcni. Following o\it the same principle, article 1493 declares thai lh.> vendor's consent to the buyer's removal of the thing sold, wht-n there is nothing to hind 'r such rem jval, is sufiicient to satisfy the obligation to deliver. Article 1570 renders the sale of debts and rights of action perfect, between the buy(n' and the seller. Ity the completion of the title, if authentic, or the delivery of it. if it is mider private siguatui-c. And article 1579 obliges a per- son who sells a right of sticcession, without specifying the pro perty of which it consists, to warrant his right as heir. Under the old law- he only warranted the existence of the succession. Under article 1598. Kvchauge. like Sah'. is completed by con- sent alone. Another branch of the law iu svliich iuiporlanl cluiuges luivr been made with the view of facilitating the disposal of property, is that relating to wills. The formalities attending these .icu have been simplihijtl. and the English and the French forni> have been mor.' nearly assimilated. Thus, article 843 simplifies the French form by dispeusing with the formality of dictation, (r/tc// el noininct, and the reading over of the will a second time ; and article 844, as regards the same form of wills, allows aliens to be witin'sses, anil reijuires thai the witnesses shall be of full age. In tlie latter particular there is a slight restriction, not found in the old law which allowed persons over twenty years of age to b.> witnesses. WhiMi the age of majority was twenty-five years, there was some reason for admitting witnesses under that '~ .') and above twenty, but sim'f I he full age has been ii.xed at 'wenty-one the reason has no longer the same fore. It is almost useless to make a sp(>cial category of persons between tlie ages of twenty and twenty-one. aud this rule, r-'cjuiring the witnesses to be of full age, has. moreover, the advantage of being the same as thai which applies to wills in the Knglish form. Under our former law a will could not be executed before notaries who were related or allied to the testator to the degree of consins-german inclusively, nor before notaries and witnesses eery nearly related or allied to one another. Article 845 gives a more simple and definite rule, by removing allogether the 10 Lricompettnioy of witnossos by reason of relationship or ailianrf, and rostriciin;? '.lio prohiliition, as regards notaries, to those who are relat^i or allied to the t^^sfator, or to each other, in the diieci line, or in the degree of nncle. brother, or nephew. Hitherto legacies made in favor of the notaries or wii'H'ssi!,-. before whom a will wa'^ exeented. oroftlieir relations or con- ueotions to the degree of consins-gerinan inelnsively, were no* only nnll, bnt had the eflecl of aiuinlling the whole will. I. Indtn avticlc 846, this nullity is limited, as regards the legacies, \n those made in favor of the notaries or witnesses, of the wife of ;:n,v snch notary or \n itness. or of any relation of his in tint firs* degree, and, as regards the remainder of the will, is done awuy v;ilh : the nullity of the leg. icy no longer entailing that of Ih" whole will. Article 853 contains simiNi;' provisions respecting wills in iIk^ Enulisli form. (Wcejit that, as ftniiales may be witnesses to these wills, husbands of witnesses an' added to the I'ategory of those ;o whom legacins cannot validly be made. \rtieie 847 jiiovides a mode l»y which deaf nmtes, and others ,<.!iocaimoi siie.'ik. it'ay make wills in the authentic or French '.'orm. The amendment was only needed for wills in this form, ;■'' the existing law already afforded these persons the means of m. iking wills in the holograph I'orui. (art. 8r)()), or according lo tiie form derived from thi' laws of I'lngland (art. Hfi'iJ.l Article 851 enarts that, in wills in tlie Mnglish lorm, ihi^ twi witnesses must ;itte.-,| the signaturt; at the same t'me, and the testator nuist [)roduce the will, and acknowledge his signatn ■> to it, in their jiresence. Tnder the old law the witnesses did not v'iiniri! to attest the will a! the same lime, nor was the same ac- knowledguH'u' necessai'v. This article nmroover subjects nmve- able properly to the same furniauiies as innnoveable property, though formerly it might, according lo the Knglisli form, be willed by means id' any writing of a nalm-e to indicate the in lenlions of the testator. These provisions, vK.'wcd in relation to wills ill the Knulish form milv, are certainly ri'strictive, bu'. ' it t w ' considered in rel.ition to the snbject of wills g(Mi(M'allv, and as.in ai>iiioxiniation lo the authentic form, they contiibute lo simplify oui' double system, JMid by ihis means indirectly facililalo tie- disposal of property. For these reasons Ihey have been in<':i tioned under their pre«i(«iil lie.id. } 11 Other provisions adapted to fa»'ilit;ilc the disposal of property, (rights and claims being considovrd as such,) are to ho found in ^srliclo 1155 which allows conventional subrogations to be made t'V privat(» writings, and provides that such subrogations shall hooome effectual against third parties by means of registration, Die old law i-cquired tlial subi'ogations should be made l)y authentic deeds. "^ 111. Tlie next idass of changes to b' noticed I'oiisists of those whi< 'i^. ',avc in view the Stauu^ty of Richts. Under this head are comprised such jprovisions as are intended to maintain contracts in their integrity, and such as lend to pre- serve established relations, either by limiting the actions which might disturb them, or by shortening prescriptions and r un- plifying the rules which apply to them. With a view to the integrity of cnntrai'ts. minors and inter- di(;ted p(M'sons are uo longer relievable from their acts, when they have been legally assisted. It was no doubt considered t}iat such persons are sufficiently protected by the btrmalities without whicluheir interests cannot be ;'Jfecfed, by the presumed Knowledge and intecrity of tht.' tutors or ci.rators appointed to r^'prt^sent them, .'ind hy the rcM-ourse wliii'h they have against, these re[)resei>lalives. Thus, artiele 301 declares that minors are lot relievable from the aeci'ptancc; or renunciation of snccc-- •■ions; but in order to protect them, on the other hand, it pro- vides that tuiors shall ui, longer accejit or renounce successions for their pupils, without judicial auihori'/ation and the advice of a family council. Similar provisions are contained in article 1341, with regard to the ;icceplance of community by a minor wife surviving her hnshand ; in article 307, as regards transac- tion ; in artiele 792, witli nvgard to the acceptance or renuncia- tion of gifts ; and in article 1010. with respect to contracts for the alienation of real [iroperty, or the i)artition of successions. Minors duly assisted, though not generally relievable from sti- pulations contained in their contracts of marriage, were so when ihe gifts or advantages weui excessive ; hularticle 1006 no longer :TCogni/.«'s an\ e\ce|)tio!i, and these stipulations arc now as L ( tlLM-lual a^ tliosc made i-y pi-rsoiis ol' I'liU age. Under article 319 cinanciiialeil Illinois are no longer relievahle from any acis wUirli \\\v. law allows them lo jiei'forni, excepl in so far as |»er- sons of full a^:e would be; and under article 1551, minority does not >n>]i'Mi(l the lapse of the p(n'iod wilhin which a right of ro- di'ni|itioii nnist be exercised. Alth(jui-h in sojne of llie I'oi'egoing artieles interdicted persons are not mentioned with minors, the same rule should apply to bolh, and article ;ri3 declares this l)y m^cessary implication, il not in express terms. As to piMvons of full age, they can no longer avoid their con- Iraeis on the ground of lesion. Such is the enactment of article 1012: and ai'licle 751 i)rev(;nts thiMU from doing so even in the 1 ase of piartitions of succession. As further tending to establish the system of integrity of (•oiitracts. by making them as biu.iing as possible upon the l.aities, .iitirle 1076 provid(;s that th(.> sum sti[»ulated in a con- tiart. as damages for its non-performance, is no longer liable to h' iMoililied by llie court, although, if the contrary has not been spe- ( ially agreed u{>on. il jiei'mits a reduction in cases where the con- iraci has been beneiicially perfor^ned in part, and where the timo iMitiir pei'foi'mance is not material. Similar provisions are con- i.iiiied in aili(de 1135, with respect to the penalty stipulated for il,e uiexreutioi: of the contrael; and article 1149 deprives the ('.ir''uit r.ourt and (.'ionnnissioners' Courts of their power ol ordeiiii.: sums actually jiayable to bo pail by instalmenls. without the cons(Mit of tlie creditor. Under article l(i63 the alienation of [tinpiMty leased no longei annuls the lease, unless the deed contains a special stipulation lo thai ell'eet and is registered. IJut ai'licle 1664 provides tlial if Mudei' Mich stipulation the less<>e is(^\peUod, he cannot reco\ei di'.niagcs. unless he has expros>ly reserved the rigid to do so. Article I1S6 conforms to the same principle of binding parlies to [Kut'orm what they have undertaken, by enacting that the amount paid by a surety for his release -hall no longer go in redn«'tion of the amount dno by the principal d(d)tor. It may. iiowcver. be imputed in discharge (tf the cosnreties. in cases where till y hive a recourse against the one released, and to tin- ( Ttent of that recourse. Tn s.iles til iminov«-able«. the livhl of dissolution for nnu /w ' 13 |jHyi)itut of price, and in gil'Ls of immoveables, tho ripht of rovo- i^tlion for non-fulfllmontof conditions, were rights wliicli, under the former lou, tlnm^h not stij)ul;itod in the contract, might ar, any time put an end to it. In order that the integrity of «"on- tracls sliould not he affected by rights whicli are not stipulated by th'^m, and that Hiird parlies should be protected in all dealings based upon such contracts, articles 816, for Gift, and 1536, for Sale, provide Ihat these rights shall no longer be exer- cised unless they are exjiressly reserved in the deed. AYhen so reserved, they are similar in many respects to the stipulated riglit of redemption of inmioveables sold. All three are limited as to their duration ; their exercise is kept within the terms of tlie contract; and they are governed by similar rules. Some of these rules are in amendment oi' the former law. Thus, article 816 subjects the revocation of gifts for non-fullilment of conditions to the same rules as Ihe dissolution of sale for non-paymeiU oi' the [irice, and does away with the necessity of obtaining a preli- minary judgment coiiilenuiing the donee o fulfil the conditions imposed by liie gift. Article 15518 declares tliat the judgment dissolving a sale for non-payment of price must be absolut(>, instead o'" as formerly, granting delay for the payment and only l)ecoming absolute when sucli delay had exjtired. So long, however, as the judgment lias not been given, the buyer niny prevent its being rendered liy paying tin* jirice with interest and costs of suit. Article 1542, co-Urai'v to the old rule, provides tlia! a suit bronght for the price is not a waiver of the right 'o dis- solve the sale for non-payment ; and article; 1537 subjects this right of dissoliitio'^ to the rules relating to the rigiit of redemp- tion, which are contained in subse(]uenl articles ; anmng lln'se. articles 1548, 1549, 1550 and 1551, contain new law. Articl*' !54S forbids any stijiulalion of a right of ri.'demiition for a period exceeding ten years, and reduces t(j leu years anv longer term stipulated. Articl(» 1549 enacts that the term stipulated must be strictly observed and cannot be extended bv the court ; formerlv the right was not lost bv the exiiiralion of lh(> period agreed upon, and it iiad to h) declared extinct by a formal judgment. Article Ii550 makes the buyer absolute, owner of the tiling if the seller tails to exercise liis right of redemption witiiin the sti]iulated time. Arliele 1551, which has already been noticed, enncls llial the period agreed upon runs even /k> ^ against minors and other inca]);il»lc poi-sons. Fonntrly thc-c rights wore i)rtscril)ed by thirty years, l)ut hy article 2248 no proscription is reqnired, as they are a])sohitely hmited, either i'V tho h\^al tc'rin of tin years, or by aiiy shorter term stipniated. Anotlicr cause of (h'feasancc was the snl)s<'(jnent birtii of children to a donor, by means of wiiicii tin.' gift became mill. Under article 812 a gift can no longer be annulled by this means, nnless the deed contains a stijmlation to that effect. The opinions and habits of former limes may perhaps have justified a presumption that gifts were tacitly understood between the parties to be subject to this resolutive condition, but at the present day no such agreement would enter tacitly into the minds of the contracting parlies. The right of annulling Mio coiitraet tVu" sueh a eause being therefore contrary to the real inttMitiou of the jiarlies, and. mon^ovcr, injurious to f!ie interests of thii'd parties in their relations with the donee, it has very properly been abrogated. Under the old law the i)roperty bi'longing to a substitution was liable to a sultsidiary recoursi, which the wife of the institute could exercise against it, for sectn-ing her dower or her on a presumption that the grantoV of the substitution had in view the advantage of the institute rather than that of the substitute, and was therefore willing to iiromote the marriag(! int(M'ests of the former in pre- ference to the dirtM'i inter(>sts of the latter. Tin? correctness of this presi.mption l!^ en under the ancient system might well be (inestioned, but it is certainly no longer a[i[ilicab[c to our [•resent usage, according tu -which the substitute is generally the party whose Itenelit is chieny in view. Article 954 accord- ingly does away witli this liability, and so far maintains the integrity of the subslilutiou. Anethei' presumiition tending lo annul, if not a contract, at least the writren expression of a man's intentions respecting his property, was tiial in \irlue of which legacies were deemed lo lie revoked when, subse(|ui'nlly to the will, enmity, to certain (!egrees, bad s[iruug up between the testator and tlie legatee. This is auolhei' of those presumptions wbicli have ceased to be well b)tuide(l. The correct iuferiMice at the pi(>sent day would Ik% that if the emnily had the ell'ect of changing the testator's inl^Mitions it would also cause him to revoke the legacy in an * 15 t'xpre.stt maunor. Aiiicle 893 accordingly declares tliat onmily '1oo> !iot I'stablish a presuniittion of vovocation. Tho jirovisions which have in view the niainleiianco of eslah- lisheJ relations embrace the whole subject of prescriptions, whether acquirendi causd^ or librrandi causa, or, according to the language of the Code, adopting that of the Scotch Law. whether liosiiivc or nrtjalivc. These provisions tend to attain their object, some by creating limitations whore none before existed, some by shortening prescriptions already existing nnder the previous law, and others by extending or by simplifying the rules of presci'iplion, so as to secure gi'eater uniformity and the more easy acquirement of prescriptive lights. New limitations ai'e introduced by the following six articles. Article 119, in the case of niarriages contracted in error (U* without free cousiMit, provides that no action to annul the con- tract -hall be brought, if cohabitation has continued for six months after the party has ac([uired full liberty, or has become uw.vre of the error. Article 151, in the case of minors contracting marriage wilhoiil the necessary consent and formalities, pro- vides that the persons whose consent was necessary cannot demand the nullity of the marriage if, after becoming awaie of its having taken place, lh(>y have allowed six nmntlis to elapse without making any complaint. These marriaj^es, now as iDinierly, i)ecome valid when even tacitly a[iiiroved, lait as the lapse of time from which a tacit ap]»roval might be inh-rred was not fi.ved, a specillc limitation was evidi'Ully desirable. Article ii'i limits to the term of two months a husband's right to disown a cliild Itorn to him during his marriage ; and article 224exlends this [irovision to the husband's heirs. Article 423 limits to one year the I'iyiit of a pronrietor to n'claim any dislinguishable [lorlionof his land which by the sudden force of a river or str(>ani has itecn carried on to the [iroi)erly of anolhiM-. Under the old law he could not reclaim it when by liuigth of lime it h.id become a[iparently ineorporalrd with the adjoining [»roperly. This rnl'' was indelinite and is advantageonsly ividaced by that of the Code, Lastly, iUlicle 1040 diclare^ thai contraets t'ntiuvd into bv debtors in fraud of their credilois cannot be set aside at thi' .•>uit of the latter, unless the action is bronght within a year from the discovery of the fraud. 16 Tlio shoi'loning of invscriptions was uut only dcsiral)!*? goiio- r;illy for llie hotter preservation of estnlilishod relations, but il iiail boconie expedient in some instances from llu^ inipi-oved means of modern travelling and correspondence. All parls of the world are now brought into closei- ronneclion and the obstacles of distance and delay have been comparatively removed Al'sences are now so nsual and so fre(|nent that they no longer .mII for exceptional b^gislation. and they so slightly interrupt home relations that absentees hav(! ceased to require years of delay for their jirofeclion. The ten extra years formerly allowed in absentees in tin; matter of prescription have tluM-efore been (!is]K'nsed with, and the old [trescription of ten years enlrr prc- S'lits, or twenty years c/i//T absents^ is now simply oui; often years without distinction. The articles which have been framed in conformity with this change are 2206, 2251, 2?52, 2254, 2255, 3256, 2257. The privilege which tiie chnirh and religious houses formerly enjoyed, of n(^* being prescribed against by any time less than fori \- yi>ars, is abolished, for the same I'easonsas thos(> above given, and. r.nderarticle 2218, prescription may now be acquired against them by thirty years, as against other persons. Immemorial or cente- nary proscription has also, by article 2245, been reduced to the same period of thirty years ; and article 2270 extends this provi- sion even to [irescriptions begun before tln^ Code comes into force. Ai'licle 1116 provides that a joint and several debtor from whom the criMfilor has continued, during ten years, and without reservation, to receive a separate share of arrears ov interest, is relieved from his joint and several liability, ev(Mi for future arrears or interest, or for the capital itself. The period was formerly thirty years, but with us the ten years is quite suffi cient to establish a incsumplion of the creditor's acquiescence, and the shortening of the t(>rm is in conformity with the geiuMal policy of the Code in matters of [irosenption. .\rlicle 2250 establishes a liuiforni neg.'dive pi(^scription of tivo years for all arrears of icnts, rent, interest, and natural and civil fruits generally. Constituted rents were already subject to this limitation, but all the other arrears wei'c only prescrib(>d by thirty years. Uniformity and the maintenance of existing relations are n(»l the onlv motives of this amendment : another I V I f y I reason is I'oundod upon the fad llinl llio <'onvenlional rale oT interest is no longer restricted, and that the evil ol" allowin<; arrears to accnnmlate is in consequonce the more to he apprehended. The time of nearly all the shorter negative prescriptions has been reduced, and tliey have hocn conveniently classified hy articles 2260, 2261 and 2262. Thus, article 2260 enumerates the actions which will be now Itrescribed by five years. It includes some which were formerly subject to a diffinrnt limitation and with respect to which conse- ({uently tlie law is changed. These are ; 1. The action of notaries for professional remuneration. Formerly there was no other limitation than thi.' general prescription by thirty years. •2. The action against attorneys, uotaries, and judicial depositaries, for the recovery of papers and titles. Under the old law this action was prescril)od by five years from the end of the pm- ceedings, when the documents had served, but only by t(Mi year> from their reception, wlum tliey had not been produced, or th',' proceedings were not ended. The cliange consists in fixing the period at five years in either case. ;?. Actions upon claims of ;. eommercial nature. Thisabolishes the former si.x years prescrip tion, and substitutes the period already allowed forarlions up'»:i bills and notes, i. .\11 actions upon sal(>s of moveable eile(l>. Claims of this kind between traders, or between traders and non-traders, would fall undM- the preceding category as commei- eial matters, but tlic article goes further, and , by special!} including sales between non-traders, extends this prescription tn all sales whatever of moveable effects. ."). Actions for hire of labor, or for the iirice of manual. proft;ssional or intellectual work and materials furnished, except such as are hereinaftei- mentioned as btnng subject to a still shorter prescription. These actions under the former law. would have been prest-rilied jiy six years or by thirty. Articl(! 2561 tMiumeratos the actions to which the Code applies a prescription of two years. I. Aetions for seduction or lying- iii exiteuses. The foriiKU' [teriod was five years. '2. Actions for damages resulting from offences or (luasi-olfences, whenever other j)rovisions do not apply ; these formerly lasted six years. ;{. Actions for wages of worknuMi. not reputed domestics, and who are hired for a vear or more, Uuiler tiie old law these 18 actions were prescribed by six or by lliii-ly years, according jl-. the matter was of a commercial nature or not. 't. Actions for sums due sclioobnastcrs and teacliers, for tuition x,id board and lodging furnished by tlicm. The old law required only one year Article !2262 enumerates the actions which nvii subjected to a prescription of one year. Those in which that period chang?s I he previous law are : 1. Actions for bodily injury, not provided for by special laws. These actions formerly came under the general prescription by thirty years. 2. Actions for wages of domestic or farm servants, merchants' clerks, and otlnu' employees hired for less than a year. Merchants' clerks were formerly subject to the six years presi'ription, and the servants or em- ployees iuid a right to recover for one year besides the current year or month, according to whetlier they were hired by the year or by the month. The articles to be next explained an? those which tend to [iroduce greater simplicity, uniformity, or facility, in the mailer of prescriptions. As regards the prescription of moveables and p(>rsonal actions imder our former law, different rules obtained. In commercial matters the English rule governed, by which they were subjected to the lex fori ; in all other matters the French rule prevailed, which subjected them to the law of the domicile of the debtor or the possessor. Then as to the admissibility of foreign or partly foreign prescription, the law was also ditferent. according to whether the matter was commercial or not. Articl(!s 2190 and 2191, partaking of bothsystcms, have adoi)ted a uniform rule, applicable to moveables and to personal actions generally, whether in conuuercial matters or not, and subjecting tliom t(3 \he Ux fori. Under the former ai'ticle prescription entirely ac([uired under foreign law, i)efore the possessor or d{d)tor was domiciled here, may be invoked, if the cause of action did not arise, or the debt was not stipulated payable, in Lower Canada ; and prescriptions partly acquired under a foreign law may, under the same restrictions, be invoked, provided they have begun abroad and are completed under our own law. Prescrip tions entii'(dy acquired in Lower Canada may bo invoked, dating from the maturity of the obligation, when the cause of action arises, or the debt is stipulated to be paid, or the debtor, at 19 I ilie time of the maturity, had his domicile, in Lower Canada ; and Ml other cases, from the time when lie becomes domiciled in that portion of the Province. Under the latter of these articles, prescriptions begun under the law of Lower Canada must be completed under the same law, without prejudice to those uc(iuired wholly or in part under foreign law in conformity with the preceding article. Under our former law possession obtained by violent or clan- destine means could never avail for prescription, but article 2198 adopts the more l ^idtable and logical rule, that when these defects have ceased prescription may commence. Neither the thief, however, nor his heirs or successors by universal title, can by any length of time prescribe the thing stolen. Article 2202 declares that good faith is always presumed ; undei' lb" old law it was presumed when possession accompanied title. The amendment seeks to remove all doubt or restriction from the simple and just rule, which prevails throughout the Code. that fraud or bad faith must always be proved. Other provisions intended to extend or simplify the rules 111 matters of prescription, are contained in following articles. Article 2207, in cases of subtitution, enables the substitute, even before the opening of his right, to bring an action to interrupt prescription ; and, having thus destroyed the only reason wdiy, under the old law, prescription did not run against him, it declares him to be, like other persons, liable to be prescribed against, unless protected by minority or other disability. Article 2232, which should be taken in connection with article 2269, is intended to explain and to limit the application of the old maxim : conlra iioii valcntcm ugcrc non currit prcscriptio. This rule is restricted generally to such persons as are under an absolute impossibility, in law or in fact, of acting by themselves, or of being represented by others. Minors, however, as well as insane persons, are not subject to the prescription by thirty years, nor to that in favor of subsequent purchasers of immoveables with title and in good faith, nor to the ten years prescription of actions in rescission of contracts for error, fraud, violence or fear. Article 2240 applies to all prescriptions the uniform rules which formerly applied only to the short prescriptions, namely, that they are reckoned by days and not by hours, that they are 20 .loijuiivd wiitMi the last day of the> term has exitirod, and lliat tlio ilay on which they coiiiinonccd is not counted. Article 2316 dechu'es tli/it couuuercial debts, althongli pi-escril)('d, may be lileaded in compensation. Under the former law this was not allowed ; the object being, no doubt, to prevent a de])tor in liad faith from paying his debt by setting olF against it pre- scribed claims or notes which he had bought up. The article, liowcver, attains tliis object by providing that, in all cases, prescribed debts can only be pl.;aded in compensation wlieu the i:omp(Misation took place before tb.e prescription. Commercial debts as well as others are therefore ])ronght under one uniform rule. Article 2267 no longer admits of the controversies which frequently arose, as to whether a particular negative prescription was intended by law to establish a presinn])tion of payment, or whether it was an absolute^ bar to the action. Negative prescrijitions are not only dcclai'cd a])solnte, but the article even dispenses with the necessity of pleading them. Article 2268 declares that in the matter of prescription of move- ables, the three years sliall be computed from the loss of posses- sion. This prescription may consequently be set up by any ])erson in actual possession of the thing three years after the dispossession of the party claiming it. Under Ihe old law requiring Ihree years possession, it was difficult and often impossible for the possessor, owing to the nature of moveables and the fre- (juency with which they change hands, to prove the possession of the persons from wliom his own was derived. The article removes thisdilliculty, and also extends the prescription to cases in which the moveable has been stolen ; it being considered that in these cases, as in those in which innnoveables are con- cerned, the good faith of the possessor, rather than the bad faith of the person from whom he derives his title, should be the guide in determining the legality of the possession. IV. The next head to be noticed is that of the Protection of thhid PARTIES. The principal means of protecting third parties, is the pub- licity given to all contracts or claims by which their interests !1 may be affeclod. Nearly all the articles under this head will therefore he found ill the title 0/'/?<'^/,s/j'a/jo??. A few, however, wiiich do not fall under that title, mav bo mentioned first. Article 731 preserves the hypothecary clainisof creditors upon immoveables returned by an heir to the mass of a succession. For- merly third parties having such claims upon property subject to be returiu'd were liable to lose their right of hypothec when the return took place. Article 812 provides that gifts will no longer be subject to be dissolved by reason of the subsequent birth of children to the donor. Article 1313 requires, for the information of third parti(^s interested, that all judgments ord(>ring separa- tion between husband and wife, shall be inscribed upon a posted list kept for that purpose. Article 1336 declares that the non- payment of price, in Sale, shall not be a ground for dissolving the contract, unless the deed contains a stipulation to that effect. This stipulation, followed by the registration of the deed, being a sufficient notice to third parties that the price remains unpaid. Article 932 limits substitutions to two degrees, exclusive of the institute. This restriction enables third parties, acquiring rights upon property, to guard against substitutions without being obliged to trace back the title deeds beyond a limited time. It is also based on other, and perhaps more important, motives, but its benefit to third parties has been selected, for convenience, in order to place the article under the present head. The articles which contain new provisions in the matter of registration may bo enumerated as follows : 661 requires the registration of judgments authorizing the acceptance of succes- sions under benefit of inventory ; 981 declares that prohibitions to alienate must be registered, even as regards moveable property ; 2047 and 2130 render hypothecs hieffectual, even between the contracting parties, unless they are registered ; the only excep- tion being the hypothecary claim of mutual insurance com- panies for the payments due by parties insured ; 2088 does away, for the future, with the provision of the statute under which open and public possession was equivalent to registration ; 2098 requires that in registering wills the date of the testator's death should also be registered : it also provides for the registration of title by descent, and deprives of any effect all conveyances, hypo- thecs, or real rights granted upon immoveables by owners who have not registered their title thereto ; 2100 obliges vendors to 22 remaster llioir stipulalcd right of taking back an immoveable sokl. in the case of non-payment of the price, but allows lliem a (k'lay of thirty (kivri to do so ; 2!01 enacts that all judgments annulling deeds by Avhich immoveables are conveyed or transmitted. or permitting redemption or revocation, must bo registered; 2102 declares that no action founded upon the right of a vendor to dissolve a sale for non-payment, or upon a vendor's right of redemption, can bo brought against tliird parties, unless the stipulation of such right has been registered; 2107 requires that memorials of claims for funeral expenses, and expenses of last illness should be registered within six months of the death, in order to preserve the privilege attached to such claims; 2116 pro- vides for the registration of the right to customary dower; 2119 obliges notnries, on pain of all damages, to see to the previous registration of the tutorshsips of such minors, or the curatorships of such interdicted persons as are interested in any inventories they are called upon to make ; 2126 declares renmiciations of dower, of successions, of legacies, or of community of [troperty, ineffectual against third parties, unless they have been registered ; 2127 requires and provides for the registration of transfers or subrogations of hypothecary claims, and 2178 provides for their being mentioned in any copy of the documents creating such claims delivered by the registrar ; 2128 renders leases of immoveables for more than a year inoperative against third parties unless they are registered ; 2129 declares that no discharge from the rent of immoveables, for more than one year in anticipation, shall avail against a subsequent purchaser, unless it Jias been registered together with a description of the inmiove- ables ; 2146 requires that memorials for the preservation of interest or arrears of rent, besides the formalities already prescribed by law, shall l)e accompanied by an affidavit of the creditor that the amount thereof is due ; 2162 enacts that the provisions under which registrations may be effected in Quebec and Montreal, in separate books according to a certain classification, may be applied, by proclamation of the governor, to any registration division the population of which exceeds fifty thousand souls ; 2175, with respect to the obligation of owners of immoveables designated upon the official plan to deposit a separate plan and book of reference for such immoveables whenever they subdivide them into town or village lots, limits that obligation 23 ,0 ras..s whore the property is subdivided into more than six lots ; and 2182 requires the entry-book and the index tomnnove- ablc^ to i)e autlieuticated in the same manner as the register. Y- I The next and most numerous class of amendments uitro- duc'M-1 by the Code comprises tliosc which tend to the General iMPnovEMENT OE THE UwB, either by rendering them more simple, convenient, or uniform, or by supplying deficiencies, or removing useless provisions. These will be best classified in the order of the titles in which ^''in t°he m'le Of Acts of Civil Status, article 71, for the sake of uniformitv, prescribes that the registers in which acts oi religious pvolV.sion are inscribed shall be authenticated, in the same manner as other registers of civil status ; and article 71 supplies an omission in the law,by providing a remedy incases where a" art of civil status has been entirely omitted from th..^ register. Provision already existed for rectifying such entries, but none to meet the case of their total omission. ^ In the title Of Absentees, article 93, in view ot the modern facilities of communication with distant parts of the world, reduces, from ten years to five, the period after which the pre - sumntive heirs of an absentee may obtain authority to take Itnal possession of his property ; article 97, for the protec- tion of the absentee, obliges the persons obtaining the provisioa 1 .ossessiou to cause the immoveable property to be exam.n.>d bj !l lied persons, in order to establish its condition, and provides ;!::utl^uoi;sation of their report, and the payment of the oxnenses out of the absentee's property. u ,l>e tiUe Of Marriaoc, arliclo m, supplying a dof.oonoy m ,he former law, romlers it i.ic.n.bont ,.pon ll>o on,cer about o „ on,ni.o a man-iagb to ascortain that .l.ere is no l..»al .mpea,. n nt to it, wbonevor tltc last .lomicilo ot the part.es was out " wcr Canada, and Iho bans have not been pnbUshed there, tielelll provides a means of opposins the marr.ago o an ^^ane person, even it he is of age and has not been tnterd.eted. 9'. The riglil of making such o[)[>ositions is given to the noave L rolalions or connections, lo Iht; exclusion ol' others, and in tlie order mentioned in the article. This insanity must howevtn- be established without delay, by interdiction ; and article 143 declares that any such opposition falls to tlie ground, without any demand for its dismissal, if it is not followed up with the necessary forn^.alitii'S and within the delays prescribed l)y th(^ Code of Civil ProcL'dure. Artich^ 157 and ISSsniijcct olficers soleumizing luarriago to a penally not exceeding live hundred dollars, for any infring(mient of Iho rules by which the law reiiuircs thtMU to be governed. In the title OfScparaiiini from Ikd and fjoani ai'ticle 203 supplies a remedy in Ihe event of a wife leaving the residence assigned to her during the pendency of a suit in S(>paralion. The liusband. in such a case, uiay be r(deased from hiso])ligation to pay her an alimentary pension, or, in case she p(U'sists in not returning, when ordered by the court, iier action may be dismissed ; saving her right to bring another. Article 210, for the sak(> of conve- nience as well as propriety, [irovides that a wife who is separated from bed and board, and requires to Ix' authorized for any act lending (o alienate her real property, may apply to a judge directly for such authorization, without being obliged, as for- merly, to seek that of lier hns])aud in the first inslance. In the title Of Filiation^ article 225 prescribes lh(> mode by which a husband may disown a child, and .trticlc' 226 renders that mode indispensable, by declaring that in default of its being followed w ithin the proiiei' lime, the child \vill b'" li(dd lo b(^ legitimate. In the title Of Mimirili/^ Tutorship n)iil luiiaiicipdlidii, ai'ticle 276 reduces froiu three to two the nmnber of tutorsliips which justifies a person in r(?fusing In accejit anoth(>r ; that of his own children excepted. Article 301 remedies a defect in the I'oi'iner law by providing that tutors shall no longer acceiil or renonnci^ succ(>ssions for their pupils wilbiuit the advice of a family council, and that, eviui then, the acceptauci^ can only b(^ imder benefit of inventory. Article 302, confei'ring a benefit upon minors wilbnut pr(>judicing the intei-"sts of any oMier I'.irties, pro\i(les that when a succession has been renounced in behalf (d a minor, it may afterwards, if no one else has acce|)tetl it, be accepted ritle-r fur him, mider the proper authorization, or by ' -«» him, when ho has alUiinod his niajority. Hiil ho must then tako it as he finds it, and suhioct to all sales or other acts legally done during its vacancy. Article 304, for exptMliency and uniformity, i>xtends to fifty dollars the amount for which minors may bring .•in action to r(M'ovcr wages. In the title Of Major it >i lntrrilir>h», Ciira/orsfup and Judicial Advisris^ ai'ticle 344 supj-lies a deficiency in tlie former law by allowing curators, other than the husband or wife, or ascendants or descendants of the interdicted fierson, to be relieved from their charge whenevcu- they have held it for ten years. In the title Of tke Distinrlion of Things, article 388, adoi)ting the law to the manner in which rents are actually dealt with in the prcscMit state of society, declaix^s constituted rents, and all other perpetual or liferents to be immoveables by detenuination of law ; saving those resulting I'rom emphyteusis. Articles 398. and 394 provide for the i-edcmpiion of rents, whether perpetual fu- temporary. The latter, when no reiiubiii'sement of the capital is to take place at their termination, are assimilated in this- respect to hl'e-rents, the redem](lion of whi(;h is provided for in article llUT). In tlu^ title Of Ih'dl Srrri'iiilrs\ a few changes have Imjou inlro duced, in order the Itetter te ad.ipt to the habits and wants of th" pivsent day the rules which govern the relations between neighbouring propi'ietors. Thus, article 514 allows beams to be inserted iii common walls to within four inches of theii' thickness, instead of one; half ol' tli(> lhicki!t>ss as formerly; this distance is however subject to be reduced to tin' one half, in the event of the utnghbour wishing to iiiserl benms on his own side, at the same [ilaci;, or to build a chimney against that portion of tin.- wall. Article 521 regulates the res[iei'live rights of dillerenl proprietors ot se[)arate stories in the same iionse. It [irovides that they all contiibule to the main walls and i-oof, each in [iro- portion to the \alne of his story : and that each makes the llo(U' under his story, as well ;is the stairs which lead up to ii .\iiicle 532 increases, from one loot to hfteeii iuches, the thickness of the counter-wall to be biiill between a [irivy and a common wall, but diminishes, from lour feel to lwenty-on(^ inches, the thickness of wall ie(juireil when the neighbour has a well on the op[H)site side. No coiuUer-wall is howcvei- I'eqnired if the well jr privy is at such a distance from the common wall as 20 is prescribed by muiucii)al regulations or by esta!)li9he(l and focognized usage, or. in default of sucii regulations or usage, at a distance of thi'ce feet. The lliickncss of the counter-wall to bn made when it is intended to build a chinuiey, a hearth, a stable, or a store for salt or other corrosive substance , against a common wall, or to raise the ground or heap earth against it, is left to bo determined by municipal regulations, or estal)lished ant! recognized usage, and in default of these by the courts in each case. In the title Of Succcssiuns, most import'Mil changes are made. The many distinctions of property under our old customary law, which were each governed by special rules in matters of succession, and were a source of so 'unch difliculiy and confu- sion, have been abolished. It matters not under the Code whether property belonging to a succession is moveable or immoveable, proprc or acfjurl. or to whici\ of eight ditTerenl kinds a^ proprrx it belongs; article 599 considers neither ils origin nor its nature, but treats the whole as one inheritance, subject to uniform rules. As regards the order of succession in lh(; collateral line and the direct line ascending, new rul(>s are established. Thus, under articles 626, 627, 628 and 629, which treat of successions devolving to ascendants, if a person dies without issue, leaving a father or mother, or both father and mother, and also brothers or sisters or their children, one half of his succession falls to the athei mother, or to either of hem if the other is d(>ad, and the other half to liie C(dlat(M'als just named. No otlnu- collato- • als succeed to him, although his father and mothei' be dead, if he leaves any ascendants what(!ver ; but one half goes to the ascendants of the i)ateinai line, and the other to those of the maternal line. Uii(h>r articles 631. 632, 633 and 634, which regulate collateral successions, the Itrothers, or sisters, or nephews and nieces, of a jierson dying withoiit issue inherit one half of his property, if lie leaves a fatiier or mother, and the whole of it, if lie does not. If tiiey are the issue ofdid'orent marriages, the property is divided into two eijual portions, those of the whol(5 bh)i>d sharing in l>oth portions, and those of the half blood sharing in one |torlion only. In the event of tlie deceased person leaving none of the relations aliove named, but only more dislant collaterals and ascendants in one line only, the asce'idanfs and eollaierals each ta! i- one half. If. in the 4 1 27 same case, he leaves no ascendants, then one half falls to the nearest collateral in the paternal line, and the other to the nearest in the maternal line. Beside the above changes a few others also relate to the matter of snccessions. Thns, article 649 provides that where heirs do not agree as to whether a succes- sion shall be accepted or renounced, it is hold to be accepted under benefit of inventory. Article 683 declares that, in the collateral line, the beneficiary heir is not excluded by one who accepts unconditionally. This is contrary to the old rule, t.it it IS similar to that which governs successions in the direct line. It is not only more equitable, but has the advantage of establish- ing a uniformity in respect of both lines. Article 712 applies to all heirs, in whatever line of iccession, the rule which formerly governed only heirs in the direct line, or those in the collateral line who were also legatees ; so that in all cases the heir must return into the mass of the succession all gifts or legacies made in his favor. This obligation, however, is not binding when liie gift or the legacy contains an expn^ss exemption from it. Article 714 extends the provisions of article 712 to donees who at the time of the gift were not heirs, but who, at the time when the s\iccession devolves, are entitled to succeed. Article 728. I'o'.' the sak(> of uniformity and convenience, renders general thi; rult} which was formerly exceptional, by declaring that, in all cases, the return of immoveaales by the heir who is also a donee or a l(>gatee may, at his option, be made either iu kind or by taking less at a valuation. In the title Of Gifts inter vivcr. and by trill, article 883, for the sake of simplicity and uniformity, abolishes the privilege which minors over twenty years of age h td. uuler the old law, of bequeathing certain portions of their property. When the age of majority was twenty-five years, minors between that age and twenty formed a considerable class, iu favor of whom exceptioua! provisions miglit justly be made, biit, when the age of majority was fixed at twenty-one years, no suflicient reason remained for preserving an exceptional ruh; in favor of minors during only one year of tluiir mirmrity. Article 848, in view of the facility with whieh notaries may now be procured, enacts that, except in the district ofdaspe, where it may still be difRcull in many instances to obtain their services, ministers of religion can no longer act as notaries and can only serve as ordinary wiliwssos. 4- Aiiicle 871 conUins an amondinoiU wliich is bu' a corollary (if that conlaiiKHl in the title Of ObUnalionx on tlio snbjert, of defaults lart. 1067i. It provides that in cases wlinve, nnder Ihe old law , fiuits and interest arising from a thing iHMpieathefl would not hav(! accrued until after a judicial demand, they may now dale from the time when th(> debtor of tht; legacy is }»ut in defa\ill. Article 8T8 declares that universal legatees ;ind l<>gate(.'s by general title, after they have accepted, are iic'rsonally liable for the debts and legacies imposed upon them by law or by the will, unless they have; obtained benefit of inventory ;and assimilates their position in other respects to that id tbi> heir. This article, however, israthcn-an intiM'prelation of the old law than the inlroduclion of a changt?, and is in harmony with .1 subiequenl article (SKI) which, in llu! matter of s((izinand all the c(»use(iuentrighlsand actions, places legatees, by whatever titl(^, in the sanit; p<)silion as heirs. Articles 881 and 882 relate to the pi'er^uiaiilions resulting from the legacy of a thing which does not i»elong to tin; l(.'stati)r. I'nder the oldlawsucn legacies \V(Mi' valid if the testator was awaie that the thing did not Iji.doiig to him, or if llu; thing bidonged to the heir or legatee ih.u'ged with Iho i)ayment of it ; t he i>resumi>tion being, in oillier r;ise, that ho iulen.bid tin; thing to be procured or the value of it Lo be jtaid in fnlliiment of the legacy. As wills, however, are iKiw drawn in o)'dinary language, and llu; t('stalor has (jvery facility hir giving a clear expn.'ssion of his intentions, no reason I'xisls fur maintaining these presum[»tious. and according to the two articles just mentioned they are no longer recognized. If. however, the tt>3lator, after biMjuealhing Iht; proi)erly of another, should become owiK'r of it, articN; 885 jjrovidtjs thai Ihe legacy uill bt- \alidas regards any portion of it remaining in his succession ; but any alienation of it by the testator destroys the legacy, even Ihough, by reason of the nullity of such alienatuju, the propi'rly should have returned into his succession. Arlicle 889, reversing the rub.' of the old law, declan.'s that, if properly iKMinealhed is hypothecated for a debt du(! by the leslator, the hypothec is bornt! by the particular legah-e. No reason ind(H'd could be givi.Mi for [ho htrmer |»risumi(liou that the leslator uilcnded it to be chargeable to his heir or his universal legatee. Vrtide 897 provides that any alienation whatever l)y the testator, of property by him bequeatlKsd, e.xcopt when it is both 20 involuiUaiy and void, annuls llio legacy; provided his intonlion to the contrary is not expressed. This is in conformity with the rnlo of the French Code, which is more simple, and more in accordance with the correct infeienic from the circumstances, than the rule of the old law, under which forced sales, expropria- tions for puhlics purposes, and sales urged hy pressing necessity formed an exception, and did not annul the legacy. Article 899 declares that heirs cannot he disinherited without all the formal- ities required for a will. Under flu; old law the act of exhere dation needed only the ordinary notarial form. Under our present system these acts \\n\o heconie usfdess, inasmuch as a will disiiosing of the property to other jx^rsons than the one in viewetle(;tually excludeshim from thesuccession ; disinheritances have therefore hceu hrought under the same rules as other testa- mentary dispositions. Arlieles 905 and 924 supply a deficiency in the old law. hy rijason of whicJi wills, in many instances, coul old law only allowe'l this to he done when the altsence was out of Lower Canada. Ai'ticle 911 furnishes a remedy which it was douhtl'ul whether the old law alford(?d. It provides lor the removal of testament- ary executors who do not r»r cannot act. in- who act improperly. Article 930 declares that suhtitntions made hy oth(>r gifts than contracts of marriage may he ri;v(d\ed, so long as they have not openc.'d. unless the snhslitute has accepted. Fornu'rly, the acceptance" reipiired to he more formal than that of gifts in gcJieral ; hut the Code establishes a uniform rule, and any acceptance wliich w Of Oblujallona, article 1047 adopts the doctrine of the French Code, as more e(iuilablc than the old rule, and declares that when a person, who has received a thing which is not due to him, is in good faith, he is not obliged to restore the profits of it. Article 1061 greatly simplifies the law as regards the d(>gree of care which, under the difTerent classes of contracts, is to b(> taken of property Ixdonging to others. It abolishes the old dis- tinction oU'iUpa Idla, culpa Im'sund 6'/(//jrt/friA'.sn)(fl, and establishes liie one siinide rule for all cases, that the keeper of a thing is l>ouud to bestow all tlic^ care of a prudmit administrator, (Ion pvrr drfamilk]. vVrticle 1069 excepts commercial cases from the ordi- nary rule ill matters of default, and subjects them to the more convenient rule of the Kuglish law. according to which, when the time of performance is hxed by the contract, the ilebtor is put in default by tin; ukm-c; lapse of time. Arlich; 1101, adopting the doctrine of the French Code, reverses the rule of the old law under which one of joint and several creditors might release the debtor from the whole of the debt. It is even more explicit than the article of the Code Napoleon, and leaves no roftm for the doubts of modern jurists under that codi?. by declaring that in the case of a(;tual payment alone can tin; obligation be extinguished by i)Ue of the joint and several creditors. Comnun-cial iiartner- ships neve •tbeless remain subject to their own particular rules. Article 1123, for greater simplicity and convenience, and with a view of avoiding unnecessary exitenso, repeals the old rule under which all the codebtors of a tlivisible obligation, which could not bo performed in i>arls, had to be joined in the suit Itroughtto enfurce the obligation. It will now be suflicient to sue that oiu! of the delttois upon whom the performance of the obligation depends. Saving, of course, his nn'ourse against his cod(d)tors. Arlicle 1156 also simplihes the law by declaring that in all cases wliore subrogation may take place of right and hy oitfiation of law, no demand U\ tbalelVecf is necessarv. The old rule required 31 a demand in some cases and not in others. Article, 1164, for motives of con vonioucc and eqnily. provides, that wlien a doht is payable at the debtor's domicile, notice of his readiness to pay- is eqnivalent to a tender, provided he proves that tlic money or l,hing dne was ready for payment at the proper lime and place. Article 1208 pnts an end to the absnitlity of making tlie authen- ticity of a deed depend on the signature of a second notary who, in practice, whatever may have been the law, never was present at the passing of the act, or even knew the contents of the docu- ment. When the contracting parties sign the deed, one notary is now snilicient to give it authencity, and when they do not, the presence and signattn-e of a witness, or of another notary, is riMjnired. The article also amends flieold law by allowing aliens to b(! witnesses. Articles 1233. 1235, 1236 and 1237, when- evt.'r the admissil)ility of oral testimony was formerly limited to rases in which the amount in (juestion did not exceed tvventv- tive dollars, extend that admissiliility by changing the amount to fifty dolbuv, Asimilar change has been made in other articles, and it was desirai)le for the sake of uniformity to make the limi- tation the same in all such cases. Article 1253, as a consequence of tin; change introduced by arlicl(> 1101, already noticed, declares that the effect of the decisoiy oatli snbmitt(;d by one of joint and several creditors, is limited to the sliare of such ereditor in the debt, and the debtor cannot l)y thai oath fri;e himself from liability towards the other creditor. This .article, however, like article 1101 is sidiject to tin; sjtecial rule appli- cable to conmiercial partnei'shiiis. Ml the title Of MarriMfjn Covenants, ^c, article 1265 simplifies tlie law by abolishing tlu' don mntucl^ or nuitual gift by which, under the old law, consorts might recii»rocaIly. but only to a limited extiMit. confer upon each other advantages in tin; event of survivorshii». This speeie-s of contract had not only fallen into disuse, but th(> freedom allowed in disiiosing of property by will had superseded it by allurding consorts a more simple and less restricted means of benefiting each other. Article 1269 enacts that community of properly between consorts caiuiot be stipulated to commence at any other time than from the day of the marriage. According to Pothier, it might, under the old law, be sliiMilaled that it would connnence at any time after tlie mai- riage. though not before. The Code has adopted the rule of the 3: inodorn French law, wliii'liis iiDloiily imtnj siiiiplo and uniform. l»nl moro in liarinony wilh the iialuro of liio niarriaj^e contracl. Arliclc 1297 declares that, withoul authorization, a wifo cannot (d)ligal(^ herself, nor hind the iiropcrty of the coninuiiiity, even for the [Mirposeof releasinj^ herhnshand from prison, or of estai)lish- ing their common childnMi. These; two cases were formerly exceptions to th(; f,M'!i(>ral riilt; rennii'ing that the wife should be aulh(»rized; but as a judicial authorization can always be obtained. (!veu when Ihalof the husband cannot bo had, and as there seems to be 110 reason for dispensing: with it, the Code simplifies the law by applying IIk; same rule in every case. Article 1342, in order to reuKidy a deticiency in the former law, as wtdl as for the sake of uniformity, n-nnii'es thai the inventory made by a wife, after llu; death of her husband, to enable her to renounce the conumuiity, shall he judicially closed, in the same manner as that prescribed by article 13'2i for preventing the continuation of the comnumily belween a snrvi\iug consort and the (diildren i.ssu(> of the marriage. The old law re(juired this judicial closing (d' the inventory in the one casi>. but omitted to do so in the other, although the same reason called for it in both cases. Article 1380 allows the widow, who renounces the community, to rt!lain out of it the wearing ap[iarel and linen in usi; for her [lerson, and also lu>r wedding pi'esenls. The old law allowed her but one suit of wearing apparel. 'i"lu' cliaugt; here aiUipted by the Code riMiders the rule uutre cons(Miant with present notions of propriety, without going as far as the French Code, which allows the wife to retain all jewidi>' whatever. Under this last rule serious injustice mighi, in many instances, bi; do'.io to the creditors of the conuniuiity. Article 1389 requires that in the c.ise of any uutvcable [iroperly bring excluded from the counn.u nily, by a clause ol' rinlizuliiiii in the contract ni' marriage, such properly nuisl be eslablislu'd eillier liy an inventory or by some ('((uivalenl title. It improves the old law in Ibis, that in default oi such inventory or tillt\ which the husband nuist sei^ to, the latter forfeits his right to take back after I lie diss(dntion of the com- munity, such nioveablt> projierty as accrued to him after mar- riage, ami till' wife is allowed to prove, either by titles or b\ wilnessi's, or even Ity coniiiuiii niiiMi'. \\ liatever [iropiu'ty of the sami' kind accrueil to her siib>e(|uently to the same period. In the tiik' Of Salr. article 1.501 di'(laiv< that when an im- moveable is sold with a stalenieul of ltd superlicial ronleii!.. whelher at a certain rate by measurement, or al a certain pricv lor the whole, and really contains more or less than the(iuanlity specified, then the buyer, in the one case, is jjound to i-ivi! back or to pay lor the excess, and the seller, in the other case, is bound to complete the quantity if possible, or, if this cannot be done, h.' must make a proportionate reduction in the price. Article 1502 provides, however, that if the diiference in (juanlity is so iiivai as to raise a presumption that the buyer would not have boughi bad he known it. he may abandon tlu' sale and n>cover back the price and expenses, and such dama.iies as he may hav.- riutlered. Article 1503 excludes from the operation of tlie two preceding articles all contracts in which it is manifest that a certain determinate thing is sold without regard to measuremenl. These three articles, which may b- considered as one, chang.- the existing IunV merely in this respect, that for the sake of simplicity and uniformity, as well asb)r motives of eiinily. they apply the same rule to the case of excess in quantity when tiie property has been s(dd at a single price for the whole, all hong;, with a declaration of its contents. The old law in sucli a ca-- allowed the buyer to have the bcneftt of the excess in iiuanlil;-.. Article 1519 provides that a purchaser who has uuluiowingly bought a property charged with a non-apparent servilmle. under circvmistances which entitle him to vacate the sale, or lo claim indemnity, nuiy bring his action for either rome(h- so soon a- he discovers the existence of tlu; servitude. Under the former law his right of action did not accrue until he was dislurl)ed by tl;r e.\ercise of the servitude. The new rule is evidently more jusi and is moreover analogous in principle with the recent statutory change allowing purchasers of real property lo withhold paymeul of the price, until th ' removal nf such incumbi'ances as may not have become known to them until after the sale Article 1544 provides that in sales of moveables, wluni the buyei fails to take them away, the seller may treat the sale as null, a-- soon as the delay has expired within which it was agreed to remove them, or if there be no such agreement, then from i\w time of the buyei-'s being put in default lo do so. Under the old rule a suit at law was necessary in order lo give the seller thisright, but the wants and usages now existing among us required a more speedy and less expensive remedy. 5 34 In tlio title Of 1. rase owl Jlirr. article 1C08 dcclaros that in tln' caso of fanus the {iresiinied animal lease, resulting from a hol(lin,u by sulferanee, terminates on the first clay of October. This rule is in accordance with the usaj-e of the comitry, i)ui had been omitted in the statute, by which all such lease.-, whether of houses or of farms, were made to end on the lirst oi May. Article 1651 provides that, in leases for two or more years, the lessee shall not bo entitled to any redncliou of rent, by reason of total or partial loss of harvest caus(;d by fortuitous event or Irresistible force. Under the old law, the reductiun was proportionate to the loss, which was estimated at the end of the lease, aftin' compensating the harvests of the pood years with those of the bad. The new rule is more simple, more easy of application, and less likely to cause litigation. Article 1662 regulates the notice to be given to the lessee by the lessui who, under a stipulation to that eifect in the deed, wishes to put an end to the lease in order to occupy the property himselt'. It was formerly a notice of at least one month ; but is now, for the sake of uniformity, assimilated to other mtiices in cases of lease, and is proportionate to the length of the terms at which the rent is payable. Article 1690, adopting a provision which has been found to work well in France and which is much needed here to [irevent frequent abuses, provides that contractor,- who undertake to build, according to plans and si)eciiicati(jns and at a fixed price, cannot claim any additional sum for extra work.>, unless such works and their [»rice are specially agreed to in writing by the proprietor. In the title Of Ln(i)t, article 1766. as a corrollary of the \w\\ rule adopted l»y article lOGi, defines the care which a borrower is bound to bestow upon the thing borrowed to he that of a [)rudent administrator, and In the title Of Dr/wsil, article 1802 makes a similar provisiou with regard to the care which the depositai-y is bound to bestow upon the thing depositc'd. In the title Of Pinincrsliij),av[khi 1848 (leclart>s that wlieu ;here is no agreement concerning the shares of tin,' partners in the profits and losses of the partnership, they share e([ually. Under the old law this was the rule in commercial partnerships only, while in other partnerships, a diflerenl rule obtained, whenever the value contributed by each partner h;id been de(dared. Tin.' 4) 3*) .,ne .ivon in this amendment is quite asoqiu .uloin orainary as " 'c>mmor".l parlnorslups, an.l its application to both ensui.s Hi (oni.ncH. Ml I \,.ticl(' 1879 ••oiTOCls a mistake ,1 n' U-an.tevab.o invoslmmU., and Ihe cc-recUou ,s n,a,le ■"■;T''thf line -Y /./"v,... avticlo 1906 pvovul,. that a vent .'^>s art.- t,.o dato or t„c cctract ^^^^^^^^^ l,..,i,l for it may be rccovored badv. 1"\ ' "™= , , , „„.i.N in lixins at twenty days tl.epcr.od wb.ch undo, tl.o ok . va. undolonnincd. An uncertainty is thus roraovod «h,.:l sat c inconvenient, and n.igbt in some instances be a ™, on ti«a,ion. Article 1911 declares than it an rmnr.™ ", hvpothecated for the payment of a life-rent ,s bronght to Iriirs sale, oris sold by a deed of which a confrmatron •led for, the posterior creditors have the cho.ce of e,ll e ; . ivi ,« the proceeds npon giving security tor the paj^ent o ,e llfe-.^nl, or of allowing tho creditor of snch rent to e local 1 f r a sum equal to its value. The provrs.ons of 1 . c att c nsidered more e„nitable and more conven.en. to b of the fornrer law which gave the "P'- ° ";,''.,'^-^' ° „r ,1,0 rent, by allowing him cither to be coUoca ed to. ts^^l c ,„. ,n re„ni.'C that the creilito,-s should mxesl a suit cic l „ „ the proceeds to prodnce a '"'«-"'• »';,;-;f^^ , V i V and p-rocision which the system of life-assurance, s now a„ai,u.d, and the couveuience of the ';*'-;"'?• "^ * , , su,.ance comp.;ties for estabbshing the valne -^J^^, life nll-ered a rcadv mode of eslalihshing the value of Ufe-rcnts I'nllbas been done by Hxing ,he valne at sttch a sum as 3G would l>e ^\ifi:ii(Mit to [>ui'chaso Irom a Ure-assuranco company a lifo-aunnity of like amount. la tlic title Of Trtinmclinn, article 1923, enacts tliat a contract of transac.iiou uiiOii any wrilin,!,^ suhscquontly tliscovored to be false is null. Under the old law it was null only in so far as it ili'ponded upon such writing. The new rule is more equitable and logical for the reason that in transactions all the ditfercnt flanses depend upon each other, and each is a part of the consi- ileration without which in most cases the transaction would not tiave l.ieeu entered into. In the lille Of PlctUjo^ article 1971 permits the stipulation by the [liedgee that in default of payment, he shall have a right to retain the thing pledged. Such astipulation, under the old law, was forhidden,and the pledgee could not retain the thing except inider the judgment of a court, and at a valuation expressly made for that purpose. The former rule was intended to pre- v(.'nl usurious transactions, but under our law, which allows the stipulation of any rate of interest, there is no longer any reason for the restriction. In the title Of Pricilcgcs and Jlijpolhccs, articles 2603 and 2009. as an equitable restriction in favor of the general mass of the cre- ditors of an estate, limits the privileges for expenses of last illness, wlieu the disease was a chronic nature, to those incurred during tlie last six months before the decease ; and, for the same reason, iiiiicle 2006 limits the privilege of domestic servants and hired persons, upon the moveable property of the debtor, to the wages due for one year previous to the time of the seizure of the property, or tlu^ diMlh of the debtor ; while the privilege of clerks, apprenti( OS dud journeymen, upon the merchandise and effects contained iu the store, shop, or workshop in which their services were rendered, is limited to three months. In the title Of Rrgistnilion of Real RhjIUs, article 2146, for the sake of simplicity and uniformity, enacts, for all cases, that the memorial to be registered for the preservation of arrears of interest, or rent, must be accompanied with an affidavit of the ••reditor that the amount is due. This formality was previously required only when the deed was not in authentic form, but there seems to be no reason for any exception in such cases, and the aflidavil is now required whether the deed be authentic or not. In the title Of Insurance, article 2548 settles a point upon which !)j i4. d,nciv.il,n,iau)iiM"''^v;ule.!. It (ler!;tn'. thai upon an arrrptcl alaudonineut of a .hip. tho f.visht oarn<-.l aChM^ tho loss h..on,s to the insurer of Iho ship, and llml l,hc IV.ight carnod prev.ousl.v hplou'- oilhor to th.) ship-owner, or to \h- insurer on fnMghl, t<. whora it is ahandoncd. r^omo wen; oC opinion tiiat the insur.T was entitled to tho whole freight, otliers ti)at he was enlitled t(. noui-. The Code, as an eqnitahle eoniprnniisc adopts tiie ri.<'